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Domain Protection LLC v. Sea Wasp, LLC

United States District Court, E.D. Texas, Sherman Division

November 4, 2019

SEA WASP, LLC, ET. AL. Defendants.



         Pending before the Court is Plaintiff Domain Protection's Motion to Disqualify David Vinterella From His Dual Role as Both Witness and Counsel for the Defendant Sea Wasp (Dkt. #150). Having considered the motion and the relevant pleadings, the Court finds that Domain Protection's Motion is DENIED.


         On December 11, 2018, David Vinterella (“Vinterella”) provided testimony as Sea Wasp's only witness in opposing Domain Protection's Motion for a Preliminary Injunction (Dkt. #150; Dkt. #160). Vinterella's testimony was provided over a course of three affidavits. In those affidavits, Vinterella attested to the following:

(1) that Sea Wasp is an accredited registrar of domain names by the Internet Corporation for Assigned Names and Numbers (“ICANN”); (2) that Sea Wasp is the current registrar of record of the disputed domain names as a result of Sea Wasp's 2017 purchase of the assets of its predecessor, Dark Blue Sea Pty. Limited d/b/a; (3) that the domain name portfolio has been the focus of an ongoing ownership dispute since 2014; (4) that the disputed domain names were placed under an executive lock by Sea Wasp's predecessor in 2014, and was active when Sea Wasp purchased the domain name registration business; (5) that Sea Wasp restored and is currently maintaining the executive lock on the disputed domain names; (6) that unauthorized changes to the name server data on the domain names were made; (7) that Sea Wasp worked to restore the status quo on the domain name portfolio by: (i) reversing the unauthorized changes made to the name servers on the domain names, and (ii) ensuring that the executive lock was active on the entire portfolio; (8) that despite the executive lock, Plaintiff retained the ability to renew domain names that were set to expire, that Domain Protection received daily renewal notices for expiring domain names, and that Plaintiff failed to renew the domain names; and (9) that ICANN policy and procedure validates the actions taken by Sea Wasp to preserve the status quo.

(Dkt. #160). In making these assertions, Vinterella stated: “I have personal knowledge of the facts stated herein through the routine performance of my duties as counsel at Faia working on behalf of Sea Wasp” (Dkt. #60, Exhibit 5). Then, on February 29, 2019, Vinterella made his appearance as co-counsel in the present action (Dkt. #150) (citing Dkt. #95).

         On May 24, 2019, Domain Protection filed Plaintiff Domain Protection's Motion to Disqualify David Vinterella from His Dual Role as Both Witness and Counsel for the Defendant Sea Wasp (Dkt. #150). Domain Protection argues that because “Vinterella was offered by Sea Wasp as a witness in an effort to establish essential facts in opposition to the preliminary injunctive relief requested by Plaintiff, ” the Court should disqualify Vinterella (Dkt. #150). Specifically, Domain Protection claims that it is “unfairly handicapped in its ability to properly test and argue before the Court as to the veracity of Mr. Vinterella's testimony as a witness” (Dkt. #150). Sea Wasp, through Vinterella, opposes Domain Protection's Motion (Dkt. #160). Sea Wasp argues that “while these attestations were made by [Vinterella], these statements could have also been made by other personnel at Sea Wasp” (Dkt. #160). Sea Wasp points to four other individuals who have “unfettered access to the same business records data maintained by Sea Wasp that was utilized in the creation of these affidavits; thereby, rendering [Vinterella's] testimony not necessary” (Dkt. #160). Thus, Sea Wasp argues that Vinterella's statements were not “necessary” to establish an essential fact and he should not be disqualified (Dkt. #160). Additionally, Sea Wasp argues that because Vinterella is not an expert witness and will not testify at trial, Vinterella should not be disqualified (Dkt. #160). Domain Protection counters that Sea Wasp has erred in its understanding of the law and that Vinterella should still be disqualified (Dkt. #163). The Court now considers Domain Protection's Motion.


         The Fifth Circuit has “made clear that ‘disqualification cases are governed by state and national ethical standards adopted by the court.'” FDIC v. U.S. Fire Ins. Co., 50 F.3d 1304, 1311- 12 (5th Cir. 1995) (quoting In re Am. Airlines, Inc., 972 F.3d 605, 610 (5th Cir. 1992)). In the Fifth Circuit, when considering disqualification of an attorney, district courts generally rely upon the following: (1) the local rules in the district; (2) American Bar Association's (“ABA”) Model Rules of Professional Conduct; (3) the ABA's Model Code of Professional Responsibility; and (4) the state rules of conduct. Horaist v. Doctor's Hosp. of Opelousas, 255 F.3d 261, 266 (5th Cir. 2001); Ayus v. Total Renal Care, Inc., 48 F.Supp.2d 714, 714 (S.D. Tex. 1999). Beyond the various rules and codes identified above, “[a] court should be conscious of its responsibility to preserve a reasonable balance between the need to ensure ethical conduct on the part of lawyers appearing before it and other social interests, which include the litigant's right to freely chosen counsel.” Woods v. Covington Cty. Bank, 537 F.2d 804, 810 (5th Cir. 1976) (citing Emle Indus., Inc. v. Patentex, Inc., 478 F.2d 562, 564-65 (2d Cir. 1973)).

         In the Eastern District, “the standards of professional conduct adopted as part of the Rules Governing the State Bar of Texas shall serve as a guide governing the obligations and responsibilities of all attorneys appearing in this court.” Eastern District of Texas, Local Rule AT-2. In Texas, disqualification is a “severe remedy.” NCNB Tex. Nat'l Bank v. Coker, 765 S.W.2d 398, 399 (Tex. 1989). Motions to disqualify are subject to an exacting standard both to protect a party's right to counsel of choice as well as to discourage the use of such motions as a “dilatory trial tactic.” Id.; Tex. Disciplinary R. Prof'l Conduct 3.08 cmt. 10.


         ABA Model Rule 3.7 provides “[a] lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” Texas Rule of Disciplinary Conduct 3.08(a) provides “[a] lawyer shall not accept or continue employment as an advocate before a tribunal in a contemplated or pending adjudicatory proceeding if the lawyer knows or believes that the lawyer is or may be a witness necessary to establish an essential fact on behalf of the lawyer's client.” Diamond Consortium, Inc. v. Manookian, No. 4:16-cv-00094 (E.D. Tex. May 31, 2017) (citing Tex. Disciplinary R. Prof'l Conduct 3.08(a)). As the Supreme Court of Texas has stated, “[t]he fact that a lawyer serves as both an advocate and a witness does not in itself compel disqualification.” In re Sanders, 153 S.W.3d 54, 57 (Tex. 2004) (citing Ayres v. Canales, 790 S.W.2d 554, 557-58 (Tex. 1990); In re Chu, 134 S.W.3d 459, 464 (Tex. App.-Waco 2004, orig. proceeding); May v. Crofts, 868 S.W.2d 397, 399 (Tex. App.-Texarkana 1993, orig. proceeding)). Rather, a more exacting standard is required. See Coker, 765 S.W.2d at 399.

         Under Texas law, “[d]isqualification is only appropriate if the lawyer's testimony is “necessary to establish an essential fact.” Id. (citing Tex. Disciplinary R. Prof'l Conduct 3.08(a)). To establish that disqualification is appropriate, “the party requesting disqualification must demonstrate that the opposing lawyer's dual roles as attorney and witness will cause the party actual prejudice.” Id. (citing Ayres, 790 S.W.2d at 558). For instance, “disqualification is inappropriate under Rule 3.08 when opposing counsel merely announces their intention to call the attorney as a fact witness without establishing both a genuine need for the attorney's testimony and that the testimony goes to an essential fact.” In re Garza, 373 S.W.3d 115, 118 (Tex. App.-San Antonio 2012, orig. proceeding) (citing In the Int. of A.M., 974 S.W.2d 857, 864 (Tex. App.-San Antonio 1998, no pet.)). Disqualification is appropriate, however, when counsel “effectively ‘testif[ies]' as [the sole] expert witness in [a] controverting affidavit in order to defeat [another party's] motion . . . .” Mauze v. Curry, 861 S.W.2d 869, 870 (Texas 1993). Disqualification is additionally appropriate even if counsel is not serving as an expert. See Southtex 66 Pipeline Co., Ltd. V. Spoor, 238 S.W.3d 538, 544 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (citing Mauze, 861 S.W.2d at 870). When considering whether to disqualify an attorney, “preservation of a popular faith in the judicial system is a primary consideration.” U.S. Fire Ins., 50 F.3d at 1311-16. As the Supreme Court of Texas has stated, “Rule 3.08 is grounded principally on the belief that the finder of fact may become confused when one person acts as both advocate and witness.” Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 422 (Tex. 1996). To be sure, one of the concerns of an attorney acting in a dual role is that the attorney's dual role may place the attorney “in the unseemly and ineffective position of arguing his own credibility.” Warrilow v. Norrell, 791 S.W.2d 515, 521 n.6 (Tex. App.-Corpus Christi 1989, writ denied).

         Here, Sea Wasp concedes that “some of the statements contained in the affidavits are likely essential factual assertions in Sea Wasp's defense of this matter . . . .” (Dkt. #160). Despite Sea Wasp's concession, Sea Wasp claims that Vinterella should not be disqualified because Vinterella's testimony “was not necessary to establish these facts” (Dkt. #160). Rather, Sea Wasp maintains that four other witnesses could provide the same factual assertions; thus, Vinterella was not “necessary to establish an essential fact” under 3.08. Vinterella provided three affidavits. In those affidavits, Vinterella swore that he had personal knowledge of the assertions he was making. Among his assertions, Vinterella claimed that Sea Wasp had “maintained” the executive lock which is in dispute in this action (Dkt. #150, Exhibit 1). It is ...

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