• July 14, 2009

In a case up in Duluth, counsel, an individual has brought a lawsuit against the Girl Scouts, an employment dispute, and the Girl Scouts’ counsel is the lawyer who represented the plaintiff back in the 80’s in her dispute with another employer.

The trial court reasoned that the issues in the two lawsuits are “not identical” but that both are employment-discrimination cases with a “substantial, relevant relationship,” and, on that basis, granted the motion to disqualify.

In a published case today, the Minnesota Court of Appeals reversed. “It is not difficult to imagine. . . that confidential factual information obtained from a plaintiff in one employment-discrimination lawsuit may be relevant to the issues raised in a second employment-discrimination lawsuit brought by the same person, if the second lawsuit is brought soon after the first. But the key to this case is that Niemi’s two lawsuits are separated by a quarter of a century.”

On a motion such as this one, the Court of Appeals owed great deference to the trial court on factual findings and no deference on questions of law. Whether the circumstances of the two lawsuits were sufficiently close in subject matter to trigger disqualification, whether they were so distant in time as to not warrant disqualification, seem to me to more in the nature of factual than legal issues but, on the other hand, it would appear that the issue had been decided on papers, without testimony, so, theoretically, the trial court was in no better position to decide than the Court of Appeals (that is, the trial court had no advantage of an assessment of witness demeanor and the like).

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