CenTra, Inc. v. Estrin

contrary festly plain language gress.” Enters., to’ the Vergos Inc., v. Gregg’s 2615(a)(2)” (6th Cir.1998) § in that “the regulation would 159 F.3d (citing 2615(a)(2) § in a way Turkette, alter fundamental United States v. 452 U.S. 2615(a)(2) 580, 101 § it would rewrite (1981)). [because] S.Ct. 69 L.Ed.2d 246 proscribe taking FMLA, retaliation for FMLA In enacting the Congress plainly leave, 2615(a)(2) though § even only pro- stated that “the purpose of this Act” in opposing hibits retaliation for practice cluded establishing right “employees Appellant made unlawful the FMLA.” to take reasonable leave for medical rea 2601(b). Br. at explained, 46-47. As we have § sons.” 29 U.S.C. Interpreting light of the overwhelming 2615(a)(2), § consensus in the language which bars courts that prohibit employers the FMLA does such from discriminating against em retaliation, disagree we that the plain ployees, text in a manner that permit would employees protection fails to afford employers from employees terminate for tak against retaliation ing exercise of FMLA qualifying medical leave is fundamen Further, leave. the structure and purpose tally clear, inconsistent with unambigu Act, legislative history, as well as its purpose ous result, of the FMLA. aAs we support our interpretation that Congress reject must Dollar argument. General’s intended the FMLA to prohibit employers considering

from an employee’s use of III. CONCLUSION FMLA negative leave as a factor in em- For above, the reasons discussed we ployment decisions. Bryant’s DENY motion to dismiss for lack jurisdiction,

Although Dollar General asserts GRANT the AARP’s mo- that no tion curiae, other defendant has for leave to file a advanced its brief amicus statutory interpretation and AFFIRM argument judgment and that of the district its attack on the existence of court. a retaliation

claim for taking § FMLA leave under

presents a impression, case of first

asserted failure of other defendants to argument may

raise this not be an acci

dent. Dollar General’s reading of the stat essentially ute would render the FMLA a CENTRA, INC.; Detroit International nullity. interpretation Their would re Bridge Co., Plaintiffs-Appellants, quire us to despite including believe that — statutory provisions granting eligible em ESTRIN; Gowling David ployees “rights” Lafleur up take to twelve Henderson, LLP, unpaid weeks of leave in a Defendants- twelve-month Appellees. period and to be prior restored to their positions equivalent positions or upon their No. 07-1680. Congress wished to erect no ob return — United States Appeals, Court of prevent stacle to employers from terminat Sixth Circuit. ing employees who newly exercise their granted “rights.” Established principles Argued: Jan. 2008. statutory interpretation caution Decided and Filed: Aug. interpretations that “lead to internal incon sistencies, result, an absurd interpre

tation inconsistent with the intent of Con- employing both were firm, Gowling Lafleur

same law Henderson, (“Gowlings”): LLP while help city Gowlings to hired Windsor span, CenTra hired the second oppose money company raise help span. that same to fund construction expand its wanted to Although CenTra Windsor, hoping it was to do connection John, Dykema Craig L. ARGUED: not bridge, shar- so with additional Hills, for Gossett, Michigan, Bloomfield thus, counsel; CenTra sued ing legal Barris, Sott, Driker, Eugene Appellants. alleging breach of damages, for Gowlings Driker, Detroit, Ap- for Michigan, Denn & duties, contract, fiduciary and breach John, Jo- Craig L. BRIEF: pellees. ON court The district legal malpractice. Dyke- Doerr, Murray, Thomas J. A. seph judgment Gowlings, for summary granted Hills, Michigan, for Gossett, Bloomfield ma holding impliedly that CenTra consented Driker, M. Eugene Sharon Appellants. in Gowlings’s of interest any to conflict L.M. Woods, Kalczynski, Melonie Kevin of adverse simultaneous Driker, Barris, Sott, De- Stothers, Denn & of the regarding the construction clients troit, Appellees. Michigan, Bridge. span of the Ambassador second implied consent court found The district DAUGHTREY, MERRITT, Before: that it CenTra was because concluded MOORE, Judges. Circuit repre- previously had aware that Windsor) directly (including sented MOORE, J., opinion of the the delivered where Gowl- in cases adverse to CenTra DAUGHTREY, J., joined. court, in which CenTra. representing We ings was not 424), MERRITT, (p. delivered J. in its court erred that district believe concurring opinion. separate summary judgment. CenTra granting material OPINION issues of fact genuine established impliedly only whether regarding not MOORE, Circuit NELSON KAREN interest, the conflict of but to consented Judge. consent to it could even whether also Bridge Com- International Detroit Further- first instance. conflict (“DIBC”) Michigan-based and its pany its discre- more, court abused the district CenTra, (collectively “Cen- Inc. parent judgment prior summary granting tion them Tra”), more divided believed therefore, We, REVERSE discovery. Windsor, them. than united from Ontario and RE- judgment district court’s separates the Detroit River thing, For one court to the district MAND the case another, Michigan. For from Windsor with this consistent proceedings further disagreed as to and CenTra Windsor opinion. Bridge, the Cen- Ambassador future Detroit spans bridge Tra-owned I. BACKGROUND add a sec- River; sought while CenTra Background Factual A. wanted to bridge, Windsor span to the ond (the ‘Bridge’) Ambassador “[T]he Yet expansion. stop that Windsor, Ontario and spans which between divided concluding that more wrong jointly by re- Detroit, Michigan is owned out Windsor It turns than united. ” parties of Appen- lated CenTra.... Joint frustrate plans, having CenTra’s “opposed (“J.A.”) (Pis.’ dix at 246 Br. in Opp’n to development, hindered the mainte- 3) (internal Defs.’ Mot. for Summ. J. at operation nance and of the Ambassador omitted) (citation quotation (First marks omit- Bridge.” J.A. at Compl. Am. ted). ¶ DIBC, 34). along wholly-owned with its Yet when Windsor first hired Est- subsidiary, the Canadian Transit Company rin and Gowlings, it was to help city (“CTC”), “owns, operates and problems maintains resolve high with the volume of Bridge, Ambassador the busiest and traffic from the Bridge, Ambassador a role single important most commercial directly border adverse CenTra. Accord- crossing between ing Estrin, however, Canada and the United “general repre- ¶ (First States.” Am. Compl. J.A. sentation of Windsor gradually turned ad- Stamper president Dan of both CTC[, DIBC verse to subsidiary].” (Jan. CTC. J.A. at 105 David Estrin ¶ 8). Decl. prompted What the turn to- 2006, Gowlings Between 1985 and had adversity ward filing was CenTra’s of two consistently represented CenTra in a vari- plans involving the Bridge: Ambassador ety of matters. “Gowlings is one of Cana- 2004, “In June applied CTC to Windsor for firms, largest da’s eight law with offices plan site approval for more toll booths as throughout Canada and in one Moscow.” (the well as a ‘bridge deck extension’ ‘Site (Defs.’ J.A. at Supp. Br. in of Mot. for []’) Plan for the existing Ambassador Summ. J. at Despite long- CenTra’s later, A Bridge. month CTC filed a Pre- time association Gowlings, Gowlings’s with liminary Application Review Permit ... (“Est- partner Toronto-office David Estrin with the United States Coast Guard for rin”) occasionally has taken posi- adverse (the ‘twinning’ the Ambassador Bridge 2001, tions to CenTra. For in example, Plan’).” (Estrin ‘Bridge J.A. at 105 Decl. Estrin began represent the Buffalo and ¶ 9). “[Tjwinning” the Bridge Ambassador Fort Bridge Authority, Erie Public and (a twin) refers to building bridge a second through that representation Estrin learned alongside the original. planned that CenTra to build a competing bridge in proximity Estrin, close to the one that Windsor, on behalf opposed the Buffalo and Fort Erie Bridge Public the Site Plan but explicitly did not take a Authority operated. In order to defend position as to Bridge Plan. Septem- On interests, 22, 2003, his May 14, 2004, client’s on ber Estrin sent a letter to Stamp- Estrin wrote a letter to Stamper on response Gowl- er in Plan, to the Site and the ings letterhead on behalf of the Buffalo letter included notice of Gowlings’s role: and Fort Erie Public Bridge Authority. know, you “[a]s we are the solicitors for letter, In that Estrin Gowlings declared of City of Windsor concerning this mat- (Letter are the “[w]e solicitors for The Buffa- ter.” J.A. from Estrin to lo and Fort Bridge 2004)). Erie Public Authority.” 14, Stamper (Sept. Estrin and (Letter J.A. at 113 from Estrin to Ambas- Gowlings’s involvement in opposing Cen- 2003)). 22, sador Bridge (May Estrin sent Tra’s Site Plan was even clearer to CenTra 9, letter to the same September effect on September on when Windsor offi- cials, Estrin, Stamper, and other representatives negotiate met to a resolu- Estrin accepted another client regarding tion the Site Plan. whose interests would soon turn adverse to CenTra: City of Windsor. According Estrin Bridge believed that the Plan and CenTra, long Windsor has related; worked to the directly Site Plan were there- Tra and Estrin opposition to was aware fore, claims that his Estrin in- adverse representing to were Windsor’s opposition served as Plan also the Site however, in matters in which Gowl- terests several Stamper, Plan. Bridge CenTra, ings representing was not but totally a matter Plan as viewed the Site allegedly any was not aware of “The Pla- CenTra Bridge Plan: separate from the Gowlings’s and Estrin’s work on behalf of absolutely nothing has Expansion za Deck (cid:127) in Plan. opposing Windsor dependent of or part with and is to do proposal development of DIBC’s upon the occa- Despite awareness at the Ambassador span to build a second representations sional of other clients with ” (Mar. Dan Bridge.... J.A. at CenTra, CenTra con- interests adverse ¶ 5). not the Stamper Decl. Whether employ Gowlings, tinued to which had been that the Site Plan parties initially believed twenty years. law firms for over one of its related, Bridge Plan were Site instance, 2005, Stamper in For June between CenTra Plan settlement tax sought Gowlings’s assistance certain two disentangled the explicitly Windsor work, accepting work. Before a Gowl- plans: ings attorney any potential searched for confirms Corporation [Windsor] identify conflicts of interest but did not acknowledges the Owner [CenTra] any. again, importantly Then most for the Corporation’s approval hand, case at November by the sub- development contemplated creating sought Gowlings’s assistance not consti- ject plan application site does offering bond $700- $800-million by Corporation the tute an endorsement twinning finance the of the Am- which to by the to twin the proposal of the Owner thereafter, Shortly Bridge. bassador proposed as existing Bridge Ambassador employed Gowlings help the Windsor 14, Preliminary July in the Owner’s city Bridge Septem- Plan. On oppose the or a waiver Application, Review Permit to the ber Estrin sent letter by Corporation Corporation’s the of the opposing Guard the construc- U.S. Coast Plan/Zoning right require an Official According bridge. tion of the twin to Cen- object or otherwise By-law amendment Tra, letter, of Estrin’s the as a result approval deny Corporation’s the to or an demanded environmental Coast Guard Bridge span or for a second Ambassador that will cost assessment from CenTra any or under- twinning (including works $500,000 States side on United CenTra used for the takings required or to be $300,000 on the Canadi- bridge of the and Corporation’s ap- nor shall the purpose), Thus, by September Gowl- side. contemplated development proval simultaneously helping CenTra ings was by subject plan application site or funding bridge expansion for the procure corollary approval or or any associated to halt the assisting trying in and Windsor agreement pleaded estoppel as an bridge expansion. in regard. Corporation ig- Gowlings and claimed Both CenTra ¶ 21). (Site

J.A. at 124-25 Plan Control S— Ac- conflict of interest. norance as to this “I was not aware that Furthermore, cording Stamper: Estrin in 2005 and op- in objections Gowlings representing was Windsor against defended CenTra’s Septem- until Span to the Second regulations regarding position proposed Windsor’s letter infrastructure, ber, I saw Mr. Estrin’s specif- when transportation which opposing ... Guard ically the Ambassador to the U.S. Coast mentioned Thus, (Stamper Decl. Span.” J.A. at 275 subject regulations. Cen- Second as ¶ 7). ownership more upon claimed to be even clue- their and control Estrin Windsor, City a few weeks before Centra the Province of Ontario less: “Until lawsuit, I un- completely and Dominion of Canada.” J.A. at 284 filed this ¶ (Mar. 4). 8, 2007, Centra, DIBC, or CTC had Patrick A. Moran Deck aware Gowlings any Although prepared on other matter. a different law firm retained memorandum, provided At have I had communications no time Gowl- ings the anyone Legal with associated with Goodman Memorandum they any may supporting work that have done and all of its documents. about This Centra, materials, collection of according on behalf of DIBC CTC.” J.A. to Cen- ¶ (Estrin Tra, very at 107 Deck similar to the research that Estrin described his letter to the U.S. assertions that he knew Despite Estrin’s Coast Guard. nothing Gowlings’s prior work for about CenTra, lawsuit that alleged its Background B. Procedural possessed legal Estrin memo- 20, 2006, On November CenTra filed previously prepared randum that had been diversity action Estrin and Gowl- 1979 and CenTra. Between Cen- ings in the U.S. District Court for the engaged lengthy litigation Tra was with Michigan. Eastern District of On Decem- regarding ownership pos- Canada 7, 2006, ber CenTra filed its first amended bridge. session of the Canadian half complaint. complaint amended During litigation, of this Gowl- the course contract, sought relief for breach of breach ings acquired information re- extensive duties, fiduciary legal malpractice, garding CenTra and the Ambassador all stemming from simulta- Bridge: neous and adverse of both Gowlings serving the course of as the CenTra Windsor. Companies’ representative before CRA any opportunity Before discovery, Agency] respect Revenue with [Canada Gowlings requested summary judgment as Controversies, Companies re- well as dismissal. CenTra filed a Federal detailed,

vealed confidential financial 56(f) Rule Civil Procedure motion re- operational and information about the questing that the district court first allow Bridge Ambassador and shared other opportunity discovery: an confidential information about the Com- rely upon The two motions cite and 21 panies preserve efforts to and enhance exhibits, almost all of which fall outside value of their franchise to own and of the pleadings. Part of these 21 ex- operate Bridge the Ambassador and be hibits are 4 containing affidavits numer- position expand replace and/or allegations ous factual highly that are necessary that when to meet Defendants, disputed by Plaintiffs. competitive posed threats other bor- having without the Plaintiffs the oppor- crossing der facilities. affiants, tunity depose much less (Mar. 7, 2007, J.A. at 353 Fred Calderone having any discovery, the benefit of ¶ 6). Decl. particular Of interest was a would have this accept Court these alle- that the firm memorandum of Goodman & true, gations as accurate and undisput- Goodman “that all compiled created ed. 'documents, public private, both Disc, (Pis.’ Goodman & Goodman believed to be the J.A. at 194 Mot. to at Conduct 2). 16, 2007, proper February documents and relevant to the de- On the district fense of to an encroachment court denied CenTra’s motion to conduct [CenTra]

409 summary judgment granted that a favor of discovery. CenTra asserted When Gowlings. The district court’s order made discovery left it with the evi- lack of total cards, regarding no mention of CenTra’s claims half deck of dentiary equivalent of a Gowlings’suse of confidential material. that “I don’t responded court the district adequate showing under think there is 2007, May timely CenTra filed a On 56(f) discovery. It seems permit Rule of appeal. notice you’ve got your at least two aces to me like sleeve, up your cards a lot of other plus II. ANALYSIS you file a require I’m going Summary Judgment A. Grant of (Feb. 16, 2007, at 610 response.” J.A. 18:5-9). Hr’g Disc. at Mot. to Conduct Applicable 1. The Law 30, 2007, the district court April On In diversity apply cases we summary Gowlings’s motion for granted choice-of-law rules and substantive law of court, According to the district judgment. state, Michigan the forum which is in this their lawsuit to [Michi- “Plaintiffs confíne Co., case. Himmel v. Ford Motor Professional gan Conduct] Rules of (6th Cir.2003). F.3d The issues 1.7(a)(2), that Defendants did argue § professional us touch on matters of before re- obtain Plaintiffs’ consent properly important responsibility, suggesting some this conflict. not necessari- garding While appropriate questions as to choice law, a number of ly applying circum law for this case. Under similar recognized that the client courts stances, the forum applied we have state’s attorney’s waive its consent to an impliedly in a professional-conduct standards diver (Apr. at 589 conflict of interest.” J.A. sity-based malpractice action. Woodruff De- Granting Summ. J. Order (6th Cir.) (en Tomlin, F.2d 935-36 legally possible that it was termining banc), denied, 888, 101 cert. 449 U.S. S.Ct. any objections to Gowl- CenTra to waive (1980). However, 66 L.Ed.2d we interest, the district court ings’s conflict of question of need not resolve the exact Stamper’s continued reten- concluded principles choice-of-law Michigan’s what Gowlings effectuated waiver after tion of applicable standards would indicate as regarding Gowlings’s rep- years of notice because, for the professional conduct clients with interests resentations of other today, Michigan’s we must address issues adverse to CenTra: professional conduct are con standards Although Stamper declares that he was of possible with the other sources sistent Gowlings’ representation of unaware of law, a making any asserted conflict of laws September until the Windsor Us, Toys “R” false conflict. Williams fatally testimony that this is Court finds Cir.2005) (un (6th Fed.Appx. 138 803 with the uncontested facts inconsistent instance, the District published). For U.S. September the 2004 letter to regarding Michigan for the Eastern District of Court meeting the later that month Stamper, of Profes adopted Michigan has Rules where the discussed Site applicable federal Conduct as sional Plan, Defendant Estrin which he and conduct. See U.S. professional rules of attended, resulting and the Febru- both District of District for the Eastern Court ary agreement Plan also Site 83.22(b). Rule In addi Michigan, Local Bridge Plan. mentioned the (Third) tion, Law Restatement (“Restatement”) (Order Lawyers and Governing at Because the at 590-91 J.A. Bar Asso- waived, of the American the district court the 2007 edition conflict was (“ABA’s”) 1.0(b) Although 1983 Model Rules of Rule Nation's makes clear that (“ABA plaintiff a cannot a damages Model seek for viola Professional Conduct Rules”) Michigan tion of the Rules of Professional with Michigan’s are consistent Conduct, a violation of the rules in all re- of Professional Conduct Rules probative in an establishing independent appear relevant for this spects that now instance, cause of action. For the Michi Thus, apply Michigan we will case. gan Appeals Court of considered the Mich Conduct, and we will Rules of Professional igan Rules of Professional in a Conduct ABA Model Rules and Restate- look to the civil contract action that that a determined provide ment to elaboration. agreement fee was unenforceable. Evans argument, Gowlings’s counsel as- At oral Lizza, & Luptak, Mich.App. PLC v. Michigan’s profes- standards of serted (2002). 187, 650 N.W.2d The court apply conduct do not to this case. sional Luptak although Evans & stated that that, He claimed because this was civil give rules do not ... rise to a “[t]he cause matter, disciplinary not a action and of action for enforcement of a or rule for Michigan Rules of Professional Conduct damages by comply caused failure to with of bearing question have no on wheth- obligation prohibition by an or imposed correctly granted er the district court sum- rule,” the rules are still admissible and mary judgment. Gowlings’s counsel Michigan relevant under “the Rules of Ev of Michigan’s correct that a violation Rules provisions idence and other law.” Id. by of Professional Conduct does not itself Subsequent Ap Court of give to an claim. rise actionable peals cases have position- embraced this Michigan rules state: approved of the use of the Rules obligation comply Failure with or of Professional “plain Conduct when the prohibition imposed by a rule is a basis tiffs rely solely do not on the rules to invoking disciplinary process. claim, their establish but instead refer to not, however, give The rules do rise to a the rules as evidence of the standard cause action rule for enforcement of care,” Malson, Recker v. No. damages or caused failure 2006 WL at *3 (Mich.Ct.App. comply obligation prohibi- with an 2006) Aug.17, (unpublished), and have al imposed by tion a rule. juries lowed to be instructed as to those 1.0(b) cases, Jehle, MiCH. R. Peof’l (emphasis rules in such Deluca v. No. Conduct added).1 CenTra, however, (Mich.Ct. does not as- 2007 WL at *3 2007) Mar.27, sert that Gowlings’s alleged violations of App. (unpublished). We be Michigan Rules Professional Con- lieve that it is clear that the rules are actionable; instead, duct are themselves probative and instructive for the instant case, claims of particularly they asserts breach con- as relate to Cen- tract, duties, fiduciary legal breach of malpractice fiduciary-duty Tra’s malpractice. claims.2 Michigan Supreme 1. professional Court Court and hold that rules of con- adopted Michigan Rules of Professional inapplicable duct are civil actions. A re- Conduct, “largely which were drawn from the however, rulings, view of Tennessee reveals American Bar Association’s Model Rules of nothing contradictory position, to our and we Professional Conduct.” Mich. R. Prof'L Con- must, therefore, disagree Gowlings’s with duct 1.0 cmt. representations regarding counsel’s Tennes- precedent. Supreme see The Tennessee argument, Gowlings suggested At oral lawyer Court held that evidence that a violat- Supreme we follow the lead of the Tennessee Gowlings’s obligations tion of under Michi rely upon Michigan’s claims

CenTra’s as evidence of Professional Conduct gan’s Rules Rules of Professional Conduct. care, not as standard of appropriate of the Lastly, legal-malpractice CenTra’s claim first themselves. CenTra causes of action grounded Gowlings’s alleged failure one Although of contract. alleges a breach attorney “to act as a reasonable would panel suggested has Michigan appellate (First acted,” Compl. J.A. at 29 Am. Rules of Michigan of the that violations ¶ 56).3 Michigan’s CenTra raised Rules of “normally cannot Professional Conduct only in response Professional Conduct contract,” Biedul v. a breach of constitute Gowlings’s summary judgment, motion P.L.L.C., No. Jay Siefman, N. which had asserted that CenTra waived (Mich.Ct.App. at *3 2006 WL the conflict of interest. See J.A. at 257 2006) Nov.21, (unpublished), CenTra’s (Pls.’ Opp. Br. in to Defs.’ Mot. for Summ. only that narrow. CenTra not claim is not J. at Gowlings’s conflict of interest alleges that represent contract to breached its claims of complaint CenTra’s asserts (without Michigan’s reference to zealously contract, fiduciary breach of breach of rules), at 28 J.A. professional-conduct duties, legal malpractice. These ¶¶ (First 41, 43), al- but also Compl. Am. dependent upon claims are not a violation of confidential leges use Michigan Rules of Professional Con- agree- information parties’ violated the duct; provide tort law and contract law ¶ 44). (First ments, Compl. Am. J.A. at 28 claims, legal basis for the not rules of that a Although it would seem to us professional Lazy ethics. See Seven Coal claim, if factually even breach-of-contract Sales, profession- at 405. The S.W.2d interest, a conflict of does premised upon evaluating al-conduct rules assist in Cen- rely Michigan Rules of Pro- upon not claims, they provide Tra’s do not but action, of we fessional Conduct as a cause underlying elements of the claims them- not the full reach of Bied- need determine Thus, uses appropriately selves. holding allegation ul’s because the latter Michigan’s of Professional Conduct Rules of confidential informa- regarding the use claims, not the of support as for its basis upon a certainly dependent tion is not claims, proceed and we will evaluate Michigan violation the Rules of Profession- grant summary judg- court’s of the district of Similarly, al CenTra’s claim Conduct. fiduciary duties made no men- ment. breach 2003) (noting they (unpublished) “have Responsibility "is ed the Code of Professional present an recognizing evidence to issue ... [a] found no Tennessee case sufficient Sales, jury,” Lazy Inc. fact for the Seven Coal fiduciary of action on breach of [based cause Hinds, C.,

v. Stone & P. 813 S.W.2d lawyer ex- duty] for conduct based added), (Tenn.1991) (emphasis but the court clusively alleged violation of the Code of on an case that “the stan also stated in same (emphasis add- Responsibility” Professional in the Code are not irrelevant in dards stated ed)). determining the standard of care in certain malpractice.” at 405. Just as actions for Id. Society the Law 3. CenTra did reference done, Tennessee courts have lower Ethics, J.A. at 30 Upper Canada's Code of rejected claims whose sole basis courts have ¶ (First 57), Compl. not as cause Am. of Professional is a violation of the Rules itself, but that Gowl- action in note Edmondson, see, e.g., Responsibility, Akins v. general duty ings’s violated its actions that (Tenn.Ct.App.2006); 207 S.W.3d 307-08 Society Law CenTra also ran afoul of the Adver., Transp., Image Inc. v. CSX Outdoor Upper Code of Ethics. Canada’s Inc., M2000-03207-COA-R3-CV, 2003 No. * 10, 21338700, (Tenn.Ct.App. June WL at 10 412 review district court’s Matsushita Elec. Indus. Co. v. Zenith

We summary judgment de novo. grant 587, 106 of Ctr. Corp., Radio 475 U.S. S.Ct. Reform, City (1986). Inc. v. Bio-Ethical L.Ed.2d 89 538 of (6th 477 Springboro, F.3d 820 Cir. City Bennett v. Eastpointe, 410 F.3d of Rules of Proce The Federal Civil (6th Cir.2005). 810, 817 It is an error for summary judgment dure state that should the credibility district court to resolve is- granted pleadings, discovery be “if the the effect, sues the nonmovant: “In file, any and disclosure materials on and any direct plaintiff evidence offered show that there no genuine affidavits in response summary judgment to a mo- any issue as to material fact and that the accepted tion must as true. be The dis- judgment movant is entitled to as a matter by granting summary trict court errs judg- of law.” Fed R. Civ. P. We 56(c). ment for the defendant where issues of observed that: credibility are determinative of the case.” generally moving burden is on the Reform, Ctr. Bio-Ethical 477 at F.3d party genuine to show that no issue of (internal quotation 820 marks and citation exists, may material fact but that burden omitted). is, discharged by ‘showing-that point- ing out district court—that there 2. Nonconsentable4 Conflicts is an support absence of evidence to There are some conflicts of inter nonmoving party’s Corp. case.’ Celotex est to which a may client not consent. Catrett, 317, 325, v. 477 U.S. 106 S.Ct. Thus, the district court was partially (1986) (internal 91 L.Ed.2d 265 may correct when it stated “that a omitted). client quotation marks In reviewing impliedly attorney’s waive its consent to an summary motion, judgment credibility interest,” (Order conflict of J.A. at 589 judgments weighing and of the evidence 6), ignored because it Rather, question of prohibited. are the evidence Gowlings’s whether simultaneous and ad light should be viewed in the favor- most verse able CenTra and Wind non-moving party. Inc., sor was fact a conflict to Liberty Lobby, Anderson v. 477 which CenTra 242, 255, U.S. could consent. hold that S.Ct. 91 L.Ed.2d We there is a (1986). Thus, any genuine the facts issue of material fact and as to wheth inferences can be drawn from er conflict those of interest with re must be light gards facts[ ] viewed most to the Plan was one to which non-moving favorable to the party. CenTra could consent.5 litigants conclusion, 4. The reaching and the district court used the this as well as "waive,” follow, reaching word the other profes- but the various rules conclusions that we rely heavily upon Michigan Rules of Pro- typically sional conduct are written in terms Conduct, Rules, fessional the ABAModel litigants making “consent.” The are earlier, the Restatement. weAs stated these separate argument, they but are instead supporting can rules serve as evidence vari- equating giving waiver and consent: independent ous causes of actions even any objections consent serves to waive though they do not constitute causes of action conflict of interest. The cases themselves complaint in themselves. CenTra’s asserts together sometimes use the terms or inter- contract, claims of breach of breach of fidu- See, changeably. e.g., City Kalamazoo duties, ciary legal malpractice, yet Mich. Disposal Corp., F.Supp.2d Serv. opinion district court in its and both sides’ (W.D.Mich.2000) ("A client ex- appeal briefs on do not address CenTra's un- pressly impliedly objection waive his derlying entirely claims and instead focus on representation.”). consent to the adverse professional-conduct standards. Because in litigation not can make a conflict of Michigan Rules of Professional lawyer shall not if the “[a] Conduct state interest nonconsentable differences representation of a client if the represent wrangling parties large between the are directly adverse to an client will be § enough. See Restatement 122 illus. 10. (1) client, lawyer reason unless: other approach The ABA a takes similar its will not ably representation believes the a conflict model rules: “Whether is non- relationship with the adversely affect the depends consentable on the circumstances. (2) client; client consents other each example, lawyer may represent For not R. Prof’l Con after consultation.” Mich. multiple parties negotiation to a whose 1.7(a).6 particular sali This rule has duct fundamentally antagonistic interests are attorney representing is ence when the Rules, ABA each other....” Rule Model conflict; is a in the same “[i]t both sides 1.7 cmt. 28. principle ethical that an well-established broadly The district court stated allegiance to a attorney owes undivided that a to a of client consent conflict usually may represent par client and however, interest; it is not true that all dispute.” on sides of a Evans & ties both a con conflicts are consentable. Whether (internal quo Luptak, 650 N.W.2d omitted) depends upon flict is consentable the facts (finding tation marks conflict According commentary of the case. to the Michigan under Rule of nonconsentable 1.7(a)(1) 1.7, Rule a conflict noncon- Michigan’s an at is Professional Conduct when lawyer a disinterested torney filing wrongful- advocated the of a sentable “when against one client on behalf that the client should not death lawsuit would conclude another). to the under the cir agree cumstances.” Mich. R. Prof’l Conduct 1.7 That and Windsor are not di- CenTra7 at the presented cmt. Given the evidence rectly in a lawsuit is not adverse case, summary-judgment stage of this we doubt, the ethi- determinative. Without genuine hold that there is a issue of mate greater Gowlings if cal concerns would rial fact as to whether reason representing both sides in the same were would not ably believed that the conflict § g(iii) 122 cmt. lawsuit. See Restatement adversely relationship its with its affect (“When aligned clients are di- & illus. 8 clients, lawyer a disinterested and whether in the same liti- rectly against each other agree would conclude that CenTra should in vigor- the institutional interest gation, representation. to the CenTra submitted position of each client’s development ous nonconsentable.”). from the district court a declaration renders conflict Restatement, simply that “I do not However, expert who stated according to profes- firm can offer sound a matter that is see how a law representing both sides of 1.7(a) upon instead of Rule professional were the sole 6. We focus Rule rules of conduct 1.7(a) 1.7(b) specific to con- because Rule is summary grant basis of the district court's clients, involving directly where- flicts adverse profes- judgment, we focus our discussion on 1.7(b) general. as Rule is more standards and reverse the dis- sional-conduct grant summary judgment on trict court’s matter, purposes a con- It does not However, we the basis of those standards. issue, Gowlings was whether flict-of-interest that, ultimately, emphasize this case is not subsidiary anoth- representing one CenTra premised Rules on violations of Restatement, er; according a conflict Conduct, Professional but is instead about subsidiary a conflict as to as to one contract, fidu- claims of breach of breach of § corporation. entire See Restatement duties, ciary legal malpractice. (2000). illus. Michigan’s The Restate- simultaneously to a client standards. sional service a client ment advises: bridge a and to helping to build is delay construction helping (1) it is to block lawyer may represent A a client not- is not even a close bridge. This withstanding a conflict of interest (Mar. 9, 2007, question.” J.A. at 375 § if prohibited by each affected ¶ 33). Thus, Hay Bruce L. Decl. in- gives client or former client of material fact genuine a issue presented lawyer’s rep- formed consent to the conflict was one to as to whether this Informed consent re- resentation. consent, capable giving it was of which quires that the client or former grant summary judg- court’s the district reasonably adequate in- client have was erroneous. ment formation the material about risks representation

such to that client or Informed Consent the former client. (2) the Notwithstanding informed con- if with the dis agreed Even we sent of each affected client or former question that there was no as to trict court client, lawyer may represent a a to a conflict whether a client could consent client if: represents one law firm both the when bridge a and the party trying to build (a) representation prohibited by the is it, trying oppose we also believe party law; concluding the court erred in district (b) one client will a claim assert genuine that there was no issue of material against the other the same liti- fact as to whether CenTra consented to gation; or the conflict. allows a client to (c) in the circumstances it is not rea- a if consent to conflict the consent is sonably likely lawyer that the will informed, there a triable and here is factu provide adequate repre- able to question al as whether CenTra was sentation to one or more of the sufficiently pro conflict to informed the clients. vide consent. § 122. The ABA Model Restatement Michigan’s According to Rules Profes- provide guidance Rules also similar sional Conduct: attorneys: lawyer represent A shall not a client if Notwithstanding the of a con- existence representation that client will be para- current conflict of interest under client, directly adverse to un- another (a), graph lawyer may represent less: if: client

(1) lawyer reasonably believes the (1) lawyer reasonably believes

representation adversely will not lawyer will be able to relationship affect with the provide competent and diligent client; other representation to each affected client; (2) client each consents after consul- tation. (2) representation not prohibit- is law; by ed 1.7(a). MiCH. R. PROf’l Conduct While (3) language Michigan’s is not identical to the does not in- Rules, Restatement or the ABA Model volve the of a claim assertion two national models bear significant simi- one client another client larity Michigan’s give represented by lawyer rules and context in the than full proceed- anything or other client less information litigation

same inadequately that the client tribunal; runs the risk ing before informed, thereby making any consent in- (4) informed gives affected client each valid. consent, writing. in confirmed 1.7(b). bar, Gowlings In the case at ar Although Rules, Rule ABA Model gues lengthy history partner that the of its semantic var- systems three have some the CenTra, opposition including Estrin’s to iations, impor- they are all similar one Estrin’s work on behalf of the Buffalo and Michigan requires “con- respect: tant Authority Bridge Fort Erie Public and for consultation,” and the ABA after sent[] Plan, was to Windsor on the Site sufficient require Model Rules and the Restatement general, ongoing inform of a con CenTra ABA Although consent.” “informed Gowlings’s flict of between other interest by requiring that higher sets the bar even According clients CenTra. Gowl- written, denomina- consent be the common ings, gen because had notice of a CenTra for all three is the idea of consultation tor conflict, eral CenTra’s continued retention consent. (informing) before implic of as its counsel served as similarity between “informed con- This it consent to future conflicts of interest after consultation” is sent” and “consent[ ] that work would include on be little that important because we could find oppose Bridge half of Plan Windsor upon “consent[] elaborates what satisfies simultaneously assisting while under law. after consultation” arranging funding Bridge for the Plan. contrast, ABA the Restatement and the knowledge that of We conclude CenTra’s provide guidance. more Model Rules parties prior representing Estrin’s work requires attorneys that in- Restatement in different is adverse to CenTra matters the nature of the form their clients of law, inform enough, not as a matter of conflict so that the clients are “aware adequately scope Gowl- repre- respects the material which regarding of interest ings’s conflict have effects on the sentation could adverse the ABA interpreting Plan. Courts interests of that client.” Restatement have made it clear and Restatement rules c(i). § According 122 cmt. to the Restate- it not sufficient to leave the client to is ment, may change “material” with what is from infer the full nature of a conflict instance, a circumstances. For client actual or constructive pieces bits at- already represented by a disinterested Ninth held that knowledge. The Circuit from torney may require less information of the exis- simply possessing knowledge attorney, but the client “nev- the conflicted that the a conflict does not mean tence of ertheless have need of information the conflict’s fully client is informed as to scope to reveal adequate [the conflict’s] implications: ABA Model severity.” Id. Under the of full disclo- Rules, satisfy requirement To attorney a conflicted does not need undertaking to already lawyer sure before implications to disclose “facts or interests, it conflicting two is person; represent other nev- known to the client or be in- ertheless, that both lawyer personal- who does not sufficient lawyer is ly person inform the client or other as- formed of fact them, both undertaking represent the risk that the client or other sumes the nature explain to them informed and the but he must person inadequately in such detail the conflict of interest invalid.” ABA Model Rules, consent is the reasons Thus, they can understand providing 1.0 cmt. 6. to the so Rule Co., for each to why may burg Corp. Champion Spark Plug it be desirable counsel, (N.D.Ill.1986) (dis loy- with undivided independent F.Supp. alty interests of each of them. qualifying patent-in a law firm from fringement lawsuit after the law firm filed Inc., Sewerage Agency v. Jelco Unified Cir.1981) a lawsuit on behalf of client (9th (internal one F.2d 1345-46 omitted) simultaneously repre another client was quotation (emphasis marks add matters). ed). rejected senting on Similarly, the Second Circuit unrelated enough that it that the argument Gowlings repeatedly that claims of the at generally client knew conflicted correctly the district court focused on “This assertion is torneys’ adverse work: whether general CenTra was aware of a (C) of DR 5-105 [of without merit. Clause asking conflict rather than whether Cen- specifically Code8] the 1969 ABA Model Tra Gowlings’s opposition was aware of to upon attorney an the burden of imposes See, Bridge per the Plan e.g., Appellee se. affirmatively providing disclosure and ob words, Gowlings Br. at 27. In other con taining Clearly, consent. full and effective knowledge tends that of earlier conflicts of all the relevant facts disclosure must can knowledge constitute sufficient to con brought prospective made and home to the different, sent to a subsequent conflict. Levin, Corp. v. client.” Int’l Bus. Machs. disagree; We the part “informed” of in Cir.1978) (2d (upholding 579 F.2d 282 formed knowledge consent is tied to in disqualification of a law firm an anti conflict in question, not different conflicts.9 determining trust after that the lawsuit “Effective client consent to one conflict is adequate law firm an disclo failed to make necessarily respect effective with to representing plaintiff sure it was when other conflicts or other matters.” Re in against the antitrust suit IBM while also c(i) 1; § 122 cmt. & illus. representing IBM in unrelated labor mat statement cf. (re ters). ABA Model Rules, 14 Rule 1.7 cmt. put way, To it another is “[i]t quiring consent to be determined on a passing doubtful conversations at basis). client-by-client hallways cocktail and in is a law firm parties what the When represents drafters of the ABA Model Code had in two clients who are adversaries 5-105(C) matters, in DR in they legal mind when stated various firm rep but the required.” that ‘full disclosure’ is only Rans resents the clients in matters where 5-105(C) consent, general 8. Rule DR of the 1969 Model Code the client is informed of the Responsibility of Professional states that “a general general. conflicts in and consents in lawyer may represent multiple clients it if is Disposal Corp., F.Supp.2d See Mich. Serv. 125 adequately represent obvious that he can 243; Rymal Baergen, Mich.App. v. of each and if each to interest consents (2004) (reversing 686 N.W.2d representation pos- after full disclosure of the disqualification of counsel in a sexual harass- sible effect of such on the exer- holding ment and retaliation after lawsuit independent professional judgment cise of his “consent after consultation” was satisfied on behalf of each.” The 1969 Model Code is agreement "anticipated pos- a written therefore similar to the current ABA Model Rules, conflict”). contrast, sibility of such In in replaced which the 1969 Model Code case, Gowlings the instant wants us to infer respect requirement in with to general any consent to future conflicts from informed consent. specific knowledge instances of informed with respect involving to conflicts different appears It that under law a client event, legal any may signal different matters. this that she is aware that future con- prospective flicts arise and can consent to case does not involve consent to those in through agreement. advance agreement. written Al- conflicts in a written though agreements such would effectuate a (D.N.J.1993) other, (holding that each opposing are not the clients nature and was sufficient that the client had “the general “knowledge of knowledge necessary to discern these con- being performed for of the work scope ” (emphasis flict of interest issues .... to inform the normally suffices” each client added)). However, we could find no other the conflict. Restatement clients of § 122 c(i). adopted a case courts that have this watered- case at hand is not cmt. standard, contradictory working on unre- down which the firm was where instead, matters; trying help the standard used one of the most fre- while lated client, CenTra, quently cited cases this field: procure funding “[W]e for one Plan, questionable think it would be conduct for Gowlings working was Bridge client, Windsor, attorney any oppose participate lawsuit another working his own client without the knowl- Plan. matter, edge and consent of all concerned.” Cine- parties on the same two adverse conflict, Cinerama, Inc., that clear-cut CenTra’s ma Ltd. 528 F.2d and for (2d Cir.1976) Gowlings pre- (upholding that has dis- general knowledge qualification repre- of a law firm that was viously represented parties with adverse enough senting plaintiff to in- in an antitrust matter is not interests to CenTra regards partner representing to but had a who was adequately with form CenTra in Gowlings’s separate the defendant but “somewhat the direct conflict of interest litigation, clients on similar” id. at representation of two adverse Bridge Plan. knowledge A that client’s his law occasions, has, previous represent firm on general If informa vague opposed ed that the client differ regarding possessed pri- tion that CenTra provide adequate ent matters does not an or, enough, then the different conflicts was foundation for informed consent with re identifying would the burden of client bear spect represen to a current simultaneous any full understanding scope of opposing tation of two clients with adverse client, interest. It is not the conflict of dispute. Gowlings in a specific interests however, the various codes of to whom provided that it to does not claim responsibility; given conduct have this regarding information specific more duty affirmative here rests not with “[t]he current conflict on which informed consent and its firm] but with law [the clients] [the based, Gowlings because could have been F.Supp. attorneys.” Ransburg Corp., 648 not aware until itself admits that was 1046; County see also Dunton v. of to the respect 2006 of the conflict with (2d Cir.1984) Suffolk, 729 F.2d is, therefore, apparent It that Bridge Plan. a (vacating judgment against police client genuine established a has at least on the basis rights officer in a civil action fact as to whether Gowl- issue of material by his counsel’s prejudiced that he was obligation to inform Cen- ings fulfilled its interest; stated that conflict of the court arising full nature of the conflict Tra of the presumably police client “[the officer] and adverse from simultaneous nothing little or about the law of knew representation of CenTra Windsor expect not be attorney conflicts and could Bridge Plan. regard to the with the nature of the conflict. ed discern naturally rely attorney on He would his Implied Consent him.”). placed court has more protect One that CenTra’s Gowlings asserts of a on the client. See Alexander burden after Inc., Gowlings F.Supp. continued retention Holdings, v. Primerica representation different conflicts served a client who has rea- learning prior, sonably adequate to the later conflict of implied as consent about information to the Plan. regard with material risks interest af- noted, However, already we have con- lawyer’s request as ter a consent. conflict-by- be determined on sent must e(i) § (emphasis 122 cmt. Restatement continued reten- conflict basis. CenTra’s added). Restatement, According to the Gowlings 2003 and 2005 tion of between “reasonably adequate there must be both consent to earli- may have served as those lawyer’s request information” and “a conflicts, certainly not serve er but it could consent,” Gowlings but the instant case yet to a conflict that had not as consent neither. has established was not occurred and which CenTra implied In the cases that have found addition, informed. under consent, the reviewing court has found it law, consent, prove implied in order to impliedly consenting party clear that the convincingly attorney must establish the and, fully was aware the conflict armed specific con- knowledge client’s as with that knowledge, party still took flict, Gowlings has not done. something actions are consistent with con Thus, summary judgment improperly example, sent. For in a Ninth Circuit granted Gowlings. case, the court declared it “well settled that a former client who is entitled to generally is correct object attorney an representing op may impliedly consent to an attor client posing party ground on the of conflict of However, ney’s conflict of interest. Cen- knowingly interest but who refrains from genuine Tra has established a issue of asserting promptly it is deemed to have it im regarding material fact whether did right.” that Corp. waived Trust Mont. pliedly Michigan permits consent. law im Corp., 701 F.2d Piper 87 plied consent certain circumstances. Aircraft (9th Cir.1983). case, however, In that Disposal Corp., F.Supp.2d 125 Mich. Serv. question there no was that the conflicted may that client (stating ex “[a] provided firm to the former client and the pressly impliedly objection waive his former client’s firm new its entire file on representa and consent the adverse tion,” the former client so that finding prospective that a con the former client but conflict, depth yet could evaluate the tractual waiver did not waive the conflict nothing of interest when counsel for a defendant in the former client said about the civil rep years. an earlier environmental suit now conflict for over two-and-a-half Id. suing resented the former client plaintiffs Similarly, at 86. District U.S. Court suit). in a related environmental civil For for the Northern District of Ohio said rule, help elaboration of the it is right “[i]t is axiomatic that the client’s ful at the to look Restatement:10 object attorney’s allegedly adverse representation may City be waived.” requirement generally

The of consent Cleveland response by Illuminating an affirmative each v. Cleveland Elec. requires (N.D.Ohio Co., 1976), general, lawyer may F.Supp. a client.... (6th Cir.1977) aff'd, (unpub assume consent from a client’s silent 573 F.2d 1310 lished). However, case, however, may consent In that acquiescence. there was participation question from active in a no inferred Cleveland had been well 1.7(a)(4). Referring to the ABA Model Rules is less ABA Model Roles There was no helpful question for this because the ABA written consent here. require Model Rules that consent be written. clearly genuine there is of material which it was now issue the conflict for aware of counsel. disqualify opposing fact as to whether CenTra’s retention of trying to question, antitrust case Prior to the after learning Gowlings’swork on a bond sought the firm’s assistance city adverse to on other expressed The firm reluctance matter. implicit matters served as consent to Gowl- because it was accept work from Cleveland ings’s simultaneous and adverse work on conflict of in- potential concerned about Plan for both CenTra clients, long-standing its terest with one of Windsor. Illuminating Com- Electric the Cleveland Taking light the evidence in the most (“CEI”). was City of Cleveland pany nonmoving party, favorable to the we are CEI, work for but very aware of the firm’s compelled to conclude that the district firm to as- city “importuned” the law improperly granted summary judg- court city, and the firm obtained “writ- sist the Gowlings. ment in favor of has city. Id. at 201. ten assent” from the of material fact genuine established issues that a court cases make it clear These consentable, the conflict as to whether consent when it is clear infer a client’s properly whether CenTra was informed of fully of the con- that the client was aware conflict, and whether actions CenTra’s to fur- acquiescing flict interest before Therefore, implied indicated consent. we representation. ther grant REVERSE the district court’s an informed Implied requires consent summary judgment and REMAND for say A court can client’s client. with this proceedings further consistent solely the conclusion support actions can opinion. consented, only in that the client has but indisput- the limited circumstance that 56(f) B. Rule Motion for Dis- CenTra’s ably clear that the client was aware of covery case, Stamper conflict. In this asserted After filed motion for he not aware of the conflict of was summary judgment, CenTra asked the dis Bridge Plan until 2006. interest as to the opportunity trict court for the conduct Stamper’s found state- The district court discovery. the Federal Rules of Under ment to be not credible because he had Procedure, may request a nonmovant Civil meetings Gowlings’s affili- attended where discovery prior granting additional apparent as to ation with Windsor was summary judgment: of noted, other matters. As we have Gowl- opposing If a the motion shows party Buffalo and Fort ings’s prior work for the that, reasons, Authority specified and for affidavit for Bridge Erie Public justify present Windsor on the Site Plan —matters that cannot facts essential to Bridge may: different from the Plan— were the court opposition, its could not serve to inform CenTra Gowl- (1) motion; deny the ings’s regard conflict of interest with (2) order a continuance to enable affi- Furthermore, Plan. in a motion obtained, depositions davits to be summary judgment, the district court for taken, discovery to to be or other credibility cannot make determinations undertaken; or nonmovant, Stamper’s (3) just any other order. issue deserved the benefit of the statement 56(f). The court de- district long totally implau- doubt as as it was not Fed.R.Civ.P. motion, Co., and we review the nied CenTra’s sible. Street v. J.C. & 886 Bradford (6th Cir.1989). 1472, Thus, decision for abuse of discretion. Vance F.2d 1480 420 States, Fisheries, cided.”); Landing 90 Inc. Hammons v. United White’s

ex rel. Cir.1996) (“The (6th (6th Buchholzer, 229, non- v. 29 F.3d 231 Cir. 1149 F.3d 1994) (“Yet we nevertheless conclude that obligation to inform the movant bears summary judgment should not have been discovery, his need for district court of plaintiffs awarded until the were allowed reviews for abuse of however. This court opportunity discovery.... some for In the summary judgment a claim that discretion case, grant instant we find that entered because addi- prematurely was summary judgment, any opportuni absent needed, ar- discovery was and the tional misuse.”). ty discovery, for is such a How appeal unless gument preserved is not ever, general matter court.”). upheld as we have in the district it is first advanced 56(f) the denial of Rule when motions determining whether there was vague court deems as too the affidavits discretion, an number of dif “[a] abuse in support submitted of the motion. See applicable factors are to such ferent Ball, (“It at 720 385 F.3d is not abuse of (1) claims, appellant as when the such deny discretion for the district court to subject that is the learned of the issue discovery request party when the ‘makes (2) discovery; the desired whether the de only general conclusory statements [in discovery changed sired would regarding its affidavit] the need more (3) below; ruling long discovery how discovery and does not show how an exten (4) lasted; period appel had whether the sion of time would have allowed informa efforts; dilatory discovery lant in its was falsity tion related to the truth or (5) appellee respon whether the (quoting to be [document] discovered.’” discovery requests.” sive to Plott v. Gen. Valley Hosp., Ironside v. Simi 188 F.3d (6th Corp., Motors 71 F.3d 1196-97 (6th Cir.1999)) (alterations in orig Cir.1995) (citations omitted), denied, cert. inal)); Park, City Cacevic v. Hazel 517 U.S. 116 S.Ct. 134 L.Ed.2d (6th Cir.2000) (“Nowhere F.3d (1996). given Because CenTra was no the unsworn document did the Cacevics discovery opportunity to conduct indicate to the district court what material necessary oppose would be for CenTra to [they] facts hope[d] why to uncover and motion, Gowlings’s summary judgment we [they] previously ha[d] discovered the conclude that the district court abused its (alterations (in in original) information.” 56(f) denying discretion CenTra’s Rule omitted)). quotation ternal marks We motion. have applied upheld this rule and the deni Typically, parties when the have 56(f) al vagueness of Rule motions on discovery, opportunity denying no for grounds parties given even when the were 56(f) ruling summary and on a Rule motion opportunity discovery. no for See Em judgment likely motion is to be an abuse McLaughlin, mons v. 874 F.2d 359 Corp., discretion. Ball Union Carbide (6th Cir.1989). Similarly, we have af (6th Cir.2004) (“It 385 F.3d 719 is 56(f) firmed the denial of Rule motions plaintiff well-established that the must re given when the were insufficient opportunity ceive ‘a full to conduct discov discovery time if discovery for “further ery’ successfully to be defeat a able changed legal would not have fac and Vance, summary judgment.”); motion for Laakko, tual Maki v. deficiencies.” 88 (“Most (6th significant denied, 90 at Cir.1996), F.3d 1149 to the F.3d 367 cert. conclusion the fact that we reach is no 117 136 519 U.S. S.Ct. L.Ed.2d (1997). Thus, discovery was conducted before the motion generally abuse 56(f) summary deny for judgment was filed and de- of discretion to Rule motion plans, drawings rights-of-way for discov- and any opportunity ap- the absence excep- proved by limited officials of the federal ery, govern- we have noted some but exceptions, Those how- ment in the tions to that rule. United States and Canada for case, ever, in this and we apply Bridge.” do not the current Ambassador J.A. at (Letter dis- the district court abused its conclude from Estrin to Robert W. 56(f) Rule mo- denying Bloom, Jr., cretion in CenTra’s Bridge Program Manager, Of- Commander, tion. fice of Ninth Coast Guard 2006) 10). (Sept. District Estrin’s discovery before requesting time for description sounds similar to the descrip- summary judgment determination of the tion of the given memorandum’s contents motion, outlining filed an affidavit CenTra by one of the memorandum’s authors. See that it would seek in discov- the evidence (Mar. 2:06-cv-15185, Docket No. R. 23 at 4 affidavit ery. We conclude CenTra’s ¶ 4) 12, 2007, Emilio S. Binavince Deck information vague is not too and identifies (describing Legal the Goodman Memoran- justify “essential to its sought CenTra dum as “notes of the factual containing summary judgment. opposition” to Fed. legislative history statutes and 56(f). R.CivP. There are several issues executive governing actions the construc- opportunity discovery which the for for tion of the Ambassador Canada instance, important. For would been States, particularly and the United sought asserts it would have dis- CenTra incorporating Canadian statute the Cana- covery Gowlings’s as to conflicts-cheek Company”). dian Transit The Goodman- procedures procedures and how those memorandum author went on to state that applied during were or were not the course the documents that Estrin referred to in leading up to this case. This events by necessity his letter “would be included light on what Est- information would shed the documents materials that Gowl- particu- rin have known at knew or should from ings during had Centra its obtained regard Gowlings’s work lar times with (Binavince Centra.” genuine create a for CenTra and could ¶ 6). Deck A declarant CenTra who regarding' Gowlings’s fact issue of material was familiar with both Estrin’s letter catch and alert and Estrin’s failure to Cen- Legal Memorandum stated the Goodman specific one area Tra to the conflict. And description of his research “is Estrin’s discovery particu- would have where been description an accurate of the materials larly helpful allegations involves CenTra’s analyzed in the compiled, referred to and about use of confidential infor- that I Legal per- Memorandum Goodman mation. sonally Gowlings.” J.A. at delivered Estrin questions whether ¶ (Moran pro- Deck also Legal used CenTra’s Goodman Memoran that it was expert vided an who concluded preparing dum in Estrin’s letter on behalf that,, DIBC, “undisputed as counsel in to the U.S. Coast Guard Windsor to Gowlings had access the confidential In his opposition to CenTra’s Plan. case,” in- information connected with “Gowlings letter Estrin wrote that has “that cluding the Goodman memorandum ar commissioned extensive historical and critically analyzed and documented DIBC’s statuto respect chival research with to the legal right operate bridge.” to own and by ry approvals granted and executive ¶ 11). (Hay J.A. at 368 Deck Congress of the United States and Estrin denies that he used part, For his Parliament of Canada to Ambassador any confidential information from CenTra. respect specific in of the Bridge, as well as tial document when that information has I sent to the United that “The letter publicly September subsequently on become known. Guard States Coast “secret,” however, is not de- privi- The term on confidential is not based and/or by supplied that was fined. leged information Gowlings. I have never had to Centra 1.9, governing the infor- Michigan Rule my possession.” any information such may that be disclosed from work mation ¶ 27). (Estrin According at Decl. J.A. clients, may created on behalf of former invoices, Heritage with Estrin worked material 1.6 light shed some on what Rule cited to locate the Research Associates Rule 1.9: According covers. at 459-63 material. See J.A. historical lawyer formerly represented A has who McConnell, (Letter Heritage from David present a client in a matter or whose or Inc., (Sept. Estrin Assocs. Research formerly represented former firm has 2006)). in a not thereafter: client matter shall alleged that complaint, In its (1) relating use information to the its obli has further breached “Gowlings representation disadvantage to the the confiden by using Plaintiffs gations to except of the former client as Rule by provided information privileged tial and permit would or 1.6 or Rule 3.3 Windsor Plaintiffs its client, require respect with to a or (First Am. DIBC.” J.A. when the has become information ¶ 44). response, sub Compl. generally known .... that claimed that it no a declaration mitted 1.9(c) (emphasis Mich. R. Prof’l Conduct Legal the Goodman longer possessed added). 1.9, by exempting informa- Rule Memorandum, that which CenTra claims known, generally suggests that is tion letter to the drafting when his Estrin used similarly generally known information is According to the decla U.S. Coast Guard. exempt from Rule 1.6’s bar from disclo- than the files related to the ration: “Other position sure. Such a is also consistent Work, Gowlings does not Tax and Bond position Michigan’s Standing with the possession or control any files its on Professional and Judicial Committee representation of Cen prior

related to its opinion, Ethics. In a formal the commit- (Jan. at 110-11 Karen tra.” J.A. tee ruled: ¶ 7). effectively Byrne Decl. For CenTra assertion, only example, discov For where the informa- challenge by lawyer copy ery likely acquired be essential. tion would complaint forwarded to the filed Michigan Rules of According client, by defense firm the since a filed Conduct, lawyer “a shall not Professional nature, is, complaint public its both a ... or secret knowingly use a confidence document, a published there would disadvantage of a client to or nothing thus be confidential secret. 1.6(b). R. Prof’l client.” Mich. Conduct provide Michigan Standing rules State Bar of Commit- Similarly, the Ethics, ... confidences tee on Professional and Judicial lawyer reveal “[a] R-4 Opinion (Sept. of the client Formal Number or secrets with the consent basis, affected, after full dis- On this we conclude clients but public information that are them.” Mich. R. Prof’l documents or closure to Con- 1.6(c). are considered confiden- published The use of the word “se- or not duct Michigan’s tial Rules of Professional suggests lawyer may cret” that a disclose under originated information that in a confiden- Conduct. (2) discovery; whether the conclusion is consistent with desired discov-

Our ery below; changed ruling would have [of as well. “The definition Restatement (3) long discovery period how had last- in- client includes information] confidential (4) ed; appellant dilatory whether the was others, that known formation becomes (5) efforts; in discovery its and whether information does not become long so as the appellee responsive discovery was to § 59 cmt. generally known.” Restatement Plott, 71 requests.” F.3d at 1196-97. Furthermore, according to the Restate- b. given opportunity was no CenTra for dis- ment, attorney it not matter that the does covery, suggests which under factors one working the information while gathered and three that the district court abused its generally another client because known Furthermore, op- discretion. without an “may by lawyer employed information portunity discovery, factors four and in possesses permissibly represent- who simply applicable. finally, five are And § ing other clients.” Restatement 59 cmt. factor two also indicates that the district Instead, gen- d. information is “[w]hether court abused its discretion because CenTra erally depends known on all circumstances sought that genu- evidence would establish obtaining in the information. In- relevant ine issues of fact material as to its claims formation in books or records in contained contract, fiduciary of breach of breach of libraries, public-record depositories public duties, Thus, legal malpractice. offices, government publicly such as or district court’s denial of CenTra’s Rule gener- storage accessible electronic-data is 56(f) discovery motion for was an abuse of if ally particular known information is discretion. through publicly obtainable available in- methods of access. In- dexes similar Damages C. when a generally formation is not known Finally, Gowlings asserts its brief that person knowing interested the informa- summary judgment appropriate was be- only by spe- tion could obtain it means of that it prove cause CenTra cannot suffered difficulty cial or knowledge substantial any damages. Gowlings claims Canada expense.” Id. for an required pay would have CenTra developed through Absent information environmental assessment even if Estrin discovery, appears Estrin’s letter to con- urged had not the U.S. Coast Guard also only generally tain known material. ar- to demand assessment. Gowlings presented to the district court however, disingenuous. Est- gument, organ- invoices from an historical research urged rin’s letter the U.S. Coast Guard establishing ization hired demand an environmental assessment be- group public to conduct research from cause, Estrin, according to Canada’s envi- sources, rely letter Estrin’s seems adequate. ronmental assessment was not however, Discovery, upon that research. (Estrin 9) (“In Canada, Letter at J.A. at 43 what, if might help identify any, however, only pre- are a minimal there information in the Estrin letter was de- requirements type for this [sic] scribed rived from confidential information from examination.”). Thus, on environmental Legal the Goodman Memorandum. it is arguments, of Estrin’s own basis To determine whether the district court reasonable to assume denying abused its discretion in a Rule on a expend greater forced to resources 56(f) motion, we look to several factors assessment more robust environmental (1) required if it were appellant “such as when the learned of than it would have subject standards. the issue that is the of the desired meet Canada’s by legal representation undertaken CONCLUSION III. liability and whether civil the defendants genu- established that CenTra We hold by Rules of Pro- foreclosed fact to whether as of material ine issues the Rules stating fessional Conduct rep- and adverse Gowlings’s simultaneous give “do not ... rise to a cause of action on the of Windsor resentation ” damages.... ... or for The District to which Cen- a conflict Plan was giving should set the case for trial Court consent, whether CenTra was Tra could time to parties period a reasonable of the conflict to the informed adequately discovery. complete consented, could extent that CenTra in fact did consent. and whether therefore, court

We, hold that the district summary judgment to

erroneously granted claims of breach

Gowlings on CenTra’s duties,

contract, fiduciary breach also hold that the malpractice. We

legal deny- court abused its discretion

district 56(f) motion for discov- Rule

ing CenTra’s DESAI, reasons, we REVERSE Jasubhai K. Petitioner- ery. these For Appellee, summary judg- grant court’s district proceed- for further ment and REMAND opinion. with this ings consistent BOOKER, Raymond Respondent-

MERRITT, Judge, concurring. Circuit Appellant. case, jury in this There is a demand No. 07-1684. I the case should be remanded concur that discovery court for further the district Appeals, United States Court of underlying causes of action. relating to the Sixth Circuit. contain a written con- The record does not or parties tract documents between July 2008. Argued: undertakings of reciprocal explaining Aug. Decided and Filed: clearly in but the are parties, legal repre- the nature of the conflict about and duties undertaken Gowl-

sentation

ings. scope about the reach no conclusion

We causation, damages, or whether liability, or valid plausible

there is in fact a breach legal duties.

of contract or other record, complete it would be

absence of a any findings us to make

premature for regard underlying to the

conclusions with

causes of action. Under Seventh

Amendment, tó a plaintiff is entitled

jury any disputed trial on issues of materi- instructions,

al fact. After it will proper up jury to determine the nature

Case Details

Case Name: CenTra, Inc. v. Estrin

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Aug 15, 2008

Citation: 538 F.3d 402

Docket Number: 07-1680

Court Abbreviation: 6th Cir.