The issue to be litigated in
this case is whether Utilimaster’s purchases of natural gas are excluded from
sales tax under Indiana Code § 6-2.5-4-5. The parties agree that the facts
central to this inquiry are: 1) the square footage of Utilimaster’s facility;
2) how much of that square footage was used in its manufacturing process; and
3) the temperature at which that square footage was kept. (See Resp’t Mot.
Compel, Ex. A at 2; Mot. Disqualify Hr’g Tr. (hereinafter “Hr’g Tr.”) at 46.)
...
Testimony from
Utilimaster’s attorneys about what their “subjective mindset” was when they
conducted the utility study is irrelevant to determining whether Utilimaster’s
natural gas purchases are entitled to the predominate use exclusion.
Utilimaster’s utility study does nothing more than provide the total square
footage of Utilimaster’s facility and the portion of that square footage that
is used in Utilimaster’s manufacturing process. (See Resp’t Resp. Pet’r Mot.
Deny Resp’t Mot. Disqualify Pet’r Att’ys, Ex. A at 5 (the utility study).)
Because this information is readily ascertainable, objective numbers, the only
relevant testimony from Utilimaster’s attorneys would concern the accuracy of
those numbers. See, e.g., State v. Int’l Bus. Machines Corp., Case No.
49S00-1201-PL-15, slip op. at 8 (Ind. Mar. 21, 2012) (Sullivan, J., concurring
(explaining that “state of mind” testimony should not be compelled when it
bears no relevance to the issue being litigated)). Such testimonial evidence
could be elicited, however, from other sources, such as Utilimaster employees
knowledgeable about its manufacturing process, the size of its facility, and
the use of its space. In fact, Utilimaster explains that it did not list the
utility study on its pre-trial exhibit list because it intended to prove the
facts documented in it by its own employees’ testimony. (See Hr’g Tr. at 49.)
Therefore, Utilimaster’s attorneys are not necessary witnesses pursuant to
Professional Conduct Rule 3.7.
The Court
further notes that the Department’s motion to disqualify must fail because
Professional Conduct Rule 3.7 has not been used for its intended purpose of
preventing the Court from being misled or confused about Utilimaster’s
attorneys’ role. Indeed, during the Court’s hearing, no concern was ever
expressed that the Court could or would be confused about whether Utilimaster’s
attorneys, if called to testify, were acting as witnesses or as advocates. (See
generally Hr’g Tr.) Instead, throughout the proceeding, the argument focused exclusively
on why additional discovery was needed. (See Hr’g Tr. at 9, 16, 19-20, 25-26,
29-30, 70.) More specifically, the Department claimed that it had been
“ambushed” by Utilimaster’s attorneys when they revealed that ROAR conducted
the utility study after discovery was closed and their depositions could no
longer be taken. (See Hr’g Tr. at 11-19, 29-30.) Without an opportunity to
depose them now, the Department argues that it will be “unfairly prejudiced”
because it will not be able “to learn about and attack their consulting work.”
(See Hr’g Tr. at 4.) The facts do not support this claim.
Utilimaster
filed its refund claim with the Department on February 26, 2010, along with a
copy of the power of attorney granting Romack and Dunbar the authority to act
on its behalf before the Department. Utilimaster’s refund claim proclaimed that
“with assistance from ROAR,” it conducted a utility study to support its
position. (Resp’t Disqualify Mot., Ex. E at 1, 3.) Moreover, the refund claim
was signed by Romack as ROAR’s president. Thus, from that date, the Department
should have known that ROAR, Romack, and Dunbar played a role in formulating
the utility study and refund claim.
The
Department’s current counsel came into possession of these documents when he entered
his appearance in this case on June 1, 2011, nearly three months before
discovery closed. While he may not have had a complete understanding of the
role of Utilimaster’s attorneys in formulating the utility study and refund
claim at that time, he had ample evidence to alert him that he may want to
conduct depositions to know more. Nonetheless, he never requested depositions
from Romack, Dunbar, or anyone on Utilimaster’s witness list. Instead, he filed
a motion to reopen discovery to obtain evidence he had not timely sought before
discovery closed, including evidence to assist him in determining whether
Romack and Dunbar were necessary witnesses. (See Hr’g Tr. at 24-26, 70.) On the
very next day, however, the Department sought to disqualify Utilimaster’s
attorneys altogether.
The Department
has invoked Professional Conduct Rule 3.7 in an attempt to conceal its failure
to timely pursue discovery as well as to remove Utilimaster’s attorneys from
the case, calling their professionalism into question. The Court will not
countenance the Rule’s abuse as a procedural weapon by invading Utilimaster’s
right to counsel of its choice. See Harter, 5 F.Supp.2d at 663 (citation
omitted); LeaseAmerica Corp., 876 P.2d at 192.
http://www.in.gov/judiciary/opinions/pdf/04171201mbw.pdf
