Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CORPORAL B. KURT PRICE, et al., Plaintiffs, v. COLONEL L. AARON CHAFFINCH, et al., Defendants.

: : : : : : : : :

C.A.No.04-956-GMS

SERGEANT CHRISTOPHER D. FORAKER, Plaintiff, v. COLONEL L. AARON CHAFFINCH, et al., Defendants.

: : : : : : : : :

C.A.No.04-1207-GMS

PLAINTIFFS' ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO BAR CERTAIN COMMUNICATIONS OF COUNSEL OR, IN THE ALTERNATIVE, TO DISQUALIFY COUNSEL

THE NEUBERGER FIRM, P.A. THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] Attorneys for Plaintiffs Dated: November 14, 2005

MARTIN D. HAVERLY, ATTORNEY AT LAW MARTIN D. HAVERLY, ESQ. (#3295) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 654-2255 [email protected]

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TABLE OF CONTENTS NATURE AND STAGE OF THE PROCEEDING......................................................................................1 SUMMARY OF THE ARGUMENT............................................................................................................1 STATEMENT OF FACTS............................................................................................................................2 A. B. Captain Davis' Prior Lawsuit..............................................................................................2 Captain Davis Has Good Reason to Invoke His First Amendment Right to Counsel.........2 1. Defendants Regularly Retaliate Against Those Who File Lawsuits......................2 a. b. Hostility Towards Sgt. Foraker Who Filed a Lawsuit..............................3 Hostility Towards Master Corporals Price and Warren Who Also Filed a Lawsuit..........................................................................................4 Hostility Towards Captain Conley Who Filed Another Lawsuit..............4 Hostility Towards Captain Davis Who Filed a Lawsuit...........................4

c. d. 2. 3.

Defendants' Close Friendship Also Gives Rise to a Motive to Retaliate..............5 Troopers Fear Chaffinch Because He is "Very Vindictive" and Demands "Blind" Personal Loyalty.......................................................................................5 Troopers Also Fear Chaffinch Because of His Powerful Political Connections............................................................................................................6 Fear of the Good Old Boy Network.......................................................................7

4.

5. C. D.

Defense Counsel's Conduct in Threatening a Witness.......................................................7 Captain Davis Reasonably Fears Retaliation......................................................................8 1. 2. The Record Evidence.............................................................................................8 Defendants Are Setting Capt. Davis Up For Blame...............................................8 a. b. c. The Broken and Historically Troubled Firearms Training Unit...............8 Defendants Blame the Whistleblowers...................................................10 Defendants Continue and Blame Even More Innocent Parties Who Invoked Their First Amendment Rights..................................................11

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3.

Defendants Tried to Set Capt. Davis Up for an I.A. Charge................................12 a. b. Dereliction of Duty..................................................................................12 Giving a Document to His Attorney........................................................12

E. F. G.

Captain Davis Has Already Been Retaliated Against For Filing Suit...............................12 Captain Davis Clearly Invoked His Right to Counsel at His Deposition..........................13 Captain Davis is Represented by The Neuberger Firm.....................................................13 1. Defense Counsel's Misrepresentations................................................................14 a. b. c. First Notice..............................................................................................14 Second Notice.........................................................................................14 Third Notice............................................................................................14

H.

Counsel Never Discussed the Substance of the Present Litigation With Captain Davis, So Rule 4.2 Does Not Come Into Play...................................................................14 Captain Davis' Deposition Testimony Clearly Supports Plaintiffs' Case........................15 1. 2. 3. 4. 5. 6. Defendants Violated Judge Farnan's Reinstatement Order.................................15 The Range Was a Disaster Area on December 1, 2003.......................................16 Plaintiffs Are Highly Regarded and Truthful Officers........................................16 Plaintiffs Were Acting in Good Faith As They Pled For Help............................16 Due to Severe Understaffing, Safety Was a "Nightmare"...................................17 Plaintiffs Spoke Out and Capt. Davis Responded and Sent Their Concerns Up the Chain of Command...................................................................17 The State of Delaware Refused Free Offers of Help From NIOSH.....................17 The State Deceived Plaintiffs and Falsely Told Them the Bullets They Used Were Non-Toxic..........................................................................................17

I.

7. 8.

J. K.

No Conflict of Interest Exists Between Capt. Davis and Plaintiffs..................................18 Defense Counsel Attempt to Violate Rule 4.2 and Directly Contact Captain Davis Despite Their Awareness that He is Represented by Counsel..........................................18

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ARGUMENT..............................................................................................................................................19 I. II. STANDARD OF REVIEW...............................................................................................19 INTRODUCTION.............................................................................................................19 A. B. III. Defendants Have Obscured the True Issues.........................................................19 The Defense Theory of the Case is Already Widely Known...............................20

CAPTAIN DAVIS HAS AN ABSOLUTE FIRST AMENDMENT RIGHT TO COUNSEL AND HE HAS UNEQUIVOCALLY INVOKED THIS RIGHT, THUS, DEFENSE COUNSEL ARE BARRED FROM CONTACT WITH HIM UNDER MRPC 4.2..........................................................................................................................22 A. B. The First Amendment Right to Counsel...............................................................22 Captain Davis Has Clearly Invoked His First Amendment Right to Counsel.................................................................................................................24 Rule 4.2 Forbids Defense Counsel From Meeting With Capt. Davis Outside The Presence of His Attorneys.............................................................................24 1. Regardless of the Outcome of This Motion, Defense Counsel Still May Not Meet With Capt. Davis Outside the Presence of His Attorneys.................................................................................................24 Capt. Davis Does Not Challenge Defendants' Authority to Meet With Him.................................................................................................25

C.

2.

IV.

THE LAW ENFORCEMENT OFFICERS' BILL OF RIGHTS ALSO FORBIDS DEFENSE COUNSEL FROM MEETING WITH CAPTAIN DAVIS OUTSIDE THE PRESENCE OF HIS ATTORNEY..........................................................................25 RULE 4.2 HAS NOT BEEN VIOLATED BECAUSE COUNSEL HAS NOT `COMMUNICATED' WITH CAPTAIN DAVIS ABOUT THE SUBSTANCE OF THE CURRENT LITIGATION AND CONTINUED REPRESENTATION OF HIM IS PROPER...............................................................................................................26 A. Rule 4.2 has Not Been Violated...........................................................................26 1. There Has Been No `Communication'....................................................26 a. Communications With Davis About Other Matters Are Proper..................................................................................27

V.

2.

The Intent Required by the Rule is Lacking...........................................27

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3.

Defendants Also Have Waived the Issue of The Neuberger Firm Representing Captain Davis....................................................................28

B.

The True Issue Presented by Defendants.............................................................29 1. Under the Model Rules, Capt. Davis Has a Clear Right to Counsel When Being Interrogated by Defendants................................................29 The Neuberger Firm Can Represent Captain Davis................................29 a. Defendants Are Not Barred From Meeting with Capt. Davis.................................................................................30 Defendants Trial Strategy is Already Known............................30 The Defense Concerns of Privilege Are In Error.......................30

2.

b. c. C.

Capt. Davis' First Amendment Protected Activity Cannot Serve as a Basis For a Violation of Rule 4.2..................................................................................31 1. 2. Defendants Have Unclean Hands Because of Their Illegal Actions.......32 These Communications Also Were Protected Speech and Petition of Government for Redress of Grievances..............................................33

VI.

ALTERNATIVELY, NO PRIOR PRECEDENT IS ON POINT AND OURS IS A CASE OF FIRST IMPRESSION UNDER MRPC 4.2......................................................34 A. B. C. No Case Has Applied the New Language of the Comment.................................34 All of the Cases Cited Apply the Old Language and Test...................................34 The Closest Precedent is Fatally Deficient..........................................................35

VII.

MRPC 1.7 HAS NOT BEEN VIOLATED BECAUSE THE INTERESTS OF PLAINTIFFS AND CAPT. DAVIS ARE ALIGNED.........35 A. B. C. D. The Record Demonstrates That Their Interests Are Aligned...............................35 Defendants Have Already Questioned Davis at His Deposition..........................36 Any Conflict of Interests Has Been Waived........................................................36 Defense Counsel Have a Conflict of Interest.......................................................36

VIII.

DISQUALIFICATION IS NOT AN APPROPRIATE REMEDY....................................37 A. Factors..................................................................................................................37 iv

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B.

Remedy.................................................................................................................40

CONCLUSION............................................................................................................................................40

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TABLE OF AUTHORITIES Cases Page

American Airways Charters, Inc. v. Regan, 746 F.2d 865 (D.C.Cir. 1984)...............................................23 Anderson v. Davila, 125 F.3d 148 (3d Cir. 1997)..................................................................................33-34 Arizona v. Fulminante, 499 U.S. 279 (1991)..............................................................................................21 Baldassare v. State of N.J., 250 F.3d 188 (3d Cir. 2001)............................................................................34 Bates v. State Bar of Arizona, 433 U.S. 350 (1977)...................................................................................22 Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964).....................................22, 23-24, 25, 30 Burkybile v. Bd. of Educ. of the Hastings-on-Hudson Union Free Sch. Dist., 411 F.3d 306 (2d Cir. 2005)...........................................................................................................34 Cipriani v. Lycoming County Housing Authority, 177 F.Supp. 2d 303 (M.D.Pa. 2001)...........................23 Conley v. Chaffinch, 2005 WL 2678954 (D.Del. March 4, 2005)..............................................................40 Darchia v. Ashcroft, 101 Fed.Appx. 373 (3d Cir. 2004).............................................................................36 DeLoach v. Bevers, 922 F.2d 618 (10th Cir. 1990)....................................................................................23 Denius v. Dunlap, 209 F.3d 944 (7th Cir. 2000)...................................................................................22, 23 Doe v. District of Columbia, 697 F.2d 1115 (D.C.Cir. 1983).....................................................................23 EEOC v. Hora, 2005 WL 1387982 (E.D.Pa. June 8, 2005)........................................................................35 Eisenberg v. Gagnon, 766 F.2d 770 (3d Cir. 1985)....................................................................................31 Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc., 142 F.Supp.2d 579 (D.Del. 2001)....................................................................19, 28, 35, 37, 39, 40 End of Road Trust v. Terex Corp., 2002 WL 242464 (D.Del. Feb 20, 2002)................................19, 37, 39 First Defense Legal Aid v. City of Chicago, 209 F.Supp.2d 935 (N.D.Ill. 2002).......................................23 Freeman and Bass, P.A. v. State of N.J. Commission of Investigation, 359 F.Supp. 1053 (D.N.J. 1973).....................................................................................................22 Government of Virgin Islands v. Joseph, 685 F.2d 857 (3d Cir. 1982)......................................................31 Hanes v. Liggett Group Inc., 975 F.2d 81 (3d Cir. 1992)...........................................................................31 Holder v. City of Allentown, 987 F.2d 188 (3d Cir. 1993).........................................................................34 vi

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In re Dinnan, 661 F.2d 426 (5th Cir. 1981).................................................................................................21 In re Primus, 436 U.S. 412 (1978)...................................................................................................22, 23, 30 In re TI.B., 762 A.2d 20 (D.C.App. 2000)..................................................................................................23 Jones v. Daily News Pub. Co. Inc., 2001 WL 378846 (D.V.I. March 16, 2001)........................................35 Jones v. Sheahan, 2002 WL 959814 (N.D.Ill. May 9, 2002)......................................................................23 Martin v. Lauer, 686 F.2d 24 (D.C.Cir. 1982)............................................................................................23 Monsanto Co. v. Aetna Casualty and Surety Co., 593 A.2d 1013 (Del.Super. 1990)..........................21, 25 Mothershed v. Justices of the Supreme Court, 410 F.3d 602 (9th Cir. 2005).............................................23 NAACP v. Button, 371 U.S. 415 (1963).....................................................................................................22 Poole v. County of Otero, 271 F.3d 955 (10th Cir. 2001)...........................................................................23 San Filippo v. Bongiovanni, 30 F.3d 424 (3d Cir. 1994)............................................................................34 Sheet Metal Workers International Ass'n v. Sweeney, 29 F.3d 120 (4th Cir. 1994)..................................31 Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996)............................................21 Thompto v. Coborn's Inc., 871 F.Supp. 1097 (N.D.Iowa 1994).................................................................30 United Mine Workers v. Ill. State Bar Ass'n, 389 U.S. 217 (1967)...........................................................22 United Transp. Union v. State Bar of Michigan, 401 U.S. 576 (1971).......................................................22 Upjohn Co. v. U.S., 449 U.S. 383 (1981)....................................................................................................31 U.S. v. Furst, 886 F.2d 558 (3d Cir. 1989)..................................................................................................31 Velazquez v. Legal Services Corp., 349 F.Supp.2d 566 (E.D.N.Y. 2004).................................................33

Constitutions, Statutes and Rules U.S. Constitution Amendment I...........................................................................................................passim 11 Del.C. § 9200(c)................................................................................................................................25-26 ABA Model Rule of Professional Conduct 1.13.........................................................................................29 ABA Model Rule of Professional Conduct 1.13(f).....................................................................................29

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ABA Model Rule of Professional Conduct 1.13, Comment 10............................................................29, 31 ABA Model Rule of Professional Conduct 1.7.....................................................................................18, 35 ABA Model Rule of Professional Conduct 4.2....................................................................................passim ABA Model Rule of Professional Conduct 4.2, Comment 1......................................................................25 ABA Model Rule of Professional Conduct 4.2, Comment 2......................................................................24 ABA Model Rule of Professional Conduct 4.2, Comment 4......................................................................27 ABA Model Rule of Professional Conduct 4.2, Comment 5......................................................................33 ABA Model Rule of Professional Conduct 4.2, Comment 6......................................................................28 ABA Model Rule of Professional Conduct 4.2, Comment 7................................................................29, 34 ABA Model Rule of Professional Conduct 4.2, Comment 8......................................................................27 ABA Model Rule of Professional Conduct 4.3...........................................................................................25

Other Authorities Hazard & Hodes, The Law of Lawyering: A Handbook on the Model Rules of Professional Conduct, at 434 (Supp.1989)......................................................................25

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NATURE AND STAGE OF THE PROCEEDING This is Plaintiffs' Answering Brief and Appendix in opposition to the defendants' disqualification motion. The record includes: extensive declarations from plaintiffs' counsel Stephen J. Neuberger, each of the three plaintiffs, and Capt. Ralph H. Davis; deposition testimony of retired Major David Baylor, Capt. Davis, Capt. Glenn Dixon, Lt. Joseph Aviola, retired Major Joe Swiski; and defendants Chaffinch and MacLeish;1 plaintiffs' Answers to Interrogatories;2 as well as assorted e-mails between counsel for the parties. SUMMARY OF THE ARGUMENT Model Rule 4.2 has not been violated as counsel has never `communicated' with Capt. Davis about the present litigation as necessary to trigger the Rule's application. Capt. Davis has a clear right to counsel under the First Amendment, the Law Enforcement Officers' Bill of Rights and the Model Rules of Professional Conduct when being questioned by defendants and he has unequivocally invoked that right. As a result, Rule 4.2 bars defense counsel from meeting with him outside the presence of his attorneys. The Firm's representation of Davis at any interview by defense counsel is just and proper because: (1) the interview is not a privileged communication because defendants' interest are antagonistic to Davis', whose interests are instead aligned and consistent with plaintiffs'; (2) the defense trial strategy is already widely known; and (3) defendants have failed to carry their heavy First Amendment burden necessary to deprive Capt. Davis of his chosen counsel.

In addition to their deposition testimony in this case, the record also includes the deposition testimony of Chaffinch, MacLeish, Baylor and Dixon from the case of Conley v. Chaffinch, MacLeish, et al., C.A.No. 04-1394-GMS. Aviola's testimony is solely from the Conley case and Swiski's testimony is solely from the case of Dillman v. Chaffinch, et al., C.A. No. 02-509-KAJ. Neither Aviola nor Swiski were deposed in our present action. An excerpt from Chaffinch's trial testimony in the case of Foraker v. Chaffinch, et al., C.A. No.02-302-JJF also is included. References to Plaintiffs' Answers to Interrogatories in Price, et al. v. Chaffinch, et al., will be referenced as "Price Inter. # __" and Plaintiff's Answers to Interrogatories in Foraker v. Chaffinch, et al., will be referenced as "Foraker Inter. # __").
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1

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STATEMENT OF FACTS A. Captain Davis' Prior Lawsuit. Then Lieutenant Ralph H. Davis III received the highest promotional testing score on both the oral and written tests for promotion to Captain, yet Chaffinch and then Cabinet Secretary Ford refused to promote him in favor of numerous lesser qualified candidates. Captain Davis then invoked the protections of the First Amendment's speech and petition clauses when on February 20, 2004 he filed a lawsuit against Chaffinch and Ford, challenging their repeated violations of the Fourteenth Amendment equal protection clause. (See Davis v. Chaffinch, et al., C.A.No. 04-106-JJF, at D.I. 1). Six months later, before any discovery was taken, the case was settled. (See B1297 - Judge Farnan's Order). Shortly thereafter, he was promoted to Captain. (Davis 6-7; B251). The Court specifically retained jurisdiction to enforce the confidential settlement agreement which to no surprise barred retaliation. (Neuberger Decl.¶¶ 16-17,19; B1322-23). As Capt. Davis has testified, the attorney/client relationship then continued to protect him from expected retaliation. (Davis Decl. ¶¶ 7-9; see Neuberger Decl. ¶¶ 19-22; B1313,1322-23). B. Captain Davis Has Good Reason To Invoke His First Amendment Right to Counsel. 1. Defendants Regularly Retaliate Against Those Who File Lawsuits. Including the present Foraker action, there are currently two lawsuits pending before this Court involving retaliation by both defendants Chaffinch and MacLeish against individual Troopers who, like Capt. Davis, previously dared to file lawsuits challenging Chaffinch's illegal actions. See Foraker v. Chaffinch, MacLeish, et al., C.A.No. 04-1207-GMS; Conley v. Chaffinch, MacLeish, et al., C.A.No. 04-1394-GMS. Chaffinch admittedly does not like it when Troopers invoke their First Amendment rights to file lawsuits against the DSP. (See, e.g. Chaffinch 175,40; B204,170). MacLeish has acknowledged the same. (See, e.g. MacLeish 31; B340). But more importantly, the present

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record has revealed extensive evidence of defendants' admitted hostility towards individual Troopers who invoke their First Amendment rights. a. Hostility Towards Sgt. Foraker Who Filed a Lawsuit. Sgt. Foraker's present action is based upon retaliation against him by Chaffinch and MacLeish because he successfully prosecuted an earlier First Amendment retaliation lawsuit against Chaffinch beginning in April 2002. Chaffinch was "upset" and "unhappy" that Sgt. Foraker had filed his lawsuit. (Chaffinch 40; B170). He regularly stated that Sgt. Foraker is a "real pain in the ass" and is a "f-cking a­hole." (Dixon 16,76,74; B294,309).3 Moreover, because of his hostility over the filing of the suit, Chaffinch openly bragged throughout the DSP - "I'm going to get that son of a bitch." (Dixon 17-18,77; B294-95,309). "[I]f people f-ck with Chaffinch, I'm going to f-ck back." (Dixon 10,53-54; B293,303-04).4 In the same way, MacLeish was admittedly "irritated" and "not happy" that Sgt. Foraker had filed a lawsuit. (MacLeish 34,31; B340-41). He too swore under oath that he thinks plaintiff Sgt. Foraker is a "real pain in the ass" because he had invoked his First Amendment rights. (MacLeish 164-165; B373). Chaffinch has been "angry" at Sgt. Foraker "for a very long time," "since the lawsuit began." (Dixon 14,22-23,52,55; B294,296,303-04). He regularly mocked Sgt. Foraker and joked about his injuries from his initial lawsuit. (Dixon 14-15,74-75; B294,309). He was angry the entire life of Sgt. Foraker's suit. (Dixon 20,75; B295,309). His "anger increased" after Sgt. Foraker's successful jury verdict and after Judge Farnan reinstated him to his prior position at the FTU. (Dixon 20-21; B295). It was regularly discussed among commanders that Chaffinch was "going after Sgt. Foraker." (See Dixon 69; B307).

Notably, Chaffinch refused to refer to Sgt. Foraker by his rank. Instead, he substituted the word "f-cking" for the word `sergeant.' (Dixon 9-10,53; B292-93,303).
4

3

Chaffinch also said this about other Troopers who filed lawsuits. (Dixon 10; B293).

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b. Hostility Towards Master Corporals Price and Warren Who Also Filed a Lawsuit. In the same way, MacLeish testified that he thinks that plaintiff Master Corporals Price and Warren also are a "real pain in the ass." (MacLeish 164-165; B373). He is "not happy" and emphatically expressed that he is very "disappointed" in the fact that they filed suit. (MacLeish 214-217,211-213; B385-86). Chaffinch has expressed the same feelings (MacLeish 218-219), and is "not happy" about their suit. (Chaffinch 142; B196). He refers to the suit as "f-cking bull-sh-t." (Dixon 79; B310). Chaffinch also cruelly joked about, mocked and made fun of these two dedicated veteran's injuries. (Dixon 25-26,23-24,79; B296,310). c. Hostility Towards Captain Conley Who Filed Another Lawsuit. Capt. Conley also filed suit against Chaffinch in October 2004. Shortly thereafter, she amended her initial lawsuit to include the unprecedented retaliatory actions taken against her by Chaffinch and MacLeish - including releasing statutorily protected internal affairs information about her to the Delaware news media within hours of the filing of her lawsuit. (See Conley v. Chaffinch, MacLeish, et al., C.A.No. 04-1394-GMS at D.I. 7). Moreover, that case has revealed a wealth of evidence of defendants' hostility towards Capt. Conley because she filed her lawsuit. For example, there is abundant testimony that Chaffinch was "mad," "ang[ry]," "displeased," "pissed off," "upset," and "unhappy" about the suit. (See, e.g. Dixon 69-71, MacLeish 120-121, Aviola 79,82 84; B1265-66,1165,866-67). He very well may have used some colorful language and other profanity to describe it. (Aviola 79; B866). In the same way, MacLeish was "annoyed by her actions" in filing a lawsuit. (MacLeish 179-180; B1165). He was "unhappy," "upset," "displeased," "disappointed," and "disgusted" by her suit. (MacLeish 179-180,125-127,131-132,180-181, Aviola 82,84; B1165,1151-53,867). Defendants were out to get her, and would stop at nothing until they did. d. Hostility Towards Captain Davis Who Filed a Lawsuit. Even though no discovery has been taken on this issue, the record has nonetheless revealed Chaffinch

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and MacLeish's hostile feelings towards Capt. Davis because of his suit. Now retired Major David Baylor served on the DSP Executive Staff with Chaffinch and MacLeish. (Baylor 6,12,2021; B1232-33,1235). Under questioning by defendants, while discussing Chaffinch and MacLeish's loathing of Sgt. Foraker and other officers who had filed suit, Major Baylor testified that defendants also had hostility towards Capt. Davis because he had filed a suit. They "didn't like" him because of it. (Baylor 364; B116). 2. Defendants' Close Friendship Also Gives Rise To a Motive to Retaliate. Chaffinch and MacLeish are admittedly "buddies" and "friends." (Chaffinch 16-17; MacLeish 7; B164,334). MacLeish publicly brags that he and Chaffinch are "joined at the hip." (MacLeish 9; B334). He "feel[s] very strongly" that his good friend Chaffinch is an "honorable man," a "good trooper," a "good person," and a "good man" who was "a good leader" for the DSP. (MacLeish 9-12; B334-35). MacLeish is so close to Chaffinch that despite the fact that he was not a defendant, he nonetheless attended the mediation in Capt. Davis' lawsuit to support his "close" friend Chaffinch. (Davis 73-74; B267-68). He thinks that the numerous suits, jury verdicts, and court opinions upholding these jury verdicts are meritless. (See MacLeish 107-114; B1147-49).5 3. Troopers Fear Chaffinch Because He Is "Very Vindictive" and Demands "Blind" Personal Loyalty. Chaffinch has always expected "blind loyalty" from all those in the DSP. (Dixon 24; B296; Dixon 105; B1274). "You have to just follow him ... and if you don't, he is done with you. You may suffer any consequences from that." (Dixon 105; B1274; Dixon 85; B311). Chaffinch himself has repeatedly admitted that "personal loyalty" is a factor he considers when making personnel decisions. (Chaffinch 158-159; B200; Chaffinch 179; B985).

MacLeish testified that despite the June 2003 jury verdict that Chaffinch had violated Sgt. Foraker's First Amendment rights, DSP legal counsel advised them that the jury verdict could be ignored and really was not a finding that the First Amendment had been violated. (MacLeish 112-113; B1148). Perhaps this explains why defendants think they are above the law. This also dovetails well with Chaffinch's trial testimony during Sgt. Foraker's first case - that he could do whatever he wants, whenever he wants, because he is the Colonel. (See Chaffinch at D17; B1301).

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Several other witnesses, including MacLeish have confirmed this. (MacLeish 64; Baylor 20-21; B11136, 1235). Captain Dixon worked closely with Chaffinch in Sussex County for 17 years. (Dixon 77, 90,92,4; B309,313,291; Dixon 7-10; B1250-51). He testified that Chaffinch "is very vindictive" and "use[s] his rank or office in the state police to be vindictive." "[I]t is common knowledge ... you would not cross him ... because of his vindictiveness. You knew that your career would pretty much stop." (Dixon 71-72; B1266; Dixon 24,44; B296,301). "He goes after people ... if he feels that anyone has betrayed him. That's his makeup." (Dixon 44; B301). In the same way, Plaintiff Price has served with Col. MacLeish for many years. In his own words, MacLeish also "is a very vindictive man. I would go so far as to say that he is the definition of the word vindictive." (Price. Decl. ¶ 13; B1304). 4. Troopers Also Fear Chaffinch Because Of His Powerful Political Connections. Chaffinch believes he can get away with anything because, as he openly brags, his close relationship with Delaware State Senator Thurman Adams will protect him. (Dixon 64-65; B1264; Dixon 91; B313). "Uncle Thurman ... would take care of him no matter what." (Dixon 64-65; B1264). "[I]f he needed anything done, he would just go to ... the Thurmanator, and it would be done." (Dixon 65; B1264).6 Chaffinch is "a very powerful person, he has political ties that are very strong." (Dixon 72-73; B308). As Chaffinch admitted, politics play a role in the day to day operations of the DSP. (Chaffinch 157; B199). Because of this, as one commander stated, opposing Chaffinch "would be the start of ending my career with the State Police." (Dixon 73; B308). Captain Dixon even expressed concern that despite Chaffinch's retirement, he would still find a way to retaliate against him because of Dixon's truthful subpoenaed deposition testimony,

"Thurmanator" is Chaffinch's affectionate nickname for his political patron and "powerful protector." (Dixon 91,103; B313,316).

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(Dixon 72; B1266), perhaps by way of Chaffinch's "close" friendship with MacLeish and Senator Adams. (Chaffinch 16-17,190-191; MacLeish 7; B164,208,334). In Capt. Dixon's words, despite the fact that Chaffinch is retired, "I'm afraid of him now" because of how "politically entangled" he is and because of what he did to Sgt. Foraker, who had dared to file a suit against him. (Dixon 90-91; B313).7 5. Fear of the Good Old Boy Network. Lastly, a good old boy network also exists within the DSP. (Dixon 45-46; see Baylor 16; B301-02,1234). Politics play a role in day to day operations of the Division. (Chaffinch 157; Baylor 16; B199,1234). In today's State Police, actions "are more based on who you know and who your connections are with and who your friends are than on merit." (Baylor 16; B1234). This also gives rise to a strong motive to retaliate when someone rocks the boat. C. Defense Counsel's Conduct in Threatening a Witness. The testimony in this case also has unfortunately revealed that defense counsel have threatened a witness. Perhaps this is yet another reason why Capt. Davis refuses to meet with defense counsel outside the presence of his attorneys, who will most assuredly protect him from any bullying or browbeating. For example, Capt. Glenn Dixon is a 17 year veteran who currently is Commander of Troop 5 in Bridgeville, Delaware. (Dixon 4; B291). He is responsible for law enforcement activities for western Sussex County. This high ranking officer was subpoenaed to testify in this case. (Dixon 3; B291). Under questioning by defense counsel at his deposition, a remarkable piece of testimony became part of the record. Capt. Dixon testified that defense counsel had "threatened" him

Capt. Dixon's fear is well justified and he testified that Chaffinch is currently angry at him for two reasons. First, because Dixon refused to perjure himself and instead has testified truthfully under subpoena. (Dixon 42-44; B301). Second, because Dixon repeatedly refused Chaffinch's direction to cover up a crime committed by a state trooper - which also involved an officer on Chaffinch's Executive Staff and at least one other captain. (Dixon 46-47,85-89,103-107,108-112; B302,311-12,316-18). Sadly, this appears to be standard operating procedure in the State Police. Testimony revealed that MacLeish also interferes in criminal investigations to protect his personal friends. (MacLeish 116; B1149).

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during telephone conversations prior to his deposition. (Dixon 32; B298). Indeed, Capt. Dixon was so intimidated by defense counsel's threatening actions that he cancelled a meeting that had been scheduled between them in order to avoid their unpleasant and "threaten[ing]" behavior. (Dixon 32-34; B298-99).8 Plaintiffs note that during his 17 year police career, Dixon no doubt has dealt with a great many unpleasant individuals. In light of this hardened background, it is notable that he nonetheless felt "threatened" by defense counsel's actions and words. (Dixon 32; B298). D. Captain Davis Reasonably Fears Retaliation. 1. The Record Evidence. In light of the conduct of defense counsel already, as well as the extensive record evidence of Chaffinch and MacLeish's shameless efforts to destroy Troopers who filed suit against Chaffinch in the past, it is quite reasonable that Capt. Davis fears being retaliated against for his successful lawsuit against Chaffinch, and so he has invoked his First Amendment right to the protection of counsel. (See Davis Decl. ¶¶ 15-17; B1314-1314a). At his deposition, Capt. Davis testified that one of the reasons he did this is because he fears being retaliated against by MacLeish. (Davis 70-72; Davis Decl. ¶ 15; B267,1314). 2. Defendants Are Setting Capt. Davis Up For Blame. Additionally, even a passing analysis of the record reveals that defendants are attempting to set Capt. Davis up to take the blame for the problems at the FTU. (See Davis Decl. ¶ 16; B1314-15). a. The Broken and Historically Troubled Firearms Training Unit. The Firearms Training Unit (FTU) is a $3.3 million dollar facility that opened in 1998. (Chaffinch 114; B189). In defendants' words, the FTU has had a "long history of problems" affecting health and safety since its very inception. (Chaffinch 52,59; MacLeish 40; B173,175,

Those threats were born out later during defense counsel's examination. (Dixon 98-101; included in sealed portion of appendix - B1350).

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342).9 A Captain who was involved with the facility since its planning stages was publicly quoted in the media as stating that the FTU has been "[t]he absolute epitome of a project from hell since its very inception." (MacLeish 150; B370). An unqualified builder who had never before constructed a firearms range was hired, despite the fact that it had finished dead last in the bidding rankings. (Price Inter. #5; B710-16). More problems soon followed. For example, in 1996 an expert firearms range builder reviewed the specifications and blueprints for the FTU's ventilation system. In a letter to the State Police, the expert stated that: We have evaluated the ventilation system design for the proposed State Police Facility. We have evaluated the design of the fan, heating & cooling equipment, duct, filter, air flow and control systems and have concluded that this system, as designed will not work. The definition of "will not work" is simply that the present design will not perform as it is required to under the present requirements of OSHA & NIOSH. *** We have concluded that the designed system will inevitably fail if it is constructed as designed. (MacLeish depo.ex. #6; B485) (emphasis added). This warning was disregarded, and the facility has been plagued by health and safety problems ever since. Tens of thousands of dollars have been poured into this multi-million dollar facility but to no avail. As the previous footnote demonstrates, the record is overflowing with evidence that the FTU was doomed since its very inception. Rather then give a comprehensive list, plaintiffs list the following areas as representative of the many health and safety problems at the FTU. · Unsafe levels of lead in the air, levels above the safety standards set by the National Institute of Occupational Safety and Health, (MacLeish depo. ex. #8; B489), Unsafe levels of lead, copper, and other heavy metals in the bloodstream of the staff at the facility, (Price Inter. #5,10; Chaffinch 55,106; Chaffinch depo.ex. #2; MacLeish

·

There is a plethora of both record testimony and documents in this regard. (See, e.g. Price Inter. # 5,9-12, and Ex.1; Foraker Inter. #6,9-10; MacLeish 39-59; MacLeish depo.ex. #6-16; Chaffinch 52-64; Chaffinch depo.ex. #2; Baylor 182-230; Davis 9-34,36-39; B710,717,746,820,825,342-47,485503,173-76,233,71-83,251-59).

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depo.ex. #15,11; B710,718,174,187,233,500,493),10 · Clouds of smoke and haze containing bullet residue consisting of lead and other heavy metals that hover throughout the range and which those who work and train there were forced to breathe, (MacLeish depo.ex. #13,7; Price Inter. #11,12;Chaffinch 56; B497,723,728,174),11 Nosebleeds and a penny taste in the mouths of officers who train and work at the range, (Price Inter. #12; B728).

·

The FTU "was a hazardous situation for [plaintiffs] and for anybody who trained in that facility at all, including myself." (Baylor 207; B77). And it is because plaintiffs spoke out about and exposed these many health and safety hazards that they were retaliated against. b. Defendants Blame the Whistleblowers. Of course, as a result, defendants blamed the whistleblowers. (MacLeish depo.ex. #5; Foraker Inter. #5; B481,818-20). And as is apparent from the recently filed defense brief, their Answer to the Complaint, and from their depositions of plaintiffs Price and Warren, defendants' official position in this case is that it is the whistleblower plaintiffs who destroyed the FTU. They claim that the facility was destroyed because plaintiffs did not carry out hazardous material abatement and removal of lead and other toxins from the facility. Indeed, defendant MacLeish saw fit to place 50% of the blame for the destruction of the facility on the whistleblowers who reported that the facility was broken and was poisoning and otherwise injuring those who worked and trained there. (MacLeish 58; B347). But as Major Baylor succinctly explained (Baylor 209-210; B77-78), blaming plaintiffs for destroying the FTU would be the equivalent of blaming troopers for operating a Ford vehicle in which the gas tank exploded when they were hit from the rear because ... somebody decided to run into them. You can't blame the trooper for that and I don't think you can blame the

Notably, one of the areas of speech at issue in Sgt. Foraker's first suit was his speech about unsafe lead levels of an officer under his command. (Chaffinch 20; B165). Plaintiffs were repeatedly told by Facilities Management and the DSP that the bullets they were firing were non toxic. (Davis 37-38; Price Inter. #12; B258-59, 731-32). However, it turned out that they were deceived as the bullets were in fact made out of toxic heavy metals such as nitroglycerine, arsenic, tin, copper and zinc. (Davis 38-40; Price Inter. #12; B259, 731-32).
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troopers for this. The defense blame tactic will not hold water. In the DSP, a Trooper is brought up on charges and disciplined for something as minor as backing into a telephone pole or dinging the bumper on his car. (MacLeish 48; B344).12 Thus, it is notable that despite the present defense claim that plaintiffs destroyed a multi-million dollar training facility, they have never been brought up on charges for their alleged misconduct. (MacLeish 48; B344). c. Defendants Continue and Blame Even More Innocent Parties Who Invoked Their First Amendment Rights. In addition to blaming plaintiffs for the destruction of the FTU, defendants also have blamed retired Captain Greg Warren13 who, along with plaintiffs, raised the alarm and blew the whistle on the health and safety problems at the FTU. (See, e.g. MacLeish depo.ex. #5; Chaffinch 123; MacLeish 42-43,128; B481,191,343,364).14 Defendants claim that plaintiffs and Capt. Warren caused the problems at the FTU and endangered the health and safety of the thousands of officers who train there annually. (See Price Inter. at ex. #2; B788). So defendants have publicly blamed everyone below then Lt. Davis for destroying the FTU - meaning plaintiffs Foraker, Price and Warren. They also have publicly blamed then Lt. Davis' immediate superior for destroying the FTU - meaning Capt. Warren. Similarly, if a Trooper has a problem with his $22,000 patrol car, he is not allowed to tinker with the engine, tweak the transmission or make any other repairs. Instead, only a fully trained and equipped divisional mechanic is authorized to do so. (Chaffinch 113-115; MacLeish 63-64; B188-89, 348). Yet it is defendants' position that despite a total lack of protective equipment or training (Chaffinch 60; MacLeish 64-65; B175,348), plaintiffs were responsible for maintaining this $3,300,000 facility.
13 12

Capt. Greg Warren is no relation to plaintiff Wayne Warren.

Capt. Greg Warren previously had a successful suit against Governor Minner and defendant Chaffinch. (See Warren v. Minner, Chaffinch, et al., C.A. No.03-908-SLR). In retaliation for holding an off duty fundraiser for the unsuccessful Republican gubernatorial candidate in 2000, Democratic Governor Minner and Chaffinch ordered that Captain Warren - who at the time held five degrees, taught at several universities and writes police department textbooks in his spare time - never be promoted to the rank of Major. That case settled the morning of Minner's deposition. (Id. at D.I. 1; Neuberger Decl. ¶ 13; see MacLeish 73-75; B1138-39, 1321).

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The writing on the wall is clear. As Capt. Davis is well aware - defendants are setting him up to take the blame for the destruction of the FTU. (Davis Decl. ¶ 16; B1314-15). Indeed, the defendants already points the finger of blame at him. (See OB at 9-10). Defense counsel thus have a clear conflict of interest in representing defendants and Capt. Davis. (Davis Decl. ¶ 19; B1314a). 3. Defendants Tried to Set Capt. Davis Up For an I.A. Charge. a. Dereliction of Duty. It also is clear that defendants seek to set Capt. Davis up for an internal affairs charge of dereliction of duty or something similar for destroying the FTU. (Davis Decl. ¶ 16; B1314-1314a). b. Giving a Document to His Attorney. The DSP attempts to bring Internal Affairs charges against troopers to discourage them from free and open communication with their lawyers. (Neuberger Decl. ¶ 12; B1321). Specifically, the DSP stands ready to claim that internal DSP documents have been released to counsel in violation of a DSP Rule and Regulation. Defendants tried this tactic at Capt. Davis' deposition. (See Davis 60; B264). But counsel prevented that from occurring because that particular question was inappropriate on attorney/client privilege grounds. (Davis 60; B264). E. Captain Davis Has Already Been Retaliated Against For Filing Suit. Additionally, as Capt. Davis testified, he has already been retaliated against and treated differently because he filed his suit. For example, the announcement of his transfer and promotion to Captain were handled in an unprecedented way in the DSP. (Davis 72-73; Davis Decl. ¶ 15; B267;1314). With the exception of the politically appointed positions of Colonel and Lt. Col., every position in the DSP is announced via an e-mail which states that pursuant to the Colonel's authority, you are being promoted. But Chaffinch refused to authorize Capt. Davis' promotion! Instead, Cabinet Secretary Mitchell had to intervene and the promotion e-mail stated that Capt. Davis was promoted pursuant to his authority instead. This is an "unheard of" action

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in the DSP that was noticed and commented on by numerous other Troopers. (Davis 72-73, 7577; B267-68). Capt. Davis also expressed his fear of retaliation by Col. MacLeish because of his prior lawsuit. (Davis 67, 70-72; Davis Decl. ¶ 15; B266-67,1314). In response to a defense challenge for any proof he had that MacLeish wanted to get him because he had sued Chaffinch, Davis testified that Major Baylor told him about a conversation in which MacLeish stated that if he had to promote Davis to Captain, then he would transfer him to Troop 1A (Brandywine Town Center), just short of the Delaware/Pennsylvania line. (Davis 74-75; B268). Davis lives at the other end of Delaware, in Lewes. (Davis 5; B250). In the same way, Chaffinch and MacLeish immediately downgraded the position that Davis was promoted into. (Davis 7; B251). No longer was it a direct report to the Colonel. Instead, it was downgraded two levels to a Major report. (Davis 7; B251). This was a diminution in the prestige of the hard fought promotion. F. Captain Davis Clearly Invoked His Right to Counsel at His Deposition. Under questioning from defense counsel, Capt. Davis was asked whether he would meet privately with defense counsel to discuss the FTU suit outside the presence of his attorney. Capt. Davis again asserted his right to counsel and refused to do so. (Davis 66-67; accord Davis Decl. ¶¶ 13,17-19, 30,36,38; B266,1314-1314a,1316-17). G. Captain Davis Is Represented by The Neuberger Firm. Captain Davis has been represented by The Neuberger Firm since November 2003. (Davis Decl. ¶ 3; B1312).15 That representation was initially focused on the repeated discriminatory refusal to promote him.

Initially attorney client privilege was invoked on this date issue. (See Davis 61-63; B264-65). However, at the conclusion of the deposition, counsel researched the issue and determined that the date the representation began is not privileged. Accordingly, counsel then revoked the assertion of privilege on this issue by telephone, and then followed up with an e-mail to defense counsel supplying that information. (Neuberger Decl. ¶¶ 56-59; T. Neuberger e-mail; B1329,1347-48). Defendants ignore this fact in their brief.

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However, the attorney client relationship has subsequently developed into a representation related to Davis' employment and also preventing retaliation against him for his earlier protected activities. (Davis Decl. ¶¶ 3, 7-9; Neuberger Decl. ¶¶ 19-22; B1312-13,1322-23). In fact, Judge Farnan's order which dismissed Capt. Davis' earlier lawsuit explicitly retained jurisdiction to enforce the settlement agreement which included a non-retaliation provision. (Order; Davis Decl. ¶¶ 5,7; Neuberger Decl. ¶¶ 16-17,19; B1297,1313,1322-23). 1. Defense Counsel's Misrepresentations. The temporal sequence claimed by defense counsel - that they were surprised and only became aware of the Firm's continued representation of Capt. Davis in September 2005 - is simply wrong. (See OB at 6-7). a. First Notice. In an e-mail from counsel to Robert Fitzgerald, dated July 26, 2005, in reference to scheduling the deposition of Capt. Davis, defense counsel was put on notice that Capt. Davis was represented by the Firm - "As a heads up, Capt. Davis is a client of ours." In an e-mail that same day, defense counsel responded "Thanks for the warning." (Neuberger Decl. ¶¶ 25-28; S. Neuberger and R. Fitzgerald e-mails; B1324,1332-33). b. Second Notice. Then, in a telephone conference between plaintiffs attorneys Thomas and Stephen Neuberger and defense attorney Ed Ellis which occurred on August 9, 2005, plaintiffs counsel once again informed defense counsel that the Firm represented Capt. Davis in the present actions and that defense counsel was not permitted to contact Capt. Davis because he was represented by counsel. (Neuberger Decl. ¶¶ 31-34; B1324-25). c. Third Notice. Lastly, on August 30th, during a conversation between counsel and defense attorney Ellis, counsel believes that he once again stated that the Firm represented Davis. (Neuberger Decl. ¶ 39; B1326). H. Counsel Never Discussed the Substance of the Present Litigation with Captain Davis, So Rule 4.2 Does Not Come Into Play. Capt. Davis was subpoenaed to testify in the present cases. (Davis 8; B251). And as he testified at his deposition under pointed questioning

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by defendants, he has never discussed the substance of the FTU litigation with either of his attorneys. (Davis 60-61,66; see Neuberger Decl. ¶¶ 40-41, 24; B264,266,1326-27,1323). Notably, defendants refuse to acknowledge the existence of this testimony in their brief, save their final footnote. (OB at 18 n.6). Given defendants' apparent unfamiliarity with this testimony, it bears repeating here. Q. Have you had communications with Mr. Neuberger, and I'm referring to Stephen Neuberger at least for the time being, about the substance of the lawsuit that brings us here today? A. No, sir. (Davis 60-61; B264). Q. Have you ever, and by that I mean ever, discussed with Tom Neuberger or Steve Neuberger the circumstances at the Firearms Training Unit? A. I do not recall an occasion when we discussed it. (Davis 66; B266). In case his deposition testimony was not clear enough And as I testified at my deposition, I have not had communications with my attorneys about the substance of the present lawsuits .... My attorneys have not questioned me about these lawsuits. (Davis Decl. ¶ 11; B1314). Given that there have been no communications with Capt. Davis about the substance of the lawsuits, Rule 4.2 is not triggered and does not come into play. I. Captain Davis' Deposition Testimony Clearly Supports Plaintiffs' Case. Capt. Davis is a 19 year veteran. (Davis 5; B250). Prior to that, he honorably served in the U.S. Marine Corps for four years on active duty and then for two years in the Reserves. (Davis 5; B250). He is currently the director of planning for the DSP. (Davis 7; B251). Prior to that, he served as assistant director of training and special projects coordinator. (Davis 6-8; B251). Capt. Davis is a fact witness to several matters in the present case. Despite apparent defense assertions to the contrary (see OB at 9-10), the record reveals that both plaintiffs and defendants fully questioned him at his deposition. 1. Defendants Violated Judge Farnan's Reinstatement Order. Capt. Davis

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testified and confirmed plaintiffs' account that defendants' violated Judge Farnan's reinstatement order when they threw Sgt. Foraker out of and barred him from all future section chief's meetings despite the fact that he is the section chief of the FTU - thereby reducing his job duties and responsibilities. (Davis 34-36; see Foraker Inter. #12; MacLeish depo.ex. #20; B258,832, 512, 519). 2. The Range Was a Disaster Area on December 1, 2003. Capt. Davis toured the FTU on December 1, 2003 - Sgt. Foraker's first day back after being reinstated. (Davis 8-9; B251). He testified that the FTU was an absolute mess and in near total disarray when he toured the facility that morning and that there was a dust or powder covering everything in the building. (Davis 9-14; B251-53). This confirms plaintiffs' account (see Price Inter. #12; B728), and contradicts the defense position that everything at the range was rosy, clean and spotless upon Sgt. Foraker's reinstatement and that he is responsible for its poor condition. 3. Plaintiffs Are Highly Regarded and Truthful Officers. Upon review of plaintiffs' detailed account of the condition of the FTU on December 1st (Price Inter. #12; B728), Capt. Davis testified that he had no reason whatsoever to disagree with or dispute their testimony. (Davis 15-16; B253). In fact, Capt. Davis had high praise for plaintiffs' reputations for truthfulness and honesty. (Davis 16-17; B253). I believe that they're, all three, held in very high regard by all members of the division, not only junior people but senior people as well. They're respected for their knowledge of firearms training and just their integrity as a whole. (Davis 17; B253). Capt. Davis also had high praise for his then commanding officer - Capt. Warren. He is a "man of honor" and truthfulness who went above and beyond in trying to get help for plaintiffs and get the problems at the FTU fixed. (Davis 32; B257).16 4. Plaintiffs Were Acting in Good Faith As They Pled for Help. Capt. Davis

The contrast to defendants in this regard is striking. For example, now retired Major Joseph Swiski, who was a member of Chaffinch's own inner circle Executive Staff, has previously testified that Col. Chaffinch "has a reputation for not being very truthful." (Swiski 57; B1294).

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testified that plaintiffs were acting in good faith and trying to protect the health and safety of the men and women who trained at the FTU when they spoke out. (Davis 29-32; B256-57). He testified that plaintiffs were "basically pleaing for help." (Davis 30; B257). 5. Due to Severe Understaffing, Safety Was a "Nightmare." He also confirmed the understaffing concerns raised by plaintiffs (See, e.g. MacLeish depo.ex. #12; Foraker Inter. #12; B495,832), when he testified that the facility was "sorely understaffed," with student to instructor firearms safety ratios that fell far below nationally required standards which resulted in officer safety being a "nightmare" (Davis 14; B253), and that he brought these serious problems to the attention of Chaffinch and MacLeish. (Davis 21-23; B254-55). 6. Plaintiffs Spoke Out and Capt. Davis Responded and Sent Their Concerns Up the Chain of Command. Capt. Davis also testified that plaintiffs were speaking out about the conditions at the FTU and that he sent their concerns up the chain of command and personally raised some of them with defendants and their Executive Staff. (See Davis 17-39; B253-59). 7. The State of Delaware Refused Free Offers of Help from NIOSH. Capt. Davis confirmed plaintiffs' accounts that the state refused free offers of help from the National Institute of Occupational Safety and Health which offered to come in and conclusively determine the sources of the health problems at the range. (Davis 26-28; MacLeish depo.ex. #15; see Price Inter. #5; B256,500,710). 8. The State Deceived Plaintiffs and Falsely Told Them The Bullets They Used Were Non-Toxic. Capt. Davis also testified that Facilities Management responded to plaintiffs' concerns about the toxic makeup of the bullets being used by assuring them that they were instead simply ceramic and perfectly healthy. He later found that the State had lied and the bullets contained numerous toxic substances that had been hidden from the Troopers working there. (Davis 36-40; B258-59).

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J. No Conflict of Interest Exists Between Capt. Davis and Plaintiffs. The record demonstrates that counsel take conflict of interest issues very seriously and consult extensively with their clients when such issues potentially could arise. (See Foraker, Price and Warren Decls. ¶¶ 4-7; Davis Decl. ¶¶ 20-21;Neuberger Decl. ¶¶ 60-66; B1303,1306-07,1309-10, 1314a,132930). Yet despite extensive discussions with counsel, neither plaintiffs nor Capt. Davis have ever seen any conflict of interest arising from the Firm's representation of each of them. But to the extent that the Court believes that a conflict of interest exists, plaintiffs and Capt. Davis have waived it in writing as permitted by Rule 1.7. (Foraker, Price and Warren Decls. ¶¶ 6-11; Davis Decl. ¶¶ 20-24,12; B1303-04,1307-08,1310-11,1314a-1315). K. Defense Counsel Attempt to Violate Rule 4.2 and Directly Contact Captain Davis Despite Their Awareness that He is Represented By Counsel. As discussed above, Capt. Davis is a longtime client of the Firm. Defense counsel were aware of and on notice of this. (See Facts at section G above). Yet despite their knowledge that he is a party represented by counsel, on Sept. 2, 2005, Capt. Davis received an e-mail order from Col. MacLeish's office. In his own words That e-mail stated that Robert Fitzgerald, one of the attorneys for the defendants in the present litigation, would be contacting me about the present litigation. *** I was very concerned by this e-mail ... I was very concerned about the fact that it stated that Mr. Fitzgerald would be contacting me directly outside the presence of my attorneys. *** It is my understanding that prior to the date on which I received the e-mail from Col. MacLeish's office, that my attorneys asserted my right to legal representation to the lawyers for the state police in these cases. I was very concerned about the e-mail I received from Col. MacLeish's office because it stated that the state's attorneys would be contacting me directly about this litigation despite the fact that I was represented by counsel. I was alarmed by this.... Because of my alarm and concern, I contacted Stephen J. Neuberger, one of my attorneys and asked him for advice as to how I should respond to the e-mail. I contacted my attorney because I wanted legal representation if I was to be contacted by

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one of the state's attorneys and I was unsure how to respond given that it was my understanding that the state's attorneys could not contact me directly because I was represented by counsel. (Davis Decl. ¶¶ 25-26, 30-34; B1315-1316). ARGUMENT I. STANDARD OF REVIEW. "[M]otions to disqualify are generally disfavored." Elonex I.P. Holdings, Ltd. v. Apple Computer, Inc., 142 F.Supp.2d 579, 581 (D.Del. 2001). They "are viewed with caution because of the potential for their misuse." Id. at 584. "It is well known to this court, and many others, that motions for disqualification are frequently filed as dilatory tactics intended to divert the litigation from attention to the merits." Id. (internal punctuation omitted). "The party seeking disqualification must clearly show that continued representation would be impermissible." Id. at 581 (internal punctuation omitted). "As such, vague and unsupported allegations are not sufficient to meet this standard." Id. (internal punctuation omitted). "[D]isqualification is not automatic." End of Road Trust v. Terex Corp., 2002 WL 242464, *2 (D.Del. Feb. 20, 2002). A "district court has wide discretion in framing its sanctions to be just and fair to all parties involved." Elonex, 142 F.Supp.2d at 583 (internal punctuation omitted). II. INTRODUCTION. A. Defendants Have Obscured the True Issues. Defendants have framed their motion as whether Rule 4.2 has been violated. But this is a red herring since it is undisputed that because there has been no `communication' regarding the substance of the present litigation, there is no violation of the Rule. Instead, a close reading of the defense brief reveals that the true issue presented is actually twofold: (1) whether Capt. Davis has a right to counsel when being interrogated and questioned by defendants; and (2) whether The Neuberger Firm can be his counsel during that

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interrogation. As will be discussed in the Arguments below, Capt. Davis clearly has a First Amendment and statutory right to counsel. And defendants can articulate no legitimate reason why the Neuberger Firm cannot represent him during his interrogation, beyond mere purported inconvenience regarding revelation of their widely known trial strategy. B. The Defense Theory of the Case is Already Known. At the recent depositions of plaintiffs Warren and Price, and in their current Brief, the defendants have revealed their theory of the case and trial strategy. They intend to prove that plaintiffs destroyed the multi million dollar Firearms Training facility. It was not the fault of the generals, it was the fault of the privates that the battle was lost. (See, e.g. OB at 12). Their Brief plainly states "[t]he sources of the contamination and the cause of the general deterioration of conditions at the range are issues in these consolidated actions." (OB at 5). Then there is a very revealing litany of the areas they wish to question Captain Davis upon, all the while emphasizing that he was "the supervisor responsible for the FTU during most of the events involved in this lawsuit." (OB at 9). So he will apparently face charges of dereliction of duty for allegedly allowing the mess to happen. The trial strategy is confirmed in the ten areas of proposed questioning. (OB at 9-10). This includes: the "catastrophic[]" deterioration of the range which was allowed (item 2); permitting training when Sgt. Foraker "knew it was unsafe," all while "Davis was Foraker's immediate supervisor" (item 3); whether the noise levels were unacceptable "when Davis was responsible for the range" (item 9); "what steps [Davis] took to remedy [staffing] levels he thought inadequate (item 10); and whether Davis' direct report who he "supervised ... was incompetent." (Item 8). So Captain Davis faces genuine jeopardy from the DSP from the admitted trial strategy of the defendants. Consequently, he asserts the right to legal counsel of his choosing: experienced in the labyrinth of the DSP, successful and unintimidated by the power and

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influence of the defendants, and unflinching in the face of defense counsel's threats. But defendants want him to meet alone with their lawyers while they set him up for retaliatory dereliction of duty charges under the guise of preparing their case. T