Citations
- 810 F. Supp. 2d 929
Full opinion text
ORDER: (1) GRANTING HONEYWELL’S MOTION TO DISQUALIFY; (2) GRANTING CORNING’S MOTION TO DISQUALIFY; (3) GRANTING UNIVAR’S MOTION TO DISQUALIFY; (k) GRANTING SRP’S MOTION TO DISQUALIFY; (5) GRANTING DOLPHIN’S MOTION TO DISQUALIFY; (6) DENYING ARVIN AND COOPER’S MOTION TO DISQUALIFY
DAVID ALAN EZRA, District Judge.
On May 2, 2011, the Court heard Defendant Honeywell International, Inc.’s Motion to Disqualify Gallagher & Kennedy as Counsel for Roosevelt Irrigation District (“Honeywell’s Motion to Disqualify”) (Doc. # 120); Defendant Corning Incorporated’s Motion to Disqualify Counsel for Plaintiff (“Coming’s Motion to Disqualify”) (Doc. # 129); Defendant Univar USA Inc.’s Motion to Disqualify Gallagher & Kennedy as Counsel for Roosevelt Irrigation District (“Univar’s Motion to Disqualify”) (Doc. # 131); Defendant Salt River Project Agricultural Improvement and Power District’s Motion to Disqualify Plaintiffs Counsel Gallagher & Kennedy (“SRP’s Motion to Disqualify”) (Doc. # 132); Defendant Dolphin, Incorporated’s Motion for Disqualification (“Dolphin’s Motion to Disqualify”) (Doc. # 133); and Defendants ArvinMeritor, Inc. and Cooper Industries, LLC’s Motion to Disqualify Gallagher & Kennedy, P.A. as Counsel for Roosevelt Irrigation District (“Arvin and Cooper’s Motion to Disqualify”) (Doc. # 423) (collectively, “Motions to Disqualify”).
Michael K. Kennedy, Esq., Bradley Joseph Glass, Esq., and David DePippo, Esq., appeared at the hearing on behalf of Plaintiff Roosevelt Irrigation District (“RID”); Sean Morris, Esq., appeared at the hearing on behalf of Defendant Honeywell International, Inc. (“Honeywell”); Shane R. Swindle, Esq., appeared at the hearing on behalf of Defendant Corning Incorporated (“Corning”); Joseph Allen Drazek, Esq., appeared at the hearing on behalf of Defendant Univar USA Inc. (“Univar”); David John Armstrong, Esq., appeared at the hearing on behalf of Defendant Salt River Project Agricultural Improvement and Power District (“SRP”); Troy Blinn Froderman, Esq., appeared at the hearing on behalf of Defendant Dolphin, Incorporated (“Dolphin”); Jerry Doyle Worsham, II, Esq., appeared at the hearing on behalf of Defendants Arvin-Meritor, Inc. (“Arvin”) and Cooper Industries, LLC (“Cooper”) (collectively, “Moving Defendants”).
After reviewing the motions and the supporting and opposing memoranda, and after considering Moving Defendants’ in camera filings, the Court GRANTS Honeywell’s Motion to Disqualify; GRANTS Coming’s Motion to Disqualify; GRANTS Univar’s Motion to Disqualify; GRANTS SRP’s Motion to Disqualify; GRANTS Dolphin’s Motion to Disqualify; and DENIES Arvin and Cooper’s Motion to Disqualify.
BACKGROUND
This is a cost recovery action under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq. (“CERCLA”) among other laws, whereby Plaintiff Roosevelt Irrigation District (“RID”) seeks to recuperate the costs it has or will incur in responding to the contamination of its wells and to recover for damages to RID property. RID is a political subdivision of the State of Arizona, and it owns approximately 100 groundwater wells in the western portion of Maricopa County, Arizona. (FAC ¶¶ 7, 9, 89.) RID operates and maintains the groundwater wells for the purpose of providing water to public and private entities and individuals for industrial, agricultural, and residential uses. (Id. ¶¶ 9, 89.) More than twenty of RID’s groundwater wells in the West Van Burén Area (“WVBA”) Water Quality Assurance Revolving Fund (“WQARF”) Site have purportedly been contaminated by hazardous substances, and an additional eleven wells are allegedly threatened. (Id. ¶¶ 11, 90.) RID asserts that the contamination of its wells stems from three regional sites identified by the Arizona Department of Environmental Quality (“ADEQ”) and the United States Environmental Protection Agency (the “EPA”). (Id. ¶ 91.) Those three sites include: (1) the Motorola 52nd Street Superfund Site (the “M-52 Site”); (2) the WVBA WQARF Site; and (3) the West Central Phoenix (‘WCP”) WQARF Site. (Id.) According to RID, the contaminated groundwater underlying each of these sites is “moving in a southwesterly or westerly direction toward RID’s groundwater wells” has “infiltrated and impacted” RID’s wells. (Id. ¶¶ 92-93.)
In October 2008, RID hired Gallagher & Kennedy, P.A. (“G & K”) to provide investigatory and legal services regarding, and to assist in resolving the issues associated with, the contamination of RID’s wells. (Consolidated Opp’n Ex. 3, Declaration of David P. Kimball, III (“Kimball Deck I”) ¶ 2.) The members of G & K’s litigation team performing work on RID’s behalf include: Michael Kennedy, David P. Kim-ball, III, Bradley J. Glass, David DePippo, Lindsi Weber, Stuart Kimball, Andrew Dudley, and Christine Goldberg. (Id. ¶ 37.) On February 9, 2010, RID, represented by G & K, filed a Complaint in the United States District Court for the District of Arizona against dozens of defendants. (Doc. # 1.) RID filed a First Amended Complaint on July 23, 2010. (“FAC,” Doc. # 10.) Although RID primarily seeks to recover under CERCLA (id. ¶¶ 1, 106-16), it also asserts causes of action for Quasi Contract, Unjust Enrichment, Restitution; Nuisance; and Trespass (id. ¶¶ 117-32).
Shortly after RID filed its First Amended Complaint, several defendants filed motions to disqualify G & K as counsel for RID. These motions can be separated into two groups: (1) the former client motions to disqualify; and (2) the joint defense group motions to disqualify. Due to the complexity underlying these motions, the Court will first describe their factual underpinnings.
I. Former Client Motions to Disqualify
Defendants Honeywell International, Inc. (“Honeywell”) and Corning Incorporated (“Corning”) both seek to disqualify G & K on the basis that they are former clients of current G & K attorneys (collectively, “Former Client Motions to Disqualify”).
A. Honeywell’s Motion to Disqualify
Honeywell’s facilities, located immediately north of the Phoenix Sky Harbor Airport, (the “Honeywell Facilities”) are on the southern boundary of Operable Unit 2 (“OU-2”) of the M-52 Site. (Declaration of Troy J. Kennedy, (“Troy Kennedy Decl. I”) ¶ 2, Doc. # 126.) In 1992, the EPA notified Honeywell that it and other potentially responsible parties (“PRPs”) might be liable for contamination originating from the M-52 Site. (Id.) Since that time, Honeywell “negotiated extensively” with the EPA, ADEQ, and other PRPs regarding the investigation of the Honeywell Facilities as well as the remedies and clean up costs associated with the alleged releases, which became commingled with another plume of contamination from other sources. (Id. ¶ 3.)
1. James G. Derouin
For several years in the 1990s, Honeywell engaged James G. Derouin (“Derouin”), now employed by G & K, to represent its interests in connection with the contamination that allegedly emanated from the Honeywell Facilities in OU-2 of the M-52 Site. (Id. ¶ 4; Berke Decl. ¶ 2.) Derouin continued to represent Honeywell in this manner until approximately 1996. (Berke Decl. ¶ 11; Derouin Decl. I ¶¶ 10-12.)
In 2005, the EPA issued a special notice letter to Honeywell and other PRPs regarding issues arising in Operable Unit 3 (“OU-3”) of the M-52 Site, which resulted from the same commingled plume the parties had been addressing since 1992. (Troy Kennedy Decl. I ¶ 7.) Honeywell retained' Derouin in 2007 to represent its interests in this matter. (Id.; Derouin Decl. I ¶ 14.)
In May 2009, David P. Kimball, III (“Kimball”), a G & K shareholder and counsel for RID, contacted Derouin, as counsel for Honeywell, to discuss technical issues related to groundwater contamination associated with RID’s wells. (Derouin Decl. I ¶ 15; Kimball Decl. I ¶ 11.) On two separate occasions, Kimball met with Derouin to discuss these matters. (Derouin Decl. I ¶¶ 16-18; Kimball Decl. I ¶¶ 12-15.) Kimball informed Derouin that RID intended to bring a cost recovery action if settlement discussions proved unsuccessful. (Kimball Decl. I ¶ 15; Derouin Decl. I ¶ 19.) In his capacity as counsel for Honeywell, Derouin received two copies of RID’s draft complaint. (Troy Kennedy Decl. I ¶ 19; Derouin Decl. I ¶ 23; Kimball Decl. I ¶ 17; Supplemental Declaration of Troy J. Kennedy (“Troy Kennedy Decl. II”) ¶ 2, Ex. A, Doc. # 331.)
On December 9, 2009, Derouin contacted Tom Byrne, Associate General Counsel/Chief Environmental Counsel for Honeywell, to inform him that he planned to leave Steptoe to join G & K. (Derouin Decl. I ¶¶ 28-29; Declaration of Tom Byrne (“Byrne Decl.”) ¶ 2, Doc. # 125.) Derouin was hired by G & K in January 2010, and he attests that he did not “transfer or take any files, documents, or materials” related to his representation of Honeywell to G & K. (Derouin Decl. I ¶¶ 27, 31.) Derouin states that since his arrival at G & K, he has been screened from the RID matter. (Id. ¶¶ 32-35; see also Kimball Decl. I ¶¶ 30-31; Consolidated Opp’n Ex. 9, Declaration of Michael K. Kennedy (“Michael Kennedy Decl.”) ¶¶ 5-9.)
2. Glen Hallman
Glen Hallman (“Hallman”), now employed by G & K, served as Honeywell’s in-house litigation counsel from 1987 to 1999. (Consolidated Opp’n Ex. 6, Declaration of Glen Hallman (“Hallman Deck”) ¶ 5; Troy Kennedy Deck I ¶ 21.) According to Honeywell’s files, Hallman represented Honeywell with regard to the alleged contamination from the Honeywell Facilities and the resulting commingled plume. (Troy Kennedy Deck I ¶¶ 21-41.)
Hallman has been a shareholder at G & K since 1999, and he is a member of the firm’s Litigation Department. (Hallman Deck ¶¶ 2-3.) Hallman attests that when he joined G & K, he did not bring “any written or electronic files or documents that constituted work product or confidential information relating to the [M-52 Site].” (Id. ¶ 6.) Hallman has been screened from the RID matter since June 2010. (Id. ¶ 5; see also Kimball Deck I ¶¶ 40-41; Michael Kennedy Deck ¶¶ 15-17.)
On September 15, 2010, Honeywell filed a Motion to Disqualify Gallagher & Kennedy as Counsel for Roosevelt Irrigation District as well as a Memorandum in Support of its Motion (“Honeywell’s Motion to Disqualify”), contending that Derouin’s and Hallman’s employment by G & K creates impermissible conflicts of interest. (“Honeywell’s Mot.,” Docs. ##120, 123.) On October 25, 2010 RID, with permission of the Court (Docs. ## 252, 292), filed a Consolidated Opposition to the Honeywell, Corning, Univar, SRP, and Dolphin Motions to Disqualify. (“RID’s Consolidated Opp’n,” Doc. #289.) Honeywell filed a Reply on November 19, 2010. (“Honeywell’s Reply,” Doc. # 330.)
B. Coming’s Motion to Disqualify
Corning is a past “own[er] and/or operador]” of a former electronics manufacturing facility located at 35th Avenue and Osborn Road in Phoenix, Arizona (“West Osborn Complex”), within the WCP WQARF Site. (FAC ¶33.) ADEQ began investigating groundwater contamination at and in the vicinity of the West Osborn Complex as early as 1990. (Coming’s Mot. Ex. A, Declaration of Richard D. Geiger (“Geiger Deck”) ¶ 2.)
From 1990 to 1995, Derouin represented Corning with regard to the alleged groundwater contamination attributed to the West Osborn Complex. (Derouin Deck I ¶¶ 6-7; Geiger Deck ¶¶ 3, 5, 9.) In that capacity, Derouin negotiated extensively with ADEQ and assisted with lawsuits involving either Corning or its subsidiary, Components, Incorporated (“Components”). {See Geiger Decl. ¶¶ 5-8.)
Derouin attests that he has not performed any work for Corning since 1995. (Derouin Decl. I ¶ 7.) As noted, Derouin was hired by G & K in January 2010, and he states that he did not “bring any written or electronic documents” related to his representation of Corning to G & K. {Id. ¶ 9.) Derouin represents that he has been screened from the RID matter since his arrival at G & K. (Id. ¶¶ 32-35; see also Kimball Decl. I ¶¶ 30-31; Michael Kennedy Decl. ¶¶ 5-9.)
On September 15, 2010, Corning filed a Motion to Disqualify Counsel for Plaintiff (“Coming’s Motion to Disqualify”), on the basis that Derouin’s employment by G & K creates an impermissible conflict of interest. (“Coming’s Mot.,” Doc. # 129.) On October 25, 2010, RID filed its Consolidated Opposition. Corning filed a Reply on November 19, 2010. (“Coming’s Reply,” Doc. # 332.)
II. Joint Defense Group Motions to Disqualify
Defendants Univar USA, Inc. (“Uni-var”), Salt River Project Agricultural Improvement and Power District (“SRP”), Dolphin, Incorporated (“Dolphin”), and ArvinMeritor, Inc. (“Arvin”) and Cooper Industries, LLC (“Cooper”) all move to disqualify G & K on the basis that various current and former G & K attorneys obtained privileged and confidential information relevant to the instant dispute by virtue of their participation in myriad joint defense groups (collectively, “Joint Defense Group Motions to Disqualify”). Honeywell and Corning also assert that G & K’s participation in certain joint defense groups provides an alternative basis for granting their motions. The joint defense groups at issue are: (1) the West Van Burén Group; (2) the M-52 Group; and (3) the AdobeAir-Arvin and Arvin-Cooper Groups.
A. The West Van Burén Group — Uni-var and Dolphin
Univar’s facilities, located at 50 S. 45th Avenue, Phoenix, Arizona (“Univar’s Facilities”), and Dolphin’s facilities, located at 740 South 59th Avenue, Phoenix, Arizona (“Dolphin’s Facilities”) are within the WVBA WQARF Site. (FAC ¶¶36, 79; Univar’s Mot. Ex. A, Declaration of Wayne Grotheer (“Grotheer Deck”) ¶ 2.)
In 1992, ADEQ notified Univar, Dolphin, and several other PRPs that they might be liable for groundwater contamination originating from the WVBA WQARF Site. (Grotheer Deck ¶ 2; Declaration of Philip J. Lagas (“Lagas Deck”) ¶ 3, Doc. # 134.) In response, Univar, Dolphin, Reynolds Metals (“Reynolds”), Maricopa County, and American Linen Supply Company formed a joint defense group (the “WVB Group”), whose primary purpose was to jointly negotiate a consent decree with ADEQ for performance of a Remedial Investigation/Feasibility Study (“RI/FS”) in the WVBA Site. (Grotheer Decl. ¶¶ 3-4; Lagas Decl. ¶ 4.) The parties executed the joint defense agreement in 1993, and the group met regularly until approximately June 1996, when the group suspended negotiations with ADEQ. (Grotheer Decl. ¶¶ 4-5, 8; Lagas Decl. ¶¶ 5, 21.)
During the WVB Group’s existence, Reynolds was represented by current G & K attorneys David L. Wallis (“Wallis”), J. Stanton Curry (“Curry”), and Dalva L. Moellenberg (“Moellenberg”). (Grotheer Decl. ¶ 6; Lagas Decl. ¶¶ 13-14.) Wallis, Curry, and Moellenberg all attest that they were screened from the RID matter “shortly” after RID engaged G & K in October 2008. (Consolidated Opp’n Ex. 4, Declaration of David L. Wallis (“Wallis Decl.”) ¶¶ 4-5; Consolidated Opp’n Ex. 5, Declaration of J. Stanton Curry (“Curry Decl.”) ¶¶ 4-5; Consolidated Opp’n Ex. 7, Declaration of Dalva L. Moellenberg (“Moellenberg Decl.”) ¶¶ 4-5; see also Kimball Decl. I ¶ 7.)
On September 15, 2010, Univar filed a Motion to Disqualify Gallagher & Kennedy as Counsel for Roosevelt Irrigation District (“Univar’s Motion to Disqualify”), asserting that G & K’s participation in the WVB Group on Reynolds’s behalf created an implied attorney-client relationship with Univar. (“Univar’s Mot.,” Doc. # 131.) On the same day, Dolphin filed a Motion for Disqualification (“Dolphin’s Motion to Disqualify”) on the same grounds. (“Dolphin’s Mot.,” Doc. # 133.) On October 25, 2010, RID filed its Consolidated Opposition. Univar filed a Reply on November 19, 2010. (“Univar’s Reply,” Doc. #328.) Dolphin filed a Reply on the same day. (“Dolphin’s Reply,” Doc. # 324.)
B. The M-52 Group — SRP and Honeywell
SRP’s facilities are located at 1616 East Lincoln Street, Phoenix, Arizona (“SRP’s Facilities”). (FAC ¶ 66.) In 2003, the EPA identified SRP and Arizona Public Service (“APS”) as PRPs in connection with alleged contamination in OU-3 of the M-52 Site. (SRP’s Mot. Ex. A, Declaration of Kevin Wanttaja (“Wanttaja Decl.”) ¶ 5.) The EPA had already identified Honeywell as a PRP for this contamination. (Id. ¶ 6.)
Thereafter, SRP, Honeywell, and APS (the “M-52 Group”) executed a joint defense agreement effective March 1, 2008. (Id. ¶ 9.) Derouin participated in the M-52 Group meetings on behalf of Honeywell, and Curry participated on behalf of APS, who was represented by G & K in the matter. (Id. ¶¶ 11, 13; Derouin Decl. I ¶ 21.) SRP withdrew from participation in the M-52 Group in December 2008. (SRP’s Mot. at 6.)
As noted, Derouin was hired by G & K in January 2010, and he states that he did not “transfer or take any files, documents, or materials” related to his representation of Honeywell to G & K. (Derouin Decl. I ¶¶ 27, 31.) Derouin attests that he has been screened from the RID matter since his arrival at G & K. (Id. ¶¶ 32-35; see also Kimball Decl. I ¶¶ 30-31; Michael Kennedy Decl. ¶¶ 5-9.) Additionally, Curry represents that he was screened from the RID matter “shortly” after RID engaged G & K in October 2008. (Consolidated Opp’n Ex. 5, Declaration of J. Stanton Curry (“Curry Decl.”) ¶¶ 4-5; see also Kimball Decl. I ¶ 7.)
On September 15, 2010, SRP filed a Motion to Disqualify Plaintiffs Counsel Gallagher & Kennedy (“SRP’s Motion to Disqualify”), arguing that G & K’s participation in the M-52 Group creates an impermissible conflict of interest. (“SRP’s Mot.,” Doc. # 132.) On October 25, 2010, RID filed its Consolidated Opposition. SRP filed a Reply on November 19, 2010. (“SRP’s Reply,” Doc. # 334.)
C. The AdobeAir-Arvin and ArvinCooper Groups
Arvin and Cooper are former successive owners of a facility located at 500 South 15th Street, Phoenix, Arizona (the “South 15th Street Facility”). (FAC ¶¶20, 32.) This facility is within OU-3 of the M-52 Site. (A & C’s SOF Ex. 1, Affidavit of Jerry D. Worsham, II (“Worsham Aff.”) ¶ 9.) In May 1987, the EPA placed the South 15th Street Facility on the Comprehensive Environmental Response, Compensation and Liability Information System (“CERCLIS”). (A & C’s SOF Ex. 2, Affidavit of Linda S. Furlough (“Furlough Aff.”) ¶ 5.)
During his employment at Steptoe, Derouin was the partner primarily responsible for the legal services rendered to AdobeAir, Inc. (“AdobeAir”), another former owner of the South 15th Street Facility. (Id. ¶2; Opp’n to A & C’s Mot. Ex. B, Declaration of James G. Derouin (“Derouin Decl. II”) ¶ 3). In connection with this matter, AdobeAir entered into a joint defense agreement with Arvin in October 2002 (the “AdobeAir-Arvin Group”). (Derouin Decl. II ¶ 3; Furlough Aff. ¶ 7.) Effective November 25, 2002, Arvin and Cooper entered into a Tolling, Standstill and Cooperation Agreement (the “ArvinCooper Group”). (A & C’s SOF Ex. 3, Affidavit of Keith H. Odenweller (“Odenweller Aff.”) ¶ 7.) Jerry D. Worsham, II (“Worsham”) was counsel for Arvin and was common counsel under the joint defense agreements. (Worsham Aff. ¶ 3.) In September 2004, representatives from AdobeAir, Arvin, and Cooper signed an Administrative Order on Consent (“AOC”) titled “In the Matter of: Motorola 52nd Street Superfund Site, U.S. EPA Docket No. 2004-18,” which was negotiated with the EPA and prescribed that an RI/FS was to be performed on the South 15th Street Facility. (Id. ¶ 10; Furlough Aff. ¶¶ 8-11; Derouin Decl. II ¶ 3.)
Derouin withdrew from representing AdobeAir in April 2009 because it sold its assets and ceased doing business. (Derouin Decl. II ¶ 5.) As noted, Derouin was hired by G & K in January 2010, and he states that he did not bring any of AdobeAir’s files with him to the firm. (Id. ¶¶ 7, 11.) Derouin attests that he has been screened from the RID matter since his arrival at G & K. (Id. ¶ 12; see also Kimball Decl. II ¶ 11.)
On August 17, 2010, Arvin and Cooper filed a Motion to Disqualify Gallagher & Kennedy, P.A. as Counsel for RID (Doc. # 88) as well as a Statement of Facts in support of its motion (Doc. # 89). On September 10, 2010, RID filed an Opposition (“RID’s Opp’n to A & C’s Mot.,” Doc. # 114) as well as a Controverting Statement of Facts (Doc. # 115). Arvin and Cooper filed a Reply on September 24, 2010. (“A & C’s Reply,” Doc. # 156.)
On March 29, 2011, the Court heard via videoconference Arvin and Cooper’s Motion to Disqualify. At the hearing, the Court expressed concern that the parties did not provide sufficient information for the Court to properly analyze either this motion or the other five motions to disqualify. Accordingly, on March 30, 2011, the Court denied without prejudice Arvin and Cooper’s Motion to Disqualify with leave to refile it with supplemental briefing as to the applicability and effect of Arizona Ethical Rule 1.10. (Doc. # 418.) Because this issue could potentially impact each of the motions to disqualify, the Court directed Honeywell, Corning, Univar, SRP, Dolphin, and Arvin and Cooper (collectively, “Moving Defendants”) to file a single, combined supplemental brief. (Id.)
On April 5, 2011, Moving Defendants filed a Joint Supplemental Brief in Support of the Motions for Disqualification (“Supplemental Brief’). (“Moving Defs.’ Supp. Br.,” Doc. # 421.) RID filed a Supplemental Brief in Opposition to the Motions for Disqualification on April 12, 2011 (“Opposition to the Supplemental Brief’). (“RID’s Opp’n to Supp. Br.,” Doc. # 425.) Moving Defendants filed a Supplemental Reply Brief in Support of the Motions for Disqualification on April 15, 2011 (“Supplemental Brief Reply”). (“Moving Defs.’ Supp. Br. Reply,” Doc. # 427.)
Pursuant to the Court’s March 30, 2011 Order, on April 11, 2011, Arvin and Cooper refiled their Motion to Disqualify Gallagher & Kennedy, P.A. as Counsel for RID (“Arvin and Cooper’s Motion to Disqualify”) (“A & C’s Mot.,” Doc. # 423) as well as their Statement of Facts in support of the motion (“A & C’s SOF,” Doc. # 424). RID filed a Renewed Response to Arvin and Cooper’s Motion to Disqualify on April 27, 2011. (Doc. # 432.) Arvin and Cooper filed a Renewed Reply on April 28, 2011. (Doc. # 433.)
The Court heard the Motions to Disqualify on May 2, 2011. On May 6, 2011, the Court issued an Order Directing Moving Defendants to File In Camera Documents. (Doc. # 443.) To the extent that the Motions to Disqualify were premised upon participation in a joint defense group, the Court directed the parties to submit the following: (1) a copy of the joint defense agreement at issue; (2) a list of the parties and attorneys who participated in the joint defense group; (3) information regarding the frequency of joint defense group meetings, the regularity with which the attorneys in question attended those meetings, and the duration of the joint defense group; and (4) a detailed description of the topics discussed and the information exchanged in connection with the joint defense group. (Id. at 3.) The Court also ordered Moving Defendants to provide G & K with copies of the joint defense agreements at issue, but clarified that they could redact any privileged or confidential information contained therein. (Id. at 5.) Finally, the Court directed the parties to submit any additional documents and information they believed would assist the Court in its review of the Motions to Disqualify. (Id. at 3-4.)
On May 16, 2011, Corning filed a Notice of Filing of Amended Exhibits to its Motion to Disqualify. (Doc. # 445.) On the same day, Corning, Arvin and Cooper, SRP, Honeywell, and Dolphin and Univar filed notices to indicate that they had complied with the May 6, 2011 Order. (Docs. ##446-448, 450-451.) SRP also filed a Notice of Service of Redacted Joint Defense Agreement. (Doc. # 449.) On July-26, 2011, RID filed a Notice of Receipt of Redacted Joint Defense Agreements to Complete the Record Re: Disqualification. (Doc. # 463.)
On July 29, 2011, in accordance with the Court’s directive (Doc. # 462), Moving Defendants filed a Closing Argument Brief in support of the Motions to Disqualify (“Moving Defs.’ Closing Arg. Br.,” Doc. #465). RID filed a Closing Argument Brief on the same day. (“RID’s Closing Arg. Br.,” Doc. # 466.)
STANDARD OF REVIEW
The United States District Court for the District of Arizona has adopted the Arizona Rules of Professional Conduct as its ethical standards. LR Civ 83.2(e); Research Corp. Techs., Inc. v. Hewlett-Packard Co., 936 F.Supp. 697, 700 (D.Ariz. 1996). Accordingly, this Court applies the Arizona ethical rules when evaluating motions to disqualify counsel. See In re Cnty. of L.A., 223 F.3d 990, 995 (9th Cir. 2000) (stating that federal courts “apply state law in determining matters of disqualification” and that they “follow the reasoned view of the state supreme court when it has spoken on the issue”); Christensen v. U.S. Dist. Court, 844 F.2d 694, 697 n. 6 (9th Cir.1988) (finding that when a district court has adopted a state’s ethical rules, the district court must apply those rules to a motion to disqualify); Unified Sewerage Agency v. Jelco, Inc., 646 F.2d 1339, 1342 n. 1 (9th Cir.1981) (same); see also Paul E. Iacono Structural Eng’r, Inc. v. Humphrey, 722 F.2d 435, 439-40 (9th Cir.1983) (analyzing whether the district court, which had adopted the California ethical rules, properly applied California law to the motion to disqualify).
The Preamble to the Arizona Rules of Professional Conduct cautions that a violation of an ethical rule “does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation,” and warns that “the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons.” Pmbl. ¶20, Ariz. R. Profl Conduct. Arizona law reiterates that “[o]nly in extreme circumstances should a party to a lawsuit be allowed to interfere with the attorney-client relationship of his opponent.” Alexander v. Superior Court, 141 Ariz. 157, 685 P.2d 1309, 1313 (1984); see also Gomez v. Superior Court, 149 Ariz. 223, 717 P.2d 902, 905 (1986) (stating that Arizona courts “view with suspicion” motions to disqualify opposing counsel based on a conflict of interest or appearance of impropriety); Villalpando v. Reagan, 211 Ariz. 305, 121 P.3d 172, 175 (Ariz.Ct.App.2005) (same); Amparano v. ASARCO, Inc., 208 Ariz. 370, 93 P.3d 1086, 1092 (Ariz.Ct.App.2004) (“[T]he rules of professional responsibility are for ethical enforcement and are not designed to be used as a means to disqualify counsel. The courts have, of course, looked to the ethical rules for guidance on disqualification issues.”) (citation omitted). As the Ninth Circuit has noted, disqualification motions should be subjected to “particularly strict scrutiny” because of their potential for abuse. Optyl Eyewear Fashion Int'l Corp. v. Style Cos., Ltd., 760 F.2d 1045, 1050 (9th Cir.1985); see also Cnty. of L.A., 223 F.3d at 996 (“A motion to disqualify a law firm can be a powerful litigation tactic to deny an opposing party’s counsel of choice.”). “However, close or doubtful cases are resolved in favor of disqualification in order to preserve the integrity of the judicial system.” Richards v. Holsum Bakery, Inc., 2009 WL 3740725, at *6 (D.Ariz. Nov. 5, 2009); see also Kaiser v. AT & T, 2002 WL 1362054, at *5 (D.Ariz. Apr. 5, 2002) (same) (quoting Palmer v. The Pioneer Hotel & Casino, 19 F.Supp.2d 1157, 1162 (D.Nev.1998)). The moving parties have the burden of sufficiently showing why the Court should disqualify an attorney from representing its client. Alexander, 685 P.2d at 1313; Amparano, 93 P.3d at 1093; see also Research Corp., 936 F.Supp. at 701.
DISCUSSION
For the reasons set forth below, the Court concludes that G & K should be disqualified from representing RID against Honeywell, Corning, Univar, SRP, and Dolphin. G & K may represent RID against Arvin and Cooper, provided that G & K continues to comply with the screening provisions of Ethical Rule 1.10(d).
I. Former Client Motions to Disqualify
Honeywell and Corning both argue that their former representation by current G & K attorneys creates an impermissible conflict of interest that is imputed to G & K by virtue of Ethical Rule 1.10 and is not subject to screening. The Court agrees.
A. Former Client Conflict of Interest— Ethical Rule 1.9
Ethical Rule 1.9(a) states that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” ER 1.9(a). For a conflict to exist pursuant to this provision, the moving party must show: (1) the existence of an attorney-client relationship; (2) that the former representation was “the same or substantially related” to the current litigation; and (3) that the current client’s interests are “materially adverse” to the former client’s interests. Foulke v. Knuck, 162 Ariz. 517, 784 P.2d 723, 726-27 (Ariz.Ct.App.1989). Matters are substantially related “if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter.” ER 1.9 cmt. 3; see also Trone v. Smith, 621 F.2d 994, 998-99 (9th Cir.1980) (concluding that a “substantial relationship” exists if the factual contexts of the two representations are similar or related); Amparano, 93 P.3d at 1093; Foulke, 784 P.2d at 726-27 (finding that an Ethical Rule 1.9(a) conflict of interest existed when the general subject matter of the prior representation was substantially related to the issues that would necessarily be resolved in the subsequent action); cf. In re Ockrassa, 165 Ariz. 576, 799 P.2d 1350, 1352 (1990) (stating that one of the aims of Ethical Rule 1.9 is to “avoid a public perception of ‘switching sides’ ”). Determining the scope of a matter requires an examination of the facts of a particular situation or transaction and the nature and degree of the lawyers’ involvement. ER 1.9 cmt. 2. Additionally, information that has been disclosed to the public ordinarily will not be disqualifying. ER 1.9 cmt. 3.
B. Vicarious Disqualification and Screening — Ethical Rule 1.10
Ethical Rule 1.10(a) states that no lawyer in a firm “shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by [Ethical Rules] 1.7 or 1.9.” ER 1.10(a). Until recently, this rule was absolute. Arizona amended Ethical Rule 1.10 in 2003, and added the following provision:
(d) When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under [Ethical Rule] 1.9 unless:
(1) the matter does not involve a proceeding before a tribunal in which the personally disqualified lawyer had a substantial role;
(2) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and
(3) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule.
ER 1.10(d). This provision is “unique and was not taken from ABA proposals or rules adopted in other states.” Eberle Design, Inc. v. Reno A & E, 354 F.Supp.2d 1093, 1095 (D.Ariz.2005).
According to its unambiguous terms, Ethical Rule 1.10(d)’s screening mechanism is only available in circumstances in which the lawyer who represented the former client joins a new firm. ER 1.10(d) (“When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under [Ethical Rule] 1.9.” (emphasis added)); see also Eberle, 354 F.Supp.2d at 1095 (“By its terms, [Ethical Rule 1.10(d) ] applies only when the lawyer joining the new firm is personally disqualified under [Ethical Rule] 1.9.”); Ariz. Ethics Op. 04-04 (“[T]he intent of [Ethical Rule 1.10(d) ] was to address the situation of a lawyer moving laterally between firms to promote lawyer mobility.”). Once this threshold requirement is met, however, for screening to be available, the terms of subsections (d)(1)-(3) must also be satisfied.
1. Ethical Rule 1.10(d)(1)
Ethical Rule 1.10(d)(1) provides: “When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under ER 1.9 unless: (1) the matter does not involve a proceeding before a tribunal in which the personally disqualified lawyer had a substantial role.” ER 1.10(d)(1).
There is a paucity of authority on this provision, and thus far, no court has interpreted it in its entirety. The comments provide some insight into this rule, however. For instance, the comments define “tribunal” as “a court, an arbitrator in an arbitration proceeding or a legislative body, administrative agency or other body acting in an adjudicative capacity.” ER 1.0(m). They further provide that “[a] legislative body, administrative agency or other body acts in an adjudicative capacity when a neutral official, after the presentation of evidence or legal argument by a party or parties, will render a legal judgment directly affecting a party’s interests in a particular matter.” Id.
In Eberle, the only case to touch upon Ethical Rule 1.10(d), the court concluded that to be considered “substantial” within the meaning of this rule, the affected lawyer’s role in the former client’s representation must have been “material and weighty.” Eberle, 354 F.Supp.2d at 1097 (citing ER 1.0(i))- Whether the lawyer had such a role depends on “the nature and amount of work he performed, the responsibility he assumed, the degree to which the client relied on him for managing the case, and similar considerations.” Id. (concluding that an attorney who billed 9.2 hours to a case over a period of 9 days for drafting voir dire questions did not play a “substantial” role in the former client’s representation).
With respect to the remainder of Ethical Rule 1.10(d)(1), the comments do not provide any insight into how it should be construed, and courts have not yet interpreted its requirements. The Court therefore applies its plain terms. See Janson v. Christensen, 167 Ariz. 470, 808 P.2d 1222, 1223 (1991) (“[T]he best and most reliable index of a statute’s meaning is its language.”); W. Corr. Grp., Inc. v. Tierney, 208 Ariz. 583, 96 P.3d 1070, 1074 (Ariz.Ct.App.2004) (stating that courts refer to established and widely used dictionaries to determine the plain meaning of a term in a statute); Herberman v. Bergstrom, 168 Ariz. 587, 816 P.2d 244, 246 (Ariz.Ct.App.1991) (providing that clear statutory language is given its usual meaning unless impossible or absurd consequences result); see also United States v. Nader, 542 F.3d 713, 717 (9th Cir.2008) (stating that courts first consider the plain meaning of a statute’s text).
According to the plain terms of this provision, “matter” refers to the representation that Ethical Rule 1.9 disqualifies the lawyer from undertaking, i.e. the current representation. Therefore, pursuant to Ethical Rule 1.10(d)(1), for screening to be available, the current representation must not “involve a proceeding before a tribunal in which the personally disqualified lawyer had a substantial role.” ER 1.10(d)(1) (emphasis added). The word “involve” means “to have within or as part of itself’ or “to require as a necessary accompaniment.” Webster’s Third New International Dictionary 1191 (2002); see also 8 Oxford English Dictionary 57 (2d ed. 1989) (defining “involve” as “to enfold, envelop, entangle, include”); United States v. Awan, 607 F.3d 306, 315 (2d Cir.2010) (defining “involve” as “to have within or as part of itself’ or “to include”); Valansi v. Ashcroft, 278 F.3d 203, 209-10 (3d Cir.2002) (defining “involve” as “to have within or as part of itself’ or “to require as a necessary accompaniment”). Thus, the current representation “involve[s] a proceeding before a tribunal in which the personally disqualified lawyer had a substantial role” when it necessarily includes such a proceeding.
At its minimum, this provision allows screening unless the disqualified lawyer switched sides in the current representation, provided that it was a proceeding before a tribunal and the disqualified lawyer had a substantial role. This provision can also be interpreted to provide that screening may be used unless the current representation necessarily requires relitigating some aspect of a prior proceeding before a tribunal, in which the potentially disqualified lawyer had a substantial role. A helpful example of this interpretation would be: A lawyer represents the plaintiff in a personal injury tort lawsuit. After conclusion of this representation, the lawyer is hired by the defendant’s law firm. Thereafter, the defendant’s law firm seeks to represent the defendant in asserting that there was fraud on the court in the personal injury tort lawsuit. Because the fraud on the court claim, i.e. the current representation, would necessarily require relitigating certain aspects of the personal injury tort lawsuit, i.e. the prior proceeding, screening would not be available, and the lawyer’s disqualification would be imputed to the entire law firm.
In any event, Ethical Rule 1.10(d)(1) cannot be interpreted so as to preclude screening if the prior representation is merely substantially related to the current representation. This would contradict the plain meaning of “involve” because if two matters are substantially related, one does not “include” the other or “require [the other] as a necessary accompaniment.” Additionally, Ethical Rule 1.10(d)(1) does not use the words “substantially related.” This phrase appears in several other provisions of the Ethical Rules, and if the drafters intended Ethical Rule 1.10(d)(1) to preclude screening when the two representations are substantially related, then they would have specified as such. The Court cannot adopt a reading of the rule that belies its plain terms.
Eberle is not to the contrary. In that case, an attorney billed 9.2 hours to a matter while employed by the plaintiffs law firm, then the attorney joined the law firm representing the defendant in the same action, while the lawsuit was ongoing. Eberle, 354 F.Supp.2d at 1096-97. The lawyer unquestionably switched sides in a lawsuit that was before a tribunal, and therefore, the focus of the Eberle court’s inquiry was whether the attorney had undertaken a “substantial role” in the lawsuit while he was employed by the plaintiffs firm. Id. at 1096. The Court agrees with Eberle, in that had this attorney undertaken a substantial role in the lawsuit, his conflict of interest would have been imputed to the defendant’s firm and screening would not have been available. The question of whether screening is available when the Ethical Rule 1.9 conflict of interest falls short of sideswitching, however, was not presented in Eberle. That decision, therefore, provides no guidance into the meaning of “involve” because it only addressed what constitutes a “substantial role” within the meaning of Ethical Rule 1.10(d)(1).
Accordingly, the Court concludes that Ethical Rule 1.10(d)(1) precludes screening when: (1) the disqualified lawyer either switched sides in the current representation or the current representation necessarily requires relitigating a particular aspect of a prior representation; (2) the prior representation was a proceeding before a tribunal; and (3) the disqualified lawyer played a substantial role in that prior proceeding.
2. Ethical Rule 1.10(d)(2)
Ethical Rule 1.10(d)(2) provides as follows: “When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under ER 1.9 unless: (2) the personally disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom.” ER 1.10(d)(2).
“ ‘Screened’ denotes the isolation of a lawyer from any participation in a matter through the timely imposition of procedures within a firm that are reasonably adequate under the circumstances to protect information that the isolated lawyer is obligated to protect under these Rules or other law.” ER 1.0(k). The comments to Ethical Rule 1.0 elaborate on what the screen should entail:
The purpose of screening is to assure the affected parties that confidential information known by the personally disqualified lawyer remains protected. The personally disqualified lawyer should acknowledge the obligation not to communicate with any of the other lawyers in the firm with respect to the matter. Similarly, other lawyers in the firm who are working on the matter should be informed that the screening is in place and that they may not communicate with the personally disqualified lawyer with respect to the matter. Additional screening measures that are appropriate for the particular matter will depend on the circumstances. To implement, reinforce and remind all affected lawyers of the presence of the screening, it may be appropriate for the firm to undertake such procedures as a written undertaking by the screened lawyer to avoid any communication with other firm personnel and any contact with any firm files or other materials relating to the matter, written notice and instructions to all other firm personnel forbidding any communication with the screened lawyer relating to the matter, denial of access by the screened lawyer to firm files or other materials relating to the matter and periodic reminders of the screen to the screened lawyer and all other firm personnel.
ER 1.0 cmt. 9; see also State ex rel. Romley v. Superior Court, 184 Ariz. 223, 908 P.2d 37, 43 (Ariz.Ct.App.1995) (finding that for purposes of Ethical Rule 1.11, the screening mechanism “must be designed both to eliminate opportunities for inadvertent disclosure and to provide a genuine appearance of a security wall around the subject attorney”); Restatement (Third) of the Law Governing Lawyers § 124(d)(ii) (describing the requirements of an effective screen).
Additionally, “to be effective, screening measures must be implemented as soon as practical after a lawyer or law firm knows or reasonably should know that there is a need for screening.” ER 1.0 cmt. 10; see also Restatement (Third) of the Law Governing Lawyers § 124 cmt. d(i) (“The required screening measures must be imposed in the subsequent representation at the time the conflict is discovered or reasonably should have been discovered, and they must be of sufficient scope, continuity, and duration to assure that there will be no substantial risk to confidential client information.”). Ethical Rule 1.0(f) defines “knows” as “actual knowledge of the fact in question.” ER 1.0(f). Knowledge may also be inferred from circumstances. Id. The term “reasonably should know” means that “a lawyer of reasonable prudence and competence would ascertain the matter in question.” ER 1.0(j).
3. Ethical Rule 1.10(d)(3)
Ethical Rule 1.10(d)(3) provides as follows: “When a lawyer becomes associated with a firm, no lawyer associated in the firm shall knowingly represent a person in a matter in which that lawyer is disqualified under ER 1.9 unless: (3) written notice is promptly given to any affected former client to enable it to ascertain compliance with the provisions of this Rule.” ER 1.10(d)(3).
Although the comments to Ethical Rule 1.10 do not specify what information should be included in this notice, the following explanation appears in the comments to Ethical Rules 1.11, 1.12, and 1.18, the other three provisions that permit screening: “Notice, including a description of the screened lawyer’s prior representation and of the screening procedures employed, generally should be given as soon as practicable after the need for screening becomes apparent.” ER 1.11 cmt. 6; ER 1.12 cmt. 5; ER 1.18 cmt. 9; see also Restatement (Third) of the Law Governing Lawyers § 124 cmt. d(iii) (“Timely and adequate notice of the screening must ... be given to the affected clients, including description of the screening measures reasonably sufficient to inform the affected client of their adequacy.... Notice should ordinarily be given as soon as practical after the lawyer or firm realizes or should realize the need for screening.”); Romley, 908 P.2d at 43 (finding that for purposes of Ethical Rule 1.11, “the details of the [screening] mechanism must be communicated to the defendant and his counsel”).
C. Honeywell’s Motion to Disqualify
Honeywell argues that Derouin’s and Hallman’s employment by G & K create impermissible former client conflicts of interest.
1. Derouin
Honeywell asserts that Derouin is personally disqualified from representing RID, pursuant to Ethical Rule 1.9, and that this disqualification is imputed to G & K, in accordance with Ethical Rule 1.10. The Court agrees.
a. Ethical Rule 1.9
As noted, for an Ethical Rule 1.9(a) conflict to exist, the moving party must show: (1) the existence of an attorney-client relationship; (2) that the former representation was “the same or substantially related” to the current litigation; and (3) that the current client’s interests are “materially adverse” to the former client’s interests. Foulke, 784 P.2d at 726-27. It is undisputed here that Honeywell is Derouin’s former client and that Derouin represented Honeywell regarding the M-52 Site for several years in the early 1990s and from 2007 to December 2009. (Berke Decl. ¶¶ 2, 11; Troy Kennedy Decl. I ¶¶ 4, 7, 20; Derouin Decl. I ¶¶ 10-14.) Additionally, the current representation — the RID matter — is materially adverse to Honeywell’s interests because RID has named Honeywell as a defendant in the instant action. The parties sharply disagree, however, as to whether the RID matter is the same or substantially related to Derouin’s prior representation of Honeywell.
Derouin first represented Honeywell in the early 1990s, and in that capacity, he developed legal strategy and settlement positions, and assessed confidential information, related to Honeywell’s potential liability for the contamination that allegedly emanated from its facilities and purportedly moved westward to commingle with a separate plume of contamination. (Berke Decl. ¶¶ 2-4; Troy Kennedy Decl. I ¶¶ 4-5.) The in camera materials reflect that Derouin was intimately involved in analyzing the available information regarding the alleged contamination, representing Honeywell’s interests at meetings and negotiations with other potential PRPs, and providing Honeywell with detailed legal advice as to these issues. As the Berke Declaration suggests, included within the in camera materials are memoranda authored by Derouin: (1) containing analysis and advice regarding government agency findings about the sources of contamination in the commingled plume; (2) concerning the development of Honeywell’s case strategy for issues arising from the commingled plume; (3) regarding the alleged releases of contamination from the Honeywell Facilities and potential liability for the entire commingled plume; and (4) summarizing meetings with other PRPs concerning the commingled plume and providing analysis as to this issue. (See Berke Decl. ¶¶ 6-10.) Derouin continued to represent Honeywell in this manner until approximately 1996. (Id. ¶ 11; Derouin Decl. I ¶¶ 10-12.)
Honeywell retained Derouin again in 2007 to represent its interests regarding “the same commingled plume the parties had been addressing since the early 1990s.” (See Troy Kennedy Decl. I ¶ 7.) During the course of this representation, Derouin reviewed additional confidential technical analyses of Honeywell’s potential contribution to the commingled plume and assessed Honeywell’s potential liability. (Id. ¶ 8.) In May 2009, David Kimball, III, a member of G & K’s litigation team handling the RID matter, contacted Derouin, as counsel for Honeywell, to discuss issues related to the groundwater contamination of RID’s wells. (Id. ¶ 9; Derouin Decl. I ¶ 15; Kimball Decl. I ¶¶ 11-12.) Derouin, on Honeywell’s behalf, subsequently met with Kimball and RID’s technical representative on two separate occasions, for a technical and factual presentation about the groundwater contamination impacts to RID’s wells. (Troy Kennedy Decl. I ¶ 10; Derouin Decl. I ¶¶ 16-18; Kimball Decl. I ¶¶ 12-15.) During these meetings, Kim-ball informed Derouin that RID planned to bring a cost recovery action if settlement discussions proved unsuccessful. (Troy Kennedy Decl. I ¶ 9; Derouin Decl. I ¶ 19; Kimball Decl. I ¶¶ 13, 15.) Kimball also emailed Derouin a copy of RID’s draft complaint. (Troy Kennedy Decl. II ¶ 2, Ex. A.)
Honeywell asserts that Derouin played an important role in developing legal strategy and analysis for RID’s threatened lawsuit and that he assisted Honeywell in weighing the options available to it, including potential settlement. (Troy Kennedy Decl. I ¶¶ 12-13.) The in camera materials are in accord. Included within them are numerous e-mail communications from Derouin to Honeywell, which: (1) summarize Derouin’s meetings with Kimball and assess the implications for Honeywell; (2) discuss Derouin’s meeting with Honeywell’s outside environmental consultant to review RID’s allegations; and (3) analyze Derouin’s communications with other potential defendants in RID’s contemplated lawsuit. (See id. ¶¶ 15-17.) Additionally, in August 2009, Kimball gave Derouin, as counsel for Honeywell, another copy of RID’s draft complaint for the instant action. (Id. ¶ 19; Derouin Decl. I ¶ 23; see Kimball Decl. I ¶ 17.) Derouin subsequently sent Honeywell an e-mail, contained in the in camera materials, which provides his analysis of the complaint and RID’s proposal. (See Troy Kennedy Decl. I ¶ 19.)
Derouin ceased representing Honeywell in December 2009. (Id. ¶ 20; Byrne Decl. ¶¶ 2-5; Derouin Decl. I ¶¶ 28-29.) Derouin was hired by G & K in January 2010, and he has been screened from the RID matter since his arrival at the firm. (Derouin Decl. I ¶¶ 32-35; Kimball Decl. I ¶¶ 30-31; Michael Kennedy Decl. ¶¶ 5-9.)
On these facts, the Court can only conclude that Derouin’s prior representation of Honeywell is the same or substantially related to the instant matter, particularly because Derouin represented Honeywell in the initial stages of this lawsuit and analyzed two of RID’s draft complaints in his capacity as counsel for Honeywell. Moreover, when Honeywell engaged Derouin in the early 1990s, Derouin was charged with developing legal strategy and analyzing liability for the contamination that purportedly emanated from the Honeywell Facilities and allegedly became part of a commingled plume. In this lawsuit, RID asserts that hazardous substances used and disposed of at the Honeywell Facilities contributed to the groundwater contamination of its wells. (FAC ¶ 41.) The instant action therefore involves the same contamination from the same facilities and the same commingled plume as were at issue in Derouin’s prior representation of Honeywell. There is undoubtedly a “substantial risk” that confidential factual information as would normally have been obtained in Derouin’s representation of Honeywell would “materially advance” RID’s position in the instant matter. See ER 1.9 cmt. 3; see also Trone, 621 F.2d at 998-99.
RID emphasizes that Honeywell told Derouin he should not open a file for the RID matter and that Karen Gaylord of Salmon, Lewis & Weldon, P.L.C. would represent Honeywell in this litigation. (RID’s Consolidated Opp’n at 34; see Derouin Decl. I ¶¶ 20, 25.) RID focuses on the wrong inquiry. It does not matter that Honeywell hired another law firm to spearhead the defense of this action; the relevant inquiry is whether Derouin’s prior representation of Honeywell is substantially related to the instant action. After conducting a careful review of the declarations and the in camera materials, the Court determines that it is so related. Accordingly, based on his prior representation of Honeywell, Ethical Rule 1.9(a) would bar Derouin from representing RID in the instant action.
b. Ethical Rule 1.10
Derouin’s Ethical Rule 1.9(a) conflict of interest will be imputed to G & K, in accordance with Ethical Rule 1.10(a), unless the screening provisions of Ethical Rule 1.10(d) apply. As noted, Ethical Rule 1.10(d) only applies when a lawyer becomes associated with a firm. See Eberle, 354 F.Supp.2d at 1095; Ariz. Ethics Op. 04-04. According to Ethical Rule 1.10(d)(1), screening is available unless: (1) the disqualified lawyer either switched sides in the current representation or the current representation necessarily requires relitigating a particular aspect of a prior representation; (2) the prior representation was a proceeding before a tribunal; and (3) the disqualified lawyer played a substantial role in that prior proceeding.
Ethical Rule 1.10(d)(1) forecloses screening as a means of curing Derouin’s conflict. Derouin represented Honeywell in the initial stages of this very case, and in this capacity, Derouin met with counsel for RID on Honeywell’s behalf, analyzed two of RID’s draft complaints for Honeywell, conferred with Honeywell’s experts to review RID’s proposal, and communicated with other defendants named in RID’s draft complaint. Accordingly, Derouin plainly represented Honeywell in connection with the instant action, and by joining G & K, Derouin switched sides in this lawsuit. RID stresses, however, that because it did not file the complaint in this suit until after Derouin’s representation of Honeywell had ended, there was no proceeding before a tribunal for purposes of Ethical Rule 1.10(d)(1). (RID’s Consolidated Opp’n at 37-38.) In making this argument, RID overlooks that Derouin switched sides in the instant action, which is currently a proceeding before a tribunal. It does not matter that RID had not yet filed its complaint when Derouin’s representation of Honeywell ended because the current representation “involves” Derouin’s prior representation of Honeywell.
Derouin also had a substantial role in this proceeding. The Court has reviewed Derouin’s billing records for the RID matter, submitted in camera (see Troy Kennedy Decl. II ¶¶ 3-5), as well as the documents and communications he generated during the course of this representation, and concludes that Derouin had a “material and weighty” role in this proceeding. See Eberle, 354 F.Supp.2d at 1097 (citing Ethical Rule 1.0(0). Unlike in Eberle, where the court determined that the lawyer in question, who billed 9.2 hours to a case over a period of 9 days for drafting voir dire questions, did not play a “substantial” role in the former client’s representation, here, Derouin was actively involved in analyzing RID’s allegations and developing a strategy for Honeywell to defend the instant lawsuit. Accordingly, because Derouin switched sides in the RID matter, which is before a tribunal, and in which Derouin played a substantial role, G & K cannot avail itself of the screening provision in Ethical Rule 1.10(d). Derouin’s Ethical Rule 1.9(a) conflict of interest is therefore imputed to G & K.
2. Hallman
As with Derouin, Honeywell asserts that Hallman is personally disqualified from representing RID and that this disqualification is imputed to G & K. Because of its conclusion that Derouin’s Ethical Rule 1.9(a) conflict of interest is imputed to G & K pursuant to Ethical Rule 1.10, the Court need not address this argument. The Court nonetheless analyzes whether Hall-man’s purported conflict can provide an independent basis for G & K’s disqualification, and concludes that it does.
a. Ethical Rule 1.9
It is undisputed that Honeywell is Hall-man’s former client and that Hallman served as Honeywell’s in house litigation counsel from 1987 to 1999, when he joined G & K. (Hallman Decl. ¶ 5; Troy Kennedy Decl. I ¶ 21.) Additionally, the current representation — the RID matter — is materially adverse to Honeywell’s interests because RID has named Honeywell as a defendant in the instant lawsuit. As with Derouin, the third prong of the Ethical Rule 1.9(a) analysis — whether the RID matter is the same or substantially related to Hallman’s prior representation of Honeywell' — is the most contentious.
In his capacity as in house litigation counsel for Honeywell, Hallman represented Honeywell’s interests in the Baker Action and United States v. Motorola (the “Motorola Action”), which both involved alleged contamination from the Honeywell Facilities and the resulting commingled plume. (Troy Kennedy Decl. I ¶ 21.) The Baker Action was a private toxic tort suit, which arose from, inter alia, the plaintiffs’ exposure to past groundwater contamination from the commingled plume in the M-52 Site. (Id. ¶¶ 21-22; Coming’s Mot. Ex. J.) Honeywell contends, and the in camera materials confirm, that Hallman was directly involved in the litigation strategy and analysis of the commingled plume for the Baker Action. (Troy Kennedy Decl. I ¶¶ 22-27.) By virtue of his participation in this action, Hallman was also privy to confidential technical information regarding, and discussions relating to potential liability for, the alleged commingled plume. (See id.)
Additionally, in the mid-1990s, Hallman negotiated with other PRPs, on behalf of Honeywell, to resolve contribution allocation issues relating to the remedial actions and other costs associated with clean up of the past contamination. (Id. ¶ 28.) When the parties could not resolve the dispute, the United States filed the Motorola Action against Motorola, Honeywell, and the City of Phoenix, seeking to require contribution by those parties. (Id. ¶ 29.) The in camera materials demonstrate that, during his work on the Motorola Action, Hallman sent and received correspondence: (1) regarding confidential technical information and legal strategies relating to contribution for the commingled plume and PRP relationships; (2) discussing meetings between Honeywell, government agencies, and PRPs regarding the commingled plume; and (3) developing legal strategy concerning the commingled plume. (See id. ¶¶ 30-40.) Hallman worked on the Motorola Action until he left Honeywell in 1999 to join G & K. (Id. ¶ 41; Hallman Decl. ¶ 6.) Hallman has been screened from the RID matter since June 2010. (Hallman Decl. ¶ 5; see also Kimball Decl. I ¶¶ 40-41; Michael Kennedy Decl. ¶¶ 15-17.)
On these facts, the Court concludes that Hallman’s prior representation of Honeywell is the same or substantially related to the instant matter. As with Derouin, Hall-man received confidential information regarding potential liability for the commingled plume, participated in negotiations with other PRPs and governmental agencies, and was instrumental in developing legal strategy for the Baker and Motorola Actions, which both involved the same contamination and commingled plume at issue here. There is undoubtedly a “substantial risk” that confidential factual information as would normally have been obtained in Hallman’s representation of Honeywell would “materially advance” RID’s position in the instant matter. See ER 1.9 cmt. 3; see also Trone; 621 F.2d at 998-99. The in camera materials reaffirm this determination. Accordingly, based on his prior representation of Honeywell, Ethical Rule 1.9(a) would bar Hallman from representing RID in the instant action.
b. Ethical Rule 1.10
RID contends that even if Hallman has an Ethical Rule 1.9(a) conflict of interest, screening applies and the conflict cannot be imputed to G & K. The Court is not persuaded.
At the outset, the Court has grave concerns as to whether screening is even available for Hallman’s conflict of interest. Ethical Rule 1.10(d) states that screening may be utilized “[w]hen a lawyer becomes a