ORDER DENYING MOTION TO DISQUALIFY

Re: Dkt. No. 38.

JOSEPH C. SPERO, Chief Magistrate Judge.

I. INTRODUCTION

Plaintiff brings a Motion to Disqualify Allen Glaessner Hazelwood & Werth, LLP ("Motion"). The Court finds that the Motion is suitable for determination without oral argument and therefore vacates the motion hearing set for March 2, 2018 pursuant to Civil Local Rule 7-1(b). For the reasons stated below, the Motion is DENIED.1

II. DISCUSSION

A. Legal Standard

Federal courts in California look to state law to decide motions to disqualify. Openwave Sys. Inc. v. Myriad France S.A.S., 2011 WL 1225978, at *1 (N.D. Cal., Mar. 31, 2011) (citing In re County of Los Angeles, 223 F.3d 990, 995 (9th Cir. 2000)). Pursuant to Rule 11-4 of the Civil Local Rules of the Northern District of California, attorneys practicing in this district are required to adhere to "the standards of professional conduct required of members of the State Bar of California," which are contained in "the State Bar Act, the Rules of Professional Conduct of the State Bar of California and decisions of any court applicable thereto." Civ. L.R. 11-4 and comment; see also Visa U.S.A., Inc. v. First Data Corp., 241 F.Supp.2d 1100, 1103 (N.D. Cal. 2003). The decision to disqualify counsel is within the discretion of the trial court as an exercise of its inherent powers. Visa, 241 F. Supp. 2d at 1103 (citing United States v. Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996); Image Technical Serv., Inc. v. Eastman Kodak Co., 820 F.Supp. 1212, 1215 (N.D. Cal. 1993); and Cal. Code Civ. Proc. § 128(a)(5)). Because motions to disqualify are often tactically motivated, they are strongly disfavored and are subjected to "particularly strict judicial scrutiny." Optyl Eyewear Fashion Intern. Corp. v. Style Companies, Ltd., 760 F.2d 1045, 1050 (9th Cir. 1985) (citation omitted).

B. Application of Legal Standard

The gravamen of Plaintiff's Motion is that Dale Allen, counsel for Defendants, tampered with video footage and coached a witness (Officer Bahaduri) to provide false testimony. As a consequence, Plaintiff asserts, Allen will have to be called as a witness at trial, requiring his disqualification pursuant to various ethical rules and case law that prohibit an individual who testifies before the jury from also acting as an advocate. See, e.g., California Rule of Professional Conduct 5-210. The Court finds no basis for disqualifying Defendants' counsel.

First, despite repeated allegations that the video footage of the relevant events was tampered with, Plaintiff has offered no evidence to support these allegations. Rather, his accusations are entirely speculative. Nor does Plaintiff offer any response in his Reply brief to the evidence offered by Defendants that their expert, Michael Schott, reviewed the video footage and the Evidence Audit Trail for each video and found no evidence of tampering. See Downs Decl. ¶¶ 4-9.

Likewise, the facts do not support Plaintiff's assertion that Mr. Allen coached Officer Bahaduri to offer false testimony at his deposition. Officer Bahaduri testified at his deposition that his attorney told him he had not pulled out a gun on the night of the relevant events, even though he remembered doing so. Mr. Allen states in his declaration that he had told Officer Bahaduri, in preparing him for his deposition, that Defendants' retained expert, Mr. Schott, had concluded that Officer Bahaduri had not, in fact, drawn his gun. Allen Decl., ¶ 6.2 He also states that he discussed with Officer Bahaduri the Officer's recollection that he had drawn a gun. Id. While Plaintiff contends Mr. Allen's statement to Officer Bahaduri that the video footage showed he did not draw a gun was "akin to telling him how to testify," Reply at 2, the testimony that Officer Bahaduri offered — that he recalled drawing his firearm — supports the opposite inference, namely, that Mr. Allen did not instruct Officer Bahaduri to offer testimony inconsistent with his recollection or imply that he should do so. The Court therefore concludes that Plaintiff has failed to demonstrate misconduct on the part of Defendants' counsel.

The Court notes that a significant portion of Plaintiff's briefs is aimed at the merits of his case, the significance of the video footage, and whether Defendants should be permitted to introduce expert testimony regarding what the videos actually show. In this Order, the Court merely holds that no misconduct on the part of Defendants' counsel has been established and consequently, that there is no basis for disqualifying Defendants' counsel. The Court's conclusion is without prejudice to Plaintiff challenging the admissibility of the video footage or any expert testimony relating to that footage that Defendants may seek to introduce on summary judgment or at trial.

III. CONCLUSION

The Motion is DENIED.

IT IS SO ORDERED.