Joseph E. Shurance, Plaintiff-Respondent v. Planning Control International, Inc., Defendant-Petitioner

ORDER

Petitioner (PCI) seeks leave under 28 U.S.C. § 1292 (b) to appeal the district court’s denial of PCI’s motion to disqualify opposing counsel. Before the district court, PCI argued that counsel should be disqualified for violating professional ethics by contacting a former PCI employee and obtaining privileged information about that employee’s communications with PCI’s corporate counsel.

The issue is whether we may review the denial of a disqualification motion certified for immediate appeal under section 1292(b). This section allows for appeals of interlocutory orders which involve “a controlling question of law as to which there is substantial ground for difference of opinion and [ ] an immediate appeal from the order may materially advance the ultimate termination of the litigation....”

This Circuit defined “controlling question of law” in In re Cement Antitrust Litigation, 673 F.2d 1020 (9th Cir.1982), holding that petitioner must show that “resolution of the issue in the district court.” Id. at 1026 . In re Cement held that a trial judge’s decision to recuse himself “must be viewed as collateral to the basic issues of this lawsuit”, and therefore denied leave to…