Commercial Litigation and Arbitration

Parameters of Adverse Counsel’s Contacting Former Employees of Corporate Party — Substantial Exposure to Privileged Communications or Service as Litigation Consultant as Touchstone

From Weber v. Fujifilm Med. Sys., USA, 2010 U.S. Dist. LEXIS 72416 (D. Conn. July 19, 2010):

In an exhaustive decision on this issue, then District Judge Jose A. Cabranes held, in a case of first impression, that an attorney representing a client against a corporate party may conduct ex parte interviews of former employees of the corporation, which is represented by another attorney, without the consent of the corporation's lawyer, and not run afoul of Rule 4.2 of the Connecticut Rules of Professional Conduct. Dubois [v. Gradco Sys., Inc., 136 F.R.D. 3412-46, (D. Conn. 1991)]. Judge Cabranes quoted from "the leading commentators in this field[,]" who observed that "some former employees continue to personify the organization even after they have terminated their employment relationship[,]" such as "a managerial level employee involved in the underlying transaction, who is also conferring with the organization's lawyer in marshal[]ing the evidence on its behalf." Id. at 346, quoting G. Hazard & W. Hodes, THE LAW OF LAWYERING: A HANDBOOK ON THE MODEL RULES OF PROFESSIONAL CONDUCT 436-436.1 (1988 Supp.)(emphasis in original). For "[t]his kind of employee [who] is undoubtedly privy to privileged information, . . . an opposing lawyer is not entitled to reap a harvest of such information without a valid waiver by the organization." Id.

Judge Cabranes, however, issued "[s]everal caveats" in his ruling, including that a protective order might be appropriate if "the former . . . employees possess — by virtue of their involvement in the underlying matters — information that might be protected under the attorney-client privilege. . . ." Id. at 346. Judge Cabranes continued:

[I]t goes without saying that, with respect to any unrepresented former employee, plaintiff's counsel must take care not to seek to induce or listen to disclosures by the former employees of any privileged attorney-client communications to which the employee was privy. After all, the privilege does not belong to, and is not for the benefit of, the former employee; rather, it belongs to, and is for the benefit of [defendant corporation]. Thus, efforts by plaintiff's counsel to induce or listen to privileged communications may violate Rule 4.4 of the Model Rules of Professional Conduct, which requires respect for the rights of third persons.

Id. at 347 (footnote & citations omitted). Judge Cabranes added the further requirement that plaintiff's lawyer "make clear to the former . . . employees the nature of the lawyer's role in this case, including the identity of plaintiff and the fact that [defendant corporation] is an adverse party." Id. Lastly, Judge Cabranes set forth the consequences of any improper conduct by plaintiff's counsel -- if defendants were "able to point to specific instances of ethical violations or questionable ethical behavior by plaintiff's counsel with regard to the ex parte interviews of former . . . employees, the court could order the discontinuation of such interviews." Id. (citation omitted). Other sanctions could lead to the imposition of a protective order and the barring of any related testimony at trial. Id.

The Dubois decision was discussed extensively by U.S. Magistrate Judge Holly B. Fitzsimmons seven years later in the Milford Hous. Auth. decision. Judge Fitzsimmons permitted plaintiff's counsel to interview defendant's former employee, in the absence of proof that the former employee had become a trial consultant for defendant and had engaged in privileged communications. 179 F.R.D. at 72-74. Judge Fitzsimmons cautioned, however, that plaintiff's counsel was required to "make[] it clear at the outset of the ex parte interview that privileged communications are not to be divulged," and defendants were "free to educate [the former employee] on the details of which prior communications are privileged. . . ."***

The parameters of the Dubois decision was addressed ten years ago in Shoreline Computers, Inc. v. Warnaco, Inc., No. CV 990422853S, 2000 Conn. Super. LEXIS 842, 2000 WL 371206 (Conn. Super. Ct. Apr. 3, 2000), where plaintiff's counsel wanted to conduct ex parte interviews with eleven former employees of the defendant corporation. 2000 Conn. Super. LEXIS 842, [WL] at *1. Relying upon Dubois and Milford Hous. Auth., Connecticut Superior Court Judge Jon Alander observed the "recognized limits" to such contacts, in that

[f]ormer employees acting as trial consultants or otherwise actively and extensively working with the corporation's attorney in marshaling evidence and preparing for litigation may be off limits to ex parte contact by an attorney for an adverse party . . . because of the individual's extensive exposure to privileged communications and sustained access to the party's litigation strategy and the attorney's work product . . . .

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