Ex Parte Communications With A Party’s Employees During Litigation

by | Jun 16, 2011 | Business & Commercial Litigation, Litigation

The business community is a mobile one, and people frequently move from one job to another. When a business becomes a party to litigation, the Rules of Professional Conduct may prevent a lawyer for one party from directly contacting employees of the other party to learn facts relevant to the case, unless a court allows them to do so, or unless they obtain the consent of the attorney representing that business. This principle is embodied Indiana’s Rule 4.2, which provides that “[i]n representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or authorized by law or a court order.”  Because the business is represented by counsel, its employees are implicitly also represented, at least insofar as the subject of the litigation is concerned, and depending on their role with the company and the events which gave rise to the litigation. But what happens when employees leave the business for another job, and take their knowledge of facts relevant to the litigation with them? Are they now “fair game” for interviews by the attorneys for the adverse party? Does it matter whether they held a managerial level position, or even if they have knowledge of information about the litigation that would otherwise be protected from disclosure by the attorney-client privilege? Fortunately, or unfortunately, depending on one’s point of view, Indiana courts have issued a clear answer to these questions, and that answer is that, while some limitations exist with respect to contact with current employees, there are almost no restrictions of any kind on the ability of opposing counsel to communicate with former employees of a party to litigation.

The definitive case in Indiana is the 2002 decision of the Indiana Court of Appeals in P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729 (Ind. Ct. App. 2002) (trans. den.). In that case, a female patron who was attending a party at a nightclub was injured when a male dancer lifted her, lost his balance, and landed on her hand when they fell. While preparing the patron’s personal injury action against the nightclub for trial, the patron’s attorney contacted Stewart Lobosco, a former nightclub employee and the general manager of the Club on the night of the accident. After he determined that Lobosco was not represented by legal counsel, he obtained an affidavit from him. When the nightclub filed a motion for summary judgment, the patron’s attorney used the affidavit to successfully oppose the motion. The nightclub had moved to strike the affidavit, contending it was procured in violation of Rule 4.2. The trial court denied that motion to strike, and the Court of Appeals affirmed that decision. The Barnum’s decision carefully set out the restrictions on an adverse party’s counsel making contact with employees of a party to litigation. It is clear that no unconsented contact is permitted with the employee if the employee himself is represented by counsel. It is also clear that no unconsented contact is permitted with a current employee if:

  1. the employee holds a managerial position; or 
  2. the employee’s conduct could be imputed to the organization and thereby establish the organization’s liability; or
  3. the employee’s statements could constitute an admission that is binding on the organization in the litigation.

Other than these restrictions, adverse attorneys are free to communicate with current employees about a pending case. Moreover, there are absolutely no restrictions on such contact with former employees who no longer have any connection to the organization, regardless of their position in the organization when they were employees, or their role in the events out of which the litigation arose. The Court did make clear, however, that the adverse attorney’s contact with the former employee is still governed by other rules which require the attorney to make clear his or her role in the matter and the identity and respective positions of the parties involved at the outset of the communication, and to refrain from inducing the former employee to violate the attorney-client privilege.  Except for those restrictions, however, there is no limitation on the ability of the adverse attorney to communicate with former employees of the business organization.

More about Robert F. Parker

More about Robert F. Parker

Bob is an Of Counsel attorney at BCC and is resident in the firm’s Merrillville office. His practice is concentrated in commercial, professional liability, and personal injury litigation.