Bryant v. Yorktowne Cabinetry, Inc.

• Decision Date: 27 February 2008
• Docket Number: Civil Action No. 4:07cv036.
• Citation: 538 F.Supp.2d 948
• Parties: Patsy A. BRYANT, Plaintiff v. YORKTOWNE CABINETRY, INCORPORATED, Defendant.
• Court: U.S. District Court — Western District of Virginia

Page 948

538 F.Supp.2d 948

Patsy A. BRYANT, Plaintiff v. YORKTOWNE CABINETRY, INCORPORATED, Defendant.

Civil Action No. 4:07cv036.

United States District Court, W.D. Virginia, Danville Division.

February 27, 2008.

Seth Michael Land, Wells H. Byrnes, Clement & Wheatley PC, Danville, VA, for Plaintiff.

Elizabeth Hope Cothran, Thomas Richard Bagby, Woods Rogers PLC, Roanoke, VA, James B. Sherman, Wessels & Pautsch, P.C., Minneapolis, MN, for Defendant.

MEMORANDUM OPINION and ORDER

MICHAEL F. URBANSKI, United States Magistrate Judge.

This matter is before the court on defendant Yorktowne Cabinetry, Inc.'s motion to prohibit further ex parte communications with Yorktowne's former employees and to remedy ex parte communications that have occurred to date. The matter was argued on February 19, 2008. For the reasons set forth herein, the motion is DENIED.

In this employment discrimination case, Yorktowne contends that counsel for plaintiff, Patsy A. Bryant ("Bryant"), engaged in improper ex parte telephone communications with one of its former employees, Anne Goins, questioning her about the facts of this case. Goins previously worked as Human Relations Manager for defendant in its Danville facility and ostensibly has knowledge of the facts concerning Bryant's employment at Yorktowne and the circumstances of her termination. Yorktowne seeks to discover the notes of this interview, disqualify counsel for plaintiff and prohibit any further former employee interviews.

For its argument that ex parte communications with Goins are prohibited, Yorktowne relies principally on the opinion in Armsey v. Medshares Management Services, Inc., 184 F.R.D. 569 (W.D.Va.1998), where the court prohibited plaintiffs counsel from communicating with former employees of defendant corporation. The court reasoned that such a prohibition was appropriate because plaintiff's counsel in that case "informed the court that it seeks to speak to each of these former employees because Plaintiffs believe that they can impute liability upon [Defendant] through the statements, actions or omissions of these former employees." 184 F.R.D. at 574. Under these circumstances, the court denied plaintiff's request to communicate on an ex parte basis with such former employees.

At the hearing, Bryant sought to distinguish Armsey by representing that she does not intend to impute liability on Yorktowne through the statements, actions or omissions of Goins or other former employees, but was simply seeking to discover the facts of the case, including the identities of persons involved. Bryant argued at the hearing that there has been a great deal of turnover at the Yorktowne Danville facility over the past two years and counsel made the call to Goins to find out the facts of the case and the identities of persons responsible for the employment decisions regarding her.

In addition, Bryant's counsel argue that the telephone calls to Goins were ethically proper under Virginia Rule of Professional Conduct 4.2, which provides as follows:

In 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 is authorized by law to do so.

Comment 7 to Virginia Rule 4.2 explains that in the case of an organization, this prohibition extends to members of the "organization's `control group' as defined in Upjohn v. United States, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584 (1981), or persons who may be regarded as the `alter ego' of the organization." Va. Rules of Professional Conduct, Rule 4.2, Comment 7.

As regards former employees, Comment 7 to Virginia Rule 4.2 provides in clear language that "[t]he prohibition does not apply to former employees or agents of the organization, and an attorney may communicate ex parte with such former employee or agent even if he or she was a member of the organizations's `control group.'" Id.

Virginia Legal Ethics Opinion 1670 further addresses the issue of contact with former employees of adverse corporate parties. This opinion, issued in 1996 under the former Disciplinary Rule 7-103(A)(1), concluded that "it is ethically permissible for an attorney to communicate directly with the former officers, directors and employees of an adverse party unless the attorney is aware that the former employee is represented by counsel." This ethics opinion left room for further refinement of this rather bright line rule allowing contact with former officers, directors and employees, stating that the committee chose to "leave specific rulings involving other rules of ethical conduct to the presiding trial judges of Virginia based upon the facts presented before them."

Consistent with the bright line rule set forth in the Virginia Rules of Professional Conduct, a majority of courts considering the application of the ethical prohibition against communicating with represented persons of adverse interest have generally held that this prohibition does not apply to prohibit communications with former employees. See Valassis v. Samelson, 143 F.R.D. 118, 122 (E.D.Mich.1992); Right of Attorney to Conduct ex parte interviews with former corporate employees, 57 A.L.R. 5th 633, § 2[a] (2008).

At the same time, courts consistently have enforced a prohibition against ex parte communications with former employees of adverse corporate parties where the contacts involve privileged or confidential information. Virginia applies the same standard.

In a March 29, 2001 Legal Ethics Opinion 1749, issued three years after Armsey was decided, the Virginia State Bar Committee on Legal Ethics reiterated that Virginia ethics rules allow a lawyer to "contact the former employee of the opposing party regarding the litigation," but explained that other Rules of Professional Conduct impose content restrictions prohibiting inquiries into confidential and privileged communications and information. While not addressed in LEO 1749, other ethical rules impact on contact between counsel and witnesses such as former corporate employees. Specifically, Rule 4.3 concerns dealing with unrepresented persons, and Rule 4.4 prohibits counsel from using "methods of obtaining evidence that violate the legal rights of such a person."

At the February 19, 2008 hearing, counsel for Bryant represented that no inquiries into privileged or confidential areas were made, and review of the notes of counsel's telephone conversations with Goins produced for in camera review confirm that they did not contain any confidential or privileged information.¹

Yorktowne argues that Armsey requires a blanket prohibition against ex parte contact with all former corporate employees, especially those in management positions, but Yorktowne seeks to stretch Armsey beyond its facts. It is plain that in Armsey, the court based its decision "in large part on the fact that Plaintiff's counsel has informed the court that they believe that each of these witnesses has knowledge or has made statements or has taken actions which should be imputed to Medshares." 184 F.R.D. at 573. Bryant stated in open court that she did not intend to impute to Yorktowne anything said or done by Goins nor did the communication extend to privileged matters. As such, Armsey does not support the broad prohibition Yorktowne seeks in this case.

In Armsey, the court aptly recognized the vast divergence of opinion in state and federal courts in other jurisdictions on the issue of ex parte communications between counsel and former management employees of an adverse corporate party. 184 F.R.D. at 573. Citing as examples two cases from federal courts in Massachusetts and Kansas, the court noted that these cases have held that such contacts should be prohibited where the former employees' acts or omissions may be imputed to the corporation. Id. (citing Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. 250, 253 (D.Kan. 1988)). The court also cited cases from Florida, Montana and Maryland for the proposition that "there should be no ex parte communications with former employees who held managerial responsibilities with a represented corporate party." Id. (citing Rentclub, Inc. v. Transamerica Rental Finance Corp., 811 F.Supp. 651, 658 (M.D.Fla.1992); Porter v. Arco Metals Co., 642 F.Supp. 1116, 1118 (D.Mont.1986); Camden v. State of Maryland, 910 F.Supp. 1115, 1122 (D.Md.1996)). Over the ensuing years, however, these decisions have met with a substantial degree of disapproval and disagreement, and, indeed, the ethical rules under which several of these cases were decided have been revised.² Likewise, Armsey was decided before 2002, at which time neither the text nor comments to Model Rule 4.2 specifically addressed former employees. Instead, Comment 4 to the pre-2002 Rule 4.2 was silent as to former employees, stating only as follows:

In the case of an organization, this Rule prohibits communications by a lawyer for another person or entity concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

Nothing in the text or comment to old Model Rule 4.2 addresses the propriety of contact between an attorney and a former employee of the opposing corporate party. However, in ABA Formal Opinion 91-359, issued March 1991, the American Bar Association Committee opined that Rule 4.2 does not extend to former employees.

Consistent with this 1991 ABA Formal Opinion, Comment 7 to the ABA Model Rule 4.2, as revised in 2002, expressly exempted former employees from the prohibition against communicating ex parte with represented parties...