Hanntz v. Shiley, Inc. a Div. of Pfizer, Inc.

• Citation: 766 F. Supp. 258
• Decision Date: 30 May 1991
• Docket Number: Civ. A. No. 90-3156.
• Parties: Joseph HANNTZ, Plaintiff, v. SHILEY, INC. A DIVISION OF PFIZER, INC., and Pfizer, Inc., Defendants.
• Court: U.S. District Court — District of New Jersey

766 F. Supp. 258

Joseph HANNTZ, Plaintiff, v. SHILEY, INC. A DIVISION OF PFIZER, INC., and Pfizer, Inc., Defendants.

Civ. A. No. 90-3156.

United States District Court, D. New Jersey.

May 30, 1991.

G. Richard Malgran and Lee A. Emmer, Rubin, Rubin, Malgran & Kuhn, Piscataway, N.J., for plaintiff.

Myron J. Bromberg, Lauren E. Handler, Cynthia D. Richardson, Porzio, Bromberg & Newman, Morristown, N.J., for defendants.

OPINION

LECHNER, District Judge.

Currently before the court is the appeal of plaintiff from a discovery order (the "Order") of United States Magistrate Judge Ronald J. Hedges, filed 31 January 1991.¹ For the reasons set forth below, the Order is reversed.

Facts and Procedural History

This is a product liability action brought by plaintiff against defendants Shiley, Inc., a Division of Pfizer, Inc. ("Shiley") and Pfizer, Inc. ("Pfizer") (collectively, "Defendants"). The complaint ("Complaint") was filed on 6 July 1990 in the superior court of New Jersey, Middlesex County. On 9 August 1990, the Complaint was removed from the superior court. The Defendants are the designers, distributors and manufacturers of allegedly defective heart valves which were surgically implanted in plaintiff.

Plaintiff alleges he underwent heart valve replacement surgery on 22 February 1985. Complaint, ¶ 1. The two artificial heart valves (the "Shiley Valves") he received at that time were designed, distributed and/or manufactured by the Defendants. Plaintiff alleges the Shiley Valves subsequently malfunctioned, requiring additional surgery on 4 August 1988 to replace the malfunctioning valves. Id., ¶ 2. Plaintiff alleges the second surgical valve replacement operation resulted in a cardiovascular accident which left him permanently paralyzed and debilitated. Id., ¶ 3.

During the course of discovery, plaintiff was provided with a list of current and former employees of Shiley who were involved in the manufacture, assembly, inspection and packaging of the Shiley Valves implanted into plaintiff. On or about 27 December 1990, plaintiff's counsel contacted one of the former employees in an effort to obtain information relevant to plaintiff's suit.

Subsequently, plaintiff's counsel learned of the decision in Public Serv. Elec. & Gas Co. v. Associated Elec. & Gas Ins. Servs., Ltd., 745 F.Supp. 1037 (D.N.J.1990) ("PSE & G"), which prohibited ex parte communications with the former employees of an adverse party corporation. Plaintiff also learned of a decision in Curley v. Cumberland Farms, Inc., slip op. No. 86-5057 (16 Nov. 1990) (Simandle, U.S.M.J.), aff'd, 134 F.R.D. 77 (D.N.J.1991), which permitted ex parte communications with former nonmanagerial employees of an adverse corporation. Because of the differing holdings as to the propriety of ex parte communications with former employees, plaintiff's counsel refrained from making further contact with former Shiley employees. Instead, plaintiff sought a ruling from Magistrate Judge Hedges on the question of whether plaintiff's counsel could communicate, ex parte, with former Shiley employees.

On 31 January 1991, Magistrate Judge Hedges filed the Order. The Order provides, in pertinent part:

... That plaintiff may contact former employees of defendants, pursuant to the following guidelines:

1. Plaintiff shall provide in writing a list of names of former employees with whom plaintiff expects to conduct interviews at least two business days prior to initiating contact with former employees.

2. Defendants may review the list for names of employees who have previously been contacted by counsel for defendants and may contact said employees prior to plaintiff's anticipated contact. Defendants shall inform counsel for plaintiff of such prior contact by counsel for defendants. Plaintiff may not contact employees so identified by defendants without giving additional prior notice to plaintiffs.

3. Plaintiff shall not interview any former employee of defendants unless a letter is sent to said employee delineating the nature of the lawsuit and the purpose of the requested interview. (see full text of the letter annexed hereto as Exhibit "A".)

4. Plaintiff shall afford defendants the opportunity to attend any interviews with former employees scheduled by plaintiff, including telephone interviews. Defendants shall notify plaintiff of their intent to attend any such interviews at least one business day prior to plaintiff's stated intended contact with said employees.

5. Nothing herein precludes any party from obtaining a deposition under oath from any of these persons upon due notice to all counsel in accordance with the Federal Rules of Civil Procedure and within the deadline for concluding factual discovery in the case....

Order at 1-3.²

Magistrate Judge Hedges ruled counsel could not communicate with any former employees of a corporate adversary without permitting the corporation, through counsel, to be part of such communication. Plaintiff now seeks to have the Order overruled.³ Plaintiff fears that Exhibit A to the Order and the requirement of the presence of Defendants' counsel will chill the former employees from revealing relevant factual information. Emmer Affidavit, ¶ 11.

Discussion

A. Standard of Review

Pursuant to 28 U.S.C. § 636(b)(1), Rule 72 of the Federal Rules of Civil Procedure and Rule 40(A) of the General Rules of the United States District Court for the District of New Jersey (the "General Rules"), a United States Magistrate Judge may hear "dispositive" and "nondispositive" motions assigned by the district court. Section 636(b)(1) states a district court may "accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1).

With regard to nondispositive motions, "the district court may modify the magistrate judge's order only if the district court finds that the magistrate judge's ruling was clearly erroneous or contrary to law." Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1113 (3d Cir.1986), cert. denied, 484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987). With respect to dispositive motions, the district court must make a de novo determination of those portions of the magistrate judge's report to which a litigant has filed an objection. 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(a); General Rule 40(D)(5); see United Steelworkers of Am. v. New Jersey Zinc Co., 828 F.2d 1001, 1005 (3d Cir.1987).

The clearly erroneous or contrary to law standard of review is applicable here because the order appealed from relates to a non-dispositive discovery matter. "A finding is clearly erroneous `when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Dome Petroleum Ltd. v. Employers Mut. Liab. Ins. Co., 131 F.R.D. 63, 65 (D.N.J.1990) (quoting United States v. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948)); see Environmental Tectonics Corp. v. W.S. Kirkpatrick & Co., 659 F.Supp. 1381, 1398 (D.N.J.1987), aff'd in part, rev'd in part, 847 F.2d 1052 (3d Cir.1988), aff'd, 493 U.S. 400, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990). In the context of discovery matters, a magistrate judge's finding "is entitled to great deference and is reversible only for an abuse of discretion." Dome Petroleum, 131 F.R.D. at 65; see Environmental Tectonics, 659 F.Supp. at 1399.

B. Communications with Former Employees

1. Governing Law

As a preliminary matter, it is noted federal courts may regulate, in an exercise of their inherent power, the conduct of attorneys appearing in federal court. In re Snyder, 472 U.S. 634, 645 n. 6, 105 S.Ct. 2874, 2881 n. 6, 86 L.Ed.2d 504 (1985). The United States District Court for the District of New Jersey, in exercising that inherent power, has decided "The Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court shall govern the conduct of members of the bar admitted to practice in this Court, subject to such modifications as may be required or permitted by federal statute, regulation, court rule or decision of law." Rule 6(A), General Rules of the United States District Court for the District of New Jersey.

The supreme court of the State of New Jersey has adopted, as modified, the Rules of Professional Conduct promulgated by the American Bar Association. See Rules Governing the Courts of the State of New Jersey, Rules of General Application, Rule 1:14 & Note; see also id. at Appendix (Rules of Professional Conduct, adopted effective 10 September 1984).

2. Rule of Professional Conduct 4.2

The relevant Rule of Professional Conduct ("RPC") as adopted by the New Jersey supreme court is RPC 4.2, which provides:

In representing a client, a lawyer shall not communicate about the subject of the representation with a party 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.

RPC 4.2.⁴

Courts have struggled with whether RPC 4.2 permits ex parte communications with former employees of an adverse party corporation. One court has held RPC 4.2 proscribes any ex parte communications with any former employees. See, e.g., PSE & G, 745 F.Supp. at 1039. Other courts have held RPC 4.2 does not apply to former employees and so any former employee may be contacted. See, e.g., University Patents, Inc. v. Kligman, 737 F.Supp. 325, 328 (E.D.Pa.1990); Siguel v. Trustees of Tufts College, Fair Empl.Prac.Cas. (BNA) 697, 700, 1990 WL 29199 (D.Mass.1990) (under DR 7-104); United States v. Western Elec. Co., 1990-1 Trade Cas. (CCH) ¶ 68,939, 1990 WL 39129 (D.C.Cir.1990); Polycast Technology Corp. v. Uniroyal, Inc., 129 F.R.D. 621, 629 (S.D.N.Y.1990) (under DR 7-104); Niesig v. Team I, 76 N.Y.2d 363, 369, 559...