Strawser v. Exxon Co., U.S.A., a Div. of Exxon Corp.
| Decision Date | 14 December 1992 |
| Docket Number | No. 91-139,91-139 |
| Citation | 843 P.2d 613 |
| Parties | Thomas J. STRAWSER and Barbara Strawser, husband and wife, Petitioners, v. EXXON COMPANY, U.S.A., A DIVISION OF EXXON CORP., a New Jersey corporation, Respondent. |
| Court | Wyoming Supreme Court |
Juline Christofferson, Jackson, and Joseph E. Darrah, Powell, for petitioners.
Marilyn S. Kite and Joe M. Teig of Holland & Hart, Cheyenne, and Charles G. Bakaly, Jr. and David M. Fox of O'Melveny & Myers, New York City, for respondent.
Before MACY, C.J., and THOMAS, CARDINE, URBIGKIT * and GOLDEN, JJ.
In granting a petition for writ of certiorari in a case of first impression for Wyoming, we must decide whether petitioners' counsel is entitled to conduct ex parte interviews with a corporation's present and former employees in an action claiming defamation and invasion of privacy. In reaching our decision, we are invited to examine Rule 4.2 of the Wyoming Rules of Professional Conduct for Attorneys at Law and the various "tests" adopted in other jurisdictions which govern adverse litigant ex parte discovery interviews with present and past corporate employees.
In considering the issue of this appeal, which presents a first impression for this court, we will not adopt the general standard used by the district court in entry of the completely preclusive protective order. We adopt the more limited standard of the "alter ego" or "binding admission" test established in Niesig v. Team I, 76 N.Y.2d 363, 559 N.Y.S.2d 493, 558 N.E.2d 1030 (1990) and find no general preclusion for contact with former employees. In re Environmental Ins. Declaratory Judgment Actions, 252 N.J.Super. 510, 600 A.2d 165 (1991).
In granting the petition for writ of certiorari to review the district court's protective order, we identified and the parties have addressed the following issues:
1. Whether plaintiffs should be prohibited from conducting ex parte interviews with all past or present Exxon employees or contacting prospective interviewees unless notice to defendant Exxon Corporation is given and a person from the law firm of Holland & Hart is present at all times during the interview.
2. Whether plaintiffs must produce all documents and statements obtained during ex parte interviews previously conducted by plaintiff[s] of Exxon employees and supervisors, such documents and statements to include all tapes, transcripts and notes used to record such interviews.
3. Whether plaintiffs Thomas Strawser and Barbara Strawser should be prohibited from discussing their lawsuit with any Exxon employee, past or present.
4. Whether irreparable harm will result from the lower court's holding.
Thomas J. Strawser (Strawser) went to work for the Exxon Company, U.S.A. (Exxon) as a chemical engineer in 1981. In February 1985, Strawser was assigned to Exxon's gas dehydration facility near LaBarge in Sublette County, Wyoming, where he served in a supervisory capacity as a field foreman and senior engineer. However, in September 1989, following Exxon's implementation of a revised drug and alcohol policy which reclassified certain employment positions on the basis of safety considerations, Strawser was transferred to a similar but "non-designated" 1 supervisory position at an Exxon facility in Campbell County, Wyoming.
On August 21, 1990, Strawser and his wife, Barbara, filed a complaint against Exxon, Larry Kennedy and Weldon W. Whitaker 2 alleging invasion of privacy and defamation. In effect, the Strawsers' complaint alleged that Exxon's 1989 implementation of an "ill-advised" and "reactionary" alcohol and drug policy following an oil tanker catastrophe in Alaska (the Exxon "Valdez" oil spill incident) as well as the acts of various Exxon employees in publicly disclosing Strawser's confidential history of alcohol abuse defamed Strawser and violated the Strawsers' rights to privacy.
As part of discovery, the Strawsers' counsel and a hired investigator began informally interviewing various Exxon employees. 3 In response, on April 8, 1991 Exxon filed a motion for a total protective order under the stated basis of W.R.C.P. 26(c) (now W.R.C.P. 26(d)) to prohibit the Strawsers, their counsel and the investigator from conducting ex parte interviews with all current and former Exxon managers and employees.
Following a hearing, 4 the district court generally granted the relief Exxon requested in its motion. In its written order, the district court stated:
Defendant Exxon Corporation's Motion for Protective Order prohibiting Plaintiffs from conducting ex parte interviews with Exxon managers and employees having come on for hearing before this Court on May 3, 1991, and Plaintiffs appearing by their attorneys, Joseph E. Darrah and Juline Christofferson, and Defendant Exxon Corporation appearing by one of its attorneys, Joe M. Teig, and Defendants Kennedy and Whitaker appearing by their attorney, Robert B. Ranck, and the Court having heard the argument of counsel and having considered the Briefs and the Court being otherwise fully advised in the premises;
IT IS ORDERED:
1. Defendant Exxon Corporation's Motion for Protective Order prohibiting Plaintiffs from conducting ex parte interviews with Exxon managers and employees is hereby granted.
2. Plaintiffs be and they are hereby prohibited from conducting further unauthorized ex parte interviews with Exxon employees and managers, past or present.
3. Any interviews by the Plaintiffs of Exxon employees and managers, past or present shall be conducted only after notice to Defendant Exxon Corporation and an opportunity for a person from the law firm of Holland & Hart being present at all times during the interview.
4. Plaintiffs shall within thirty (30) days from the date of this Order produce all documents and statements obtained during ex parte interviews previously conducted by Plaintiff of Exxon employees and managers, such documents and statements to include all tapes, transcripts and notes used to record such interviews.
5. Plaintiffs Thomas Strawser and Barbara Strawser are prohibited from discussing their lawsuit with any Exxon employees, past or present.
6. In the event someone refuses to talk with Exxon attorneys present, Plaintiffs are precluded from talking with those people.
7. Plaintiffs shall not call the prospective interviewees first and advise them as to what Plaintiffs are interested in asking them and then calling the Exxon attorneys. Such conduct will be deemed an ex parte communication in violation of this Order.
8. The times and places of the interviews will have to be at the mutual convenience of everyone concerned.
9. The Court reserves a ruling with regard to the admissibility of evidence obtained by Plaintiffs during previous ex parte interviews with Exxon employees and managers.
Following issuance of the protective order, the Strawsers moved for reconsideration. Following denial by the district court, the Strawsers petitioned the Wyoming Supreme Court for a writ of certiorari, which we granted, for review of the district court's decision.
In petitioning for a writ of certiorari in this case, the Strawsers contend that the district court erred by entering an inequitable protective order and seek a remedy of annulment or vacation of the district court's order. Our normal standard for reviewing protective orders in the discovery stage of a legal proceeding is well established. In Farrell v. Hursh Agency, Inc., 713 P.2d 1174, 1177 (Wyo.1986), we stated:
The rule is that the trial court has broad discretion in controlling discovery. Mauch v. Stanley Structures, Inc., Wyo., 641 P.2d 1247 (1982). This broad discretion has been applied in the specific area of protective orders. Penthouse International Ltd. v. Playboy Enterprises, Inc., 663 F.2d 371, 391 (2d Cir.1981).
In ANR Production Co. v. Wyoming Oil and Gas Conservation Com'n, 800 P.2d 492, 496 (Wyo.1990), we considered a district court's exercise of discretion under an "abuse of discretion" standard:
A discretional decision by a district court will only be reversed upon a showing of abuse of discretion. "[A]buse of discretion has as its anchor point the query of 'whether the court could reasonably conclude as it did.' " Oien v. State, 797 P.2d 544, 549 (Wyo.1990) (quoting Noetzelmann v. State, 721 P.2d 579, 583 (Wyo.1986)).
This decision does not present the usual discretion review since examination of the standard for corporate employee contact in an investigative interview encompasses a legal decision which we address without deference to the trial court. True Oil Co. v. Sinclair Oil Corp., 771 P.2d 781 (Wyo.1989). For this subject, previously unaddressed by this court, we discern that the proper ex parte corporation employee interview rule is different from the standard the district court embraced. Consequently, the appropriate rule is established by this court as a question of law. City of Laramie v. Hysong, 808 P.2d 199 (Wyo.1991). Accordingly, any exercise of discretion by the district court is limited by rules of law which are a responsibility of this court for the finite decision. Farr v. Link, 746 P.2d 431, 433 (Wyo.1987).
The primary focus of Rule 4.2 of Wyoming's Rules of Professional Conduct is to identify limitations for a litigant's contact with corporate employees. 5
Rule 4.2. Communication with person represented by counsel.
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.
(Emphasis added.)
When a corporation is a "party" in a lawsuit, the question arises as to whether current and/or former employees of the corporation qualify as represented "parties" under Rule 4.2. Subsection of the official comment 6 to ...
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