Court Enforces Arbitration Clause in Email

• Author: Jonathan R. Engel
• Pages: 24-25

Published in Litigation News Volume 46, Number 1, Fall 2020. © 2 020 by the American Bar A ssociation. Repro duced with permissi on. All rights reser ved. This informati on or any portion the reof may not be copie d or disseminated in any form

or by any means or stored i n an electronic database o r retrieval syst em without the expr ess written co nsent of the American B ar Association.

information. N ext, the nonparty is

summoned to the h earing to give tes-

timony or produce d ocuments, in

compliance with th e FAA. Afte r the

requesting pa rty gets the needed in-

formation, the h earing is suspended

until the partie s complete the case

preparation . This solution is unlikely

to be abused because the arbitrator

acts as gatekee per and the request-

ing party be ars the costs of the limit-

ed hearing, Hellmann explains.

Practitioner s have another, far less

complicated way to get p rehearing

nonparty d iscovery: voluntary disclo -

sure. “Somet imes, the mere threat of

appearing fo r hearing will lead wit-

nesses to produce t heir documents

to avoid the hearing. S ome nonpar-

ties are willing to testif y at a depo-

sition,” repor ts Mitchell L. Marinello,

Chicago, IL , cochair of the Section’s

Alternative Dispute Resolution

Committee.

Despite Soliciting

Witnesses from

Opponent, Counsel

Remains

By Mark A. Flo res, Litigation News

Associa te Editor

Plainti’s cou nsel called a witn ess

he hoped would gi ve favorable

testimony. The proble m was that

this witness, a hig h-level professor,

worked for the defen dant university.

Moreover, plainti ’s counsel adm it-

ted the contact “w as an inadverte nt

technical viol ation of the [ethical]

Rule.” Later, plainti ’s counsel ad-

mitted to talking wit h a second non-

managerial employee.

The U.S. D istrict Court for the

District of Con necticut in Metcalf

v. Yale University considered these

facts in fash ioning a remedy for this

violation of the ethi cal rules. While

the college’s counsel believed dis-

qualif‌ication was necessary because

counsel had dis cussed conf‌idential

information abo ut trial strategy with

the witness, the co urt disagreed, de-

nying the motion witho ut prejudice.

The court requ ired instead that

plainti’s cou nsel turn over all notes

related to his conversati on with the

witness. Opp osing counsel could re-

view the notes to f‌igure ou t the ex-

tent of the violation a nd the need for

further relief.

Rule 4.2 of th e Connecticut Rules

of Professional Conduct states, “In

representing a cli ent, a lawyer shall

not communic ate about the subject

of the representat ion with a party

the lawyer knows to be rep resented

by another lawyer in th e matter, un-

less the lawyer ha s the consent of the

other lawyer or is a uthorized by law

to do so.”

The commenta ry notes that the

rule prohibits communications “with

any other person w hose act or omis-

sion in connec tion with that matter

may be imputed to the org anization

for purposes of civ il or criminal liabil-

ity or whose state ment may consti-

tute an admission o n the part of the

organization.”

While the rules va ry from ju-

risdiction to juri sdiction, John M.

Barkett, Miam i, FL, cochair of the

ABA Section of Liti gation's Ethics

& Professionalism Committee, does

not believe this to be a clos e case.

“Despite the law yer’s argument that

the witness had previously testif‌ied

favorably in a grievan ce hearing for

his client, he sh ould have known bet-

ter,” opines Ba rkett.

Even if it were close, Ethan T.

Tidmore, Birmingham, AL, cochair

of the Section of Liti gation’s Pretrial

Practice & Discover y Committee, ad-

vises litigators should approach in-

terviews like this ca refully. “A lawyer

always needs to be min dful of wheth-

er a witness is emp loyed by your op-

ponent and, i f so, the lawyer should

review and conside r the governing

ethical rules b efore making contact,”

Tidmore advises. “There are many

pitfalls in this a rea, and you should

err on the side of ca ution when you

are contemplatin g contacting an em-

ployee of the opposin g party.”

Attorneys should li kewise note the

jurisdiction i n which they are litigat-

ing. Barkett o bserves, for instance,

Arizona Ethics Opin ion 00-05 im-

poses strict req uirements on a law-

yer conducting a n ex parte inter-

view of a former emp loyee of a

party oppo nent. On the other end of

the spectrum , Barkett notes, some

jurisdiction s would consider talk-

ing to lower-level employees no t only

permissible , but classic work product.

“You have this friction be tween in-

formal discovery to s ave costs, som e-

thing that the State of New York en -

dorses, and t hen formal discovery

where you should b e able to get the

same information,” explains Barkett.

The jurisdicti on’s rules play a key role

in who an attorney ca n talk to and

what an attorney ca n ask.

“As a general rule, at torneys may

advise employees t hat they are not

obligated to inform ally speak to an

opposing lawyer,” observes Tidmore.

“Some empl oyees may be misin -

formed and be lieve they have to

speak to that lawyer.”

Tidmore notes the M odel Rules of

Professional Conduct generally pro-

hibit a lawyer from a sking a person

not to voluntarily give re levant infor-

mation. But the r ules expressly per-

mit such a reques t to employees of

the client provide d the lawyer rea-

sonably believes d isclosure will ad-

versely aect t he person’s interests.

Barkett also sug gests that attor-

neys advise their cli ents to take cau-

tion in what they say to their e mploy-

ees. This keep s those witnesses from

having conf‌idential information, like

trial strategy, that they cou ld divulge

should opposi ng counsel call the cli-

ent’s employees.

Court Enforces

Arbitration Clause

in Email

By Jonathan R . Engel, Litigation

News Contributing Editor

A federal cour t granted a motion

to compel arbitrati on based on

the incorporati on by reference of

American Arbitration Association

(AAA) rules on a l ink in a purchase

conf‌irmation em ail. ABA Section of

Litigation leaders recommend clear

written agreements on arbitrability

to avoid prolonged litig ation on this

threshold issue.

In Silverman v. Move, I nc., a real

estate agent sue d Move, Inc., in the

U.S. Dist rict Court for the Norther n

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