Discovery of Information and Documents from a Litigant's Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles

• Publication year: 2021

81 Nebraska L. Rev. 868. Discovery of Information and Documents from a Litigant's Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles

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Susan J. Becker(fn*)

Discovery of Information and Documents from a Litigant's Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles

TABLE OF CONTENTS

I. Introduction .......................................... 869
II. The Clash of Interests in Expanding or
Limiting Discovery of a Party's Former Employees ...... 876
III. Synergy of Rules, Codes, and Common Law Doctrines ..... 880
IV. Informal Discovery of a Party's Former Employees ..... 884
A. Model Rule 4.2 and DR 7-104:
Who Is a "Person Represented by Counsel"? ......... 889
B. Comment to Model Rule 4.2 ......................... 894
C. Additional Ambiguities in Model Rule 4.2
and DR 7-104 ...................................... 896
D. Current Interpretations of Model
Rule 4.2 and DR 7-104 ............................. 898
E. Dealing with Unrepresented Persons ................ 901
F. Soliciting Clients ................................ 904
G. Conflicts of Interest ............................. 909
H. Fairness and Civility ............................. 911
V. Formal Discovery of a Party's Former Employees ........ 917
A. Overview ........................................... 917
B. The Pretrial Process ............................... 920
1. Meeting with Opposing Counsel ................... 923
2. Initial Mandatory Disclosures ................... 924

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3. Initial Pretrial Conference and
Resultant Scheduling Order ...................... 929
4. Formal Discovery Devices ........................ 931
a. Interrogatories .............................. 932
b. Depositions .................................. 935
c. Requests for Production of
Documents and Tangible Things ................ 939
d. Subpoenas and Subpoenas Duces Tecum .......... 941
e. Consultants and Expert Witnesses ............. 946
f. Protective Orders ............................ 948
VI. Appropriate Breadth of Informal and Formal
Discovery of Former Employees ......................... 951
A. Attorney-Client Privilege .......................... 952
B. Work Product Doctrine .............................. 962
C. Trade Secrets and Confidential Commercial
Information ........................................ 967
D. Proprietary Protections ............................ 974
E. Self-Evaluative Privilege .......................... 976
F. Private Law ........................................ 978
1. Confidentiality Agreements ...................... 981
2. Consulting Agreements ........................... 983
a. Allegiance Agreements ........................ 984
b. Turncoat Agreements .......................... 988
c. Defector Agreements .......................... 993
G. Court Settlements Mandating Confidentiality ........ 997
VII. Concluding with a Modest Proposal .................... 1005

I am being cautious in my approach because I recognize that the area of contacts with former employees is a veritable minefield in which, until it is clearedby authoritative interpretation, short and tentative steps are the mostappropriate.(fn1)

I. INTRODUCTION

Many domestic, international, and foreign enterprises have drastically "downsized," "rightsized," and "redeployed" their work forces in recent years.(fn2) Individuals are also voluntarily changing jobs at near

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record levels.(fn3) As a result, "former employees" now populate this planet.

When employees depart, voluntarily or otherwise, they take with them extensive general knowledge of the day to day operations of their former employers. Former employees frequently retain information specific to the particular event, transaction, or occurrence that led to a claim or litigation. It is not unusual for former employees to be eyewitnesses to key events, authors or recipients of the dreaded "smok-ing-gun" documents, or players in the decisionmaking process which led to the disputed matter.(fn4) This phenomenon applies to mid-level and lower-level former employees as well as more senior executives.(fn5)

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As one court observed, every former employee has a memory.(fn6) Stated more bluntly, former employees know where the bodies are buried.

Some former employees also retain, intentionally or inadvertently, documents and other tangible evidence among their personal posses-sions.(fn7) This possibility grows greater as each day passes due to the continued exponential growth of technology in the work place and at home.(fn8) Indeed, entire records of a corporation, division, or department can now be downloaded onto a few floppy or compact disks and physically removed from the employer's premises, or attached to an email file and whisked by a single click of a mouse to a home office computer or other remote location.(fn9) More and more people work for their employer while at home,(fn10) thereby creating and storing em-ployer-related records and back-up files on their home computers.(fn11)

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Simply put, former employees often possess information and documentation critical to, if not determinative of,(fn12) a matter in litigation.(fn13)

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The discovery process is the heart and soul of modern litigation.(fn14) A litigator's premier task is to discover well-supported facts on which a claim or defense can be built.(fn15) Failure to fully explore the reality underlying a claim or defense can result in unpleasant surprises for legal counsel engaged in pre-filing negotiation or post-filing mediation, arbitration, discovery, summary judgment, settlement negotiation or trial.(fn16) For the reasons previously mentioned, today's litigators cannot ignore former employees of clients or of adversaries as key sources of information. And yet, one inappropriate step by counsel in contacting a litigant's former employees may result in sanctions such as disqualification of counsel, exclusion of evidence obtained from former employees, monetary penalties, and initiation of disciplinary action.(fn17) Even where the attorney is fully exonerated,

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however, merely defending against a claim of inappropriate behavior significantly sidetracks the attorney from focusing on the merits of the case, and therefore from advancing her client's interests. Imposition of even mild or moderate sanctions places a party at a significant tac

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tical disadvantage,(fn18) as rulings on sanctions are rarely subject to immediate appeal.(fn19)

The role of former employees in litigated matters presents a variety of legal, ethical, and practical concerns for attorneys who wish to obtain information from their own clients' or their opponents' former employees.(fn20) What are the appropriate boundaries attorneys must observe when contacting a party's former employee who is a potential witness? Is informal, ex parte contact with the opponent's former employees permissible? Is the approval of the court or notice to the other side necessary, either before or after contact is made? May an attorney agree to represent a former employee of his client without violating the ethical canons on conflict of interest and client solicitation? Is an attorney's contact with a litigant's former employees shielded from discovery by the attorney-client privilege, work product doctrine, or other laws of privilege? Can an employer successfully prevent or limit former employees' cooperation with an opposing party through use of a separation agreement or similar contractual arrangement? Should the answers to these questions change based on the status the former employee held within the organization or the role she played in the situation that led to the dispute? Should the answers change based on

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whether the attorney is pursuing informal or formal means of discovery?(fn21)

Unfortunately for attorneys, their clients, and the courts, these questions "certainly raise interesting ethics issues that are far from settled."(fn22) To the contrary, "serious ethical issues . . . will often be confronted by . . . attorneys who seek to aggressively represent their clients"(fn23) by initiating discovery of an adversary's former employees.(fn24)

As noted throughout this Article, multiple authorities touch on the questions highlighted above. Rules of civil procedure, evidentiary standards, common law and statutory privileges, and ethical rules governing attorneys' conduct apply directly or by analogy. In addition, trial courts' inherent power to sanction attorneys for improper conduct may operate even when no specific rule has been violated.(fn25) But no single legal authority comprehensively addresses the most troublesome issues. In fact, rules that appear to govern a particular issue relating to former employees are interpreted and applied by judges-- even judges presiding in the same jurisdiction(fn26)--to reach opposite results. The goal of this Article is to untangle some of the issues surrounding the recurring dilemmas posed by discovery of information held by former employees.(fn27)

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Part II of this Article elucidates the competing interests of the litigators, their respective clients, the courts, and the potential witnesses when discovery is sought from former employees of a party. Part III provides a brief overview of the various legal authorities that govern an attorney's discovery of former employees and the synergy created by these sources. Part IV examines the potential pitfalls attorneys encounter when pursuing informal discovery of former employees of a party. Part V presents specific issues that arise when an attorney uses formal discovery devices to obtain information from former employees of a party. Part VI outlines the major additional limitations imposed on an attorney's communications and...