Third-Party Discovery

• Pages: 57-60

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CHAPTER IV

THIRD-PARTY DISCOVERY

A. Informal Investigations

Informal investigations and interviews are usually preferable to

obtaining information through subpoenas because it provides the lawyer

the opportunity to gather information without notifying the opposing

party. There are a variety of sources of third-party data. Public

databases, commercial databases, and trade associations can provide a

wealth of information about a particular industry. “Friendly” witnesses,

including customers and suppliers, often may be willing to cooperate.

When dealing with third parties, a lawyer would be wise to remember

that a narrowly tailored request is more likely to be complied with by a

nonparty than an onerous, time-consuming one.

Ethical issues can arise in the conduct of third-party discovery. If

the person whom the lawyer contacts has harmful information, the

lawyer must recognize that such information may not be protected by the

work product doctrine.1If adverse information is developed that is not

protected by any privilege, a lawyer may not obstruct another party’s

access to evidence or counsel or assist another person to do so.2In no

case should a lawyer request a person other than a client (or client’s

relative, employee, or agent) to refrain from voluntarily giving relevant

information, or otherwise intimidate a witness from responding to

legitimate discovery requests or subpoenas.3

Contacting current or former employees of a prospective or a

current adversary can also pose ethical problems for a lawyer.4Model

Rule 4.2 prohibits contact with a person the lawyer knows to be

represented by another lawyer about the subject of the representation

without that lawyer’s consent or “otherwise authorized by law.” A

vexing issue exists about what employees of an organization are within

the “person” of the entity. Comment to Rule 4.2 states that the rule

prohibits communication with the control group and “with any other

1.See infra chapter 7.

2. MODEL RULES OF PROF’LCONDUCT R. 3.4(a) (2002).

3.Id. 3.4(f).

4.For a discussion of the converse issue of calling current clients of an

attorney’s law firm as witnesses, see supra chapter 3, nn.66−67 and

accompanying text.