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Advocate’s View: Disclosure, interviews of corporate employee witnesses

Laurie A. Giordano

CPLR 3101 requires the “full disclosure of all matter material and necessary in the prosecution or defense of an action.” Standard discovery demands almost always include a demand for the identification of witnesses and disclosure of the witnesses’ address or other contact information. Corporate parties will often disclose employee names, but refuse to provide contact information and direct the opposing attorney to contact the witness through corporate counsel. Is this type of response proper? The answer may be no.

The first issue for consideration is the obligation to disclose the witness information. Clearly, the names of the witnesses must be disclosed under CPLR 3101. Further, because there is no privilege, the contact information should be provided. If privacy is a concern, then a protective order can be reached to prohibit further disclosure outside the lawsuit.

The corporate party may also assert that it is improper and unethical to contact its employees. The New York Court of Appeals addressed this issue in Niesig v. Team I, 76 N.Y.2d 363 (1990). In Niesig, the plaintiff moved for permission to conduct ex parte interviews of all of the corporate defendant’s employees who were present at the site at the time of the accident, Id. The defendant maintained that Disciplinary Rule 7-104 (A) (1) prohibited the contact, Id.

DR 7-104(A) (1) read:

[A] lawyer shall not … [c]ommunicate or cause another to communicate with a party [the lawyer] knows to be represented by a lawyer in that matter unless [the lawyer] has the prior consent of the lawyer representing such other party or is authorized by law to do so.

The rule has remained substantively unchanged since the decision in Niesig, but now appears in New York’s Rule of Professional Conduct 4.2 (a). The Rules of Professional Conduct were promulgated in 2009, replacing the Code of Professional Responsibility formerly governing New York attorney conduct.

In Niesig, the trial court and Appellate Division, Second Department denied the plaintiff’s application for ex parte interviews. The Second Department reasoned that current employees of a corporate defendant in litigation “are presumptively within the scope of the representation afforded by the attorneys who appeared [in the litigation] on behalf of that corporation,” Niesig, 76 N.Y.2d at 368. Thus, the Second Department held that the corporation’s attorneys had an attorney-client relationship with every employee connected with the subject of the litigation, Id.

The Court of Appeals rejected the Second Department’s conclusions in that regard and modified the order to permit the ex parte interviews, Id. at 369. Of note, the court agreed with the portion of the lower court’s holding that the rule only applied to current — and not former — employees and thus, it modified and did not reverse the order, Id. In finding that ex parte interviews were permissible, the Court of Appeals reviewed the applicability of the disciplinary rules and found that they applied to individuals in civil cases, Id. at 370.

Furthermore, the court narrowed the issue in dispute to determining the definition of “party” under the rule — “[t]he issue therefore distills to which corporate employees should be deemed parties for purposes of DR 7-104 (A) (1),” Id. at 371.

While recognizing that the attorney-client privilege may extend to communications between the corporate attorney and low and mid-level employees, the Court of Appeals found that the privilege does not establish an attorney-client relationship and “it does not immunize the underlying factual information … from disclosure to an adversary (citation omitted),” Id. at 372. The court also recognized the cost and other practical benefits of permitting informal interviews of fact witnesses, Id.

Ultimately, the Niesig decision concluded that the test for which employees constitute a “party” to the litigation and whom the adverse counsel cannot contact are “employees whose acts or omissions in the matter under inquiry are binding on the corporation (in effect, the corporation’s ‘alter egos’) or imputed to the corporation for purposes of its liability, or employees implementing the advice of counsel. All other employees may be interviewed informally,” Id. at 374.

The Court of Appeals went on to recognize that “[i]n practical application, the test … would prohibit direct communication by adversary counsel ‘with those officials, but only those, who have the legal power to bind the corporation in the matter or who are responsible for implementing the advice of the corporation’s lawyer, or any member of the organization whose own interests are directly at stake in a representation.’ This test would permit direct access to all other employees, and … it would clearly permit direct access to employees who were merely witnesses to an event for which the corporate employer is sued (citation omitted),” Id. at 374-375.

Thus, under controlling New York law, corporate defendants should disclose employee witness information and not direct contact to only be through the corporation’s attorney — unless the current employee meets the Niesig test, See also Rules of Professional Conduct [22 NYCRR Part 1200] rule 4.2 Comment [7] (identifying categories of employees who cannot be contacted).

Laurie A. Giordano is a founding partner of the Rochester litigation law firm of Leclair Korona Giordano Cole LLP. She concentrates her practice in the areas of personal injury, insurance law and commercial litigation. She can be reached at lgiordano@leclairkorona.com or through the firm’s website at www.leclairkorona.com.