T R I A L TA C T I C S
Litigation Points and
Possible Strategies
By Derrick T. Wright
Representing an
organization can become
difficult when litigation
implicates action taken
by or information known
to the organization’s
former employees at
the time of key events.
Former Employees:
Common Problems
When They Are
Witnesses
Representing an organization has always entailed “special
problems” because they are inanimate entities that must
act through agents. See Commodity Futures Trading
Com’n v. Weintraub, 471 U.S. 343, 348 (1985). And of
course, that agency dynamic can be a
source of conflict and complication during litigation.
Counsel must be constantly vigilant
to identify potential conflicts between
an organization and its agents that may
require separate representation. The agency
challenges, however, do not end there.
Counsel for the organization will often
need to interact with a wide range of constituents, from high-level directors to lowlevel employees, both to investigate an issue
and defend the entity.
Fact gathering from an organization’s
employees can be critical. Some employees
may be eye witnesses to key events. Statements by other employees could constitute
admissions by the organization. See Fed. R.
Evid. 801(2)(D).
Yet, the challenges of representing an
organization can become even more difficult when litigation implicates action taken
by or information known to individuals
who were then employed with the organi-
Derrick T. Wright is a litigation attorney at the law firm of Sturgill Turner
Barker & Moloney PLLC in Lexington, Kentucky, where he has practiced law
for the past eight years. In his practice, he has represented a wide range of
employers, including private businesses, public universities, and governmental entities.
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© 2017 DRI. All rights reserved.
zation but are now former employees. The
most common former-­employee issues to
emerge during litigation usually relate to
one of the following three questions:
1. Do organizations have a duty to collect
information from former employees?
2. Are communications between an organization’s representatives and its former
employees protected by the attorney-­client
privilege or the work-product doctrine?
3. Can ex parte contact by opposing counsel
with an organization’s former employees
be prohibited or restricted?
Answers to these three former-­employee
issues are not often clear and may vary
by jurisdiction, or even among different
judges within the same venue. Only generalized guidance is practical, given the lack
of definitive authority. This article looks to
the federal rules and precedent as a broad
source of guidance because most jurisdictions generally follow federal law.
Of course, counsel should be careful to
research any relevant decisions by a trial
judge or directly higher appellate courts.
However, the general guidance and case
law surveyed below should help identify
likely litigation points and possible strategies, especially if binding precedent is lacking within the venue and jurisdiction of the
court action.
Do Organizations Have a
Duty to Collect Information
from Former Employees?
An attorney needs to ask whether an organization has a duty to collect information
from former employees when the organization (1) answers interrogatories, (2) receives
production requests, and (3) prepares a
Rule 30(b)(6) witness.
Interrogatories
Answering interrogatories will likely be
the first time when an organization must
consider whether to collect information
from former employees. An interrogatory
answer may be used as substantive evidence at trial to the extent permitted by the
rules of evidence. See Fed. R. Civ. P. 33(c).
Older precedent required employers to
obtain relevant information from former
employees to answer interrogatories. See
Wyle v. R.J. Reynolds Industries, Inc., 709
F.2d 585, 590 (9th Cir. 1983); General Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204,
1210 (8th Cir. 1973). However, more recent
court decisions can be found that do not go
so far. These decisions reason that employers are not required by Federal Rule of Civil
Procedure 33 to collect information from
third parties that are not within the employer’s control, including its former employees.
See American Intern. Specialty Lines Ins. Co.
v. NWI-I, Inc., 240 F.R.D. 401, 413 (N.D. Ill.
2007); see also Continental Western Insurance Company v. Opechee Construction Corporation, 15-CV-006-JD, 2016 WL 865232,
at *3 (D.N.H. Mar. 2, 2016).
But be careful to consider whether the
former employer and employee have some
other ongoing relationship. Organizations
often establish consulting arrangements
with executive-­level or highly-skilled
employees after the formal employment
relationship between them has ended.
Some employment separation agreements
may also obligate former employees to
cooperate with their former employer
regarding potential litigation issues.
A former employee may still be within
an organization’s control if such an ongoing relationship exists. Furthermore, taking action to enforce a former employee’s
duty to cooperate could be required to satisfy the organization’s Rule 33 duty. See In
re Auction Houses Antitrust Litigation, 196
F.R.D. 444, 445–46 (S.D.N.Y. 2000).
Document Production Requests
Requests to produce documents or other
tangible things are usually served in conjunction with interrogatories. Federal Rule
of Civil Procedure 34 generally requires
production of documents or tangible things
only within the party’s “possession, custody, or control.” See Fed. R. Civ. P. 34(a)(1).
An organization arguably has no actual
or constructive control of documents
or tangible things possessed by former
employees and no corresponding Rule 34
duty to locate and produce those materials. Former employers, however, should
be careful to consider two potential issues.
First, possession, custody, or control
may exist for Rule 34 purposes based
on other previously discussed ongoing
relationships. Second, regardless of any
ongoing relationship, materials in the possession of former employees may be the
property of the organization for which they
previously worked, and the law could entitle the organization to compel their return.
The legal right to retrieve materials possessed by former employees likely makes
those materials within the organization’s
“control” for Rule 34 purposes. See Burton
Mechanical Contractors, Inc. v. Foreman,
148 F.R.D. 230, 236 (N.D. Ind. 1992)(collecting cases as to general principle in non-­
employment context).
Depositions
Organizations are subject to both the regular Federal Rule of Civil Procedure 30
deposition process, as well as special Rule
30(b)(6) requirements. For either deposition type, testimony on behalf the organization can include critical evidence that the
opposing party may use at trial for any purpose. See Fed. R. Civ. P. 32(a)(1)–(3).
A party to litigation need not be subpoenaed to be deposed under Rule 30. Parties
are subject to sanction for failing to appear
at a deposition if properly noticed. See Fed.
R. Civ. P. 37(d)(1)(A)(i). When the party is
an organization, the obligation to appear
without subpoena only extends to the organization’s “director, officer, or managing
agent.” See id.
Courts historically have not permitted
regular Rule 30 depositions of an organization’s former officer, director, or managing agent by mere notice, requiring such
individuals to be subpoenaed as other non-
party witnesses. See Ginsberg v. Government Properties Trust Inc., 07 CIV. 365 CSH/
HBP, 2008 WL 558039, at *1 (S.D.N.Y. Feb.
29, 2008)(describing historical practices).
Some recent court decisions, however, have
applied a more “lenient standard” if the
organization maintains a “close relationship” and there is an alignment of interests. See id. While organizations should be
Answering interrogatories
will likely be the first time
when an organization
must consider whether to
collect information from
former employees.
aware of this trend, the weight of authority
will usually require a subpoena if there is
no ongoing relationship.
Special Rule 30(b)(6) depositions require
an organization to designate one or more
officers, directors, or managing agents to
testify on the entity’s behalf regarding
specifically identified subjects. A designated Rule 30(b)(6) witness need not have
personal knowledge of the noticed subject matter but must be prepared to testify
about those topics based on the information known to the organization. See U.S. ex
rel Fago v. M & T Mort. Corp., 235 F.R.D. 11,
24 (D.D.C. 2006)
An organization’s duty to prepare its designated Rule 30(b)(6) witness can include
collecting relevant information from former
employees. See QBE Ins. Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 689 (S.D. Fla.
2012); Great American Ins. Co. of New York v.
Vegas Const. Co., Inc., 251 F.R.D. 534, 539 (D.
Nev. 2008); Wilson v. Lakner, 228 F.R.D. 524,
528 (D. Md. 2005). However, courts recognize that organizations “cannot be faulted”
if they do not interview former employees
who “refuse” to speak or cooperate. See QBE,
277 F.R.D. at 691; Costa v. County of Burlington, 254 F.R.D. 187, 191 (D.N.J. 2008).
While Rule 30(b)(6) witnesses are usually current officers, directors, or managFor The Defense March 2017 23
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T R I A L TA C T I C S
ing agents, organizations have the option
under that rule to designate “other persons,” which could include former employees. But an organization cannot be forced
or required to designate a former employee
as a Rule 30(b)(6) witness, even if the former employee has the most knowledge
of the subject matter. See SRT Communications, Inc. v. Phoenix Civil Contractors,
Since Upjohn,most lower
courts have reasoned that
the same considerations
cited by Upjohn for
extending the privilege
to lower-level employees
also supports applying the
privilege to post-employment
communications with
former employees.
LLC, 4:14-CV-42, 2015 WL 12803621, at *3
(D.N.D. June 19, 2015)(collecting authority).
When Are Communications Between
an Organization’s Representatives
and Its Former Employees Protected?
Under certain conditions, communications
between an organization’s representatives
and the organization’s former employees
may be protected by the attorney–client
privilege or the work-­product doctrine.
Attorney–Client Privilege
The attorney–client privilege generally
applies to communications made in confidence by a client to counsel for the purpose
of seeking legal advice. See United States v.
Evans, 113 F.3d 1457, 1461 (7th Cir. 1997).
Upjohn Co. v. United States is the seminal
decision applying the attorney–client privilege within the organizational setting.
Before Upjohn, some courts had limited
the privilege to counsel’s communications
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with an organization’s “control group,”
which generally included only senior management who guided and operated the
entity. See 449 U.S. at 390. Upjohn rejected
the “control group” test as too narrowing
and held that the privilege could extend
to counsel’s communications with mid-­
management or even low-level employees.
See id. at 390–97; see also Weintraub, 471
U.S. at 348.
Factors identified by Upjohn in support
of extending the privilege to employees
beyond the “control group” included:
1. Executive-­level officers had directed the
lower-­level employees to communicate
with the entity’s counsel for the purpose
of securing legal advice;
2.The lower-level employees were
informed and sufficiently aware of
the purpose of their communications
with counsel to secure legal advice for
the entity;
3. The lower-level employees then communicated with the entity’s counsel acting
as such;
4. All of the communications from the
lower-­level employees to the entity’s
counsel concerned matters within the
scope of their employment; and
5.The communications between the
lower-­level employees and counsel were
considered confidential when they were
made and afterward were kept confidential by the entity.
449 U.S. at 394–95.
While organizations must start with
Upjohn regarding privilege issues, further
guidance must be consulted in applying
the privilege to an entity’s former employees. Upjohn’s majority opinion expressly
declined to consider the former-­employee
issue and limited its holding to current
employees only. See id. at 394 n.3.
Since Upjohn, most lower courts have
reasoned that the same considerations
cited by Upjohn for extending the privilege to lower-­level employees also supports
applying the privilege to post-­employment
communications with former employees.
See In re Allen, 106 F.3d 582, 605 (4th Cir.
1997); see also In re Coordinated Pretrial
Proceedings in Petroleum Products Antitrust Litigation, 658 F.2d 1355, 1361 n.7
(9th Cir. 1981); Command Transp., Inc. v.
Y.S. Line (USA) Corp., 116 F.R.D. 94, 96
(D. Mass. 1987). Despite seemingly broad
agreement on this general point, practical
application has been subject to varied and
nuanced court decisions.
Some courts may appear to apply Upjohn
to current or former employees without
distinction. But “wholesale application” of
Upjohn to former employees has also been
criticized and rejected. See Peralta v. Cendant Corp., 190 F.R.D. 38, 40 (D. Conn.
1999). Peralta is an often-­cited decision that
has been followed by many other courts
regarding that point, which may be one of
the best sources of guidance in jurisdictions or venues where precedent is lacking.
In Peralta, the court limited the privilege to post-­employment communications
with the entity’s counsel that either (1) concerned knowledge obtained or conduct
occurring during the course of the former
employee’s employment; or (2) related to
prior communications during the employment relationship that were themselves
privileged. See id. at 41. The court refused
to extend the privilege to any communications concerning subject matter that “went
beyond” what the former employee had
learned while employed. See id.
Under Peralta’s holding, communication by counsel with a former employee
regarding “facts developed during the litigation” that the former employee had no
prior, independent knowledge of would
not be privileged. See id. Rather, the court
explained that opposing counsel must have
the opportunity to examine whether the
discussion of previously unknown information to the former employee could have
influenced or affected the employee’s testimony. See id. Given Peralta’s guidance,
if an entity’s attorney contacts a former
employee, counsel should carefully consider whether discussions about information previously unknown to the employee
are discoverable.
While the extension of Upjohn to former employees has been accepted by
most courts in varying degrees, there are
minority decisions that have been unwilling to make that extension. These courts
have found Upjohn inapplicable to former
employees and generally consider them
to be indistinguishable from other thirdparty fact witnesses for attorney–client
privilege purposes. See Infosystems, Inc. v.
Ceridian Corp., 197 F.R.D. 303, 306 (E.D.
Mich. 2000); Clark Equipment Co. v. Lift
Parts Mfg. Co., Inc., 82 C 4585, 1985 WL
2917, at *5 (N.D. Ill. Oct. 1, 1985).
Whether the attorney–client privilege
extends to communications with former
employees after the employment relationship has ended can be murky and dangerous due to the varying approaches taken by
courts. There are, however, two clear rules
when applying the privilege to communications with former employees before the
employment relationship ended.
First, privileged information gained by
a former employee while still employed by
an organization continues to be privileged
and survives the end of the employment
relationship. See Infosystems, 197 F.R.D.
at 306 (collecting cases). Second, the privilege belongs to and can only be waived
by the organization. A former employee
will invariably lack authority to waive the
organization’s privilege. See United States
v. Chen, 99 F.3d 1495, 1502 (9th Cir. 1996).
Work-Product Doctrine
Communications by an organization’s
counsel with former employees may also be
subject to work-product protection. Hickman v. Taylor is the seminal work-product
decision. That decision has since been substantially incorporated by Federal Rule of
Civil Procedure 26(b)(3).
The test for Rule 26(b)(3) work-product
material includes: (1) “documents and tangible things”; (2) “prepared in anticipation
of litigation or for trial”; and (3) “by or for
another party or by or for that other party’s representative.” Although Rule 26(b)
(3) only applies to “tangible” work product, common law protection from Hickman
and its progeny extends to “intangible work
product independent of Rule 26(b)(3).” See
United States v. Deloitte LLP, 610 F.3d 129,
136 (D.C. Cir. 2010).
Tangible and intangible work product
can include written or spoken communications by an entity’s counsel to its former employees or other fact witnesses that
reveal counsel’s legal conclusions, opinions, or strategies. See Peralta, 190 F.R.D. at
42. Since the purpose of the work-product
doctrine is to prevent an opposing party
and attorney from knowing such information, disclosing counsel’s legal conclusions,
opinions, or strategies to former employees
or fact witnesses does not necessarily waive
work-product protection. See id.
Of course, written or recorded statements by fact witnesses are usually tangible work product subject to Rule 26(b)(3),
and that work-product treatment equally
applies when the fact witnesses are an
organization’s former employees. That rule
requires such statements to be disclosed to
opposing counsel only if the “party shows
that it has substantial need for the materials to prepare its case and cannot, without
undue hardship, obtain their substantial
equivalent by other means.”
Can Ex Parte Contact by
Opposing Counsel with an
Organization’s Former Employees
Be Prohibited or Restricted?
Courts had once been widely split whether
ex parte communications by opposing
counsel with an organization’s former
employees were permissible. See Armsey v.
Medshares Management Services, Inc., 184
F.R.D. 569, 573 (W.D. Va. 1998). Most of the
competing approaches generally allowed ex
parte communications, but each approach
had varying exceptions and restrictions.
See id. (describing varying court decisions)
Rule 4.2 of the Model Rules of Professional Conduct, which regulates ex parte
communications with persons represented
by counsel, was the primary source of the
division. The issue was if and when former employees should be considered represented by an entity’s attorney for purposes
of Model Rule 4.2 and corresponding state
professional rules of conduct.
For organizations, the comments to
Model Rule 4.2 indicated that ex parte
communications with three types of “persons” were prohibited: (1) “persons having a managerial responsibility on behalf
of the organization”; (2) “any other person whose act or omission in connection
with that matter may be imputed to the
organization for purposes of civil… liability”; and (3) persons “whose statement
may constitute an admission on the part
of the organization.”
Neither Model Rule 4.2 nor its original comments expressly distinguished
between an organization’s current and former employees. Although former employees could not fit within the first and third
categories, most early court decisions and
commentators focused on the second category to prohibit ex parte communications
with former employees if their conduct
while they were employed could establish the organization’s liability. See Polycast Technology Corp. v. Uniroyal, Inc., 129
F.R.D. 621, 626 (S.D.N.Y. 1990).
However, the American Bar Association later amended the comments to Model
Rule 4.2 in 2002 to clarify specifically that
consent from the organization’s counsel is
Despite the shiftin
the law, some recent
precedent has left open
the narrow possibility that
“extreme circumstances
could warrant disallowing
ex parte communications
with former employees.”
not required for ex parte communication
by opposing counsel with former employees. See Model Rules of Prof’l Conduct R.
4.2, cmt. 7. Although not immediately controlling, most state rules commentary and
court decisions now appear to be following the 2002 ABA changes to allow such ex
parte communications without the organization’s consent.
Despite the shift in the law, some recent
precedent has left open the narrow possibility that “extreme circumstances could
warrant disallowing ex parte communications with former employees.” See Thurston
v. Okemo Ltd. Liability Co., 123 F. Supp. 3d
513, 516 (D. Vt. 2015). This authority suggests that full ex parte prohibition might
be appropriate for former employees with
“extensive exposure” or “sustained access”
to privileged information. See id. (quoting
Weber v. Fujifilm Medical Systems, U.S.A.,
3:10 CV 401 (JBA), 2010 WL 2836720, at *4
(D. Conn. July 19, 2010)).
Rather than fully prohibiting ex parte
communications with former employees, courts are more likely to consider
Employees, continued on page 71
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Employees, from page 25
and impose restrictions. Such courtimposed restrictions generally correspond
to other applicable professional conduct
rules, but they can include more extensive requirements.
The decision from Serrano v. Cintas
Corporation features one of the most
“restrictive guidelines” for ex parte communications between opposing counsel
and an organization’s former “decision-­
maker” employees. CIV.A. 04-40132,
2009 WL 5171802, at *4 (E.D. Mich. Dec.
23, 2009). The order issued in that case
required opposing counsel to comply with
the following guidelines:
1. To identify him- or herself and to specify
the purpose of the contact immediately
upon contacting the former employee.
2. To ascertain immediately and terminate
contact if the former employee is currently associated with the organization
or represented by counsel.
3. To advise the former employee that
first, participation in the interview is
not mandatory, and second, he or she
may choose not to participate or to participate only in the presence of personal
counsel or counsel for the organization.
Immediate termination of the contact is
required if former employee either does
not wish to participate or elects to do so
only in the presence of personal counsel or counsel for the entity.
4. To advise the former employee to avoid
disclosure of privileged or confidential materials and to terminate the contact immediately should it appear that
privileged matters may be revealed.
Consistent with professional conduct
rules, opposing counsel was further
directed not to attempt to solicit privileged information.
5. To create and preserve a list of all former employees contacted, the dates of
contact, and all statements or notes
resulting from such contacts. The organization was entitled to review the lists
and notes upon demand, subject to
work–product protections.
Although never overruled, some later
court decisions have tried to marginalize
or limit Serrano to its facts. See Thurston,
123 F. Supp. 3d at 516; Clemons v. City
of Detroit, 09-13480, 2010 WL 2089361,
at *2 (E.D. Mich. May 24, 2010). Other
courts may also decline to go as far as
Serrano. Still, Serrano’s guidelines articulate a wide range of possible restrictions that are an excellent starting point
for an organization to consider should it
develop concerns about ex parte communications with its former employees by
opposing counsel.
In sum, many potential issues can
develop when an organization becomes
involved in litigation that concerns actions
taken by or information known to one or
more former employees. However, the three
questions discussed above seem to be commonly recurring former-­employee issues.
Hopefully this article can be a resource
and guide the next time one of those issues
should emerge.
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