Witness Interviews: Who is Off Limits and Who is Fair Game?
By Mark B. Wilson
There are a variety of methods to discover the identity and contact information of an opposing party’s employees, officers, directors, etc., including propounding Judicial Council form interrogatories. This article addresses the ethical rule governing contacting those people.
1. California State Bar Rules of Professional Conduct, rule 2-100
Communications with an opposing party’s agents are governed by Rules Prof. Conduct, rule 2-100, which states in pertinent part as follows:
“(A) While representing a client, a member shall not communicate directly or indirectly about the subject of the representation with a party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer.
(B) For purposes of this rule, a “party” includes:
(1) An officer, director, or managing agent of a corporation or association, and a partner or managing agent of a partnership; or
(2) An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.” (Emphasis added.)
2. Interpretation of Rule 2-100
In Snider v. Superior Court (2003) 113 Cal.App.4th 1187, the California Court of Appeal addressed the issue of whether defendant’s attorney should be disqualified for contacting two of plaintiff’s employees. ( Id. at 1192.) Plaintiff admitted the employees were not officers or directors; accordingly, the first issue (as it will be in most cases) was whether the employees were managing agents. ( Id. at 1207.)
“Managing agents” ( see, Rule 2-100(B)(1)) have historically been referred to those people in the “control group” – “officers and agents . . . responsible for directing [the company’s] actions in response to legal advice.” ( Upjohn Co. v. United States (1981) 449 U.S. 383, 391.) The Snider court held that the definition of “managing agents” is found in Civil Code section 3294 and its progeny ( i.e., an employee that “exercises substantial discretionary authority over decisions that ultimately determine corporate policy”). ( Snider v. Superior Court, supra, 113 Cal.App.4th 1187, 1208, relying on White v. Ultramar (1999) 21 Cal.4th 563, 573.)
Applying this definition to the employees at issue, the Snider court found the employees did not fall within the definition of rule 2-100(B)(1) because they did not have discretion or authority to set corporate policy as to any issues. ( Snider v. Superior Court, supra, 113 Cal.App.4th 1187, 1209.) After applying rule 2-100(B)(1), the court next had to determine whether the employees fell within the terms of the second part of the rule, rule 2-100(B)(2). The analysis under rule 2-100(B)(1) focuses on whether the employee is one “[whose] act or omission . . . in connection with the matter . . . may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.” ( Ibid..
Finding for the plaintiff, the Snider court determined there was no evidence that the subject matter of the contacts with the employees concerned an act or omission of that employee in connection with the case at issue. ( Snider v. Superior Court, supra, 113 Cal.App.4th at 1210.) Plaintiff’s attorney did not even speak with one of the employees about the case and, as to the other employee, the interview did not concern the employee’s actions or omissions regarding the dispute – only her knowledge of events surrounding it. ( Id. at 1196 and 1210.) Moreover, the court found neither of the employees’ statements could constitute a party admission because the employees were not “high-ranking executives and spokespersons” with the authority to speak on behalf of the company. ( Id. at 1210.)
The Snider court rejected the defendant’s argument that attorneys should be prohibited from contacting any employees of a represented organization. ( Snider v. Superior Court, supra, 113 Cal.App.4th at 1211.) However, the court provided important guidelines for contacting a represented party’s employees.
“[T]o avoid potential violations of the attorney‑client privilege, an attorney contacting an employee of a represented organization should question the employee at the beginning of the conversation, before discussing substantive matters, about the employee’s status at that organization, whether the employee is represented by counsel, and whether the employee has spoken to the organization’s counsel concerning the matter at issue. If a question arises concerning whether the employee would be covered by rule 2‑100 or is in possession of privileged information, the communication should be terminated. Once a dispute arises that could lead to litigation, it is also incumbent upon an organization and its counsel to take proactive measures to protect against disclosure of privileged information by informing employees and/or opposing counsel their position concerning communications between employees and opposing counsel. The exercise of caution and prudence on both sides will avoid much of the potential for violations of rule 2‑100 or breach of attorney‑client relationships . . .” ( Snider v. Superior Court, supra, 113 Cal.App.4th at 1213.)
“[I]n cases where an attorney has reason to believe that an employee of a represented organization might be covered by rule 2‑100, that attorney would be well advised to either conduct discovery or communicate with opposing counsel concerning the employee’s status before contacting the employee. A failure to do so may, along with other facts, constitute circumstantial evidence that an attorney had actual knowledge that an employee fell within the scope of rule 2‑100. It might further provide support for a more drastic sanction if a violation of rule 2‑100 is found.” ( Snider, supra, 113 Cal.App.4th at 1215-1216.)
3. Whose Consent is Required to Conduct an Interview?
In La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court (2004) 121 Cal.App.4th 773, the California Court of Appeal addressed the issue of whether it is appropriate under rule 2‑100 for attorneys to contact a represented corporation’s directors where the directors’ separate counsel consents to the contact but the corporation’s counsel does not. The appellate court concluded that while corporate directors would ordinarily be deemed represented members of a corporation that may not be contacted by opposing counsel,” rule 2-100 carves out an exception where the represented party’s separate counsel consents to the contact.” ( La Jolla Cove Motel and Hotel Apartments, Inc. v. Superior Court, supra, 121 Cal.App.4th at 784.) Therefore, since the directors’ personal counsel permitted contact with opposing counsel, an attorney did not violate rule 2-100 by contacting the directors.
4. Application of Rule 2-100 to Class Action Members
Caution must be used, however, in the context of class actions. In Hernandez v. Vitamin Shoppe Industries, Inc. (2009) 174 Cal.App.4th 1441, the California Court of Appeal held that after a trial court conditionally certifies a class and appoints class counsel, another attorney may not contact any member of that class without first obtaining permission from class counsel.
The final analysis on whether contact with a represented party’s agents violates rule 2-100 will depend on the facts. While a represented party’s agents might have important facts you will want to discover, improper contact can have significant consequences, including disciplinary action and disqualification in a case. Accordingly, attorneys should understand Rules Prof. Conduct, rule 2-100, as well as the Snider case, before conducting any interviews.
This article first appeared in The OCTLA Gavel, Fall 2010.
Mark Wilson, a trial attorney, has won nearly every case he has tried or arbitrated. He lost only one jury trial and obtained a complete reversal on appeal. Mr. Wilson represents clients in business litigation and legal malpractice cases and was named in the 2017 – 2020 SuperLawyers Top 50 Orange County lists. Mr. Wilson is a California State Bar certified specialist in Legal Malpractice Law and can be reached at 949-631-3300; [email protected]; https://www.kleinandwilson.com