Conducting Informal Discovery of a Party\u27s Former Employees: Legal and Ethical Concerns and Constraints

This Article identifies and critiques existing sources of confusion in the law and proposes revised and alternative discovery procedures to provide equal access to information possessed by ex-employees, while simultaneously safeguarding the integrity of that information. Its primary emphasis is on federal jurisprudence, although important points of consensus and departure between state and federal law are noted, as appropriate. Part I explains the issues that arise in informal discovery, and the difficulties with clearly resolving those issues given the conflicting state of the law. Part II discusses application of the attorney-client privilege to communications between corporate counsel and former employees, concluding that the privilege should not shield the content of such communications from discovery by opposing counsel. Because the attorney-client privilege issue and the debate over ex parte contact both turn on whether a former employee is a party to the litigation, an exposition of the ethical concerns of ex parte contact follows in Part III, which concludes that ex parte contact by opposing counsel should be allowed. Part IV examines the applicability of the work product doctrine in shielding from discovery certain tangible materials related to the interview. This Article advocates absolute immunity from discovery for attorney notes and memoranda, and for collections of documents selected by counsel for discussion with former employees; limited discovery of signed witness statements generated pursuant to the interview; and fairly broad discovery of the content of counsel\u27s questions and statements during the interview. The proposed discovery guidelines in the Conclusion are offered with the ambitious, if not elusive, goal of reconciling the competing interests and policies that rouse litigants to battle when informal discovery is conducted of former employees, while simultaneously giving due regard to the pragmatic impact that new or revised rules may have on the litigants and the adversarial process. The overriding objective is to provide equal access by all parties to the information possessed by former employees, while at the same time providing mechanisms to deter, and if necessary to reveal, inappropriate manipulation of these potential witnesses by counsel