Defending the deposition of the Elderly Former Employee, Pt 1

MANY INDIVIDUALS will spend an entire career in middle or upper management without ever suffering the misfortune of having their depositions taken. Yet in certain kinds of litigation, including toxic tort, products liability, and related insurance coverage litigation, there is frequently a need for information relating to corporate activities that occurred years or even decades ago. In these cases, there is often a search for former employees who may be able to provide key evidence, place documents in context, or simply add a human face to the factual picture. If so, it can often come as an unpleasant surprise to such individuals that they are being asked to become a part, however, small, of a large and complex legal matter.

Helen L. Marsh is an attorney with Heller Ehrman LLP, in San Francisco. helen.marsh@hellerehnnan.com

THE IMPORTANCE OF THE FORMER EMPLOYEE IN LITIGATION • Some attorneys decide, without investigation or inquiry, that their clients' elderly former employees will not be of use to the development of their case. They assume the employees are deceased, in poor health, or unwilling to cooperate. In reality, these assumptions are often false. Of course, people are living longer and staying healthier. Even some seniors with short-term memory loss may have vivid and detailed recollections of events occurring in the distant past. And, in any event, they may at least be able to establish the authenticity and business record status of key documents.

Moreover, even if a lawyer is aware that certain former employees departed from a company involuntarily, they should not assume that those former employees still hold a grudge against the company. Although some may initially see a deposition as an inconvenience or intrusion, many actually enjoy the opportunity to reminisce and to be of assistance in litigation that they may find of interest. They have often maintained contact with other former employees and feel that they are giving back to a company that "took care" of them for a number of years.

ABA Comm. On Ethics and Professional Responsibility, Formal Op. 95-396, n. 47. (Note that state rules or statutes may be different.) Thus, even before a corporate client has been asked through interrogatories to disclose a former employee's last known address, opposing counsel may have used resources such as the Internet or a private detective to locate the witness so that contact may be made without any advance notice to the former employer. Although opposing counsel must clearly disclose their party affiliation when contacting a witness, there is frequently some confusion on this point. For example, a witness in an insurance coverage case may be correctly told that he is speaking to the attorneys for his former employer's insurance company, and understandably assume that there is a unity of interests between his former employer and the insurance company. Although former employees are free to talk to counsel for other parties (except with regard to matters of privilege or trade secret), they are not obligated to do so, and they should be given the whole picture in making this decision. Few former employees wish to act in a way that is adverse to their former employers. Thus, getting to them first can prove critical.

Rules That Permit Contact • There is another pressing reason to contact a client's former employees. The law and rules of ethics in many jurisdictions allow another party's attorney to do so. For example, the ABA Model Rules of Professional Conduct allow opposing counsel to contact former employees. ("Consent of the organization's attorney is not required for communication with a former constituent." Rule 4.2, Comment 7.) Similarly, a lawyer may "communicate about the subject matter of the representation with an unrepresented former employee of the corporate party without the consent of the corporation's lawyer.

THE INITIAL CONTACT

It is best, when possible, to make the initial contact with a former employee through a current employee, or another former employee already involved in the litigation. This will add credibility to an attorney's position as being friendly to the former employer's cause and may reduce some witnesses' natural reluctance to deal with that attorney. For some witnesses, it may be enough to conduct an initial telephone interview, explaining the case and the interest of the former employer. The attorney should advise the employee that his name and last known address will or has been provided to opposing counsel, or that opposing counsel may seek the witness out on his or her own.

Advise Witness To Alert You When Opposing Counsel Calls

Although an attorney should not instruct a former employee to refuse to talk to opposing counsel, except as to confidential matters such as privilege and trade secret, that attorney may legitimately request that the employee decline to talk to opposing counsel without notifying the employer's counsel first. This will usually result in a deposition being taken if the witness has important information, but it will allow preparation in advance of going on record. Although the opposing counsel may attempt to convince the witness that a deposition will not be necessary if the witness speaks to him voluntarily on an informal basis, the reality is that witnesses with important information will be deposed in any event. The defending attorney should explain that these scare tactics seldom result in protection for the witness but only serve the needs of the opposing party. The deposition procedure, although cumbersome, allows for a full and fair explication of relevant facts with all interested parties present and will generally prevent sub- sequent attempts to involve the former employee in the litigation through further interviews, incomplete and misleading affidavits, or the inevitable deposition.

Ask About Any Previous Contacts

In some instances, one may find that opposing counsel has already contacted the witness. If so, ask about the extent of the contact, whether the witness was shown any documents, and if the witness was asked to sign anything. If so, it is essential to obtain a copy of that document, and to expedite efforts to contact other similarly situated former employees.

In one case, opposing counsel contacted a former employee who had moved to Taiwan and who was not fully proficient in English. The opposing counsel sent the former employee an affidavit, which the witness signed simply because she thought it was from her former employer and that it, therefore, must be accurate. When the affidavit was filed with the court, her former employer's counsel had to obtain a counter affidavit addressing not only the factual misstatements in the first affidavit but challenging the deceptive circumstances under which the first affidavit was obtained.