The interest in preventing inadvertent disclosure of privileged material does not justify a blanket ban on communication with the opposing party's former employees. In most situations, a former employee will not be privy to the corporation's legal strategies after his employment has terminated. Similarly, many employees will have no access to privileged information even while employed. Accordingly, the problem of protecting privileged material is best dealt with on a case-by-case basis.
Defendant seller sold its subsidiary to the plaintiff buyer. Plaintiff later filed suit, alleging that it entered into the transaction based on misleading financial information provided by the defendant. Defendant gave notice of its intent to depose a former employee. It filed a motion for a protective order prohibiting the defendant's counsel from having ex parte communications with the former employee and from representing him at his deposition. The court denied the seller's motion.
Did the deposition of former employee jeopardize privileged communication?
Rule 4(f) of the General Rules of the United States District Courts for the Southern and Eastern Districts of New York made the Code of Professional Responsibility applicable to attorneys because all of New York's Appellate Divisions had adopted its provisions. N.Y. Code Prof. Resp. DR 7-104(A)(1) provided that an attorney was not to communicate on the subject of the representation with a party whom he knew was represented unless his attorney had given his consent. Preventing the inadvertent disclosure of privileged material did not justify a blanket ban on communication with an opposing party's former employees. Moreover, the former employee did not possess information covered by the seller's attorney-client privilege.