Western District of Virginia Allows Ex Parte Contact With Non-Supervisory Employees
Published by Eric A. Welter on September 25, 2009
In Smith v. United Salt Corp., the United States District Court for the Western District of Virginia held that the plaintiffs and their counsel were not prohibited from engaging in ex parte communications with employees of the defendant employer so long as those employees were nonsupervisory. The opinion can be found here. More after the […]
In Smith v. United Salt Corp., the United States District Court for the Western District of Virginia held that the plaintiffs and their counsel were not prohibited from engaging in ex parte communications with employees of the defendant employer so long as those employees were nonsupervisory. The opinion can be found here. More after the break.
Two female employees of United Salt Corporation brought suit against their employer and a plant manager alleging sexual harassment, gender discrimination, and retaliation in violation of Title VII, as well as wrongful discharge and assault and battery. United Salt filed a Motion to Enjoin Ex Parte Contacts in response to the plaintiffs’ statement in their Motion to Compel Discovery that they planned to contact United Salt employees. In its motion, United Salt sought to prevent the plaintiffs and their counsel from making ex parte contacts with any current United Salt employees.
The plaintiffs argued that any ex parte contacts were for the purpose of gathering information relevant to the complaint, and not to obtain admissions imputable to United Salt. In their argument, the plaintiffs relied on Rule 4.2 of the Virginia Rules of Professional Conduct, which prohibits ex parte communications with employees within the company’s “control group.” The plaintiffs stated that they were intending to contact only nonmanagerial employees that fall outside the “control group” and are therefore not covered by Rule 4.2.
United Salt argued that the court’s holding in Lewis v. CSX Transportation, Inc., 202 F.R.D. 464 (W.D. Va. 2001), was controlling. In Lewis, the court stated that the Federal Rules of Evidence imposed a broader test for determining whether ex parte contacts with a defendant’s employees were permitted. The Lewis court articulated this test as encompassing all persons who have managerial responsibility for the company, all persons whose acts or omissions related to the case may be imputed to the company, and any persons whose statements may be deemed admissions by the company.
The Smith court found that the employees who the plaintiffs were seeking to contact did not fall within the Lewis test. The court reasoned that in a Title VII sexual harassment case, the company employer is only liable for acts of its supervisory employees, not nonsupervisory ones. The court stated that “the rationale for the Lewis decision – to prevent an attorney from circumventing opposing counsel to obtain statements from employees which could be used to impute liability on the employer – is not present in this case.” Thus, the court held that the plaintiffs were not prohibited from making ex parte contacts with nonsupervisory United Salt employees.
Contributed by Claudia GuzmanTopics: Federal Litigation, Litigation, Virginia