Opinion
Case No. 3:18-cv-2128-MCR-HTC (Lead Case) Case No. 3:18-cv-2208-MCR-HTC (Member Case) Case No. 3:18-cv-453-MCR-HTC (Member Case) Case No. 3:19-cv-82-MCR-HTC (Member Case) Case No. 3:19-cv-3639-MCR-HTC (Member Case)
08-06-2020
C.H., a minor, BY Russell HILLIGOSS and Tammy Hilligoss, his natural guardians, Plaintiff, v. The SCHOOL BOARD OF OKALOOSA COUNTY FLORIDA, et al., Defendants. N.R., a minor, by Jason Ragan and Amy Ragan, his natural guardians, Plaintiff, v. The School Board of Okaloosa County Florida, et al., Defendants. N.P., a minor, by Eddie Perillo, his natural guardian, Plaintiff, v. The School Board of Okaloosa County Florida, et al., Defendants. Steven Van Etten, by Laraine Van Etten, his plenary guardian, Plaintiff, v. The School Board of Okaloosa County Florida, et al., Defendants. K.R., a minor, by Tiffany Marshall, Plaintiff, v. The School Board of Okaloosa County Florida, et al., Defendants.
Dean Robert LeBoeuf, John M. Leace, Ryan Philip Molaghan, Talley Lee Kaleko, Ryan Blake Hobbs, Brooks Leboeuf Foster etc., PA, Tallahassee, FL, for Plaintiffs. Jarrett Blaine Davis, Buchanan Ingersoll & Rooney PC, Tampa, FL, Michael Patrick Spellman, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendants School Board of Okaloosa County Florida, Mary Beth Jackson. Chase Ellis Hattaway, Rumberger Kirk & Caldwell PA, Orlando, FL, Kayla Elizabeth Platt Rady, Linda Bond Edwards, Rumberger Kirk & Caldwell PA, Tallahassee, FL, for Defendant Stacie Smith. Eric Alexander Krebs, Timothy M. Warner, Warner Law Firm, Panama City, FL, for Defendant Arden Farley. Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, for Defendant Marlynn Stillions. Jeannette Marie Andrews, Joe Longfellow, III, Ramsey Dana Revell, Andrews Crabtree Knox etc., Kayla Elizabeth Platt Rady, Rumberger Kirk & Caldwell PA, Matthew Joseph Carson, Sniffen & Spellman PA, Tallahassee, FL, for Defendant Larry Ashley. Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendant Angelyn Vaughan.
Dean Robert LeBoeuf, John M. Leace, Ryan Philip Molaghan, Talley Lee Kaleko, Ryan Blake Hobbs, Brooks Leboeuf Foster etc., PA, Tallahassee, FL, for Plaintiffs.
Jarrett Blaine Davis, Buchanan Ingersoll & Rooney PC, Tampa, FL, Michael Patrick Spellman, Robert Jacob Sniffen, Terry Joseph Harmon, Sniffen & Spellman PA, Tallahassee, FL, for Defendants School Board of Okaloosa County Florida, Mary Beth Jackson.
Chase Ellis Hattaway, Rumberger Kirk & Caldwell PA, Orlando, FL, Kayla Elizabeth Platt Rady, Linda Bond Edwards, Rumberger Kirk & Caldwell PA, Tallahassee, FL, for Defendant Stacie Smith.
Eric Alexander Krebs, Timothy M. Warner, Warner Law Firm, Panama City, FL, for Defendant Arden Farley.
Anthony M. Hoffman, William Steele Holman, II, Speegle Hoffman Holman & Holifield LLC, Jennifer S. Holifield, Cherniak Law LLC, Mobile, AL, for Defendant Marlynn Stillions.
Jeannette Marie Andrews, Joe Longfellow, III, Ramsey Dana Revell, Andrews Crabtree Knox etc., Kayla Elizabeth Platt Rady, Rumberger Kirk & Caldwell PA, Matthew Joseph Carson, Sniffen & Spellman PA, Tallahassee, FL, for Defendant Larry Ashley.
Joseph L. Hammons, Hammons Law Firm, Pensacola, FL, for Defendant Angelyn Vaughan.
ORDER
HOPE THAI CANNON, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Defendant, the School Board of Okaloosa County, Florida's (the "School Board"), motions for sanctions filed in these consolidated cases. ECF Doc. 158 (3:18-cv-2128); ECF Doc. 130 (3:18-cv-2208); ECF Doc. 107 (3:19-cv-82); ECF Doc. 59 (3:19-cv-3639); ECF Doc. 203 (3:18-cv-453). The crux of the motions for sanctions arises out of alleged improper communications between Plaintiffs’ counsel and a current employee of the School Board, Marian Gilmore ("Gilmore"). The Court held oral argument on the motions on July 30, 2020. Upon consideration of the relevant case law, the parties’ written submissions, and argument, the undersigned finds that the motions should be GRANTED, in part, as set forth herein.
The motions state that they are being filed on behalf of the School Board and Defendant Mary Beth Jackson. However, at the hearing held on these motions, counsel for Jackson indicated that the motions should have been filed only on the School Board's behalf.
I. BACKGROUND
Plaintiffs, minor children suffering from disabilities, have filed individual actions against various school employees and administrators as well as the School Board for physical and verbal abuse at the hands of their teachers or teachers’ aides. The cases were consolidated for purposes of discovery.
Plaintiffs allege that they were abused by special education instructor Defendant Roy Frazier ("Frazier") while they were at Silver Sands School in Fort Walton Beach, Florida. Specifically, one of the plaintiffs, N.R., alleges that Frazier physically and verbally abused him, and other students enrolled in the exceptional students education ("ESE") program, from the beginning of the 2014-2015 school year until the end of the 2015-2016 school year. ECF Doc. 91 (3:18-cv-2208) at 16-20. N.R. alleges that Frazier's conduct was reported to school administration officials, who stated that they would take action, but did not. Instead, in many instances, Defendant Alan Lambert ("Lambert") (Silver Sands’ principal until midway through the 2015-2016 year) would retaliate against the reporting employee by "separating them from their assigned students, moving them to different classrooms, and changing one aide's assigned lunch hour to 9:15 am." Id. at 33.
As a result of the multiple complaints, Defendant Investigator Arden Farley ("Investigator Farley") conducted an investigation into the allegations of abuse and prepared what is referenced as the Frazier Report. Id. at 30-31. Included in the report were statements from teachers’ aides alleging that they had been instructed by the School Board's administration to "only reply ‘today was a good day,’ " if asked by ESE parents about the day. Id. at 34.
Plaintiffs also allege that shortly after the School Board administrators were made aware of Frazier's alleged abuse of ESE students, they were also advised of similar abuse occurring at Kenwood Elementary by special education instructor Marlynn Stillions ("Stillions"). Id. at 22-27, 35. Plaintiffs allege that the School Board and its administrators were on notice of Stillions’ abuse as well but failed to intervene or report it. Id. at 27.
As with Frazier, Investigator Farley also investigated the allegations against Stillions and prepared what is referenced as the Stillions Report. During the course of his investigation, Farley interviewed approximately twenty (20) School Board employees and made them agree that they would not discuss the investigation or their knowledge of Stillions’ abuse. ECF Doc. 91 at 35-36. Plaintiff alleges that this directive to school employees was to conceal the abuse and that it was the Board's policy, custom or practice to not only conceal abuse of ESE students, but to circumvent the mandatory reporting requirements under Florida Statute 39. Id. at 38. Despite the investigation and reports of abuse, Stillions remained a teacher with the School Board through the 2016-2017 year and was transferred to Silver Sands. Id. at 39.
The School Board hired Gilmore in 2014 as N.R.’s one-on-one aid at Silver Sands. ECF Doc. 159 at 3. Gilmore, thus, worked in Defendant Frazier's classroom. Id. During her time with N.R., Gilmore witnessed Frazier's alleged abuse on N.R., as well as other plaintiffs, including C.H. and S.V. Id. Farley interviewed Gilmore for purposes of preparing the Frazier report. ECF Doc. 159.
Frazier retired from the School Board at the end of the 2015-2016 school year. Id. at 4. Gilmore (and N.R.) were assigned to Stillions’ classroom for the 2016-2017 school year. Id. at 6. At the beginning of that year, Gilmore observed Stillions allegedly bullying another student and reported the conduct to Defendant Jon Williams ("Williams"), who had replaced Defendant Lambert as the principal. Id. at 6-7. According to Gilmore, in the latter part of that year, Stillions accused Gilmore of improper contact with N.R. and, when Gilmore contested the allegations, Williams retaliated against her by removing her from N.R., against the wishes of N.R.’s parents. Id. at 7.
In October 2017, the Office of the State Attorney for the First Judicial Circuit ("SAO") served Gilmore an investigative subpoena and interviewed her on two (2) occasions. Id. at 4. Gilmore initially sought representation from an attorney for the teacher's union but, because of a conflict with the initial attorney assigned to Gilmore, she subsequently decided to proceed with those interviews without representation. Id. at 5-6.
II. COUNSEL'S COMMUNICATIONS WITH GILMORE
Sometime in February 2020, the School Board's counsel arranged to interview Gilmore regarding this case. A few days prior to the scheduled interview, Plaintiffs’ counsel notified the School Board's counsel that they were aware of the meeting and that Plaintiffs’ counsel represented Gilmore. ECF Doc. 158 at 8. Plaintiffs’ counsel further advised that they were unavailable to attend the interview and asked that the interview be rescheduled. Id. When the School Board's counsel inquired further about Plaintiffs’ representation of Gilmore, Plaintiffs’ counsel advised that "Ms. Gilmore hired us to represent concerning a potential retaliation claim after she reported abuse of some children at issue in the school cases." Id.
According to Plaintiffs’ counsel, they first communicated with Gilmore in August 2018. ECF Doc. 159 at 7. Counsel represents that Gilmore initiated the contact and was seeking representation on what counsel describes as an "unrelated matter." During the hearing, counsel advised the Court that they believe they have only had one, possibly two, communications with Gilmore and that they may have some email communication(s) with Gilmore. Counsel further represented that they do not believe they have any notes of any conversations with Gilmore and have obtained no written statements from Gilmore. Counsel, does, however, have a retention agreement with Gilmore.
III. FLORIDA RULE OF PROFESSIONAL CONDUCT 4-4.2
The School Board filed the instant motions for sanctions based on their belief that Plaintiffs’ counsel's communications with Gilmore violate Florida Rule of Professional Conduct 4-4.2. As relief, the School Board seeks to preclude Plaintiffs from calling Gilmore as a witness and for counsel to produce any statements, correspondence, or notes of communications with Gilmore.
Rule 4-4.2 provides, in pertinent part, as follows:
In representing a client, a lawyer must not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer.
Fla. R. Prof. Cond. 4-4.2(a)
When the "client" is an entity or organization, the comments to the rule make clear that the rule extends to certain employees or agents of the organization. Specifically, it extends to those employees or agents falling under the following three (3) categories: (1) an employee or agent "who supervises, directs, or regularly consults with the organization's lawyer concerning the matter"; (2) an employee or agent who "has authority to obligate the organization with respect to the matter"; or (3) an employee or agent "whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability." Id. (comment). Although not an issue here, many courts have found that while the rule does not explicitly speak to communications with former employees, it "raises additional ethical problems and a host of additional considerations" when dealing with current employees. Nat'l Assoc. for Adv. of Colored People v. State of Florida, Dept. of Corr. , 122 F.Supp.2d 1335, 1341 (M.D. Fla. 2000) (addressing whether to allow ex parte interview of former and current employees). With regard to the third category, the comments to ABA Rule of Professional Conduct 4.2 (which are similar to Florida's) further explain that Rule 4.2 applies to those persons "whose statement may constitute an admission on the part of the organization." ABA Rule 4.2 (comment). Courts, including the Florida Supreme Court and the federal courts in this circuit, have adopted a similar interpretation based on Federal Rule of Evidence 801(d)(2)(D). See e.g., H.B.A. Mgmt., Inc. v. Estate of Schwartz , 693 So. 2d 541, 545 (Fla. 1997) ; NAACP , 122 F.Supp.2d at 1342.
Under Rule 801(d)(2)(D), a statement offered against an opposing party which "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed" may be admissible as an exception to hearsay. Fed. R. Evid. 801(d)(2)(D). The appropriate inquiry is whether the employee was authorized to act for the employer regarding the matter admitted when she/he spoke. See NAACP , 122 F.Supp.2d at 1342. As the Florida Supreme Court has stated, "the purpose of the communication rule is not to protect a corporate party from revelation of prejudicial facts, but rather to preclude interviewing of employees who have authority to bind the corporation." See H.B.A. Mgmt., Inc. , 693 So. 2d at 544.
IV. DISCUSSION
Plaintiffs do not dispute that their counsel communicated with Gilmore. Plaintiffs argue, however, that neither counsel's communications nor its representation of Gilmore violate Rule 4-4.2 because (1) Gilmore is a rank and file employee; (2) Gilmore was not represented in this matter; and (3) Gilmore contacted Plaintiffs’ counsel regarding representation on an unrelated matter. The undersigned finds little merit in these arguments. Indeed, it is difficult for the undersigned to understand how counsel thought the communications were anything but improper.
The Court does not find this fact to be dispositive because, under Rule 4.2, when an entity is an organization, employees are deemed to be "represented" if they fall under one of the categories discussed above.
With regard to Plaintiffs’ first argument, there does not appear to be any dispute that Gilmore is not (and has never been) a managerial employee of the Board. However, the fact that Gilmore is a rank and file employee is not dispositive of whether her acts or omissions can bind the School Board or whether her statement may be imputed to the School Board under 801(d)(2)(D). See NAACP , 122 F.Supp.2d at 1343. In other words, the fact that she is not a managerial employee takes her out of categories one and two, but not the third category under Rule 4-4.2.
Courts interpreting Rule 4-4.2 have prohibited communications with current employees even though they are not managers or supervisors and have no managerial or supervisory duties. This prohibition applies, in particular, when the employee at issue was involved with the very matter that is being investigated or litigated. Courts have found that, under those circumstances, the third prong of 4-4.2 applies because there is a "substantial likelihood" that statements by the employee will be used against the organization, thereby potentially implicating 801(d)(2)(D). See United States ex rel. Mueller v. Eckerd , 35 F.Supp.2d 896, 898 (M.D. Fla. 1999). As the Middle District of Florida stated in In re Disciplinary Proceedings , 876 F.Supp. 265 (M.D. 1993), Rule 4-4.2 should apply when "there is any significant likelihood that the lawyer initiating the communication may seek to use the employee's statement against the corporation in subsequent proceedings." Id. at 267-68.
In support of its position, the School Board relies on Eckerd , which the undersigned finds to be persuasive. Eckerd involved claims by the government against Eckerd for damages and penalties under the False Claims Act for making or causing to be made false or fraudulent statements, representations, or claims to Medicaid and other health benefits programs for payment of prescriptions that were only partially filled. See id. at 897. The government moved the court for permission to conduct ex parte interviews with Eckerd's current non-managerial pharmacists, pharmacy technicians, and pharmacy clerks. See id. The government argued that they were contacted by these employees who wanted to "relate their negative experiences" with Eckerd and provide "testimony in support of the [plaintiffs’] case." Id.
The court denied the motion. In so doing, the court acknowledged that even though the interviews sought were of lower-level, non-managerial employees, those were the employees who had direct knowledge of, could verify, and may have been involved in the alleged fraudulent practices of the employer. See Eckerd , 35 F.Supp.2d at 898. Thus, there was a "substantial likelihood" that statements obtained during the ex parte interviews would be used against the employer in a later proceeding. Id. Specifically, the court noted that " ‘the mere factual observations’ about which the government seeks to inquire are directly related to the premises of their complaint" and the employees’ "negative experiences" "is the type of ‘derogatory information that could be imputed to or bind the corporation.’ " Id.
The Florida Bar Professional Ethics Committee has reached a similar conclusion. In Opinion 78-4, the committee opined that former Rule 4-4.2 (DR 7-104) applies to employees who have been directly involved in the incident or matter giving rise to the investigation or litigation. Similarly, in Tucker v. Norfolk & Western Ry. Co. , 849 F.Supp. 1096 (E.D. Va. 1994), the district court found that plaintiff's counsel could not conduct ex parte interviews with other welding crew members because "it is readily apparent that these employees could only have acquired [their] knowledge in the scope of their employment and that, therefore, their statements might, upon establishment of a sufficient foundation by plaintiff be admissible under F.R.E. 801(d)(2)(D), as admissions by a party opponent." See id. at 1099 (interpreting Va. DR 7-103(A)(1993), which is similar to Florida's 4-4.2).
Plaintiffs argue that Gilmore "merely has percipient knowledge and understanding of events surrounding this dispute, not an apparent ability to impute civil liability to Defendant, OCSB, by virtue of her acts or omissions." ECF Doc. 159 at 12. The undersigned disagrees. Like the current employees in Eckerd and Tucker , any knowledge Gilmore has about the alleged abuse of N.R. is derived from the scope of her employment. Gilmore does not just have "percipient knowledge," instead she has direct knowledge of the alleged improper conduct and was involved with reports of alleged abuse by and to Defendants.
In other words, Gilmore's conduct, her actions, or her omissions are relevant to Plaintiffs’ allegations. She is a mandatory reporter under Fla. Stat. 39 and, thus, what she did, how she responded upon learning of the abuse, and what she said to N.R.’s parents or to others regarding the matter could be imputed to the School Board. See id. ; see also, Chancellor v. Boeing Co. , 678 F. Supp. 250, 253 (D. Kan. 1988) (granting protective order as to ex parte interviews of employees who "may have been involved in the denial of promotions at issue in any way that their actions as agents may be imputed to defendant corporation for purposes of civil liability"). Indeed, there is a "significant likelihood" that statements made by Gilmore could be used by the Plaintiffs against the School Board. As Judge Jones stated in NAACP , while rank and file employees "should not be in positions to make statements that could be construed as admissions ... there is no way to definitely prevent this from happening." See NAACP , 122 F.Supp.2d at 1343.
Plaintiffs argue, nonetheless, that their counsel's communications with, and representation of, Gilmore are not prohibited by Rule 4-4.2 because they are representing Gilmore on an unrelated matter – that is, a potential retaliation claim against the School Board occurring after she complained about Stillions’ conduct of bullying a student (who is not one of the named plaintiffs). According to Plaintiffs, the alleged "bullying" occurred while Stillions was at Silver Sand, and in this case Plaintiffs allege that Stillions abused students while she was at Kenwood. As to this argument, the Court finds the line Plaintiffs are attempting to draw to be so fine it can barely be seen.
First, the alleged retaliation occurred because Gilmore complained about Stillions (a primary purported bad actor in this case). Second, the alleged retaliatory conduct involved N.R., one of the Plaintiffs in this action. Third, the type of retaliatory conduct alleged – Gilmore's removal as an aid for N.R. – is the very type of retaliatory conduct that Plaintiffs alleged was used by Defendant Lambert when employees complained about Frazier or Stillions. Fourth, regardless of whether Plaintiffs allege that Stillions engaged in any improper conduct during her time at Silver Sands, they do point to the School Board's transfer of Stillions at Silver Sands as an example of the School Board's failure to take action after reports of Stillions’ abuse at Kenwood. ECF Doc. 91 at 39. Thus, to say that these are unrelated matters is simply not tenable. Sada v. City of Altamonte Springs , 2010 WL 11626751, at *5 (M.D. Fla. Aug. 16, 2010) (finding that given police officer's involvement with investigation and arrest at issue, it would have been reasonable for a lawyer to conclude that the officer's actions could be imputed to the defendant city and thus counsel should not have spoken with the officer without notifying the city's counsel).
Tellingly, when the undersigned asked counsel if they could still represent Gilmore in the purported unrelated retaliation matter if the Court were to prohibit any additional communications with Gilmore as to any facts relevant to this action, counsel conceded they could not. Additionally, the undersigned notes that counsel's description of the retaliation matter may not be entirely accurate. As the School Board's counsel pointed out during the hearing, in an email exchange with Plaintiffs’ counsel, counsel specifically advised that they were representing Gilmore with regard to a retaliation action based on Gilmore's reports of abuse of the students at issue in this litigation.
Moreover, if counsel's representation of Gilmore was truly on an unrelated matter, then it is unclear to the Court why Plaintiffs’ counsel insisted on being present during defense counsel's interview with Gilmore or why Gilmore would have advised Plaintiff of such interview. While Plaintiffs’ counsel represented at the hearing that they did not necessarily know what the School Board's interview with Gilmore was about at the time, that representation was belied by an email exchange with the School Board's counsel in which it was made clear that the interview was about this matter. Thus, Plaintiffs’ counsel's attempts to recast their representation of Gilmore as limited to an unrelated matter rings hollow.
Finally, in determining whether to allow ex parte interviews of current or former employees, many courts employ a "balancing test," which weighs the "plaintiff's need to conduct discovery, investigate, and gather information on an informal basis and the defendant's need to protect communications and for adequate and effective representation." Nat'l Assoc. for Adv. of Colored People v. State of Florida, Dept. of Corr. , 122 F.Supp.2d 1335, 1341 (M.D. Fla. 2000). Although those cases involve an analysis of the propriety of ex parte interviews before they occur, even were the undersigned to apply the balancing test here, it would not weigh in favor of the Plaintiffs.
This is not a case where a plaintiff is seeking to conduct ex parte interviews of numerous employees of the defendant corporation who have knowledge about the allegations in the case to avoid the expense and burden of having to conduct formal depositions of each employee. See id. at 1342 (citing Frey v. Dep't of Health and Human Servs. , 106 F.R.D. 32, 36 (E.D. N.Y. 1985) ("to permit the [defendant] to barricade huge numbers of potential witnesses from interviews except through costly discovery procedures, may well frustrate the right of an individual plaintiff with limited resources to a fair trial")). Instead, at issue is counsel's communication with one (1) witness, Gilmore. Moreover, as Plaintiffs acknowledge, Gilmore had given statements to Farley and to state investigators and, thus, it was clear what information Gilmore had regarding the matters at issue. There is no appreciable litigation cost savings weighing in favor of an informal interview of Gilmore over having to take her deposition.
V. THE APPROPRIATE SANCTIONS
Having determined that Plaintiffs’ counsel's communications with Gilmore violated Rule 4-4.2, the undersigned must determine the appropriate sanction or remedy to be employed. As stated above, the School Board also seeks to preclude Plaintiffs from calling Gilmore as a witness and to require Plaintiffs’ counsel produce all notes, documents, communications and statements containing information obtained from Gilmore. ECF Doc. 158 at 6.
A court has inherent authority "to prohibit or remedy litigation practices which raise ethical concerns or may constitute ethical violations." See Chancellor , 678 F. Supp. at 253. In fashioning the appropriate remedy, the Court takes into consideration several factors, including the potential prejudice to the parties and "whether counsel incorrectly interpreted unsettled law," or "displayed an inappropriate disregard for the unsettled nature of that law." University of Patents, Inc. v. Kligman , 737 F.Supp. 325, 328 (E.D. Pa. 1990) (finding counsel's ex parte communications with current employees as violating Pennsylvania's Rule 4-4.2, which is identical to Florida's rule).
Given Gilmore's role as N.R.’s aide and her status as a current, rather than former, employee of the School Board, it is hard to imagine why Plaintiffs’ counsel did not tread more lightly. See Cagguila v. Wyeth Laboratories, Inc., Div. of Am. Home Products , 127 F.R.D. 653, 654 (E.D. Pa. 1989) (stating that the language of Rule 4.2 "should have put plaintiff's counsel on notice as to a potentially serious problem regarding his proposed course of action. In such an uncertain area of ethical conduct, we believe that a prudent attorney would have given notice to opposing counsel of the intent to take such a statement"); Kligman , 737 F.Supp. at 329 (noting that "[r]ather than informing opposing counsel of his intent to talk with University employees or seek leave of the court to do so, Mr. Morrison imprudently proceeded with the interviews unilaterally without regard for the potential and ethical ramifications").
Indeed, Plaintiffs could have easily moved for guidance from the Court or, at the very least, advised the School Board's counsel that they had been contacted by Gilmore. See Lang v. Reedy Creek Imp. Dist. , 888 F.Supp. 1143, 1144 (M.D. Fla. 1995) (the parties sought guidance from the court to resolve a discovery dispute concerning the appropriate scope of contact plaintiffs’ counsel may pursue with defendants’ current and former employees). As the Middle District stated in Lang , in denying a motion for ex parte interviews of current employees who were co-workers to the plaintiff in a Title VII discrimination case, "it would be difficult to conceive a scenario in which Plaintiffs could contact current employees other than [the plaintiff] without risking violation of the ethical rules and the representations Plaintiffs have made to the Court." Id. at 1149.
Nonetheless, the undersigned finds that the School Board's request to preclude Gilmore from testifying at trial to be too drastic a remedy. First, based on the Plaintiffs’ counsel's representations to the Court, the communications they have had with Gilmore have been limited to a couple of instances. Additionally, there is no evidence that Plaintiffs have obtained any privileged or confidential information from Gilmore such that they have received an unfair advantage. Moreover, the purpose of Rule 4-4.2 is not simply to prevent potentially harmful facts from being disclosed. Thus, the undersigned will deny the motion as to that request.
The undersigned notes that at the hearing the School Board's counsel agreed that, based on the Plaintiffs’ counsel's representations, and unless contrary information is discovered, excluding Gilmore as a witness would be an extreme sanction at this juncture.
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The undersigned, however, finds that the School Board's request for an order requiring Plaintiffs to produce any statements obtained in the course of those contacts to be the type of equitable relief that is warranted under the facts and circumstances here. See Cagguila , 127 F.R.D. at 654 (ordering production of statements obtained during ex parte contacts "where, as here, a party circumvents discovery procedures in order to gain an unfair advantage in litigation").
Finally, the School Board states in a footnote that they "assume" Plaintiffs’ counsel will cease his representation of Gilmore. Thus, while the School Board says they do not seek to have Plaintiffs’ counsel disqualified from representing Plaintiffs here, the School Board does appear to seek to prohibit counsel from representing Gilmore on the retaliation matter. The disqualification of counsel of one's choosing "is an extraordinary measure that should be resorted to sparingly." Metrahealth Ins. Co. v. Anclote Psychiatric Hosp. , 961 F.Supp. 1580, 1581 (M.D. Fla. 1997). A party is presumptively entitled to counsel of his or her choice, and that right should be overridden only if compelling reasons exist. In re BellSouth Corp. , 334 F. 3d 941, 961 (11th Cir. 2003).
While the Court is not inclined to prohibit Plaintiffs’ counsel from representing Gilmore, and certainly would not do so before hearing from Gilmore, the Court will preclude Plaintiffs’ counsel from engaging in any further communications between Gilmore and Plaintiffs’ counsel regarding any fact which may in any way relate to the matters in this litigation. It would behoove Plaintiffs’ counsel to apply this prohibition broadly. If Plaintiffs’ counsel cannot effectively represent Gilmore in her proposed retaliation suit against the Board while at the same time honoring Rule 4-4.2 as well as this Court's Order, then counsel should reconsider their representation of Gilmore.
Accordingly, it is ORDERED that:
1. Defendant's motions for sanctions (ECF Doc. 158 (3:18-cv-2128); ECF Doc. 130 (3:18-cv-2208); ECF Doc. 107 (3:19-cv-82); ECF Doc. 59 (3:19-cv-3639); ECF Doc. 203 (3:18-cv-453)) are GRANTED in part.
2. Plaintiffs’ counsel shall produce to the School Board's counsel any and all statements they have received from Gilmore and notes of all conversations they have had with Gilmore that contain any information relating to, or that could be perceived as relating to, any matter at issue in these consolidated cases.
3. Plaintiffs’ counsel is prohibited from engaging in any further communications with Gilmore regarding any fact or matter which may in any way relate to the matters or issues in this litigation.
DONE AND ORDERED this 6th day of August 2020.