Opinion
CIVIL ACTION No. 00-2461
January 4, 2001
ORDER AND REASONS
Defendant, Nabors Offshore Corporation, has moved to compel the production of an ex parte statement of its employee obtained by plaintiff's counsel and for a protective order. Record Doc. No. 9. Plaintiff, Elisha Woodard, filed a timely opposition memorandum. Record Doc. No. 12.
The complaint alleges that Woodard was employed by Nabors as a roustabout on defendant's offshore oil rig. After plaintiff was allegedly injured on the job, his counsel hired a private investigator. The investigator contacted two Nabors employees, Kevin L. Hale and Tommy Ray Holder, and took a statement from Holder. Defendant's Exh. B, Plaintiff's Responses to Defendant's Supplemental Interrogatories.
First, Nabors seeks to compel plaintiff to produce Holder's statement. Second, relying on Rule 4.2 of the Louisiana Code of Professional Conduct and its counsel's assertion that it will make its employees available to plaintiff for depositions, defendant seeks a protective order prohibiting plaintiff's counsel from any further ex parte contacts with its current employees.
For the following reasons, defendant's motion to compel is GRANTED and its motion for protective order is GRANTED IN PART AND DENIED IN PART as follows.
ANALYSIS
A. Defendant's Motion to Compel Production of Ex Parte Statement
Although both parties fail to cite it in their memoranda, defendant's motion to compel is governed by Fed.R.Civ.P. 26(b)(3), which provides that "[a] party may obtain without the required showing a statement concerning the action or its subject matter previously made by that party." Fed.R.Civ.P. Rule 26(b)(3) (emphasis added).
A corporation acts only through its agents, i.e., its employees or other representatives. Golman-Hayden Co. v. Fresh Source Produce Inc., 217 F.3d 348, 351 n. 18 (5th Cir. 2000); Morey v. Western Am. Specialized Transp. Servs., Inc., 968 F.2d 494, 498 n. 18 (5th Cir. 1992) (citingChapotel v. Bailey Lincoln-Mercury, Inc., 363 So.2d 451, 454 n. 7 (La. 1978)). Thus, the statement of a corporation's agent is a statement of the corporation.
If Holder is Nabors's agent, then Nabors, a party, is entitled to receive his statement under Fed.R.Civ.P. 26(b)(3).
A statement of an employee is discoverable as a matter of right pursuant to Fed.R.Civ.P. 26(b)(3) if said statement would be admissible in evidence against the employer corporation as a vicarious admission. Under Fed.R.Evid. 801(d)(2)(D) a statement is an admission of the employer if it was made "by his agent or servant concerning a matter within the scope of his agency or employment, [and] made during the existence of the relationship."Thornton v. Continental Grain Co., 103 F.R.D. 605, 606 (S.D.Ill. 1984) (quoting Fed.R.Evid. 801(d)(2)(D); citing 8 C. Wright A. Miller,Federal Practice and Procedure: Civil § 2027 at n. 8); accord Robertson v. National R.R. Passenger Corp., No. 98-1397, 1999 WL 280407 (E.D. La. May 3, 1999) (Africk, M.J.); United States v. First Tenn. Bank Nat'l Ass'n, No. 94-CV-3232, 1995 WL 440808, at *2 (E.D. Tenn. 1995).
Statements made by defendants employees concerning a matter within the scope of their agency or employment, made during the existence of the relationship, can be attributed to Nabors. The rule of attribution is not limited, as plaintiff argues, to supervisory employees: "[A]ll that is required is that the statement concern a matter within the scope of the agency or employment, and that the agent or servant still be employed at the time of making the statement." M. Graham, Federal Practice and Procedure: Evidence § 6723 at 508-09 (interim ed. 1992). Those factors are present in this case.
See Corley v. Burger King Corp., 56 F.3d 709, 710 (5th Cir. 1995) (statement of defendant's manager that he was on his way to Burger King store to deliver supplies needed for the store's business when he had auto accident with plaintiff was admissible because it concerned matter within scope of his agency or employment); EEOC v. Watergate at Landmark Condo., 24 F.3d 635, 640 (4th Cir. 1994) ("significant involvement, either as advisor or participant in a process leading to a challenged decision, may suffice to establish `agency' for this purpose; it is not necessary that the declarant be the final decisionmaker"); Nekolny v. Painter, 653 F.2d 1164, 1171 (7th Cir. 1981) (once fact of agency is established, Rule 801(d)(2)(D) requires only that statement concern a matter within scope of agency or employment); Watts v. Kroger Co., 955 F. Supp. 674, 677, 678 (N.D. Miss. 1997), aff'd in part rev'd in nart on other grounds, 170 F.3d 505 (5th Cir. 1999) (co-worker's statement to plaintiff, reporting a sexual comment about plaintiff that was allegedly made by her supervisor to the co-worker, was made within scope of co-worker's employment).
Holder is a crane operator for Nabors and was plaintiff's immediate supervisor on the date of the alleged injury. Defendant's Exh. A, Supervisors' First Report of Incident. Plaintiff does not contest that Holder had supervisory authority over him. Based on the current record, it appears that Holder, Nabors's employee with supervisory authority over plaintiff, was Nabors's agent when Woodard was allegedly injured and when Holder's statement was taken. Therefore, his statement is Nabors's statement and Nabors is entitled to receive a copy of it upon request, with no further showing. Fed.R.Civ.P. 26(b)(3).
Accordingly, IT IS ORDERED that Nabors's motion to compel production of Holder's statement is GRANTED and that plaintiff must provide defendant's counsel with a copy of the statement within ten days of entry of this order.
B. Defendant's Motion for Protective Order
Nabors argues that it is entitled to a protective order prohibiting plaintiff's counsel from contacting any of its current employees under Rule 4.2 of the Louisiana Code of Professional Conduct. Rule 4.2 provides:
This court has adopted the Louisiana Rules of Professional Conduct. Local Rule 83.2.4E.
In representing a client, a lawyer shall not coimnunicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. A lawyer shall not effect the prohibited communication through a third party, including the lawyer's client.
La. Code of Prof. Conduct R. 4.2. Louisiana's Rule 4.2, like its identical counterpart in the American Bar Association ("ABA") Model Rules, is designed both to prevent disclosure of attorney/client communications and to protect an entity from "liabilitycreating" statements elicited by a skilled opposing attorney from the entity's agent/employees. Jenkins v. Wal-Mart Stores, Inc., No. 96-2220, 1997 WL 87617, at *1 (W.D. La. Feb. 27, 1997).
Plaintiff makes two arguments that he is entifled to contact Holder and other Nabors employees. First, relying on In re Shell Oil Refinery, 143 F.R.D. 105 (E.D. La. 1992), Woodard argues that Holder is not a "party" for purposes of La. Prof. Conduct Rule 4.2 because Holder is not an employee (1) with managerial responsibility, (2) whose acts or omissions concerning the subject of the representation may be imputed to the organization for liability purposes or (3) whose statements may constitute admissions on the part of the organization. Id. at 107-08 (citing ABA Model Rules of Professional Conduct, Rule 4.2, official comment).
Louisiana's Rule 4.2 is identical to the Model Rule. Although Louisiana did not adopt the official comment to Model Rule 4.2, judges of this court have looked to the comment for guidance in interpreting the term "party" as used in the rule. See Jenkins, 1997 WL 87617, at *1-2; In re Torch, Inc., Nos. 94-2300, 95-1982, 1996 WL 185765, at *4, *11 n. 3 (E.D. La. Apr. 16, 1996); In re Shell Oil Ref., 143 F.R.D. at 107-08.
Plaintiff argues, but cites no evidence to support his assertion, that Holder does not fall within any of these categories. As discussed above, the current record indicates that Holder is an agent of Nabors, with some supervisory authority over plaintiff and whose acts or omissions concerning the alleged accident may be imputed to the organization for liability purposes or whose statements may constitute admissions on the part of the organization. See White v. Illinois Cent. R.R. Co., 162 F.R.D. 118, 119 (S.D. Miss. 1995) (because crew foreman's acts or omissions might be imputed to employer for liability purposes and his statements might constitute admissions by employer, Mississippi Rule 4.2 [which is identical to the Louisiana rule] prohibited plaintiff's counsel from communicating with him ex parte). Because Holder is a "party" under Rule 4.2, plaintiff's counsel may not contact him or employees like him without defendant's consent or unless authorized by law to do so. La. Code of Prof. Conduct R. 4.2.
Possible authorization by law is plaintiff's second argument and is discussed below.
As to past contacts by plaintiff's counsel with nonsupervisory employees, Kevin Hale was a derrick hand on the same rig as Woodard. On the date of the alleged accident, Hale saw plaintiff "slip on something." Defendant's ETh. A, Incident Witness Statement. Contacts with low-level employees like Hale, who do not fall within the definition of "party" under Fed.R.Civ.P. 26(b)(3) or La. Prof. Conduct Rule 4.2, is not prohibited. See White, 162 F.R. D. at 119-20 (investigator could interview plaintiff's fellow employee, who had no managerial responsibility, whose act or omission could not be imputed to defendant and whose statement would not constitute admission by defendant); Mayfield v. Soo Line R.R., No. 95-C-2394, 1995 WL 715865, at *2 (N.D.Ill. Dec. 4, 1995) (statements of employees who were merely witnesses to a dangerous condition, but who were not involved in causing the dangerous condition and did not witness the accident allegedly caused by the condition, were not admissions attributable to defendant).
Plaintiff's second argument is that 45 U.S.C. § 60 permits him to contact defendant's employees within the bounds of Rule 4.2 because the federal statute gives him "authoriz[ation] by law to do so." La. Code of Prof. Conduct R. 4.2. Section 60 is a provision of the Federal Employer's Liability Act ("FELA"), which is incorporated by reference into the Jones Act, under which plaintiff brings his claims.
In enacting the Jones Act, Congress provided a cause of action in negligence for "[a]ny seaman who shall suffer personal injury in the course of his employment" 46 U.S.C. app. § 688(a). To this end, the Jones Act adopts by reference the "judicially developed doctrine of liability" under the Federal Employers' Liability Act ("FELA"), 45 U.S.C. § 51 et seq. Kernan v. American Dredging Co., 355 U.S. 426, 439, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958); see also 46 U.S.C. app. § 688(a) (providing that "all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply" to a seaman's Jones Act action). Thus, through the mechanism of incorporation by reference, the Jones Act gives seamen rights that parallel those given to railway employees under the FELA.Hernandez v. Trawler Miss Vertie Mae, Inc., 187 F.3d 432, 436 (4th Cir. 1999).
Section 60 of FELA provides: "Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, . . . ." 45 U.S.C. § 60.
There is a clear split of opinion among those courts that have examined the relationship between section [60] and state ethical rules prohibiting ex parte conduct. At least eight courts have held that ex pane depositions of represented witnesses in cases brought under the Act are appropriate despite ethical rules to the contrary. . . . By contrast, at least seven courts have held that section [60] of the Act does not authorize ex parte contact.Pratt v. National R.R. Passenger Corp., 54 F. Supp.2d 78, 80-81 (D. Mass. 1999).
Citing Shaffer v. Union Pac. R.R., No. 95-631-FR, 1996 WL 76157, at *2 (D. Or. Feb. 14, 1996); Mayfield v. Soo Line R.R., No. 95 C 2394, 1995 WL 715865, at *4 (N.D.Ill. Dec. 4, 1995); United Transp. Union v. Metro-North Commuter R.R. Co., No. 94 Civ. 2979, 1995 WL 634906, at *7 (S.D.N.Y. Oct. 30, 1995); Blasena v. Consolidated Rail Corp., 898 F. Supp. 282, 286 (D.N.J. 1995); Lake v. OrgulfTransp. Co., No. 92-2255-M1/A, 1993 WL 194096, at *3 (W.D. Tenn. May 24, 1993); Faragher v. National R.R. Passenger Corp., No. 91-2380, 1992 WL 25729, at *2 (E.D. Pa. Feb. 7, 1992); Harper v. Missouri Pac. R.R. Co., 264 Ill. App.3d 238, 201 Ill. Dec. 760, 636 N.E.2d 1192, 1202 (111. App. 1994); Norfolk S. Ry. Co. v. Thompson, 208 Ga. App. 240, 430 S.E.2d 371, 376 (1993). The district court's opinion in Pratt brought the number of cases in this group to nine.
Citing Belote v. Maritrans Operating Partners. L.P., No. 97-3993, 1998 WL 136523, at *6 (ED. Pa. Mar. 20, 1998); White, 162 F.R.D. at 120; Tucker v. Norfolk W. Ry. Co., 849 F. Supp. 1096, 1101 (ED. Va. 1994); Queensberry v. Norfolk W. Ry., 157 F.R.D. 21, 25 (ED. Va. 1993); Branham v. Norfolk W. Ry., 151 F.R.D. 67, 71 (S.D. W. Va. 1993); Garrett v. National R.R. Passenger Corp., No. 89-8326, 1990 WL 122911, at *2 (E.D. Pa. Aug. 14, 1990); State ex rel. Atchison, Topeka Santa Fe R.R. v. O'Malley, 888 S.W.2d 760, 763 (Mo.Ct.App. 1994).
In my view, Section 60 does not authorize an attorney to conduct ex parte interviews of an opponent's employees under La. Code of Prof. Conduct R. 4.2. I agree with those courts which have held that Section 60 regulates only the conduct of employers and, absent a clear congressional intent to do so, does not preempt state ethical rules governing attorney conduct.
"Technically, of course, the statute is a prohibition rather than an authorization," as required by Rule 4.2 to permit ex parte contacts.Branham, 151 F.R.D. at 71.
The obvious purpose of [section 60] is to allow injured railroad workers to obtain needed information about accidents in which they have been involved from their co-workers and to protect those co-workers from retaliation by the railroad. The section is not meant to be an excuse for attorneys representing railroad workers to sidestep their ethical responsibilities as set forth in [the] Rules of Professional Conduct. [Mississippi] Rule 4.2 [which is identical to the Louisiana rule] in no way prevents an injured railroad worker from obtaining needed information from his co-workers nor his co-workers from voluntarily furnishing such information. Such a Plaintiff may depose such co-workers or may request the attorney for the railroad to approve a simple interview.White, 162 F.R.D. at 120; accord Branham, 151 F.R.D. at 71 (Section 60 refers "to conduct on the part of the railroad-employer which inhibits the furnishing of information by an employee, not to ethical rules regulating the conduct of an officer of the legal system") (internal quotation omitted). Rule 4.2 "does not penalize nor does it threaten to penalize employees for offering information. It merely ensures that interviews between an adverse party and opposing counsel will be conducted according to procedures authorized by law." Belote, No. 97-3993, 1998 WL 136523, at *5.
Further, "it would be an illogical rule that made the identical attorney conduct ethical or unethical depending on the underlying law of the client's cause of action [i.e., ethical if brought under FELA or the Jones Act and unethical if brought under any other law]. Before we adopt such a rule, there must be a clear expression of the intention of the federal law to supersede the traditional responsibility of the state to proscribe the standards by which officers of the court will be judged."State ex rel. Atchison, Topeka Santa Fe R.R., 888 S.W.2d at 763. No such intention is expressed in the legislative history of Section 60.See Pratt, 54 F. Supp.2d at 81-82; Branham, 151 F.R.D. at 71 n. 18;Belote, No. 97-3993, 1998 WL 136523, at *5-6.
Accordingly, IT IS ORDERED that defendant's motion for a protective order prohibiting plaintiff's counsel or his agents from contacting defendant's current employees is GRANTED as to Holder and similar employees who could be considered agents of Nabors as discussed above. The motion is DENIED as to Hale and similar employees who could not be considered defendant's agents. However, to the extent that any such employees might be privy to privileged information, plaintiff's counsel must instruct them during any such contact that they must not discuss with or produce to plaintiff or his counsel, consultants, agents or other representatives any information that is trial preparation material or is conceivably protected by the attorney/client privilege, the work product doctrine or defendant's interest in preserving the confidentiality of its proprietary or confidential information.
Of course, the more prudent course of action, given the ethical thicket and factual uncertainties concerning whether any employee of defendant may or may not be an agent for purposes of this evaluation, would be for plaintiff's counsel to eschew ex parte contacts with any of defendant's employees and simply take their depositions, as Nabors has offered.