Roe v. Karval School District RE23 et al
ORDER granting in part and denying in part 54 Motion for Protective Order by Magistrate Judge Kristen L. Mix on 04/12/13.(jjhsl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 12-cv-00239-WYD-KLM
KARVAL SCHOOL DISTRICT RE23,
MARTIN ADAMS, in his personal capacity and in his capacity as Principal of Karval High
ANDREW MCCOLLUM, in his personal capacity and in his capacity as teacher at Karval
High School, and
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendant Karval School District RE23's
(“Defendant District”) Motion for Protective Order [Docket No. 54; Filed February 7, 2013]
(the “Motion”). On February 19, 2013, Plaintiff filed a Response [#57]. On March 1, 2013,
Defendant District filed a Reply [#63]. The Court has reviewed the Motion, the Response,
the Reply, the entire docket, and the applicable law, and is sufficiently advised in the
premises. For the reasons set forth below, the Motion is GRANTED in part and Denied
I. Summary of the Case
In its Motion, Defendant District seeks a protective order suppressing (1) Tanya
Seymour’s (“Seymour”) affidavit and (2) any future ex parte communications with Seymour,
John Savage (“Savage”), Todd Werner (“Werner”), and the members of the Karval School
District Board of Education. Defendant District states that Seymour is an employee of
Defendant District who is counsel’s main point of contact. Motion [#54] at 2. According
to Defendant District, Seymour “controls much of the day-to-day operations of the school.”
Id. at 3. Defendant District claims Seymour “had rather frequent communication with
counsel and counsel’s staff about the litigation.” Id. at 3. Defendant District further states
that Seymour “signed the District’s Responses to Plaintiff’s First Set of Interrogatories
under the penalty of perjury” and “was the first person listed in Interrogatory 1(a) as
someone who assisted in the response to Interrogatories.” Id. at 7, 9.
According to Defendant District, the affidavit at issue was written by a paralegal from
Plaintiff’s counsel’s law firm who “contacted Ms. Tanya Seymour at her home” and
“interviewed Ms. Seymour and subsequently requested and received an affidavit from Ms.
Seymour that included some factual information and opinion testimony based on Ms.
Seymour’s job experience.” Id. at 2. Defendant District further states that the paralegal “is
related to the Plaintiff” and that Seymour “did not fully understand the importance of
protecting attorney-client communication and the role/use of an affidavit in litigation” at the
time the paralegal contacted her. Id. at 3.
In her Response, Plaintiff argues that Seymour’s position as a secretary means she
does not qualify “as a constituent of an organization who holds a level of authority as
described in Comment  to Colo. RPC 4.2.” Response [#57] at 1. Plaintiff goes on to
argue that while “[a]t most, Ms. Seymour would be a witness in possession of privileged
information,” counsel is not prohibited from directly contacting such a witness. Id. at 4.
Plaintiff further argues that “Seymour’s alleged access to undefined, privileged
communications does not, in any way, provide her with authority to supervise, direct or
regularly consult with legal counsel, to obligate the organization with respect to this matter,
or place her in a position where her acts or omissions are imputed to the organization for
the purpose of civil liability.” Id. at 4. Plaintiff argues that Seymour’s observation of
privileged communications “between the true decision-makers . . . does not elevate her into
a position of having” the authority contemplated by Comment 7 to Colorado Rule of
Professional Conduct 4.2 (“Rule 4.2").
Id. at 5.
Instead, “[i]t merely adds to the
interviewer’s responsibility the duty to not enquire about, or perhaps even listen to,
privileged information.” Id. Plaintiff claims “the interview with Tanya Seymour was factual
in nature” and attaches the affidavit as an exhibit. Id. at 6, Ex. 1.
In its Reply, Defendant District addresses Plaintiff’s contention that Seymour’s title
excludes her from consideration as a “constituent of the organization” pursuant to
Comment 7 to Rule 4.2. Defendant District argues that the rule was modified to exclude
the prior language requiring that the employee in question have a “managerial
responsibility” which indicates that the Colorado Supreme Court did not want the definition
to be limited based on title but, instead, determined by the facts of the situation. Reply
[#63] at 2-3. Defendant District further argues that Seymour falls within the definition of
“constituent” as expressed in Colorado Ethics Opinion 69. Id. at 4.
Rule 4.2 governs a lawyer’s communications with people represented by counsel.
In representing a client, a lawyer shall 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 or is authorized to do so by law or a court order.
Colo. RPC 4.2 (2012). “Rule 4.2 is designed to prevent situations in which a represented
party may be taken advantage of by adverse counsel” because “the presence of the party’s
attorney theoretically neutralizes any undue influence.” Lobato v. Ford, Civil Action No. 05cv-01437-LTB-CBS, 2007 WL 3342598, at *15 (D. Colo. Nov. 9, 2007). Further, Comment
7 to Rule 4.2 explains:
In the case of a represented organization, this Rule prohibits communications
with a constituent of the organization who supervises, directs or regularly
consults with the organization’s lawyer concerning the matter or has authority
to obligate the organization with respect to the matter or whose act or
omission in connection with the matter may be imputed to the organization
for purposes of civil or criminal liability.
Colo. RPC 4.2, Comment 7 (2012).
Rule 4.2 “was intended to forbid ex parte
communications with all institutional employees whose acts or omissions could bind or
impute liability to the organization or whose statements could be used as admissions
against the organization.” University Patents, Inc. v. Kligman, 737 F.Supp. 325, 328 (E.D.
Pa. 1990) (finding that opposing counsel’s ex parte communications with various
employees of a university were improper and citing to counsel’s “efforts to secure affidavits
in support of his case” as support for his finding that counsel was attempting to gain
discovery through improper means).1
Seymour Is a Constituent of Defendant
Pursuant to Comment 7 to Rule 4.2, Seymour is a constituent of Defendant District
Both Rule 4.2 and Pennsylvania’s Model Rule of Professional Conduct 4.2, at issue in
University Patents, were adopted whole-cloth from the American Bar Association’s Model Rule
of Professional Conduct 4.2 and are, therefore, identical. See ABA Model R. of Prof’l Conduct
if she “supervises, directs or regularly consults with the organization’s lawyer concerning
the matter or has authority to obligate the organization with respect to the matter or whose
act or omission in connection with the matter may be imputed to the organization for
purposes of civil or criminal liability.” Colo. RPC 4.2, Comment 7 (2012). Here, Seymour
“signed the District’s Responses to Plaintiff’s First Set of Interrogatories under the penalty
of perjury” and “was the first person listed in Interrogatory 1(a) as someone who assisted
in the response to Interrogatories.” Motion [#54] at 7, 9. In addition, she “had rather
frequent communication with counsel and counsel’s staff about the litigation.” Id. at 3.
Further, “as the records custodian for the District, Ms. Seymour can bind the District as to
admissions regarding documents maintained in the normal course of business.” Reply
[#63] at 4. Therefore, the Court finds that Seymour is a constituent under Rule 4.2. See
Weeks v. Independent Sch. Dist. No. I-89 of Okla. Cnty., Okla., Bd of Ed., 230 F.3d 1201,
1210-11 (10th Cir. 2000) (finding operations supervisor and bus driver’s immediate
supervisor to be constituents of the school district and sua sponte disqualifying the lawyer
who engaged in ex parte communications as a sanction);2 see also Kligman, 737 F.Supp
at 328 (holding that ex parte communications with professor, a professor who was also a
chairman of his department, a research professor, an associate trustee, and a member of
the university’s board violated Rule 4.2).
Oklahoma Rule of Professional Conduct 4.2 is identical to Rule 4.2.
The Communication Was About the Subject of the Representation
To find a violation of Rule 4.2, the Court must find that the ex parte communication
was “about the subject of the representation.” Colo. RPC 4.2 (2012). Defendant District
claims that the paralegal “interviewed Ms. Seymour and subsequently requested and
received an affidavit from Ms. Seymour that included some factual information and opinion
testimony based on Ms. Seymour’s job experience.” Motion. at 2. The subject of the
representation “in a litigated matter is not limited to the merits of the various claims; it
includes the entire litigation process.” Hammond v. City of Junction City, Kansas, 167
F.Supp.2d 1271, 1282 (D. Kan. 2001) (finding ex parte communication concerning the
production of documents to be a violation of Rule 4.2) (internal quotation and citation
omitted).3 After a review of the affidavit, the Court concludes that the interview of Seymour
included information about the subject of the representation.
See Hammond, 167
F.Supp.2d at 1282; Biocore Med.Techs., Inc. v. Khosrowshahi, 181 F.R.D. 660, 671 (D.
Kan. 1998) (holding that an ex parte conversation scheduling a deposition violated Rule 4.2
because “a deposition is a discussion that concerns the litigation and requires the consent
of that party’s counsel.”).
This Court “has broad discretion in imposing” an appropriate remedy for counsel’s
violation of Rule 4.2. Weeks, 230 F.3d at 1211 (affirming district court’s disqualification
order); see also Faison v. Thornton, 863 F.Supp. 1204, 1215 (D. Nev.1993), overruled on
other grounds, 338 F.3d 981 (9th Cir.2003), (listing sanctions for violations of Rule 4.2,
Kansas Rule 226 which includes all of Kansas’ Rules of Professional Conduct includes
a Rule 4.2 identical to Rule 4.2.
including: excluding the use of improperly obtained information at trial, production of all
improperly obtained information, disqualification of counsel, and dismissal of the pending
litigation). “In determining the proper sanction for remedy, the court must consider the
client’s right to be represented by counsel of his choice, as well as the opposing party’s
right to prepare and try its case without prejudice.” University Patents, Inc., 737 F.Supp.
Here, because Seymour “signed the District’s Responses to Plaintiff’s First Set of
Interrogatories under the penalty of perjury” and “was the first person listed in Interrogatory
1(a) as someone who assisted in the response to Interrogatories,” Motion [#54] at 7, 9,
Plaintiff’s counsel was on notice that Seymour was an employee who “regularly consult[ed]
with the organization’s lawyer concerning the matter.” Colo. RPC 4.2, Comment 7 (2012).
As a result, at the very least, Plaintiff’s counsel should have contacted Defendant District’s
counsel as suggested in Ethics Opinion 69. See Colorado Bar Assoc. Ethics Comm.,
Formal Op. 69 (2012) (as revised). In the alternative, Plaintiff’s counsel could have sought
guidance from the Court. See id. However, “[r]ather than informing opposing counsel of
his intent to talk with [Seymour] or seeking leave of court to do so,” Plaintiff’s counsel
allowed his paralegal to interview Seymour “without regard for the potential legal and
ethical ramifications.” University Patents, Inc., 737 F.Supp. at 329 (precluding counsel’s
use of information obtained during ex parte communications that were in violation of Rule
4.2). Further, Defendant District has been prejudiced by Plaintiff’s counsel’s actions. Reply
[#63] at 8 (“[T]he District’s counsel has had to utilize an alternative contact person to
ensure the protection of attorney-client communication.”). The Court, therefore, finds that
the circumstances warrant precluding the Plaintiff from introducing any information obtained
through ex parte communications with Seymour.
Defendant District presents no evidence regarding ex parte communications with
any other constituents of Defendant District, therefore, the Court DENIES Defendant
District’s request for relief regarding Savage, Werner, and the members of the Karval
School District Board of Education.
Accordingly, for the reasons stated above,
IT IS HEREBY ORDERED that the Motion is GRANTED in part and DENIED in
IT IS FURTHER ORDERED that Plaintiff is precluded from using information
obtained during ex parte communications with Tanya Seymour.
IT IS FURTHER ORDERED that Plaintiff must produce any statements, exhibits, or
other information obtained through ex parte communications with Tanya Seymour within
fourteen (14) days.
Dated: April 12, 2013
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