Rodriquez v. Calace et al

Filing 64

ORDER re Plaintiff's Request re: Ex Parte Contact with BHA Employees. Signed by Judge Holly B. Fitzsimmons on 6/20/11. (Esposito, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
:
LORI RODRIGUEZ

:

:
:
v.
:
:
NICHOLAS CALACE,
:
BERNAVIN ARMSTRONG and
:
BRIDGEPORT HOUSING AUTHORITY, :
:
:
:
:

CIV. NO. 3:07CV200 (WWE)

DISCOVERY RULING RE: EX PARTE CONTACT WITH BHA EMPLOYEES
Lori Rodriguez brings this employment discrimination law
suit against her employer, the Bridgeport Housing Authority
(“BHA”); its Executive Director, Nicholas Calace, and her direct
supervisor, Bernavin Armstrong.
Plaintiff’s counsel seeks permission to contact BHA
employees ex parte to determine whether they have relevant
information to support her claims.1
Rule 4.2 of the Rules of Professional Conduct states,
In representing a client, lawyer shall not
communicate 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

1

The Court requested that plaintiff’s counsel provide a list
of the employees they want to contact ex parte along with the
employee’s job title, identifying the information that the
employee may have regarding plaintiff’s claims. Defendant BHA
provided a list of managerial employees it believes should not be
contacted ex parte under rule 4.2 of the Rules of Professional
Conduct. The employee lists were provided to the Court for in
camera review.

the other lawyer or is authorized by law to
do so.
Commentary to Rule 4.2 states in relevant part,
In the case of an organization, this Rule
prohibits communications by a lawyer for one
party concerning the matter in representation
with persons having a managerial
responsibility on behalf of the organization,
and with any other person whose act or
omission in connection with that matter may
be imputed to the organization for purposes
of civil or criminal liability or whose
statement may constitute an admission on the
part of the organization.
Twenty Seven BHA Employees
Plaintiff submitted a list of twenty-seven BHA employees
that she contends may have relevant information regarding the
claims in this law suit. To avoid the expense of costly
depositions, plaintiff seek leave to contact these BHA employees
to determine whether they have information that supports her
claim of employment discrimination.
Plaintiff has deposed the defendant Bernavin Armstrong, and
two others [Page 2, Line 20 and Page 3, Line 24], who are
included on the list of people whom plaintiff would like to
contact ex parte, but not listed on defendants’ Exhibit A.
Accordingly,

the motion is DENIED as moot as to these three

employees, unless plaintiff can make a showing as to why further
inquiry is warranted of the two non-defendant witnesses.
Attorney William Clarke is also listed by plaintiff. Clarke
conducted the investigation of Ms. Rodriguez’s claims for BHA.
BHA raises a privilege objection. Clarke’s investigation notes

were provided in lieu of ex parte contact.

Plaintiff’s motion is

DENIED as to Attorney William Clarke on the current record.
Plaintiff also lists another defendant, Executive Director
Nicholas Calace. Not only is Calace a defendant, he is also
Executive Director of BHA. Accordingly, plaintiff’s motion is
DENIED as to defendant Calace.
Plaintiff’s motion is DENIED on the current record as to the
following BHA managerial employees: (1) Blanca Carrasquillo, Site
Manager; (2) Alan Cashmore, Director of IT; (3) Robbi Dunn, Site
Manager; (4) Loretta Fuller, Site Manager; (5) Raymond Matos,
Maintenance Administrator; (6) Raphael Villegras, Chief of
Security; and (7) Tracey Zennis, Site Manager.

Theses seven

employees were designated by defendants as managerial employees
as to whom ex parte contact would not be allowed under the Rules
of Professional Conduct.
Since these seven employees are on both lists, if plaintiff
wish to be heard further, the Court can conduct a further inquiry
into whether one or more of the designated individuals meets the
tests set out in the commentary to Rule 4.2.
The remaining prospective witnesses on plaintiff’s list are
not designated by defendants as current employees as to whom an
ex parte contact would be improper. These employees are listed on
lines 3, 8 and 9 of page 1 of plaintiff’s chart; lines 11, 12,
13, 14, 15 16, 18, 19, 21 and 22 on page 2, and line 26 on page
3. Those whose job titles seem to indicate they have/had

managerial responsibilities are identified on
Page 1, Line 9
Page 2, line 12
Page 2, Line 15.
On the current record, plaintiff’s motion is DENIED as to
these three employees.
There is no basis in the current record to preclude
plaintiff’s counsel from ex parte contact with the employees or
former employees identified as follows on plaintiff’s list:
Page 1, Line 3
Page 1, Line 8
Page 2, Line 11
Page 2, Line 13
Page 2, Line 14
Page 2, Line 16
Page 2, Line 18
Page 2, Line 19
Page 2, Line 21
Page 2, Line 22
Page 2, Line 26
The Court will provide a copy of this order with the names
included to plaintiff’s counsel on request.
This is not a recommended ruling.

This is a discovery

ruling and order which is reviewable pursuant to the "clearly
erroneous" statutory standard of review.

28 U.S.C. § 636

(b)(1)(A); Fed. R. Civ. P. 6(a), 6(e) and 72(a); and Rule 2 of
the Local Rules for United States Magistrate Judges.

As such, it

is an order of the Court unless reversed or modified by the
district judge upon motion timely made.

SO ORDERED at Bridgeport this 20th day of June 2011.

___/s/___________________________
HOLLY B. FITZSIMMONS
UNITED STATES MAGISTRATE JUDGE