Saliga v. Chemtura Corp

Filing 115

ORDER : The plaintiff's "motion for court approval to conduct ex parte interviews" 48 is granted in part and denied in part. The plaintiff's motion to compel 77 is denied. See attached ruling, 11 pages. Signed by Judge Donna F. Martinez on 11/20/13. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DIANE SALIGA,

:
:
:
:
:
:
:
:
:

Plaintiff,
v.
CHEMTURA CORPORATION,
Defendant.

CASE NO.

3:12cv832(RNC)

RULING ON PLAINTIFF'S MOTIONS
The plaintiff brings this action against her former employer
alleging that she was discriminated against, retaliated against and
terminated on account of her race (white), gender (female) and
religion ("Catholic/Christian").

Pending before the court are the

plaintiff's

approval

"motion

for

court

to

conduct

ex

parte

interviews" (doc. #48) and motion to compel (doc. #77).
A.

Motion for court approval to conduct ex parte interviews (Doc.
#48)
The plaintiff seeks to conduct ex parte interviews with four

of the defendant's former employees: Jogita Khilnani, former Vice
President of Internal Audit; Susan Mullen, former Director of Human
Resources; Christine Peterson, a former human resources employee
and Denise Mosher, a former internal audit director.
Rule 4.2 of the Connecticut Rules of Professional Conduct
prohibits an attorney representing a client from communicating
about the subject of the representation with an adverse party
represented by another lawyer without the consent of that other
lawyer.

In Dubois v. Gradco Sys., Inc., 136 F.R.D. 341 (D. Conn.

1991), then District Judge José A. Cabranes determined that Rule
4.2 does not prohibit ex parte communications by opposing counsel
with a former employee of a corporate party, with the following
exception:
[s]ome former employees continue to personify the
organization even after they have terminated their
employment relationship.
An example would be a
managerial level employee involved in the underlying
transaction,
who
is
also
conferring
with
the
organization's lawyer in marshalling the evidence on its
behalf. But the rationale is a different one. This kind
of former employee is undoubtedly privy to privileged
information, including work product, and an opposing
lawyer is not entitled to reap a harvest of such
information without a valid waiver by the organization,
or according to narrow exceptions in the discovery . . .
which permitted ex parte interviews of former employees
unless they remained members of the 'control group' (such
as non-employee directors).
Dubois v. Gradco Sys., Inc., 136 F.R.D. 341, 346 (D. Conn. 1991).
The defendant contends that former Vice President Jogita
Khilnani ("Khilnani") and former Human Resources Director Susan
Mullen ("Mullen") fall into this category and, as a result, the
defendant objects to the plaintiff's request to interview them.
The defendant argues that Khilnani and Mullen were high level
employees who had multiple communications with counsel regarding
the litigation.

In support, the defendant submits a privilege log

and

which

affidavit

documents

the

witnesses's

considerable

involvement with counsel regarding this litigation.

Because of

Khilnani

privileged

and

communications

Mullen's
and

access

extensive
to

exposure

litigation

2

to

strategy,

defendant

contends, the court should deny the plaintiff's motion as to these
two individuals.
witnesses

Upon careful review, the court agrees that these

should

not

be

subject

to

ex

parte

interviews.

Accordingly, the plaintiff's motion as to Khilnani and Mullen is
denied.

See

Weber

v.

Fujifilm

Medical

Systems,

U.S.A.,

No.

3:10CV401(JBA)(JGM), 2010 WL 2836720, at *4 (D. Conn. July 19,
2010)(certain former employees were "off limits" to ex parte
interviews by plaintiff's counsel because they were former high
level employees privy to privileged and proprietary information and
have the ability to bind the company).
The plaintiff also seeks leave from the court to conduct ex
parte interviews with former human resource employee Christine
Peterson ("Peterson") and former internal audit director Denise
Mosher ("Mosher").

The defendant does not object to interviews

with these individuals but requests that certain conditions be
imposed as was done in Weber, 2010 WL 2836720, at *4.1

1

In addition

The Weber court imposed the following conditions:

(1) Plaintiff's counsel shall notify any or all of the
eight remaining former employees, in writing, of the
nature of her role in this lawsuit, including the
identity of plaintiff and the fact that their former
employers are adverse parties;
(2) Within twenty-four hours of sending any letter(s)
pursuant to ¶1 supra, plaintiff's counsel will notify
defense counsel, in writing, of the fact that she has
sent such letter(s);
(3) Defendants are free to educate their former employees
on the details of which prior communications are
3

to the conditions in Weber, which the defendant has set forth in a
proposed protective order, the defendant requests an additional
condition that plaintiff's counsel notify defense counsel via email
within 24 hours of each ex parte communication. The plaintiff does
not object to this last condition.
The plaintiff's motion to conduct ex parte interviews with
Mosher and Petersen is granted as set forth herein.

Counsel are

instructed

prospective

to

draft

a

notice

to

provide

to

the

witnesses.2
Additional comments are in order.
argument

on

the

plaintiff's

motion.

The court heard oral
During

oral

argument,

privileged, including any discussions that are barred by
the confidentiality agreements into which they have
entered;
(4) Plaintiff's counsel shall not make any efforts to
induce or listen to any privileged communications;
(5) If defendants are able to point to specific instances
of ethical violations or questionable ethical behavior by
plaintiff's counsel with regard to the ex parte
interviews of their former employees, they may file a
motion to discontinue such interviews; and
(6) If any ex parte statements made by former employees
impute liability to defendants, defendants may move at
trial, or in motions in limine, to preclude the admission
of such statements.
Id. at *4.
2

Some of counsel's comments during oral argument suggested
that the witnesses are required to submit to these interviews.
Such is not the case. The notice must advise the witnesses that
the proposed ex parte interviews are voluntary and that the
witnesses may decline to be interviewed.
4

plaintiff's counsel disclosed that he already had communications
with Mosher, one of the former employees identified in his motion.
Despite his motion seeking court permission to engage in ex parte
communication with Mosher, plaintiff's counsel did not wait for the
court's

ruling.

He

explained

at

oral

argument

that

he

was

"desperate" to find former Vice President Khilnani and asked Mosher
about Khilnani's whereabouts. (The complaint alleges that Khilnani
and Mosher were at one time involved in a romantic relationship.
Doc. #92, Second Amended Compl. ¶9.)

When Mosher said she could

find Khilnani, plaintiff's counsel asked Mosher to serve Khilnani
with a subpoena for a deposition and for documents. Mosher agreed,
dutifully handing Khilnani the subpoena in "pit one" of the Mohegan
Sun casino.3

Khilnani responded by calling the police to complain

about harassment and stalking.

Mosher was told to leave the

casino.
This was not the only contact plaintiff's counsel had with
Mosher during the pendency of his motion. Plaintiff's counsel also
sent Mosher the defendant's discovery responses and asked for her
"thoughts," which she provided.
The

conduct

disconcerting.

of

plaintiff's

counsel

is,

at

a

minimum,

Clearly counsel believed he needed permission from

the court before communicating with defendant's former employees.

3

At the time Mosher
deposition had passed.

served
5

Khilnani,

the

date

of

the

Notwithstanding,

he

went

ahead

to

engage

Mosher

not

only

in

multiple communications but also apparently in litigation strategy.
On this record, the defendant's request that certain conditions be
imposed regarding ex parte communications with the witnesses is
warranted.
B.

Plaintiff's motion to compel (Doc. #77)
The plaintiff seeks to compel the defendant to respond to

interrogatory 2.

The plaintiff also seeks an award of fees and

costs incurred in making the motion.
There is some background to Interrogatory 2. In October 2012,
the plaintiff served 59 Requests for Admission.

The defendant

objected but provided responses and, later, served supplemental
objections and responses.

The plaintiff has not argued that the

defendant's responses to the requests for admission are deficient.
Even so, the plaintiff thereafter propounded interrogatory 2, which
asks the

defendant

to

"describe

all

the

facts

which support

defendant's denial of any request for admission . . . ."
The defendant objects to this interrogatory on a number of
grounds. The defendant argues that the phrases "all the facts" and
"denial of any request for admission" are ambiguous and vague and
that

the

interrogatory

is

overly

broad,

unduly

burdensome,

oppressive and not reasonably calculated to lead to the discovery
of admissible evidence. The defendant further states that it "does
not know with any specificity which denials the plaintiff is

6

referring to in this interrogatory" and points out that although it
"explicitly denied certain requests for admission, other responses
included

qualified

admissions."

By

defendant's

count,

interrogatory 2 could apply to 46 requests for admission that the
defendant denied or partially denied and as a result, "attempts to
circumvent Fed. R. Civ. P. 33's limit of 25 interrogatories."
The court begins by considering the purpose of requests for
admission.

Fed. R. Civ. P. 36(a)(4) provides:

If a matter is not admitted, the answer must specifically
deny it or state in detail why the answering party cannot
truthfully admit or deny it.
A denial must fairly
respond to the substance of the matter; and when good
faith requires that a party qualify an answer or deny
only a part of a matter, the answer must specify the part
admitted and qualify or deny the rest.
Rule 36's function "is to define and limit matters in controversy
between the parties."

8B Wright & Miller, Federal Practice and

Procedure § 2252 at p. 321 (3rd ed. 2010).

"The rule is intended

to expedite the trial and to relieve the parties of the cost of
proving facts that will not be disputed at trial, the truth of
which is known to the parties or can be ascertained by reasonable
inquiry."

Id. at p. 322.

"[R]equests for admission are used to

establish admission of facts about which there is no real dispute."
7 Moore's Federal Practice § 36.02 (3rd ed. 2012).
Requests for admissions are not intended for factual
discovery that should be done through interrogatories and
depositions. They are a cruder device because a party may
accept, deny or object to facts phrased by the
opposition. They exist to narrow the issues at trial
where the parties' unambiguously agree. The fact is that
7

parties in litigation conflict. They believe different
things and they have different interpretations of both
words and events. The party that proffers the requests
must recognize that its opponent may read those words
differently.
Russo v. Baxter Healthcare Corp., 51 F. Supp.2d 70, 79 (D.R.I.
1999).
In Safeco of America v. Rawstron, 181 F.R.D. 441 (C.D. Cal.
1998), in a matter of first impression, the court considered
whether an interrogatory that asks for the basis for the denial of
a series of requests for admission should be counted as a single
interrogatory

or

multiple

interrogatories

numerical limit contained in Rule 33(a).
the court
admission.

considered

the

nature

and

when

applying

the

In resolving the issue,
purpose

of

requests

for

The court held that "an interrogatory that asks the

responding party to state facts, identify witnesses, or identify
documents supporting the denial of each request for admission
contained in a set of requests for admissions usually should be
construed as containing a subpart for each request for admission
contained in the set." Rawstron, 181 F.R.D. at 446.
This approach has been widely adopted. See, e.g., Billings v.
Conseco Health Ins. Co., No. CIV–10–372–M, 2011 WL 6152029, at *3
(W.D. Ok. 2011) (where interrogatory sought factual basis for any
denial or partial denial of request for admission, it "should be
construed as containing a discrete subpart for each request for
admission"

which

resulted

in

the

8

plaintiff

exceeding

the

25

interrogatory limit); Jovanovich v. Redden Marine Supply, Inc., No.
C10–924–RSM, 2011 WL 4459171, at *2 (W.D. Wash. 2011) ("agree[ing]
with the reasoning of Safeco of America v. Rawstron, 181 F.R.D. 441
(C.D.Cal. 1998)" and determining that interrogatory that asked
plaintiff to explain the basis for any answer to the requests for
admission

that

constituted

37

was

not

an

unqualified

interrogatories,"

admission

exceeding

the

"effectively
number

of

interrogatories permitted to be served under Rule 33); Wildearth
Guardians

v.

Public

Service

Co.

of

Colorado,

No.

09cv01862(ZLW)(MEH), 2010 WL 5464313 (D. Colo. 2010)(court struck
interrogatory seeking facts supporting plaintiff's more than 100
denials or partial denials to the requests for admission on the
grounds that the interrogatory exceeds the interrogatory limit);
Dang v. Cross, No. CV 00 13001 GAF(RZX), 2002 WL 432197 (C.D. Cal.
2002)("Rule 33 does not prohibit interrogatories which reference
requests for admissions; however, 'an interrogatory that asks the
responding party to state facts, identify witnesses, or identify
documents supporting the denial of each request for admission
contained in a set of requests for admissions usually should be
construed as containing a subpart for each request for admission
contained in the set.")
Following Safeco of America v. Rawstron and its progeny,
plaintiff's interrogatory 2 runs afoul of the authorized number of

9

interrogatories of Fed. R. Civ. P. 33.4
compel is denied.

The plaintiff's motion to

To the extent that any of defendant's denials of

the requests for admission give rise to further legitimate inquiry
by the plaintiff, the plaintiff may pursue that inquiry either
through specific supplemental interrogatories (within the limit) or
by taking depositions.
The defendant requests that it be awarded its reasonable
attorneys' fees and costs incurred in responding to the plaintiff's
motion to compel.

If a motion to compel discovery is denied, "the

court must, after giving an opportunity to be heard, require the
movant, the attorney filing the motion, or both to pay the party or
deponent who opposed the motion its reasonable expenses incurred in
opposing the motion, including attorney's fees. But the court must
not order this payment if the motion was substantially justified or
other circumstances make an award of expenses unjust." Fed. R. Civ.
P. 37(a)(5)(B).

Neither exception applies.

The defendant's

request is granted.5

4

In addition, the interrogatory is problematic in other
respects.
For instance, request for admission 1 asked the
defendant to admit "plaintiff used defendant's internal complaint
procedure to complain about discrimination and/or harassment." The
defendant denied that the plaintiff had done so. Notwithstanding,
the interrogatory asks the defendant to "describe all the facts
which support defendant's denial . . . ." Other requests present
the same problem.
In defendant's words, plaintiff asks it to
"prove a negative," that is, to supply facts to show that something
did not happen.
5

Counsel are encouraged to come to agreement as to the amount
of fees.
If they cannot, at the conclusion of the case, the
10

C.

Conclusion
For these reasons, the plaintiff's "motion for court approval

to conduct ex parte interviews" (doc. #48) is granted in part and
denied in part and the plaintiff's motion to compel (doc. #77) is
denied.
SO ORDERED at Hartford, Connecticut this 20th day of November,
2013.
__________/s/_________________
Donna F. Martinez
United States Magistrate Judge

defendant may submit an affidavit and ask the court to determine
the amount of attorney's fees and costs to be awarded in connection
with this motion.
11