COL, MD v. MAINE MEDICAL CENTER INC

Filing 19

ORDER ON DISCOVERY DISPUTE By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

NANANDA COL, M.D.,
Plaintiff
v.
MAINE MEDICAL CENTER,
Defendant

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No. 2:11-cv-249-JHR

ORDER ON DISCOVERY DISPUTE

In accordance with the terms of my Report of Hearing and Order re: Discovery Disputes
and Scheduling dated February 5, 2012 (Docket No. 16), the parties have filed brief written
arguments addressing the question of whether the attorneys for the plaintiff may interview
certain individuals outside the presence of an attorney for the defendant. Docket Nos. 17 & 18.
As I understand it, the individuals at issue are seven physician employees of the
defendant, one employee of the defendant who holds a Ph.D., and two physicians who are not
employed by the defendant but who are contracted to the defendant by their respective outside
practice groups to perform as directors of certain programs at the defendant medical center.
Brief of Defendant Maine Medical Center on Ex Parte Contact With Witnesses (“MMC Brief”)
(Docket No. 17) at 1-3.
The relevant authority is Rule 4.2(a) of the Maine Rules of Professional Conduct, which
provides, in relevant part:
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
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consent of the other lawyer or is authorized to do so by law or a court
order.
Maine Rules of Professional Conduct, Rule 4.2. Communication with Person Represented by
Counsel and Limited Representations. The parties focus their attention on the following portion
of Comment 7 to the Rule:
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.
Id.
The defendant refers to this portion of the comment as a “three-part definition of ‘client’
[that] is broader than the cited language in [Crowley v. L. L. Bean, Inc.], 143 F.Supp.2d 38 (D.
Me. 2001).” MMC Brief at 3, which is this court’s initial word on this topic.

The defendant

contends that this “definition” encompasses all of the individuals at issue because “their acts,
omissions, or statements in connection with the matter might be imputed to MMC for purposes
of civil liability[.]” MMC Brief at 4.
As the plaintiff points out, Plaintiff’s Response to Brief of Defendant Maine Medical
Center on Ex Parte Contact with Witnesses (“Plaintiff Brief”) (Docket No. 18) at 1, this
interpretation of the comment would encompass any employee of a party who had “any
responsibility for management and/or supervision of employees of any activity associated with
the business of [the party].”

I agree that this interpretation sweeps too broadly, greatly

increasing the scope of coverage of the rule.

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Granted, a new version of the rule was adopted in Maine in 2009,1 and the Crowley case
construed the earlier version, which provided, in relevant part:
(f) Communicating With Adverse Party.
During the course of
representation of a client, a lawyer shall not communicate or cause
another to communicate on the subject of the representation with a party
the lawyer knows to be represented by another lawyer in that matter
unless the lawyer has the prior consent of the lawyer representing such
other party or is authorized by law to do so.
Maine Bar Rule 3.6(f), quoted in Frank v. L. L. Bean, Inc., 377 F.Supp.2d 233, 235 (D. Me.
2005). In Crowley, Judge Carter held that this rule encompassed “only those employees who
have responsibility for making decisions on the litigation and matters directly related to it” and
employees “who have the responsibility of communicating [a corporate party’s] policy and
decisions to its attorney, receiving the attorney’s advice in the first instance, and directing the
work of the [corporation’s] staff in preparing for litigation.” 143 F.Supp.2d at 42 n.3 (quotations
omitted). This interpretation was reiterated by Judge Singal in Frank, 377 F.Supp.2d at 235-38.
However, the Reporter’s Notes to Maine’s adoption of the new rules of professional
liability in 2009 state that: “Model Rule 4.2(a) is in accord with M. Bar. R. 3.6(f). Because the
Task Force thought Rule 4.2(a) was an accurate and concise exposition of the rule currently in
force in Maine, it recommended its adoption.” Reporter’s Notes – 2009, reprinted in Maine
Rules of Court Volume I – State (West, 2011), at 635. The note strongly suggests that no
expansion of the rule’s scope, like that pressed by the defendant here, was intended by adoption
of the model rule to replace Maine Bar Rule 3.6(f).
Even assuming, arguendo, that comment 7 to Model Rule of Professional Responsibility
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This issue is governed by the state’s rules of professional responsibility. Therefore, the Supreme Court case cited
by the defendant, MMC Brief at 4, is not applicable. In Upjohn Co. v. United States, 449 U.S. 383 (1981), decided
20 years before this court decided Crowley, the Supreme Court construed Federal Rule of Evidence 501. Id. at 389.
The federal rule is not at issue in the instant case. The defendant’s citation of Manske v. UPS Cartage Servs., Inc.,
No. 2:10-cv-320-JAW, 2011 WL 322002 (D. Me. Jan. 30, 2011), is similarly unhelpful. That case deals with
interpretation of Fed. R. Civ. P. 26(b) as it applies to surreptitious recording of co-employees’ statements before a
court action was filed.

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4.2(a) applies to the defendant,2 I find the reasoning of the Supreme Judicial Court of
Massachusetts to be persuasive, in an opinion cited by the plaintiff and discussing Model Rule of
Professional Responsibility 4.2, which is identical to the current Maine rule. The Supreme
Judicial Court of Massachusetts rejected the broader, comment-based interpretation urged by the
defendants in Messing, Rudavsky & Weliky, P.C. v. President & Fellows of Harvard College,
436 Mass. 347, 764 N.E.2d 825 (2002), and by the defendant here, and held that Rule 4.2 “ban[s]
contact only with those employees who have the authority to commit the organization to a
position regarding the subject matter of representation.” Id. at 357, 833.
The defendant admits that none of the employees or contractors at issue here “would be
‘clients’ if defined only by the Crowley decision[.]” MMC Brief at 4. Because I conclude that
the Crowley test still applies, that concession is determinative.
Plaintiff’s counsel is not barred by Maine Rule of Professional Responsibility 4.2 from
contacting any of the 10 listed individuals directly, without the involvement of counsel for the
defendant.

However, my earlier admonition continues to apply in the case of these 10

individuals: that counsel for the plaintiff in each such encounter identify himself or herself as an
attorney for the plaintiff, state that the interview is voluntary, and not inquire about statements of
the defendant’s attorneys subject to privilege or protection.

NOTICE
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
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The comment uses the words “organization” and “constituent” rather than “party” and “employee,” and that choice
appears to me to be significant. An unincorporated association or organization may have “constituents;” a
corporation generally does not.

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Dated this 8th day of March, 2012.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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