Chang-Williams v. Department of the Navy
Filing
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MEMORANDUM OPINION Signed by Magistrate Judge Jillyn K Schulze on 1/25/12 (cags, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
ANGELE L. CHANG-WILLIAMS, et al.
v.
UNITED STATES OF AMERICA
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Civil No. DKC 10-783
MEMORANDUM OPINION
Presently pending is Defendant United States of America’s Motion for Protective Order.
(ECF No. 36). The motion alleges improper ex parte communications by plaintiffs’ counsel in
violation of Maryland Rule of Professional Conduct 4.2, and seeks an Order “prohibiting any and
all future ex parte contacts with former or current government employees whose actions could be
imputed to the United States1 for purposes of this case.” (ECF No. 36 at 12). The motion is
ready for resolution, and no hearing is deemed necessary. See Local Rule 105.6. For the reasons
set forth below, the government’s motion will be granted in part and denied in part.
I. Background.
On March 30, 2010, plaintiff Angele Chang-Williams filed a pro se complaint, on behalf
of herself, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.. (ECF No. 1).
After obtaining counsel, Chang-Williams filed an amended complaint on February 22, 2011,
adding her daughters, Vinele Chang and DeLisia Chang Carpenter, and her mother-in-law, Isla
Elaine Washington, as plaintiffs. (ECF No. 19). Plaintiffs allege that the United States
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The United States specifies that it seeks protection regarding seventeen current and former government employees,
listed in the United States’ response to Interrogatory No. 2 and in documents produced by the plaintiffs: (1) Col
J.M. Reed, USMC (Ret.); (2) Albert A. Washington; (3) Allan Katzberg; (4) LtCol Stephen Crow, USMC; (5) MSgt
Bruce Witherspoon, USMC; (6) Sgt Harold Holden, USMC (Ret.); (7) SSgt Fernando Steverson, USMC; (8) MSgt
John Charles, USMC (Ret.); (9) LT Joe R. Molina, USN; (10) Sgt Carl R. Ford, USMC; (11) Sgt. Paul Broadnax,
USMC; (12) Rita Friga; (13) Linda Williams; (14) Special Agent Robyn Lee Seifart; (15) Ernesto Flores; (16) SSgt.
Gerald Gory; and (17) Maj. James Richards, USMC. (ECF No. 36 at 12, n. 4).
negligently failed to protect the Chang family from a shooting attack perpetrated by Marine
Corps Sergeant Estabon Eugene, Jr. on November 12, 2002, in which plaintiff Chang-Williams
suffered serious gunshot wounds to the face and hand, and Chang-Williams’s husband and son
were killed. (ECF No. 19 ¶¶ 9, 42, 46–47, 54, 60).
Eleven days before the shooting, on November 1, 2002, Sgt. Eugene committed acts of
domestic violence against his wife, Nakeisha Rhea Eugene, who is plaintiff Chang-Williams’s
niece. (ECF No. 19 at ¶ 24). Sgt. Eugene was arrested by Maryland state authorities, charged
with battery, and released on bail allegedly secured by Marine Corps officers. (ECF No. 19 at ¶
25–26; ECF No. 36 at 3). On November 4, 2002, Marine Corps Major James Richards and
Sergeant Harold Holden visited Nakeisha Eugene at the home of another one of her aunts, Ursula
Charley. (ECF No. 1 at ¶ 2; ECF No. 36 at 3). The plaintiffs contend that Maj. Richards and
Sgt. Holden, acting within the scope of their employment, made promises to protect the Chang
family from Sgt. Eugene, and that the Chang family “did not take extraordinary measures for
safety” in reliance on those promises. (ECF No. 19 at ¶¶ 17–19). On November 12, 2002, Sgt.
Eugene, having purchased a handgun and rented a car, left the Marine Corps Headquarters
Battalion in Virginia and drove to the Maryland home of plaintiff Chang-Williams, where he
shot Chang-Williams in the face and fatally shot her husband and son, Kelvin and Aldwin
Chang. (ECF No. 19 at ¶ 30–35).
The parties are currently engaged in discovery. At issue are past and proposed future ex
parte communications by plaintiffs’ counsel with current and former government employees.
On October 25, 2011, approximately one week before Sgt. Holden’s deposition, (ECF
No. 38-1), plaintiffs’ counsel admittedly engaged in ex parte communication with Sgt. Holden.
After defense counsel protested via e-mails calling attention to the potential violation of the
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Maryland Lawyer’s Rules of Professional Conduct, (ECF No. 36-4), plaintiffs’ counsel made an
ex parte telephone call, on October 31, 2011, to Alice Stauffer, who is currently employed as a
Behavioral Health Manager within the Family Advocacy Program (FAP) at the Marine Corps
Headquarters Battalion. (ECF No. 36-2, ¶ 3). Plaintiffs’ counsel asked Ms. Stauffer questions
about her work at FAP, the availability of FAP records and documents, “what support was
provided to Nakeisha” during the incident, and whether any FAP files indicated “anything about
[Sgt. Eugene] and if he said he was going to hurt someone.” (Id. at ¶ 4).
II. Standard of Review.
Pursuant to Federal Rule of Civil Procedure 26(c), “a party or person from whom
discovery is sought may move for a protective order in the court where the action is pending.”
FED. R. CIV. P. 26(c)(1). Such orders may include, inter alia, “(A) forbidding the disclosure or
discovery; (B) specifying terms, including time and place, for the disclosure or discovery; . . .
[or] (D) forbidding inquiry into certain matters, or limiting the scope of discovery to certain
matters.” FED. R. CIV. P. 26(c)(1)(A)–(B), (D).
This Rule “confers broad discretion on the trial court to decide when a protective order is
appropriate and what degree of protection is required.” Furlow v. United States, 55 F. Supp. 2d
360, 366 (D. Md. 1999). When the issue raised involves the Rules of Professional Conduct, this
court applies those Rules as adopted by the Maryland Court of Appeals. See Local Rule 704. If
a Rule of Professional Conduct has been violated, “[f]ederal courts have inherent authority to
discipline attorneys who appear before them for conduct deemed inconsistent with ethical
standards imposed by the court.” Zachair, Ltd. v. Driggs, 965 F. Supp. 741, 749 (D. Md. 1997).
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III. Discussion.
It is undisputed that plaintiffs’ counsel engaged in ex parte communications with Sgt.
Holden and Ms. Stauffer. They argue that ex parte communication with Ms. Stauffer, a current
government employee, was proper due to counsels’ obligation to develop evidentiary
foundations for the case, and that Ms. Stauffer’s statements do not “go to the heart of plaintiffs’
theory of liability.” (ECF No. 38 at 10). They argue that the ex parte communication with Sgt.
Holden, a non-party former government employee, was permissible because he was not
extensively exposed to client confidences or privileged information. (ECF No. 38 at 2, 8–10).
Plaintiffs’ counsel states that they also seek to interview other current or former government
employees listed in the United States’ motion.
A. Current Government Employees.
Rule 4.2 of the Maryland Rules of Professional Conduct prohibits an attorney from
engaging in unauthorized ex parte communication with a represented party regarding the subject
matter of that representation.2 MD. R. PROF’L CONDUCT 4.2(a). If the represented party is an
organization, this no-contact rule applies to “each of the organization’s (1) current officers,
directors, and managing agents and (2) current agents or employees who supervise, direct, or
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Rule 4.2 states:
(a) Except as provided in paragraph (c), in representing a client, a lawyer shall not communicate about the
subject of the representation with a person who the lawyer knows is represented in the matter by
another lawyer unless the lawyer has the consent of the other lawyer or is authorized by law or court
order to do so.
(b) If the person represented by another lawyer is an organization, the prohibition extends to each of the
organization’s (1) current officers, directors, and managing agents and (2) current agents or employees
who supervise, direct, or regularly communicate with the organization’s lawyers concerning the matter
or whose acts or omissions in the matter may bind the organization for civil or criminal liability. The
lawyer may not communicate with a current agent or employee of the organization unless the lawyer
first has made inquiry to ensure that the agent or employee is not an individual with whom
communication is prohibited by this paragraph and has disclosed to the individual the lawyer’s identity
and the fact that the lawyer represents a client who has an interest adverse to the organization.
(c) A lawyer may communicate with a government official about matters that are the subject of the
representation if the government official has the authority to redress the grievances of the lawyer’s
client and the lawyer first makes the disclosures specified in paragraph (b).
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regularly communicate with the organization’s lawyers concerning the matter or whose acts or
omissions in the matter may bind the organization for civil and criminal liability.” MD. R.
PROF’L CONDUCT 4.2(b). When the government is the represented party, a lawyer may engage in
ex parte communication with a government official regarding the subject of the representation if
the government official “has the authority to redress the grievances of the lawyer's client.” MD.
R. PROF’L CONDUCT 4.2(c). Rule 4.2(c)’s official Comment 93 clarifies that such ex parte
communication is limited to “decision makers,” and that ex parte contact with “any other
government personnel” is prohibited.
Counsel’s ex parte telephone call with current managing agent Alice Stauffer, which
counsel acknowledges was about the subject of the representation in this case, (ECF No. 38 at 4,
8–9), was a clear violation of the Rule. The violation is egregious because defense counsel had
previously made plaintiffs’ counsel aware of a potential violation of the Rule. A protective order
prohibiting plaintiffs’ counsel from ex parte communications with any current government
personnel is thus granted.
B. Former Government Employees.
The Maryland Courts have not addressed the application of Rule 4.2 to ex parte
communications with former employees.4 However, Comment 6 to Rule 4.2 treats former
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Comment 9 states:
Paragraph (c) recognizes that special considerations come into play when a lawyer is seeking to redress
grievances involving the government. Subject to certain conditions, it permits communications with those
in government having the authority to redress the grievances (but not with any other government personnel)
without the prior consent of the lawyer representing the government in the matter. Paragraph (c) does not,
however, permit a lawyer to bypass counsel representing the government on every issue that may arise in
the course of disputes with the government. Rather, the paragraph provides lawyers with access to decision
makers in government with respect to genuine grievances, such as to present the view that the government's
basic policy position with respect to a dispute is faulty or that government personnel are conducting
themselves improperly with respect to aspects of the dispute. It does not provide direct access on routine
disputes, such as ordinary discovery disputes or extensions of time.
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Four Maryland cases discuss Rule 4.2, and none addresses former employees. See Auclair v. Auclair, 127 Md.
App. 1, 30 (Md. Ct. Spec. App. 1999) (holding that the appointment of a guardian ad litem for children in a divorce
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employees as “third persons” under Rule 4.4(b), which in turn prohibits counsel from “seek[ing]
information relating to the matter that the lawyer knows or reasonably should know is protected
from disclosure by statute or by an established evidentiary privilege, unless the protection is
waived.” MD. R. PROF’L CONDUCT 4.2, Comment 6, and 4.4(b). The United States asks the
court to also apply to former employees the prohibition in Rule 4.2(b) against ex parte
communications with current employees whose “acts or omissions may bind the organization for
civil and criminal liability.”
This court has prohibited ex parte communications with former employees “who
supervise, direct, or regularly communicate with the organization’s lawyers concerning the
matter” and who have confidential information regarding the subject of the representation. See
Camden v. State of Maryland, 910 F. Supp. 1115, 1117 (D. Md. 1996), (plaintiff’s counsel
engaged in ex parte communication with the former Special Assistant to the President of
defendant Bowie State University who consulted with the University’s administrative officials
and attorneys regarding the case and was involved in sending and receiving confidential
communications); Zachair, Limited v. Driggs, 965 F. Supp 741, 753 (D. Md. 1997) (day-long,
transcribed interview with defendant’s former general counsel, who had been extensively
exposed to confidential information, violated Rule 4.2); Ag Gro Services Company v. Sophia
Land Company, Inc., 8 F. Supp. 2d 495, 498 (D. Md. 1997) (counsel improperly interviewed
opposing party’s former counsel and obtained significant confidential and privileged
and custody case did not prohibit another attorney, hired by the children, from communicating ex parte with the
children regarding the subject of their representation); Butler-Tulio v. Scroggins, 139 Md. App. 122, 150 (Md. Ct.
Spec. App. 2001) (holding that Rule 4.2 did not apply to ex parte communications “between a lawyer and the
treating physician of an adverse party who has placed her [own] medical condition in issue”); Fisher v. State, 367
Md. 218, 266 (Md. 2001) (holding that defense counsel violated Rule 4.2 when they improperly contacted the
plaintiff, a current client, after plaintiff’s counsel advised the defense that the plaintiff was unwilling to speak with
defense representatives); State v. Goldsberry, 419 Md. 100, 132 (Md. 2011) (reversing a Maryland Court of Special
Appeals decision to disqualify defense counsel of a co-defendant because the lower court failed to develop a factual
record that supported its decision).
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information). As noted, Rule 4.4(b) expressly prohibits ex parte attempts to obtain protected or
privileged information from former employees.
In contrast, the Court in Collier v. RAM Partners, Inc., 159 F. Supp. 2d 889, 893 (D. Md.
2001), declined to find a violation where the ex parte communication was with defendant’s
former manager who had not been exposed to confidential information. See also Sharpe v.
Leonard Stulman Enterprises Limited Partnership, 12 F. Supp. 2d 502, 508 (D. Md. 1998) (no
violation where, in housing discrimination case, plaintiffs’ counsel obtained ex parte statements
from three former rental agents that defendant landlord had instructed them to “steer” AfricanAmericans to certain units); Davidson Supply Company, Inc. v. P.P.E., Inc., 986 F. Supp. 956,
958-59 (D. Md. 1997) (court declined to extend Rule 4.2 to any former employees but also noted
that the former employee at issue was not in any event “an attorney or an investigator, but was
simply a marketer,” and there were no confidentiality issues).
In sum, courts in this District have consistently prohibited ex parte communications with
former employees who have protected information, but have held that contact with former
employees who do not have protected information does not violate the Rule.5 In addition,
Comment 6 to Rule 4.2(b) specifically directs application of Rule 4.4(b) to former employees,
whereas Rule 4.2(b) expressly applies to current employees.6 There is, accordingly, no basis
upon which to apply Rule 4.2(b)’s prohibitions to former employees.
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Other cases in this District address, but do not decide, the issue. See The Plan Committee in the Driggs
Reorganization Case v. Driggs, 217 B.R. 67, 72 (D. Md. 1998) (court noted the need to protect lay witnesses who
are unfamiliar with their rights and duties to their former employer); Rogosin v. Mayor of Baltimore, 164 F. Supp.
2d at 684; 685; 688 (D. Md. 2001) (court declined to issue advisory opinion regarding future ex parte
communications with former employees, leaving it to counsel to assess the Rules and the risks of sanctions for
engaging in inappropriate communications).
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Comment 6 to Rule 4.2(b) and Rule 4.4(b) were adopted effective January 1, 2002, and thus post date all cases in
this District which address ex parte contact with former employees. See Order Approving Proposed Rule changes to
Maryland Rules of Professional Conduct 4.2 and 4.4 (Nov. 1, 2001), 28-23 Md. Reg. 2020 (Nov. 16, 2001).
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Rule 4.4(b) prohibits ex parte attempts to obtain from former employees information that
is protected from disclosure by statute or privilege. It does not prohibit ex parte communications
with former employees merely because their acts or omissions may be imputed to the
government. The government’s request for a blanket prohibition on ex parte communications
with former employees, supported only by a general statement that plaintiffs are attempting to
impute their acts, omissions or statements to the United States (ECF No. 36 at 12 n.4), sweeps
too broadly.
The court need not decide whether plaintiffs’ counsel violated Rule 4.4(b) with regard to
former employee Sgt. Holder because he has now been deposed and the government seeks only
prospective relief, not alleging that plaintiffs intend to rely on any allegedly improper ex parte
contact with Sgt. Holder. As to other former employees, the limited amount of information
provided in the government’s motion does not permit the court to determine whether they
possess protected information. Counsel may proceed with caution and seek the government’s
consent to contact these employees,7 or proceed with ex parte communication and risk sanctions
for any violations of the Rules of Professional Conduct.
IV. Conclusion.
For the foregoing reasons, the United States’ Motion for Protective Order is granted as to
current employees and denied as to former employees who are not reasonably likely to possess
information protected by statute or privilege.
Date: January 25, 2012_
/S/_________
JILLYN K. SCHULZE
United States Magistrate Judge
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The Plan Committee court noted that a “veritable minefield” surrounds ex parte communication with former
employees. 217 B.R. 67 at 70. If the court were to accept the United States’ invitation to rely on cases from other
districts, the minefield would be impossible to navigate. Fortunately, as noted, this court need only apply the Rules
as adopted by the Maryland Court of Appeals.
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