LeClair et al v. Napoli Group, LLC

Filing 69

MEMORANDUM AND ORDER granting in part and denying in part 53 Motion for Permission to Communicate Employees and Ex-employees of Defendants; denying 62 Motion for Protective Order. Signed by Judge William K. Sessions III on 6/23/2011. (law)

THE UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
OSCAR LeCLAIR and
THERESA LeCLAIR,
Plaintiffs,
v.
THE NAPOLI GROUP, LLC and
NAPOLI NY CO.
Defendants.

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Civil No. 2:10-CV-28

MEMORANDUM and ORDER
This diversity action involves injuries sustained by
Plaintiff Oscar LeClair when he slipped and fell on an icy
walkway outside a McDonald’s Restaurant owned and operated by
Defendants.

Mr. LeClair, who alleges that he permanently lost

the ability to walk as a result of the accident, has brought
claims for negligence and premises liability.

His wife Theresa

LeClair has brought a claim for loss of consortium.

The LeClairs

have filed a motion for permission to communicate with current
and former employees of Defendants, ECF No. 53, and a motion for
a protective order commanding Defense Counsel to refrain from
making unwarranted objections at depositions.

ECF No. 62.

For

the reasons set forth below, the motion for permission to
communicate with current and former employees is granted in part
and denied in part.

Plaintiffs’ Counsel may attempt to

communicate with Nicole Vito and Richard Whitaker, who have not

accepted representation by the firm representing Defendants, but
may not have ex parte communications with those current and
former employees who have entered into attorney-client
relationships with this firm.

The motion for a protective order

is denied.
I. Motion for Permission to Communicate with Current and Former
Employees
In April 2011, Plaintiffs’ Counsel contacted Defense Counsel
and requested to depose certain individuals who were working at
the McDonald’s Restaurant at the time of Mr. LeClair’s fall.
Defense Counsel responded by indicating that they had been
“retained to represent all present and former restaurant
employees who might become witnesses in this case.”
Mot. for Permission to Communicate 3, ECF No. 60.

Opp’n to

While Defense

Counsel agreed to produce for deposition Jennifer Akey, Bruce
Winterbottom and Robert McDougal, all of whom are current
employees who have management duties and are therefore “party
witnesses,” Defendants assert that they have no obligation to
produce non-managerial employees and former employees for
deposition unless these witnesses are subpoenaed.

Id. at 4.

Defense Counsel also asserts that, because they have established
“independent attorney-client relationship[s]” with these nonmanagerial employees and former employees, Plaintiffs’ Counsel
may not have ex-parte communications with them.

2

Id.

The LeClairs argue that “Defendants should not be allowed to
prevent Plaintiffs from interviewing [the non-managerial
employees and former employees] . . . by merely claiming that
they are represented clients.”

Mem. in Supp. of Mot. for

Permission to Communicate 1, ECF No. 53-1.

They now seek the

Court’s permission to have ex parte communications with these
current and former employees.
As an initial matter, it is clear that Defense Counsel is
correct that they have no obligation to produce non-managerial
employees and former employees for deposition by notice.

“Only a

party to litigation may be compelled to give testimony pursuant
to a notice of deposition.”

United States v. Afram Lines, Ltd.,

159 F.R.D. 408, 413 (S.D.N.Y. 1994).

A “corporate employee or

agent who does not qualify as an officer, director, or managing
agent” is not considered a party and therefore “is not subject to
deposition by notice.”

Id. at 413 (citing GTE Products Corp. v.

Gee, 115 F.R.D. 67, 68-69 (D. Mass. 1987); Sugarhill Records Ltd.
v. Motown Record Corp., 105 F.R.D. 166, 169 (S.D.N.Y. 1985)).
It is also clear that to the extent that the firm
representing Defendants has established attorney-client
relationships with individual employees and former employees,
Plaintiffs’ Counsel may not interview these individuals without
permission from that firm.

Vermont Rules of Prof’l Conduct R.

4.2 (“In representing a client, a lawyer shall not communicate

3

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
by law to do so.”); D. Vt. L.R. 83.1(a)(2)(B)(iv),
83.1(b)(2)(B)(v) (admission to practice in District of Vermont
requires familiarity with Vermont Rules of Professional
Conduct).1

Therefore, the question on which this motion turns is

whether the firm representing the Defendants has in fact
established “independent attorney-client relationships” with the
various current and former employees it asserts it has been
“retained to represent.”

Opp’n to Mot. for Permission to

Communicate 4.2

1

The New York Rules of Professional Conduct and the
American Bar Association’s Model Rules of Professional Conduct
contain nearly identical provisions regarding ex parte
communications with represented individuals. See New York Rules
of Prof’l Conduct R. 4.2; Model Rules of Prof’l Conduct R. 4.2.
2

The primary case upon which the LeClairs attempt to rely,
Nieseg v. Team I, 558 N.E.2d 1030 (N.Y. 1990), is a New York case
which both parties seem to agree does not bind this Court. See
Reply in Support of Mot. for Protective Order 5, ECF No. 67 (“New
York law may not be controlling of the federal discovery in this
case, but it is certainly instructive.”); Opp’n to Mot. for
Permission to Communicate 3. In any event, this case is
inapposite. In Nieseg, the New York Court of Appeals held that,
for the purpose of determining which employees were not
represented by the corporation’s defense counsel and could
therefore be informally interviewed by plaintiff’s counsel as
non-party witnesses, the operative test was whether the employee
was one “whose acts or omissions in the matter under inquiry are
binding on the corporation (in effect, the corporation’s ‘alter
egos’) or imputed to the corporation for purposes of its
liability, or employees implementing the advice of counsel.” 558
N.E.2d 1030, 1035 (N.Y. 1990). There is no indication here that
4

Defense Counsel has indicated that the Defendants have
“arranged for the representation” of “all present and former
restaurant employees who might become witnesses in this case.”
Opp’n to Mot. for Permission to Communicate 3, 5.

Defense

Counsel has further represented that they have “verbally
confirmed an attorney-client relationship with” current employee
Angela Robert and with former employees Robert Smith, Brandon
Marshall, Carrie Collins and Adrienne McMillon-Wilkinson.
2-3.

Id. at

The firm acknowledges that two other former employees,

Nicole Vito and Richard Whitaker, “have [not] clearly accepted
the firm’s representation” but have received letters, sent via
certified mail, notifying them that the firm has been retained to
represent them.

Id. at 5.

The firm asserts that because neither

Ms. Vito nor Mr. Whitaker have “affirmatively rejected”
representation, Defense Counsel “believes that an attorney-client
relationship with Ms. Vito and Mr. Whitaker exists.”

Id.

Based on the factual representations made in the opposition
brief, the Court accepts Defense Counsel’s representation that it
has established attorney-client relationships with Ms. Roberts,
Mr. Smith, Mr. Marshall, Ms. Collins and Ms. McMillon-Wilkinson.

the non-managerial employees Defendants have refused to produce
for deposition by notice are the “alter-egos” of the
organizational Defendants. Nieseg is also inapposite because, in
that case, counsel for the defendant corporation made no claim
that it had established independent attorney-client relationships
with the non-party employees that would prevent ex parte
interviews by plaintiff’s counsel.
5

However, Defense Counsel has not met its burden of establishing
the existence of attorney-client relationships with Ms. Vito and
Mr. Whitaker.

See Curley v. Cumberland Farms, 134 F.R.D. 77, 93

(D.N.J. 1990) (“burden of establishing an attorney-client
relationship is upon the party asserting its existence”); Serrano
v. Cintas Corp., No. 04-40132, 2010 U.S. Dist. LEXIS 18130, at
*17 ( E.D. Mich. Mar. 2, 2010) (where plaintiff “had not carried
its burden of demonstrating an attorney-client relationship with
[] other [] class members, the court permitted the defendant to
communicate with them ex parte”).

In light of basic principles

of contract law, the Court cannot find that an individual’s
failure to respond to a certified letter offering representation
creates an attorney-client relationship.

J. C. Durick Ins. v.

Andrus, 424 A.2d 249, 250 (Vt. 1980) (“The offeror cannot force
the offeree to speak or be bound by his silence.

Silence gives

consent only where there is a duty to speak.” (internal quotation
omitted)).
Because Defense Counsel has not established attorney-client
relationships with Ms. Vito and Mr. Whitaker the motion for
permission to communicate with these two individuals is granted.
Because Defense Counsel has established attorney-client
relationships with Ms. Roberts, Mr. Smith, Mr. Marshall, Ms.
Collins and Ms. McMillon-Wilkinson, the motion is denied with
respect to them.
6

However, the Court must express some concern with the
practice of what may be perceived as an attempt by one party’s
counsel to limit access to non-party witnesses by initiating
attorney-client relationships with them.

It is true that there

is no per se rule barring counsel from simultaneously
representing a defendant organization and its individual
employees in the same matter at the organization’s expense.
Dunton v. County of Suffolk, 729 F.2d 903, 908 n.4 (2d Cir.
1984); see also All Star Carts & Vehicles, Inc. v. BFI Can.
Income Fund, No. CV 08-1816, 2010 U.S. Dist. LEXIS 53290, at *1314 n.4 (E.D.N.Y. May 31, 2010) (collecting cases in which courts
declined to disqualify counsel representing a party and a nonparty witness in the absence of an actual conflict of interest);
Bonner v. Guccione, No. 94 Civ. 7735, 1997 U.S. Dist. LEXIS 2184,
at *2 (S.D.N.Y. Mar. 3, 1997) (“plaintiff has been unable to cite
any civil case holding it to be improper for an attorney to
represent both a defendant and its non-party employees”).
Furthermore, the Court recognizes that, in some instances, it may
be laudable for an employer to retain counsel to represent
employees who would otherwise not be able to afford
representation.

Nevertheless, as reflected in Canon 5 of the ABA

Model Code of Professional Responsibility and Rule 7.1 of the
Vermont Rules of Professional Conduct, a firm’s representation of
multiple clients in the same matter raises significant conflict

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of interest concerns that may ultimately have an adverse effect
on all of the clients.

For example, in the instant case, if it

is discovered that one of the former employees now represented by
Defense Counsel possesses information adverse to Defendants’
interests, the firm may be required to withdraw from this case
altogether, leaving the Defendants, as well as the current and
former employees, with the task of securing new representation.
See Model Code of Prof’l Responsibility DR 5-105 (“A lawyer shall
not continue multiple employment if the exercise of his
independent professional judgment on behalf of a client will be
or is likely to be adversely affected by his representation of
another client, or if it would be likely to involve him in
representing differing interests[.]”); Vermont Rules of Prof’l
Conduct R. 1.16 (requiring withdrawal where “the representation
will result in violation of the rules of professional conduct”).
II. Motion for Protective Order
The LeClairs’ motion for a protective order stems from an
exchange that took place during the deposition of Bruce
Winterbottom, who was working as the manager of the McDonald’s
Restaurant on the day of Mr. LeClair’s fall.

At that deposition,

Plantiffs’ Counsel asked Mr. Winterbottom the following series of
questions:
Q. At some point when you were -- after ‘86, was there some
point when the restaurant itself was renovated or changed or
modified, do you remember?

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A. Between ‘86 and 2004?
Q. Yeah.
A. No.
Q. So the way the restaurant looked on the day of the
accident in 2008 is the way that it looked in 1986?
Mot. for Protective Order 1-2.

Defense Counsel then objected,

explaining he “d[idn’t] like the form” of the last question.
Id.3

After questioning the validity of the objection and

suggesting that Defense Counsel was using the objection to
attempt to coach the witness, Plaintiffs’ Counsel terminated the
deposition.

The LeClairs now seek a protective order instructing

Defense Counsel to “refrain from making unwarranted objections at
deposition, especially if their apparent purpose is to coach or
suggest answer[s][.]”

Id. at 3.

They also ask the Court to

award them costs and attorney’s fees incurred in making this
motion.
The LeClairs argue that the question to which Defense
Counsel objected “went to the very essence of this case -- the
way the handicapped ramp appeared in 2008 (and whether it had
been changed since 1986)” and that “[t]here [was] no apparent
defect with the form of the question that could be obviated” at
the time of the deposition.

Mem. in Supp. of Mot. for Protective

3

The parties had stipulated that “all objections to
questions except as to form were reserved until the time of
trial.” Opp’n to Mot. for Protective Order 1, ECF No. 65.
9

Order 7-8, ECF No. 62-2.

Defendants respond that the objection

was proper because the question was “ambiguous, misleading, and
overbroad.”

Opp’n to Mot. for Protective Order 2, ECF No. 65.

The Court agrees that objecting to the form of the question
was not improper because the question, as worded, was in fact
ambiguous and overbroad.

As the LeClairs acknowledge in their

own motion papers, the relevant purpose of this line of
questioning was to assess whether the ramp on which Mr. LeClair
fell had been altered since 1986.

However, Plaintiffs’ Counsel

asked the much broader question of whether “the restaurant looked
on the day of the accident in 2008 [] the way that it looked in
1986[.]”

Because there were many respects in which the

appearance of the restaurant as a whole may have changed between
1986 and 2008 that would be quite irrelevant to this case (for
example the color of the bathroom tile), the question as worded
was vague and it was not improper for Defense Counsel to object
to the form.

Defense Counsel arguably could have provided a more

detailed explanation of the objection in order to facilitate
correction of the question.

However, where Counsel objects to

the form of a question and then instructs the deponent to answer
there is no affirmative obligation to further explain the
objection.

See Fed. R. Civ. P. 30(c)(2) (“An objection must be

stated concisely in a nonargumentative and nonsuggestive manner.”
(emphasis supplied)); Applied Telematics v. Sprint Corp., No.

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94-CV-4603, 1995 U.S. Dist. LEXIS 2191, at *4 (E.D. Pa. Feb. 22,
1995) (“‘Objection to form’ should be sufficient explanation to
notify the interrogator of the ground for the objection, and
thereby allow revision of the question.”).
The LeClairs’ motion for a protective order and for costs
and attorney’s fees incurred in making this motion is denied.4

Dated at Burlington, in the District of Vermont, this 23rd
day of June, 2011.

/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

4

In the last sentence of their reply in support of the
motion, the LeClairs ask, as an alternative to their request for
a protective order instructing Defense Counsel to refrain from
making improper objections, that the Court issue an order “that
all objections to depositions be reserved until trial (except as
to questions eliciting privileged information).” Reply in
Support of Mot. for Protective Order 5-6. The Court, which has
found that the objection that prompted this motion was not
improper, declines to enter such an order.
The Court also declines to impose conditions on the rescheduling of the depositions as requested by Defendants in their
opposition to the motion. See Opp’n to Mot. for Protective Order
4.
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