Plaintiffs have brought an action in strict liability and negligence against defendants Givaudan Corporation (Givaudan) and Winthrop Laboratories, a division of Sterling Drug (Sterling). The plaintiffs, Robyn and Paul Erickson, individually and as Guardians Ad Litem for Mark Erickson, (plaintiffs), contend that after his birth in 1963, Mark suffered injuries to his central nervous system after being bathed in Phisohex.
During the discovery stage of this litigation, plaintiffs made informal ex parte contact with former employees of the defendant corporations. Defendants objected to such contacts arguing such contact by plaintiffs' attorney violated the Rules of Professional Conduct adopted by the New Jersey Supreme Court. Oral arguments were heard on this issue and a number of other matters on March 26th and 28th, 1991.
This opinion will only deal with the issue of informal ex parte contact of former employees of the defendants and will offer guidance to the parties in this litigation as to future contacts. At the time of the hearing, this court knew of only two contacts. Dr. Wessinger had already been deposed and is no longer relevant to this hearing. Dr. Coulston, a former Director of Experimental Pathology and Toxicology at Sterling Winthrop Research Institute from approximately 1952 to 1963, was also contacted ex parte by plaintiffs' counsel.
There are two recently published conflicting decisions in the New Jersey federal courts concerning this issue. In the New Jersey state courts this issue is one of first impression.
At the heart of the matter is 4.2 of the Rules of Professional Conduct (RPC) adopted by the New Jersey Supreme Court. The court did not formally adopt the American Bar Association (A.B.A.) Comments to the RPC but instructed us to use them as
an interpretive aid. Introduction to the Rules of Professional Conduct. Rule 4.2 states:
In representing a client, a 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 the other lawyer, or is authorized by law to do so.
The A.B.A. Comment to RPC 4.2 states in pertinent 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 (1) managerial responsibility on behalf of the organization and (2) 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 (3) or whose statement may constitute an admission on the part of the organization . . . .
In PSE&G v. Aegis, 745 F. Supp. 1037, 1042 (DNJ 1990), Judge Politan drew a bright-line barring such contacts:
In PSE&G, the defendant insurance carrier used a private investigator to locate and interview former PSE&G employees. At 1038. Defendant wanted to know about the activities of former employees on contamination sites. Plaintiff alleged that defendants were responsible for indemnification of third-party property damage claims.
Judge Politan put forward a number of bright-line test. He wanted to encourage judicial economy by discouraging an increased motion practice and "needless litigation concerning potential witnesses' theoretical testimony." At 1042. The court also characterized as "unworkable" the idea that a corporation "make a showing concerning an individual's projected testimony prior to prohibiting ex parte contact with the individual." The court also found "unworkable" the idea that an investigator or attorney would "cease questioning the moment the very information sought is revealed." In the end, Judge Politan found it more ...