The opinion of the court was delivered by: Lechner, District Judge.
Facts and Procedural History
This is a product liability action brought by plaintiff
against defendants Shiley, Inc., a Division of Pfizer, Inc.
("Shiley") and Pfizer, Inc. ("Pfizer") (collectively,
"Defendants"). The complaint ("Complaint") was filed on 6 July
1990 in the superior court of New Jersey, Middlesex County. On
9 August 1990, the Complaint was removed from the superior
court. The Defendants are the designers, distributors and
manufacturers of allegedly defective heart valves which were
surgically implanted in plaintiff.
Plaintiff alleges he underwent heart valve replacement
surgery on 22 February 1985. Complaint, ¶ 1. The two artificial
heart valves (the "Shiley Valves") he received at that time
were designed, distributed and/or manufactured by the
Defendants. Plaintiff alleges the Shiley Valves subsequently
malfunctioned, requiring additional surgery on 4 August 1988 to
replace the malfunctioning valves. Id., ¶ 2. Plaintiff alleges
the second surgical valve replacement operation resulted in a
cardiovascular accident which left him permanently paralyzed
and debilitated. Id., ¶ 3.
During the course of discovery, plaintiff was provided with
a list of current and former employees of Shiley who were
involved in the manufacture, assembly, inspection and packaging
of the Shiley Valves implanted into plaintiff. On or about 27
December 1990, plaintiff's counsel contacted one of the former
employees in an effort to obtain information relevant to
Subsequently, plaintiff's counsel learned of the decision in
Public Serv. Elec. & Gas Co. v. Associated Elec. & Gas Ins.
Servs., Ltd., 745 F. Supp. 1037 (D.N.J. 1990) ("PSE & G"), which
prohibited ex parte communications with the former employees of
an adverse party corporation. Plaintiff also learned of a
decision in Curley v. Cumberland Farms, Inc., slip op. No.
86-5057 (16 Nov. 1990) (Simandle, U.S.M.J.), aff'd, 134 F.R.D.
77 (D.N.J. 1991), which permitted ex parte communications
with former non-managerial employees of an adverse corporation.
Because of the differing holdings as to the propriety of ex
parte communications with former employees, plaintiff's counsel
refrained from making further contact with former Shiley
employees. Instead, plaintiff sought a ruling from Magistrate
Judge Hedges on the question of whether plaintiff's counsel
could communicate, ex parte, with former Shiley employees.
On 31 January 1991, Magistrate Judge Hedges filed the Order.
The Order provides, in pertinent part:
. . [T]hat plaintiff may contact former
employees of defendants, pursuant to the following
1. Plaintiff shall provide in writing a list of
names of former employees with whom plaintiff
expects to conduct interviews at least two
business days prior to initiating contact with
4. Plaintiff shall afford defendant[s] the
opportunity to attend any interviews with former
employees scheduled by plaintiff, including
telephone interviews. Defendants shall notify
plaintiff of their intent to attend any such
interviews at least one business day prior to
plaintiff's stated intended contact with said
5. Nothing herein precludes any party from
obtaining a deposition under oath from any of
these persons upon due notice to all counsel in
accordance with the Federal Rules of Civil
Procedure and within the deadline for concluding
factual discovery in the case. . . .
Magistrate Judge Hedges ruled counsel could not communicate
with any former employees of a corporate adversary without
permitting the corporation, through counsel, to be part of such
communication. Plaintiff now seeks to have the Order
overruled.*fn3 Plaintiff fears that Exhibit A to the Order and
the requirement of the presence of Defendants' counsel will
chill the former employees from revealing relevant factual
information. Emmer Affidavit, ¶ 11.
Pursuant to 28 U.S.C. § 636(b)(1), Rule 72 of the Federal
Rules of Civil Procedure and Rule 40(A) of the General Rules of
the United States District Court for the District of New Jersey
(the "General Rules"), a United States Magistrate Judge may
hear "dispositive" and "nondispositive" motions assigned by the
district court. Section 636(b)(1) states a district court may
"accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate [judge]. The judge may
also receive further evidence or recommit the matter to the
magistrate [judge] with instructions." 28 U.S.C. § 636(b)(1).
With regard to nondispositive motions, "the district court
may modify the magistrate [judge's] order only if the
district court finds that the magistrate [judge's] ruling was
clearly erroneous or contrary to law." Cipollone v. Liggett
Group, Inc., 785 F.2d 1108, 1113 (3d Cir. 1986), cert. denied,
484 U.S. 976, 108 S.Ct. 487, 98 L.Ed.2d 485 (1987). With
respect to dispositive motions, the district court must make a
de novo determination of those portions of the magistrate
[judge's] report to which a litigant has filed an objection.
28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(a); General Rule
40(D)(5); see United Steelworkers of Am. v. New Jersey Zinc
Co., 828 F.2d 1001, 1005 (3d Cir. 1987).
The clearly erroneous or contrary to law standard of review
is applicable here because the order appealed from relates to
a non-dispositive discovery matter. "A finding is clearly
erroneous `when although there is evidence to support it, the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'" Dome Petroleum Ltd. v. Employers Mut. Liab. Ins.
Co., 131 F.R.D. 63, 65 (D.N.J. 1990) (quoting United States v.
Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746
(1948)); see Environmental Tectonics Corp. v. W.S. Kirkpatrick
& Co., 659 F. Supp. 1381, 1398 (D.N.J. 1987), aff'd in part,
rev'd in part, 847 F.2d 1052 (3d Cir. 1988), aff'd,
493 U.S. 400, 110 S.Ct. 701, 107 L.Ed.2d 816 (1990). In the context
of discovery matters, a magistrate judge's finding "is entitled
to great deference and [is] reversible only for an abuse of
discretion." Dome Petroleum, 131 F.R.D. at 65; see
Environmental Tectonics, 659 F. Supp. at 1399.
B. Communications with Former Employees
As a preliminary matter, it is noted federal courts may
regulate, in an exercise of their inherent power, the conduct
of attorneys appearing in federal court. In re Snyder,
472 U.S. 634, 645 n. 6, 105 S.Ct. 2874, 2881 n. 6, 86 L.Ed.2d 504
(1985). The United States District Court for the District of
New Jersey, in exercising that inherent power, has decided "The
Rules of Professional Conduct of the American Bar Association
as revised by the New Jersey Supreme Court shall govern the
conduct of members of the bar admitted to practice in this
Court, subject to such modifications as may be required or