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BLASENA v. CONRAIL

October 6, 1995

JOHN W. BLASENA, Plaintiff,
v.
CONSOLIDATED RAIL CORPORATION, d/b/a CONRAIL, a Pennsylvania corporation, Defendant.



The opinion of the court was delivered by: CHESLER

 STANLEY R. CHESLER, U.S. MAGISTRATE JUDGE

 This matter comes before the Court on the application of defendant Consolidated Rail Corporation ("Conrail") for an order barring counsel for plaintiff from conducting "ex parte" interviews of defendant's employees and seeking additional relief with regard to such interviews which have already occurred. The motion was referred to the undersigned by the Honorable Harold A. Ackerman, U.S.D.J. Oral argument was held on September 27, 1995.

 BACKGROUND

 This lawsuit was brought pursuant to the Federal Employer's Liability Act, 45 U.S.C. § 51 et seq. (FELA). On March 22, 1993 plaintiff John Blasena, a Conrail employee, was severely injured while working at the Oak Island departure yard in Newark, New Jersey. At the time of the accident, Plaintiff was employed as a car inspector by Defendant.

 Plaintiff contends that Conrail failed to develop appropriate procedures for the safe movement of trains in and out of the departure yard, and that this failure on Conrail's part caused plaintiff's accident.

 During the course of discovery, Conrail's attorney advised plaintiff's counsel that he should give Conrail advance notice of any attempts to communicate with Conrail employees so that counsel for Conrail could be present at these interviews. See correspondence of Adele C. Baker, Esq. dated August 1, Defendant's Exhibit A.

 Plaintiff's counsel subsequently advised defense counsel that he was in possession of interviews of Conrail employees Stuart Miller, Frank Garrison, John Piscal, Randall Kumpf, Roger Rinfret and Charles Stehanacs. (See correspondence of Alan Medvin, Esq. dated July 25, 1995, Defendant's Exhibit B.) There is no dispute that these interviews were conducted without giving notice to Conrail's counsel, who was thus not present when the interviews were conducted.

 Counsel for Conrail thereafter wrote to Plaintiff's attorney requesting that counsel refrain from further ex parte contacts with Conrail employees. Conrail also requested that counsel turn over all statements obtained from Conrail employees. (See correspondence of Thomas C. Hart, Esq. dated July 27, 1995, Defendant's Exhibit C.)

 Mr. Blasena's attorney refused to comply with Conrail's request. (See correspondence of Alan Medvin, Esq. dated July 31, 1995, Defendant's Exhibit D.) Conrail now seeks an order compelling Plaintiff to provide copies of these employee statements to Defendant, and a protective order including one or more of the following remedies: 1) barring plaintiff's attorney from conducting further ex parte interviews, 2) barring plaintiff from using the information obtained in any fashion to advance this litigation, calling these witnesses or using the information as evidence at trial and 3) disqualifying plaintiff's attorneys and agents who have had access to this information from further participation in this litigation.

 DISCUSSION

 Defendant's application is based on Rule of Professional Conduct (RPC) 4.2 which provides:

 
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 this matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

 This provision of the Rules of Professional Conduct of the American Bar Association is applicable to this case pursuant to Local Rule 6A of the U.S. District Court for the District of New Jersey which provides:

 
The Rules of Professional Conduct of the American Bar Association as revised by the New Jersey Supreme Court shall govern the conduct of the members of the bar admitted to practice in this Court, subject to such modifications as may be required or permitted by federal statute, regulation, court rule or decision of law.

 R. 6. The Rules' clear intent is that the ethical rules imposed on federal practitioners in New Jersey are the same as those imposed on all New Jersey attorneys by the New Jersey Supreme Court pursuant to R. 1:14. Alexander v. Primerica Holdings, Inc., 822 F. Supp. 1099, 1113-14 (D.N.J. 1993); Lite, Federal Practice Rules, Comment Rule 6. *fn1"

 It is defendant's contention that Plaintiff's counsel's interviews violated the current interpretation of this Rule, as applied to a corporate party. In support of this contention, Defendant relies on an interim interpretation of RPC 4.2 issued by the New Jersey Supreme Court, Matter of Advisory Committee, 633 A.2d 959, 134 N.J. 294 (1993) and a number of decisions from the New Jersey District Court. See e.g. Hanntz v. Shiley, Inc. a Div. of Pfizer, Inc., 766 F. Supp. 258, 265 (D.N.J. 1991); Goff v. Wheaton Industries, 145 F.R.D. 351 (D.N.J. 1992), Public Service Elec. and Gas Co. v. Associated Elec. Gas and Ins. Services, Ltd., 745 F. Supp. 1037, 1039 (D.N.J. 1990). Plaintiff contends that the individuals who were interviewed do not fall within the class of employees covered by RPC 4.2 - at least as that rule is currently interpreted by the New Jersey Supreme Court. See Matter of Advisory Committee, supra.

 More significantly, Plaintiff also contends that the provisions of Tile 45 U.S.C. § 60, which protect the right of a plaintiff in a case brought under the F.E.L.A. to obtain information in support of his claim, bar the application of RPC 4.2 in this case. Because, as discussed below, the Court concludes that this contention is correct and that § 60 does indeed "trump" RPC 4.2 in F.E.L.A. cases, the Court need not determine whether or not some or all of the employee ...


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