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MICHAELS v. WOODLAND

December 12, 1997

CLAIRE M. MICHAELS, Plaintiff,
v.
MARK WOODLAND, M.D., FERTILITY & GYNECOLOGY ASSOCIATES, P.C., PENNSYLVANIA HOSPITAL, JOHN DOES 1-5, and ABC CORP. 1-3, Defendants.



The opinion of the court was delivered by: ROSEN

 ROSEN, Magistrate Judge

 I. Introduction

 Presently before the court is the motion of the plaintiff, Claire M. Michaels, for leave to contact employees and/or former employees of the defendant, Pennsylvania Hospital, ex parte pursuant to New Jersey Rule of Professional Conduct (hereinafter "RPC") 4.2. After careful consideration of the submissions of the parties, and for the reasons noted herein, the plaintiff's motion is GRANTED.

 II. Background

 Plaintiff, Claire M. Michaels, filed this medical malpractice action against the defendants, Mark B. Woodland, M.D., Pennsylvania Hospital and Fertility and Gynecology Associates on March 6, 1997. Plaintiff's Motion at 1 (hereinafter "Motion"). The plaintiff alleges that she was admitted by Dr. Woodland to Pennsylvania Hospital to undergo a "procedure to relieve urinary incontinence called a Birch *fn1" procedure." Motion at 2. After the procedure, the plaintiff alleges that she became very ill and suffered a number of complications. Motion at 2. According to the plaintiff, those complications resulted in emergency surgery where it was determined that the "plaintiff had suffered a nicked, lacerated, cut and/or otherwise injured bowel and diagnosed an entercutaneous fistula, multiple, severe abdominal abscesses, and freely spilling bowel contents." Motion at 2-3. Plaintiff asserts that Dr. Woodland was negligent in performing the initial procedure, as well as during his post-operative care of the plaintiff. Motion at 3.

 In pursuing her claim of negligent post-operative care, the plaintiff seeks to conduct ex parte interviews of those persons, specifically those nurses and nurses assistants, who participated in her post-operative care. Motion at 3. These persons were identified in the defendants' responses to interrogatories and in documents produced by the defendants. Motion at 3, 4 n.2. The plaintiff claims that these persons have relevant knowledge regarding her condition between the first and second surgery. Motion at 3-4. None of these persons are named parties to this lawsuit. The defendants' urge that such ex parte contact is inappropriate and violates RPC 4.2 since the Hospital has offered representation to all of these persons. Opposition at 4-5. Therefore, the defendants claim that all of the persons are represented within the meaning of RPC 4.2 and any ex parte contact is prohibited.

 III. Legal Analysis and Discussion

 The plaintiff relies on RPC 4.2 and 1.13 in support of this motion. Pursuant to the Local Rules of the United States District Court for the District of New Jersey (hereinafter, "Local Rules"), New Jersey law and the Rules of Professional Conduct, as revised by the New Jersey Supreme Court, shall govern the resolution of this dispute. Local Rule 103.1. It is "'clear that the ethical rules and constraints imposed on federal practitioners in New Jersey are the same as those imposed on New Jersey attorneys generally by the state Supreme Court under New Jersey Court Rule 1.14.'" Steel v. General Motors Corp., 912 F. Supp. 724, 732 (D.N.J. 1995)(quoting Allyn Z. Lite, New Jersey Federal Practice Rules 34 (1995 ed.)). Accordingly, the federal courts are counseled by the interpretation given to the RPC by the New Jersey state courts, although federal law may allow or mandate certain adaptations. Steel, 912 F. Supp. at 732. In addition, the federal courts must be mindful of the policy of New Jersey to maintain "strict compliance with its RPC." Id. (footnote omitted).

 The ethical rules governing the within motion have recently been amended. A Special Committee was established by the Supreme Court in In re Opinion 668 Of the Advisory Committee On Professional Ethics, 134 N.J. 294, 633 A.2d 959 (1993). The Committee's Report was published on March 20, 1995, Report of Special Committee on RPC 4.2, 139 N.J.L.J. 1161 (1995) (hereinafter "Committee Report"), and RPC 1.13, 4.2 and 4.3 were amended effective September 1, 1996 by Order of the Supreme Court dated June 28, 1996. The amendments reflected the recommendations made by the Committee.

 Before analyzing the substance of the Rules governing ex parte contact with witnesses, it is necessary to review the policy considerations behind RPC 4.2. "The Rule aims at preserving the integrity of the attorney-client relationship and 'the posture of the parties within the adversarial system.' Principally, the Rule seeks to protect the lay person who may be prone to manipulation by opposing counsel." Goff v. Wheaton Industries, 145 F.R.D. 351, 354 (D.N.J. 1992)(citations omitted).

 The court is unaware of any reported decisions in New Jersey interpreting the amended Rules. "Until such time [as the New Jersey Supreme Court speaks on the application of the Rules], federal courts in this district are permitted to reach their own conclusions on the scope and application of the Rule[s]." Id. at 353. However, because the Supreme Court has adopted the amendments recommended by the Committee in its Report, this court shall look to that Report as guidance in its interpretation of those amendments. See In re Prudential Insurance Company of America Sales Practices Litigation, 911 F. Supp. 148, 152 n.4 (1995)(declining to rely on the report of the special Committee since the New Jersey Supreme Court had not yet acted upon such report).

 The Committee Report indicates that it considered the definition of "which people associated with a organization are considered parties by RPC 4.2 . . . critical in determining the scope of the rule's prohibition of ex parte contact." Committee Report, 139 N.J.L.J. at 1194. The Committee then reviewed the approaches adopted by other jurisdictions, including an absolute ban on ex parte contact, use of the "facts and circumstances" test, use of the "control group" test, use of the "managing speaking agent" test, and use of the "alter-ego" test. Id. at 1194-95. After undertaking this review, the Committee made several recommendations. The main focus of these recommendations was to clarify and determine which employees or former employees were considered "represented" under RPC 4.2. See id. at 1195-96.

 The Committee recommended that ex parte contact be prohibited only with those who are part of the litigation control group, defined as: "current and former *fn2" agents and employees responsible for, or significantly involved in, the determination of the organization's legal position in the matter, whether or not in litigation. . . . Significant involvement requires involvement greater than merely supplying factual information regarding the matter in question." Id. at 1195. A distinction was made between those employees who were involved in the subject matter of the litigation and those employees who were involved in the legal decisions regarding the matter. Id. The Committee found that defining representation in terms of subject matter "would simply include too many people who, as a practical matter, could ...


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