Former Employees: Common Problems When They Are Witnesses
Originally published in DRI’s For the Defense Magazine.
Representing an organization has always entailed “special problems” because they are inanimate entities that must act through agents. See Commodity Futures Trading Com’n v. Weintraub, 471 U.S. 343, 348 (1985). And of course, that agency dynamic can be a source of conflict and complication during litigation.
Counsel must be constantly vigilant to identify potential conflicts between an organization and its agents that may require separate representation. The agency challenges, however, do not end there. Counsel for the organization will often need to interact with a wide range of constituents, from high-level directors to low-level employees, both to investigate an issue and defend the entity.
Fact gathering from an organization’s employees can be critical. Some employees may be eye witnesses to key events. Statements by other employees could constitute admissions by the organization. See Fed. R. Evid. 801(2)(D).
Yet, the challenges of representing an organization can become even more difficult when litigation implicates action taken by or information known to individuals who were then employed with the organization but are now former employees. The most common former-employee issues to emerge during litigation usually relate to one of the following three questions:
Do organizations have a duty to collect information from former employees?
Are communications between an organization’s representatives and its former employees protected by the attorney-client privilege or the work-product doctrine?
Can ex parte contact by opposing counsel with an organization’s former employees be prohibited or restricted?
Answers to these three former-employee issues are not often clear and may vary by jurisdiction, or even among different judges within the same venue. Only generalized guidance is practical, given the lack of definitive authority. This article looks to the federal rules and precedent as a broad source of guidance because most jurisdictions generally follow federal law.
Of course, counsel should be careful to research any relevant decisions by a trial judge or directly higher appellate courts. However, the general guidance and case law surveyed below should help identify likely litigation points and possible strategies, especially if binding precedent is lacking within the venue and jurisdiction of the court action.