Two Decisions Highlight the Perils of Witness Contact
In their Southern District Civil Practice Roundup, Edward M. Spiro and Judith L. Mogul write: In recent weeks, Judges J. Paul Oetken and Paul A. Engelmayer each issued decisions addressing different ethical dimensions of contact between attorneys and witnesses, in one case finding that the proposed contact was impermissible, and in the other finding that counsel's lack of witness contact was problematic.
June 15, 2015 at 04:14 PM
11 minute read
In recent weeks, Southern District Judges J. Paul Oetken and Paul A. Engelmayer each issued decisions addressing different ethical dimensions of contact between attorneys and witnesses, in one case finding that the proposed contact was impermissible, and in the other finding that counsel's lack of witness contact was problematic. Specifically, Judge Oetken held that the court could not countenance an exception to the “no-contact rule” permitting counsel for a defendant corporation to interview potential witnesses outside the presence of plaintiffs' class counsel, because those witnesses were also members of the plaintiff class. By contrast, Judge Engelmayer castigated plaintiffs' class counsel for not interviewing witnesses quoted as confidential informants in a securities class action complaint, in granting voluntary dismissal of the complaint after it became apparent that a number of those witnesses claimed to have been misquoted or quoted out of context.
'No-Contact Rule'
Judge Oetken's decision was issued in Jackson v. Bloomberg, L.P.,1 a collective action under the Fair Labor Standards Act and class action under the New York Labor Law, alleging that Bloomberg improperly failed to pay overtime to its customer support representatives. After the plaintiff class was certified, counsel for Bloomberg sought and received leave from Magistrate Judge Gabriel W. Gorenstein to interview (outside the presence of plaintiff's counsel) certain individuals who supervised members of the plaintiff class, but who, during the class period, had also worked as customer support representatives and were thus also members of the plaintiff class.
Although Judge Oetken characterized Judge Gorenstein's decision as a “thoughtful order” that balanced the need asserted by Bloomberg against the possible harm to the plaintiffs by imposing “restrictions designed to limit the potential for such harm,” Oetken sustained the plaintiffs' objection to Gorenstein's order, finding that the ethical rules did not permit the type of contact sought by counsel for Bloomberg regardless of the restrictions imposed.
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