Navigating the Minefield of Contacting Former Employees of Corporate Parties
An in-depth review of the tricky situation when representing a witness' former employer. The author writes: "If you are counsel for a witness' former employer, and the ex-employee holds a grudge, is non-communicative, or has indicated they do not wish to speak with or cooperate with you, while that may be harsh, there is very little you can do about that. However, if you represent a former employer, and the former employee is willing to speak with you, one must often juggle somewhat confusing duties and ethical obligations."
September 26, 2022 at 10:00 AM
13 minute read
One of the more confusing aspects of representing corporate entities is the situation of where a former employee of your client is an essential fact witness. In the realm of civil litigation, these types of witnesses could fit one of numerous different examples: (1) a retail store manager who filled out the accident report following the customer's slip/fall accident; (2) an engineer who designed or marketed the product on behalf of the manufacturers, which is the subject of a products liability case; (3) an employee who happened to witness an incident which is the subject of a civil lawsuit, or one of numerous other examples.
Clearly, the attorneys for all parties will want to contact this witness, ex parte, to see what their version of events is. Depending how helpful that witness' testimony will be, a party may want to obtain a sworn affidavit of the former employee, and/or conduct a deposition or Examination Before Trial of the witness to "lock in" their sworn testimony. Of course, the level of cooperation the former employee provides, will often depend greatly on whether or not they left their employment on good terms or "not-so-good" terms.
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