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contractdefendantjurisdictionlitigationliabilitymotion
contractplaintiffdefendantlitigationmotionwill

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Aiken v. Business and Industry Health Group, Inc., 885 F.Supp. 1474, 130 Lab.Cas. P 57,996, 10 IER Cases 995

Facts

Dr. Aiken, a medical doctor, was terminated by Employer Health Services, Inc. after he allegedly refused to compromise patient care in favor of the company's business interests. He claimed that his dismissal was retaliatory and violated Kansas public policy and their employment contract. In the course of litigation, Dr. Aiken sought to interview former employees of the defendant to gather evidence supporting his claims, prompting the defendant to file a motion for a protective order against these ex parte contacts.

Plaintiff, a medical doctor, claims that defendant fired him because he refused to violate his duty to provide care in the best interests of his patients and, in so doing, retaliated against him in violation of Kansas public policy and breached the parties' employment contract.

Issue

Does the Model Rule of Professional Conduct prohibit ex parte contact with former employees of an organizational party represented by counsel?

Does the Model Rule of Professional Conduct prohibit ex parte contact with former employees of an organizational party represented by counsel?

Rule

The court determined that Rule 4.2 of the American Bar Association Model Rules of Professional Conduct does not apply to ban ex parte contact with former employees of an organizational party to the litigation that is represented by counsel.

The court finds that Rule 4.2 of the American Bar Association Model Rules of Professional Conduct, as adopted by the Kansas Supreme Court and made applicable to matters in federal court through the District of Kansas' local rules, does not apply to ban ex parte contact with former employees of an organizational party to the litigation that is represented by counsel.

Analysis

The court analyzed the language of Rule 4.2 and concluded that it does not explicitly prohibit communication with former employees, as they are not considered 'parties' under the rule. The court noted that the majority of jurisdictions have interpreted the rule to allow such contacts, and the concerns raised by the defendant regarding potential liability and privilege did not justify an absolute ban on ex parte communications.

The court is persuaded, consistent with the majority view, that Rule 4.2 should not be read to prohibit ex parte contact with former employees of an organizational party to the litigation that is represented by counsel.

Conclusion

The court denied the defendant's motion for a protective order, allowing Dr. Aiken to proceed with contacting former employees for interviews.

IT IS THEREFORE ORDERED BY THE COURT that the motion of defendant Employer Health Services, Inc., for a protective order (Doc. # 58) is denied.

Who won?

Dr. Aiken prevailed in this case because the court found that the Model Rule of Professional Conduct does not restrict ex parte communications with former employees, thus allowing him to gather evidence for his claims.

Plaintiff's counsel has informed the court that he will not seek information which would require any former employee to reveal a patient's confidences, but is instead interested in information such as the former employees' knowledge of plaintiff, defendant's methods of operating, the way in which those methods expose defendant's core values and the techniques which the defendant used to exert control over its employees.

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