United States District Court, N.D. California
ORDER RE DISCOVERY MATTERS
EDWARD M. CHEN, District Judge.
On February 27, 2014, the parties filed a joint letter which raised three discovery disputes that the parties have been unable to resolve through the meet and confer process. The Court rules on these disputes as follows.
A. Plaintiff is Entitled to Discovery on Putative Class Members' Contact Information
Plaintiff seeks discovery of the contact information of all putative class members. Defendant argues, however, that because the putative class consists of current employees and because Plaintiff may seek to "impute" their actions or omissions (or knowledge) to Defendant, they are represented parties under the meaning of California Rule of Professional Conduct 2-100. Plaintiff is willing to forego informal contact with current store managers, so the question before the Court is whether Plaintiff is entitled to discovery of the contact information of Defendant's former employees and current "assistant mangers" and "key carriers." The Court finds that he is.
California Rule of Professional Conduct 2-100 generally prohibits an attorney from communicating with a "party the member knows to be represented by another lawyer in the matter, unless the member has the consent of the other lawyer." Cal. Rule Prof. Conduct 2-100(A). Relevant to the instant dispute, this rule defines "party, " in part as:
An association member or an employee of an association, corporation, or partnership, if the subject of the communication is any act or omission of such person in connection with the matter which may be binding upon or imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.
First, the Court finds that Defendant's former employees - including former store managers - do not fall within this provision. See, e.g., Lott v. United States, No. C07-3530 PJH (EMC), 2008 WL 2923437 (N.D. Cal. July 25, 2008) ("Even if the witnesses are considered former employees of the United States... under California law, it is not a violation of any ethical rule, including California Rule of Professional Conduct 2-100, if an attorney contacts a former employee of the opposing party."); Continental Ins. Co. v. Superior Court, 32 Cal.App.4th 94 (1995) ("[W]e believe that paragraph (B)(2) of rule 2-100 properly is construed to apply only to current employees.").
Second, with regard to current "assistant managers" and "key carriers, " the Court begins by noting that the California Court of Appeals has, on more than one occasion, asserted that Rule 2-100(B)(2) is to be applied narrowly. See Snider v. Superior Court, 113 Cal.App.4th 1187, 1251 (2003) ("Further, rule 2-100 must be interpreted narrowly because a rule whose violation could result in disqualification and possible disciplinary action should be narrowly construed when it impinges upon a lawyer's duty of zealous representation."); Continental Ins., 32 Cal.App.4th at 120 (rejecting a "broad or liberal interpretation of paragraph (B)(2)" to apply to former employees). Relevant to the instant employment-class action, the Court of Appeal in Continental Insurance expressly noted the ways in which ex parte communications with lower level corporate employees can further important policies:
"[W]here many corporate employees potentially possess knowledge relevant to a claim against the corporation, ex parte communication would permit identification of those employees actually possessing such knowledge and would reduce the need for expensive and unnecessary formal depositions. Ex parte communication with willing lower-echelon employees also may guide counsel to other sources of information relevant to her client's claim against the corporation and would permit counsel to ascertain the employee's value as a witness for either side. Finally, ex parte communication would permit the attorney to prepare corporate employees who are to serve as friendly witnesses at trial."
Continental Ins., 32 Cal.App.4th at 121 (quoting Stephen M. Sinaiko, Note, Ex Parte Communication and the Corporate Adversary: A New Approach, 66 N.Y.U. L. Rev. 1456 (1991)).
Thus, in Snider, the Court of Appeal found that communications with a construction company's "sales manager" did not run afoul of Rule 2-100(B)(2) because the communications "did not concern her own actions or omissions concerning the dispute, but her percipient knowledge and understanding of events surrounding the dispute." Id. at 1210.
Allowing Plaintiff to contact current assistant managers or "key carriers" would not run afoul of paragraph (B)(2). First, while an assistant manager's "act" of making a bank run without being compensated may establish a predicate to civil liability, it is not an act that itself "binds" the company within the meaning of the Rule. Rather, this "act" is the harm allegedly suffered by the assistant manager at the hands of the Defendant.
To establish liability, Plaintiff would have to prove that (1) class members incurred expenditures, (2) that were incurred in direct consequence of the discharge of his or her duties, and (3) the expenditures or losses were necessary. See Cassady v. Morgan, Lewis & Bockius LLP, 145 Cal.App.4th 220, 230 (2006). Additionally, as this Court has previously noted, the Plaintiff will have to show that Defendant knew or had reason to know that class members had incurred a reimbursable expense. See Stuart v. RadioShack Corp., 641 F.Supp.2d 901, 903 (N.D. Cal. 2009). Thus, in contrast to communications about an actual act of an assistant manager or key carrier which could be one predicate fact for establishing liability, testimony from one of Defendant's high-ranking officials regarding their knowledge that class members were not being reimbursed would more likely be legally binding or imputable to Defendant. So would testimony from high ranking managers who were aware of a general policy of failing to provide reimbursement and effectively ratified it. See Snider, 113 ...