Any litigator tasking interviews of potential witnesses needs to know about the no-contact rule (ABA Model Rule 4.2), which forbids talking to represented people on the other side of a case. This also goes for most current employees of the other side — certainly any employee senior enough to make critical decisions or who was involved in the matter under dispute.
Ordinarily, the interviewing of former employees of the company on the other side is OK, but there are lots detailed issues that come up before deciding an interview is permissible.
Does your investigator know what those issues are? Even if he knows, will he care or just proceed as he would have anyway? The difference is important, because interview material improperly gathered could be ruled inadmissible and you could be sanctioned. You may be able to talk to the former employees, but you’re not allowed to get privileged or confidential information out of them. Your investigator should know what those concepts mean.
The topic of permissible ex-employee interviewing came up recently when Honeywell talked to a former employee of a company called ICM Controls and then retained him as a consultant to Honeywell. ICM had sued Honeywell for patent infringement, and Honeywell wanted to interview the former employee Andrew Nguyen, co-inventor of the patent in question (the other inventor is the current ICM president).
ICM alleged that Nguyen may have disclosed privileged or confidential information he obtained as a result of his employment. Honeywell responded that Nguyen had not worked for ICM for more than 20 years and that ICM had never disclosed him as a person with information relevant to its claims, “much less privileged or confidential information.”
Honeywell relied on a New York case, Muriel Siebert v. Intuit, 8 N.Y. 3d 506 (2007), which recognized that contacting an opponent’s former employee (even those privy to confidential or privileged information) may be appropriate as long as counsel operates within certain boundaries and takes measures to avoid disclosure of privileged or confidential information.
Those measures are all-important, and are why for years our firm has gone into interviews with a template agreed to by our clients. This includes how we represent ourselves and makes certain that we first tell the person we are interviewing that we do not want them to give us any privileged or confidential information. We also ask them whether or not they are represented by a lawyer. If they are, we terminate the call.
We posted about our procedures in Trial Ethics: A Template Can Save Your Life and I’ve been talking about the issue for years and have given CLE courses all over the country to state bars and the ABA. If your investigator can’t pass the simple test of flagging problems in the case we wrote about or the Honeywell matter, find yourself an investigator who can.
In the Honeywell case, Honeywell’s lawyer first made sure that Nguyen wasn’t working with ICM and wasn’t privy to privileged information, the court said. Continuing to use Ngyuen as a consultant “would entail some risk of straying into arguably privileged information,” the court warned, but that is a highly unusual fact pattern for most interviews with former employees.
The Honeywell case was a closer call than most, but in the end it affirmed that with careful precautions in place, former employees of opposing parties may be interviewed if they are unrepresented.
As long as you know the rules and follow them.
 In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.
 ICM Controls Corp. v. Honeywell International, U.S. District Court, N.D.N.Y. 5:12-cv-01766.