October 20, 2016 Articles

Best Practices for Interviewing the Adverse Corporation’s Former Key Employees

When a member of a party’s litigation team conducts an informal, ex parte interview of an adverse party’s former employee, there is a potential that the source will divulge information or documents that may be protected by attorney-client privilege

by Michael Cavendish

Key current employees of corporate litigation parties cannot be approached by counsel representing opposing parties during litigation. ABA Model Code of Professional Responsibility DR 7-104(A)(1), ABA Model Rules of Professional Conduct 4.2. This rule has been interpreted to apply to government prosecutors and their agents as equally as it does to private civil lawyers and their staffs. ABA House of Delegates Report No. 301 (approved Feb. 12-13, 1990). Former corporate party employees, however, are fair game, and may be subpoenaed and interviewed in advance of their deposition or court testimony. But when a member of a party’s litigation team conducts an informal, ex parte interview of an adverse party’s former employee, there is a potential that the source will divulge information or documents that may be protected by the attorney-client privilege formed between the source’s corporate employer and their counsel.

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