INTERACTION OF EEOC ATTORNEYS WITH CLAIMANTS AND POTENTIAL WITNESSES * Contents. 1. Defining the Relationship Between EEOC and Claimants...

Transcription

1 INTERACTION OF EEOC ATTORNEYS WITH CLAIMANTS AND POTENTIAL WITNESSES * Contents 1. Defining the Relationship Between EEOC and Claimants Protected Communications/Privilege Issues... 2 a. Court Recognition of Privileged Communications Between EEOC Attorneys and Claimants... 3 b. The Common Interest Rule... 5 c. The Work Product Doctrine... 7 d. Defendant s Contacts with Claimants EEOC s Contacts with Claimants Contacting Defendant s Employees as Potential Witnesses a. Model Rule of Professional Conduct 4.2 (no-contact rule) b. Determining who is a Represented Person of an Organizational Defendant for Purposes of MRPC (1) Ex Parte Contact with Current Employees (2) Ex Parte Contact with Former Employees Contact with Unrepresented Persons a. In General b. Model Rules of Professional Conduct 4.3 and * Prepared by EEOC Office of General Counsel, April 2003; minor revisions made in May 2004.

2 INTERACTION OF EEOC ATTORNEYS WITH CLAIMANTS AND POTENTIAL WITNESSES 1. Defining the Relationship Between EEOC and Claimants 1 At the outset, EEOC attorneys must be cognizant that they represent the Commission, and consequently the United States Government, when bringing suit to enforce federal employment discrimination statutes. In EEOC v. Waffle House, Inc., 534 U.S. 279 (2002), the Supreme Court again recognized the significance of EEOC s public enforcement role and reaffirmed its reasoning in General Telephone. 2 In holding that an arbitration agreement binding on an individual for whom the Commission is seeking relief does not bar the Commission from obtaining victim-specific relief, the Court made clear that Title VII "makes the EEOC the master of its own case, id. at 291, and that the Commission sues in its own right and not as the representative of the aggrieved individual. But while it is well established that "the EEOC is not merely a proxy for the victims of discrimination, it is equally true that the Commission "acts at the behest of and for the benefit of specific individuals." General Telephone, 446 U.S. at 326. This dual role often creates special challenges for Commission attorneys during the course of EEOC litigation. Even before litigation is filed, the EEOC attorney must clearly inform the claimant that he or she represents the Commission and the public interest in the lawsuit and that it is possible the Commission s and claimant s interests could diverge during the course of the litigation. See Presuit Interviews of Charging Party and Other Claimants in Part 2, section III.B. of the Regional Attorneys Manual. The Commission attorney should discuss the manner in which the Commission intends to prosecute the lawsuit, specify the remedies the Commission expects to seek, and identify the ways in which the claimant is expected to cooperate, including participation in discovery. Once litigation is authorized, the claimant should be advised of her right to seek her own counsel and, with the exception of ADEA and EPA cases, to intervene in the Commission s lawsuit. See Notice to Charging Parties of Commission Suits and Model Letter Notifying Charging Party of Commission Suit in Part 2, section III.D. and Appendix, of the Regional Attorneys Manual. In ADEA and EPA cases, the EEOC attorney should notify the claimant prior to filing suit that the Commission plans to litigate the charge and of the effect of the Commission s suit on the claimant s private right of action. 1 The term claimant refers to individuals for whom EEOC is seeking relief in litigation, whether or not they filed a charge with EEOC. 2 General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318 (1980) (holding that the requirements of Fed. R. Civ. P. 23 do not apply in lawsuits where EEOC seeks relief under section 706 of Title VII for multiple victims of discrimination and stating that the purpose of the Commission s enforcement authority is "to implement the public interest as well as to bring about more effective enforcement of private rights," id. at ).

3 As the litigation proceeds, the Commission attorney should advise the claimant of significant developments in the lawsuit. If at any time in the litigation it becomes apparent that the Commission s and the claimant s interests may diverge, the EEOC attorney should explicitly advise the claimant that the Commission may take positions or actions adverse to the claimant s expressed interests or views. In this situation, the EEOC attorney should notify the claimant in writing of the potential (or actual) conflict and of the claimant s right to seek independent counsel. EEOC does not have an attorney-client relationship with claimants and Commission attorneys should not represent otherwise to courts or opposing counsel. See Williams v. United States, 665 F. Supp. 1466, (D. Ore. 1987) (determining that EEOC did not have an attorney-client relationship with potential claimants and that therefore EEOC could not be found liable under Federal Tort Claims Act for failing to implement consent decree); Hoffman v. United Telecommunications, Inc., 117 F.R.D. 440, (D. Kan. 1987) (denying EEOC s attorney-client privilege objection to providing identities of claimants and facts about their claims where EEOC had not adequately established attorney-client relationship with potential claimants); see also, Riddle v. Cerro Wire and Cable Group, Inc., 902 F.2d 918, (11 th Cir. 1990) (finding no privity for res judicata purposes between EEOC and charging party where charging party refused back pay relief negotiated by EEOC and brought subsequent lawsuit against employer); Bretton v. Bethlehem Steel Corporation, 649 F.2d 658, 669 (9 th Cir. 1980) (determining that private plaintiffs were not barred by consent decree entered in prior EEOC pattern and practice action because they were neither parties to the action nor in privity with EEOC). But even though an attorney-client relationship does not exist between an EEOC attorney and a claimant, a strong case can be made that the elements of the attorney-client privilege exist and that claimants cannot be denied the ability to engage in confidential communications with attorneys of the government agency authorized by statute to seek relief on their behalf. 2. Protected Communications/Privilege Issues From a practical standpoint, EEOC attorneys should proceed with the understanding that communications between Commission attorneys and claimants (and their representatives) are confidential. In Upjohn Co. v. United States, 449 U.S. 383 (1981), the Supreme Court stated that the purpose [of the attorney-client privilege] is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends upon the lawyer s being fully informed by the client." Id. at 389. In giving the Commission suit authority in 1972, Congress intended to bring about more effective enforcement of private rights, General 2

4 Telephone, 446 U.S. at Where Congress has provided for the enforcement of statutes through government suits based on individual claims, its purposes can be achieved only if aggrieved individuals have the same opportunity to engage in confidential communications with the government attorney litigating the case as they would with a retained private attorney. 4 a. Court Recognition of Privileged Communications Between EEOC Attorneys and Claimants A number of courts have held that communications between EEOC attorneys and claimants are privileged. EEOC v. International Profit Associates, Inc., 206 F.R.D. 215 (N.D. Ill. 2002) - Stating in Title VII sex discrimination action that [c]ommunications between prospective class members and EEOC counsel and their agents are protected from disclosure by the attorney-client privilege, id. at 219, the court held that notes from postlitigation interviews by EEOC with former and current employees were privileged. EEOC v. Chemsico, 203 F.R.D. 432, 87 Fair Empl. Prac. Cas. (BNA) 278 (E.D. Mo. 2001) - In Title VII religious discrimination action, court held that information requested by defendant in discovery was protected by attorney-client privilege to the extent the interrogatory requested any oral or written statement made by charging party to EEOC s attorney, the identity of persons who made written or oral statements to EEOC s attorney or to her agents, and notes prepared by EEOC s attorney or her agents of oral statements made to attorney or her agents by persons other than charging party. 203 F.R.D. at 433. EEOC v. Mitsubishi Motor Mfg. of America, Inc., No , slip op. at 6 (C.D. 3 See General Telephone, 446 U.S. at 325 n.7, where the Court quotes from a Senate report discussing the burden on Title VII claimants prior to the 1972 amendments of having to bear the expense of suing as private parties. 4 See the 1996 OGC memorandum Relationship Between EEOC and Charging Parties and other Claimants Regarding Litigation Matters, cpmem,wpd, available on insite at Litigation/OGC Resources/Substantive Legal Materials/Ethics/Privileges, for additional discussion of the rationale for applying the attorney-client privilege to communications between Commission attorneys and claimants. Claimants should be explicitly advised that the attorney-client privilege may be waived if communications are disclosed to third persons. The EEOC attorney should direct each claimant to refrain from disclosing the substance of communications with the Commission to any person other than his or her own attorney. 3

5 Ill. Oct. 23, 1997) 5 - The court stated that "an attorney has the right to freely communicate with her client with reference to proposed and pending litigation, and this includes the EEOC when it brings a Title VII action on behalf of certain known persons who have or may claim that they have been sexually discriminated against by their employer." The court further held that "communications [between EEOC and the 289 identified claimants] regarding the lawsuit, including upcoming depositions, therefore fall within a permissible range of attorney-client communications" because the claimants identified themselves to the EEOC as persons seeking representation in the lawsuit. Id. at 7. Bauman v. Jacobs Suchard, Inc., 136 F.R.D. 460 (N.D. Ill. 1990) - In this ADEA action in which EEOC intervened, defendant sought to compel production of EEOC questionnaires completed by former employees of defendant who were not plaintiffs in the lawsuit, but for whom EEOC was seeking relief in a separate lawsuit. Denying the motion to compel, the court found that "while there does not appear to be any formal attorney-client relationship, the EEOC, through its attorneys, [is] essentially acting as de facto counsel for the employees.... Communications between the EEOC attorneys and the employees represented in ADEA cases brought by the EEOC are privileged." Id. at Also refer to analysis in Common Interest Rule subsection below. EEOC v. Georgia Pacific Corp., 11 Fair Empl. Prac. Cas. (BNA) 722 (D. Ore. 1975) - EEOC filed suit under section 706(i) of Title VII to compel employer to comply with a judgment entered in a prior action brought by the charging party and defendant sought to compel production of written communications between EEOC staff and charging party. The court determined that such communications were privileged because charging party intended to seek legal advice, expected her communications to remain confidential, and believed EEOC attorneys were 5 Cited in EEOC v. International Profit Associates, Inc., 206 F.R.D. 215, 219 (N.D. Ill. 2002). 6 Defendants may argue that Bauman s reasoning does not apply to EEOC lawsuits brought under Title VII and the ADA, statutes that do not contain provisions terminating an individual s right of action following an EEOC suit on the same claim. See EEOC v. TIC The Industrial Company, 2002 WL , 90 Fair Empl. Prac. Cas. (BNA) 737 (E.D. La. 2002) (permitting discovery of questionnaire responses in Title VII action; discussed in subsection 2.d. below). However, the argument that communications between EEOC attorneys and claimants are confidential is not dependent upon an individual s opportunity to independently file suit or to intervene. Rather, the Commission s position is that where Congress has authorized enforcement of statutes through government suits on individual claims, its purposes can be fully accomplished only if the government attorneys have the same right as private counsel to communicate confidentially with the aggrieved individuals. 4

6 representing her in the enforcement action. Gormin v. Brown-Forman Corp., 133 F.R.D. 50, 53 (M.D. Fla. 1990) - While finding that defendant could subpoena directly 61 employees listed as aggrieved individuals in EEOC s complaint because EEOC was not bringing a representative action under Fed. R. Civ. P. 23 but rather was seeking relief for "a large group of aggrieved individuals who may have competing and conflicting interests," the court noted that if an aggrieved individual "expressly asserted his desire to have EEOC counsel render him confidential legal advice," an attorney-client relationship may be found. 7 EEOC v. HBE Corp. d/b/a Adam s Mark Hotel, 1994 WL , at *2, 64 Fair Empl. Prac. Cas. (BNA) 1518 (E.D. Mo. 1994) - See Common Interest Rule subsection below. EEOC v. Chemtech Int l Corp., 1995 WL , at *1, 4 AD Cas. (BNA) 1465 (S.D. Tex. 1995) - See Common Interest Rule subsection below. b. The Common Interest Rule An independent basis for asserting the attorney-client privilege with regard to communications between EEOC attorneys and claimants is the "common interest rule." The common interest rule protects communications between an individual (or entity), or the individual s attorney, and an attorney representing a person or entity that shares a common interest with the individual with respect to the legal matter to which the communications relate. The rationale for the rule, that effective representation requires full disclosure of information among those with similar legal interests, is directly applicable to communications between EEOC attorneys and claimants. See generally, United States v. Schwimmer, 892 F.2d 237, (2d Cir.), cert. denied, 112 S.Ct. 55 (1991). Further, the rule should apply whether or not a claimant is represented by counsel, see In re Grand Jury Subpoena Duce Tecum, 406 F. Supp. 381, (S.D.N.Y. 1975), or is a party to the litigation, see United States v. Zolin, 809 F.2d 1411, 1417 (9 th Cir.), vacated in part on other grounds, 491 U.S. (1989); Anderson v. Torrington Co., 120 F.R.D. 82 (N.D. Ind. 1987). The common interest rule was applied to communications between EEOC attorneys and claimants in the following cases. EEOC v. HBE Corp. d/b/a Adam s Mark Hotel, 1994 WL , at *2, 64 Fair Empl. Prac. Cas. (BNA) 1518 (E.D. Mo. 1994) - In this Title VII retaliation action, charging party had intervened and was represented by private counsel. During 7 In spite of language like this in some opinions, EEOC attorneys should never contend that they have an attorney-client relationship with a claimant. 5

7 charging party s deposition, defendant s counsel asked charging party about the content of a conversation he had with the EEOC attorney. The EEOC attorney asserted the attorney-client privilege and instructed the charging party not to answer. The court denied the defendant s motion to compel, relying upon both the common interest rule and direct application of the attorney-client privilege. The court determined that the EEOC and the charging party had a common interest in the litigation because both brought suit for alleged discrimination by defendant. The court also considered that the charging party had sought legal advice from the EEOC attorney with the understanding that their communications would be confidential. EEOC v. Chemtech Int l Corp., 1995 WL at *1, 4 AD Cas. (BNA) 1465 (S.D. Tex. 1995) - In this ADA action, the defendant moved to compel production of a document which contained confidential communications between the charging party intervenor and EEOC attorneys. The court found that "because the EEOC and the private citizen have many identical interests, the attorney-client privilege is essentially a joint prosecution privilege that extends to communications between a party and the attorney for a co-litigant." Id. (citing Bauman v. Jacobs Suchard, Inc., 136 F.R.D. 460, 462 (N.D. Ill. 1990). The court also stated that the attorney-client privilege "may apply in the governmental context between a government attorney and a private citizen" (citing Donovan v. Teamsters Union Local 25, 103 F.R.D. 550 (D. Mass. 1984) (communications between Department of Labor (DOL) attorney and individual on whose complaint DOL brought Labor-Management Reporting and Disclosure Act suit protected by attorney-client privilege).) Id. In denying defendant s motion to compel, the court concluded that while the interests of the EEOC and charging party were not identical, the charging party was acting in the client role with respect to EEOC attorneys because the EEOC was representing charging party s interests in the litigation. Bauman v. Jacobs Suchard, Inc., 136 F.R.D. 460 (N.D. Ill. 1990) - In addition to seeking production of responses to questionnaires sent by EEOC to claimants in a separate Commission ADEA action (see discussion in subsection a. above), defendant sought to compel production of a Commission questionnaire responded to by a class member in the instant lawsuit who was not a claimant in the EEOC action. The court again refused to compel production and stated: [T]he EEOC and the other plaintiffs... are aligned together. The privilege applies to communications between a party and the attorney for a co-litigant." Id. at 462. See also Hoffman v. United Telecommunications, Inc., 1982 WL 20514, at *9, 45 Empl. Prac. Dec. (CCH) 37,636 (D. Kan. 1982) - In this Title VII sex discrimination action in which EEOC intervened, the court denied defendants motion to compel and granted plaintiff s motion for a protective order regarding communications by plaintiff Hoffman to her attorney, which were communicated 6

8 by Hoffman s attorney to an EEOC attorney. The court said that [w]here there is a community of interest as there is here, between counsel for plaintiff and counsel for plaintiff intervenor, disclosure by the EEOC attorney of the communication would violate Hoffman s attorney s (opinion) work product privilege and Hoffman s attorney-client privilege. c. The Work Product Doctrine The work product doctrine provides another method for protecting communications between EEOC attorneys and claimants. See generally Hickman v. Taylor, 329 U.S. 495 (1947); Upjohn Co. v. United States, 449 U.S. 383, (1981); Fed. R. Civ. P. 26(b)(3). The fact that Commission attorneys represent the agency rather than the claimant is not relevant to their ability to invoke the work product privilege. Citing Fed. R. Civ. P. 26(b)(3), EEOC attorneys should resist disclosure of oral 8 and written communications with a claimant or potential witness made in anticipation of or for litigation when such disclosure would reveal the EEOC attorney s mental impressions, conclusions, opinions or legal theories. See Ford v. Phillips Electronics Instruments Co., 82 F.R.D. 359, 361 (E.D. Pa. 1979) (holding that defense counsel s inquiry of nonparty deponent could not "include questions that tend to elicit the specific questions posed to the witness by plaintiff's counsel [at earlier, private meeting], the general line of inquiry pursued by plaintiff's counsel, the facts to which plaintiff's counsel appeared to attach significance, or any other matter that reveal[ed] plaintiff's counsel's mental impressions concerning th[e] case."); see also Russell v. General Electric Co., 149 F.R.D. 578, (N.D. Ill. 1993); Ceco Steel Products Corp. v. H.K. Porter Co., 31 F.R.D. 142 (N.D. Ill. 1962). But see United States v. International Business Machines Corp., 79 F.R.D. 378 (S.D.N.Y. 1978) (stating that deponent's answers to plaintiff attorney's questions regarding earlier discussion between deponent and defense attorney would reveal only information related by the deponent to defense attorney and that such information was not work product); cf. Connolly Data Systems, Inc. v. Victor Technologies, Inc., 114 F.R.D. 89, (S.D. Cal. 1987) (stating that deposition questions regarding prior discussions between deponent and adverse party's attorney were subject to the limitations set out in Ford, but allowing inquiry into what the deponent said to the attorney about the facts of the case). In EEOC v. The Pasta House Co., 1996 WL , 70 Fair Empl. Prac. Cas. (BNA) 61 (E.D. Mo. 1996), a class sex hiring discrimination case, the court held that notes of claimant interviews conducted by EEOC s attorney or paralegal assistant were 8 Although by its terms Rule 23(b)(3) applies only to documents and tangible things, courts have extended the concept of work product to oral communications. See, e.g., Phoenix Nat l Corp., Inc., v. Boater United Kingdom Paper Ltd., 98 F.R.D. 669, (N.D. Ga. 1983); Ford v. Phillips Electronics Co., 82 F.R.D. 359, 360 (E.D. Pa. 1979). 7

9 protected as work product, citing language from Upjohn that disclosing an attorney s notes of witness oral statements would tend to reveal the attorney s mental processes WL , at *3. d. Defendant s Contacts with Claimants As discussed above, courts generally agree that EEOC maintains a relationship with claimants that supports a privilege applicable to communications between the two. The basis for this privilege is that in order for EEOC to effectively pursue the public interest in eradicating employment discrimination, its attorneys must have the same right as private counsel to communicate in confidence with individuals for whom it is seeking relief. Consistent with this rationale, Commission attorneys should object to a defendant s attempts to interview claimants on an informal basis. The Commission should argue that ABA Model Rule of Professional Conduct 4.2 and related state ethical rules barring ex parte communications by opposing lawyers with represented parties applies to contacts by defense counsel with claimants in EEOC suits. 9 Because EEOC attorneys represent the Commission and not individual claimants in EEOC-initiated lawsuits, defense counsel may argue that EEOC attorneys cannot rely upon Rule 4.2 to prohibit defendant s communications with claimants. In response to such a challenge, Commission attorneys should point out that the purpose of Rule 4.2 is to prevent lawyers from taking advantage of uncounseled laypersons, as well as to permit attorneys to develop their cases without interference by the adverse party. Claimants in EEOC suits certainly fall within the category of uncounseled laypersons, especially considering that the statutes enforced by EEOC specifically provide for claimants reliance on EEOC to pursue their interests. Further, EEOC s ability to perform its role as an enforcer of both private rights and the public interest will clearly be compromised if defendants are permitted to communicate directly with the individuals for whom the agency is seeking relief. Courts generally prohibit or limit a defendant s attempts to contact EEOC claimants directly as evidenced by the following court decisions: In EEOC v. Dana Corp., 202 F. Supp. 2d 827 (N.D. Ind. 2002), a Title VII racial harassment action, the defendant moved the court to conduct ex parte interviews of 9 Model Rule 4.2 provides: 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. Subsection 4. below contains an extensive discussion of Model Rule 4.2 and related state rules. 8

10 individuals identified by the EEOC as potential class members and class members. 10 The court found that until those individuals characterized as potential class members established an attorney-client relationship, the defendant would be permitted to engage in such ex parte communications. However, the court noted that defendant s counsel ran the risk of running afoul of Rule 4.2" if it conducted any ex parte communication with a represented party and cautioned defendant to be extremely careful before... conducting such interviews. Id. at 830. The court urged the parties to communicate with one another on the issue of which individuals have established an attorney-client relationship before communication with the individuals took place. In EEOC v. Morgan Stanley Co., Inc., 206 F. Supp. 2d 559 (S.D.N.Y. 2002), a Title VII pattern or practice action challenging disparity in pay and promotion based on gender, the court, which had earlier ruled that defendant could not contact ex parte women who had affirmatively joined in EEOC s lawsuit, held that the defendant could contact potential class members who had not yet agreed to join the suit, but said that because of the possibility of coercive communication safeguards were warranted. Id. at The court reasoned that the case centered around statistical data rather than testimony from female employees, and that therefore defendant s need for access to 10 Pursuant to Rule 4.2, courts in certified private class actions prohibit defendants and their attorneys from contacting class members during litigation. See, e.g., Kleiner v. First National Bank of Atlanta, 751 F.2d 1193, (11 th Cir. 1985); Manual for Complex Litigation, Fourth 21.33, at (2004); Restatement (Third) of The Law Governing Lawyers 99 cmt. l & Reporter s Note to cmt. l (2000). There is also authority for prohibiting such communications prior to certification, see Dondore v. NGK Metals Corp., 152 F. Supp. 2d 662, (E.D. Pa. 2001) (prior to certification decision in related but separate state court class action, court denied defendant s request in individual personal injury action to informally interview fact witnesses who were also potential class members in state suit) (later opinion on related issues reported at 2001 WL (E.D. Pa. 2001)); Abdallah v. Coca-Cola Co., 186 F.R.D. 672, 678 (N.D. Ga. 1999) (discussed later in this subsection), but most decisions require some evidence of coercive or abusive conduct before barring a defendant from precertification contacts with potential class members, see, e.g., Payne v. Goodyear Tire & Rubber Co., 207 F.R.D. 16, (D. Mass. 2002); Basco v. Wal-Mart Stores, Inc., 2002 WL (E.D. La. 2002); Lee v. American Airlines, Inc., 2002 WL (N.D. Tex. 2002); Manual for Complex Litigation, Fourth 21.12, at (2004); see also Parks v. Eastwood Ins. Services, Inc., 2002 WL (C.D. Cal. 2002) (permitting ex parte communication by defendant employer with pre- opt-in prospective plaintiffs in Fair Labor Standards Act case where communication did not undermine or contradict court s own notice to prospective plaintiffs). EEOC class cases, although not governed by Rule 23, are directly authorized by section 706 of Title VII (see General Telephone Co. of the Northwest v. EEOC, 446 U.S. 318, 324 (1980)), and sections 16(c) and 17 of the Fair Labor Standards Act (no opt-in requirement), and therefore should be treated as equivalent to certified private class actions for purposes of the applicability of Rule

11 individual women was appropriate but not compelling. To protect against coercion, the court ordered defendant to inform potential class members, in a written notice subject to court approval, that EEOC s lawsuit was pending, that they could join the lawsuit if they chose to, and that defendant was prohibited from retaliating against them if they joined the lawsuit. The court required that the written notice contain a short summary of the claims in the lawsuit so that the potential class members could make an informed decision concerning their interest in the case. The court said the notice should also inform potential class members that they were not required to join the EEOC lawsuit and that a private right of action existed. In EEOC v. Mitsubishi Motor Mfg. of America, Inc., 960 F. Supp. 164 (C.D. Ill. 1997), a pattern or practice sexual harassment action, following EEOC s issuance of a court-ordered notice informing female employees that they were free to bring complaints regarding sexual harassment and retaliation to defendant s Human Resources Department, defendant began to hold scripted interviews with employees to obtain information about past incidents of sexual harassment. 11 At the conclusion of these interviews, the company representative typed up notes and asked the employee to review and sign them, authenticating them for later use. EEOC objected to these ex parte interviews and Mitsubishi agreed to discontinue such contacts with individuals identified by EEOC as potential claimants and to conduct all future interviews as noticed depositions under the federal rules. The court instructed the parties to prioritize and depose any alleged victim who had information about ongoing harassment to allow Mitsubishi to investigate and remedy any previously unreported incidents of harassment. With regard to employee-initiated contacts by individuals designated by EEOC as alleged victims, the Mitsubishi court distinguished between "past claims of harassment involved in this litigation" and "complaints of new instances of harassment." Id. at 168 (emphasis added). The court presumed that Mitsubishi would not speak to alleged victims who attempted to initiate discussions about their claims of past harassment, but rather would notify the individual that she had the right to be represented by EEOC counsel and that all discussions of the harassment incidents would be done by noticed deposition. The court specifically ordered that any future attempt by Mitsubishi to hold discussions with the alleged victims concerning past incidents of harassment had to be done by noticed deposition in accordance with the federal rules. With regard to employee-initiated complaints of new harassment, the court determined that informal interviews by Mitsubishi would be appropriate so long as the alleged victim was informed of the availability of EEOC representation. However, the court accepted the 11 For additional background information, see EEOC v. Mitsubishi Motor Mfg. of America, Inc., 102 F.3d 869 (7 th Cir. 1996), dismissing EEOC s appeal of the district court s order (which included additional directions to EEOC regarding communications with class members) for lack of jurisdiction because the order was not a final decision under 28 U.S.C

12 Commission s proposal that such grievances be brought by the alleged victim to EEOC first and then relayed by EEOC to Mitsubishi for investigation. 12 Id. at The court cautioned EEOC to refrain from winnowing out potential claims before they can be subjected to Mitsubishi s internal grievance procedures or... dissuading employees to take advantage of such procedures. Id. at 169 n.4. Further, because the proposed process was not mandatory, the court instructed Mitsubishi to give adequate notice to EEOC of an employee-initiated contact and to inform the claimant of her right to be represented by EEOC counsel before engaging in any informal discussions. Id. at 169 n.5. In EEOC v. NEBCO Evans Distrib., Inc., 1997 WL , at *4, 70 Empl. Prac. Dec. (CCH) 44,756 (D. Neb.1997), an ADEA failure to hire action, the court prohibited the defendant from informally interviewing the claimant applicants without the prior consent of counsel for the EEOC. The court determined that EEOC was serving as the applicants' representative because it had filed suit seeking relief for those aggrieved individuals and thereby cut off the applicants' private right of action for that relief. Cf. EEOC v. U.S. Steel Corp., 921 F.2d 489 (3d Cir. 1990) (relying on ADEA s termination of individual rights language in applying representative claim preclusion to bar EEOC from obtaining individual relief for former employees who had previously litigated the ADEA claims at issue in the EEOC action and lost). 13 In EEOC v. TIC The Industrial Company, 2002 WL , 90 Fair Empl. Prac. Cas. (BNA) 737 (E.D. La. 2002), a pattern or practice failure to hire race discrimination case, EEOC moved for a protective order prohibiting defendant from engaging in ex parte communications with potential claimants. EEOC had identified more than 130 potential claimants, and because it had not yet designated which of them it would be seeking damages for, defendant wanted to interview them informally so it could decide which ones to depose. The court determined that except for the five named charging parties, EEOC was not entitled to the benefits of the attorney-client privilege or the protection of Rule 4.2 because it had not shown that any potential claimant consented to be represented by EEOC or considered EEOC s attorneys to be 12 Mitsubishi argued that the EEOC first approach would discourage employees from making new complaints of ongoing harassment. The court rejected Mitsubishi s argument and accepted EEOC s proposal as "narrowly tailored" to apply only to those employees who were listed as alleged victims by EEOC. 960 F. Supp. at In those limited circumstances where a court may permit defendant to contact EEOC claimants, for example, where the defendant seeks to investigate complaints of ongoing harassment, EEOC attorneys should insist on participating in the drafting of any written correspondence to claimants and on the opportunity to attend any interview or other oral communication by defendant to claimants. 11

13 his attorneys. 14 The court distinguished ADEA actions such as NEBCO Evans above because those EEOC suits cut off private rights, and considered it significant that the claimants were not employed by defendant and thus were not subject to possible threats to their jobs. The court said, however, that in defendant s contacts with potential claimants: [I]t must inform the claimants that the EEOC has brought this action; summarize the claims in the action; advise the claimants that they may, but are not required to, join in the action; and tell them that they may contact the EEOC for additional information. TIC may discuss with potential claimants only the facts of the case and must not in any way influence them about joining this action or brining a separate action WL , at *6. Similarly, courts generally disfavor a defendant s attempts to obtain a settlement or secure a waiver through direct communications with claimants: In EEOC v. Johnson & Higgins, Inc., 78 Fair Empl. Prac. Cas. (BNA) 1127, (S.D.N.Y. 1998), an ADEA action, the court held that waivers obtained by defendant were invalid because the court had previously found the employer liable and therefore EEOC was, at the very least, a necessary party to any discussions of settlement or other negotiations between J & H and the retirees. The court declined to decide whether EEOC s suit alone prohibited the employer from negotiating with claimants without EEOC participation. 15 See also Nagy v. Jostens, Inc., 91 F.R.D. 431 (D. Minn. 1981) (in certified class sex discrimination lawsuit in which EEOC intervened, court issued an injunction prohibiting defendant from requesting any releases or waivers of employment discrimination claims or confidentiality agreements with respect to defendant s employment policies from any class members). 14 The court used the same reasoning in permitting defendant to discover questionnaire responses of 131 potential claimants WL , at *7. 15 In EEOC v. McDonnell Douglas, 948 F. Supp. 54 (E.D. Mo. 1996), an ADEA pattern or practice discharge action, defendant sent mass mailings to noncharging parties covered by EEOC s suit, encouraging them to settle any potential claims. The court denied EEOC s motion for a protective order prohibiting defendant from directly communicating settlement offers to aggrieved individuals for whom EEOC was seeking relief. The court found that because the communications were initiated by defendant s business executives rather than its attorneys, the rules of professional conduct did not apply. The court also determined that Fed. R. Civ. P. 23(d) s protections were not available in EEOC-initiated litigation because, as the General Telephone Court held, [u]nlike a class-action plaintiff, the EEOC does not sue in a representative capacity. McDonnell Douglas, 948 F. Supp. at

14 In addition to, or rather than, contacting particular persons within the scope of a multiple claimant suit, a defendant sometimes communicates generally with all employees about the litigation. Depending upon the type and manner of defendant s communications, EEOC counsel may need to seek a protective order from the court prohibiting the defendant from making future ex parte contacts. Courts deciding whether to prohibit such general communications have applied the analysis set forth in Gulf Oil Co. v. Bernard, 452 U.S. 89 (1981). 16 Courts look at the manner, context and content of defendant s communications to evaluate the potential for coercion of class members. 17 For example, in Shores v. Publix Super Markets, 1996 WL , 69 Empl. Prac. Dec. (CCH) 44,478 (M.D. Fla. 1996), a sex discrimination certified class action in which EEOC intervened, the court found that defendant s internal communications were intended to discourage employees from joining the class. The defendant had used tabloids, bulletins, and s to inform employees of its views regarding the difficulty class members would have obtaining relief even if Publix were found liable, and its views on how the suit might adversely affect the company s business. The court stated that because certification had been granted, class members were officially represented by counsel, but found the Florida equivalent of Rule 4.2 inapplicable to the 16 Gulf Oil was a race discrimination class action in which, prior to a decision on certification, the district court imposed a ban on all communications regarding the lawsuit between the parties or their counsel and any actual or potential class member without the prior approval of the court. The Supreme Court held that imposition of the order was an abuse of the district court s discretion, finding no grounds in the record to support the need for a communications ban that interferes with the formation of a class or the prosecution of a [Rule 23] class action. 452 U.S. at 104. The Court acknowledged the opportunities for abuse present in class actions, but held that an order limiting communications between parties and potential class members must identify the potential abuses being addressed and reflect a weighing of the need for a limitation and the potential interference with the rights of the parties.... result[ing] in a carefully drawn order that limits speech as little as possible, consistent with the rights of the parties under the circumstances. Id. at The court in Hoffman v. United Telecommunications, Inc., 111 F.R.D. 332 (D. Kan. 1986), in ruling on a request by EEOC as intervenor to send a letter and questionnaire to current and former female employees and applicants and on defendants motion for a protective order restricting certain communications by plaintiffs, specifically held that Gulf Oil is applicable to EEOC direct enforcement actions. 17 See, e.g., Rossini v. Olgivy & Mather, Inc., 798 F.2d 590, (2d Cir. 1986) (upholding district court s order prohibiting postcertification written communications between parties and class members without court approval where district court found after two hearings that both parties had engaged in improper conduct threatening essence of fairness and due process in class actions). 13

15 communications at issue because neither defendant nor its counsel had attempted to communicate directly with particular class members regarding the case. 18 However, the court found that defendant s general communications to all employees, disseminated at the workplace, by the very managers accused of propagating discriminatory practices, were likely to have a coercive effect on potential claimants. Accordingly, the court ordered defendant to disseminate a curative notice and required that future communications from defendant to employees regarding the case include a sentence explaining that the communication represented defendant s opinion, that employees were free to contact plaintiffs counsel, and that defendant could not retaliate against employees who joined in the lawsuit WL , at *3. In Abdallah v. Coca-Cola Co., 186 F.R.D. 672 (N.D. Ga. 1999), a race discrimination class action, defendant s chief executive officer, prior to a decision on certification, sent s to all employees which discussed the plaintiffs allegations. Although the court stated that defendant had not evidenced an intention to mislead or coerce its employees, it found there was an inherent danger that th[ose] types of internal communication could deter potential class members from participating in the suit out of concern for the effect it could have on their jobs. Id. at 679. Consequently, the court required that all communications contain language similar to that ordered in Publix. The court prohibited any direct communications by defendant with potential class members, except to the extent that communications with African-American management employees were necessary to investigate conduct by those employees that could expose the defendant to liability. As a matter of general practice, Commission attorneys should challenge any attempt by defendant or its attorneys to contact claimants directly, arguing that the rationale for protecting communications between Commission attorneys and claimants applies equally to the prohibition of ex parte contacts by opposing counsel. General communications by defendant to employees concerning the lawsuit, or the underlying factual allegations, should be examined carefully to insure they contain no coercive or retaliatory language. Where such language exists, or where for any other reason the communications might discourage individuals from cooperating with the Commission or from asserting their claims (e.g., time or place of communication), EEOC counsel should move the court for an appropriate protective order The court did find that Publix had acted impermissibly in directly soliciting information from management employees about their potential claims of discrimination, and ordered that [f]uture ex parte contact with managerial employees... be limited to discussion of those acts, omissions and statements of those employees in their managerial capacity for which Publix may be liable WL , at *4. 19 Where a court permits written correspondence to claimants by defendant, EEOC should request that the following information be included: 14

16 3. EEOC s Contacts with Claimants EEOC attorneys may contact potential claimants to inform them about a pending lawsuit, to determine whether they were affected by the discriminatory conduct, and to find out whether they want the EEOC to seek individual relief for them. See Gulf Oil Co. v. Bernard, 452 U.S. 89, 101 (1981) (holding in precertification Rule 23 class action that communications with potential class members are presumptively valid absent "specific findings that reflect a weighing of the need for a limitation and the potential interference with the rights of the parties"); EEOC v. Mitsubishi Motor Mfg. of America, Inc., 960 F. Supp. 164, (C.D. Ill 1997) (acknowledging EEOC s legitimate interest in communicating legal advice and information to potential claimants and noting its reluctance to interfere with plaintiff s right as long as communications are not misleading or confusing); Babbitt v. Albertson s, Inc.,1993 WL (N.D. Cal. 1993) (finding in precertification private class sex and national origin discrimination action that plaintiffs use of advocacy language in letter and intake form sent to potential class members was acceptable); EEOC v. Singer Controls Co. of America, 80 F.R.D. 76, 79 (N.D. Ohio 1978) (granting EEOC s request to send letter and questionnaire to women identified as present or former employees who took maternity leave, because the proposed communication is likely to develop probative and relevant data necessary to prove or disprove plaintiff s claims ). But cf. Mitsubishi, 960 F. Supp. at 165 (requiring EEOC to send clarification of prior letter sent to current and former female employees that told employees they were not required to discuss issues related to EEOC s lawsuit with defendant s Human Resources Department) (see discussion in subsection 2.d. above); Hoffman v. United Telecommunications, Inc., 111 F.R.D. 332, (D. Kan. 1986) (prohibiting EEOC, an intervenor, from doing a mass mailing of a letter and questionnaire to defendant s female workforce because use of the particular letter and questionnaire... would create a substantial risk of causing confusion, misunderstanding about the case, and unnecessary disruption to the business operations of defendants and to the working relationships of employees (emphasis added), but not otherwise restricting communications between EEOC and a statement indicating that there is a pending lawsuit in which they may be eligible to participate and identifying EEOC counsel and his or her contact information a description of the group of aggrieved individuals for whom EEOC is seeking relief and a brief description of the claims in the suit a statement that defendant is denying liability a statement that it is unlawful for the defendant to retaliate against them for participating in any manner in the suit 15

17 nonmanagement employees). 20 Special concerns arise when defendant s managerial employees are potential claimants. In Hoffman v. United Telecommunications, Inc., 111 F.R.D. 332 (D. Kan. 1986), a large sex discrimination action, the court said that [a]ny communications between [EEOC] and current managerial employees of defendants should relate only to identify who claims to be a victim of sex discrimination by any defendant during the relevant period for which a claim may be brought, the address of the claimant and the facts upon which the claim is based. Id. at 337. The court recommended that the parties jointly draft and send a letter to any management employee who may be a potential claimant, informing her about the lawsuit and that she could reply in writing to both EEOC and defendant if she contended that the conduct of defendant constituted sex discrimination towards her during the relevant time period. The court indicated that if the parties could not agree upon a procedure by which EEOC could communicate with defendants employees, EEOC should consider deposing the employees to gain the information sought. Id. See also Abdallah v. Coca Cola Co., 186 F.R.D. 672, 677 (N.D. Ga. 1999) (holding in race discrimination class action that supervisory and managerial employees who wished to pursue employment claims against defendant could communicate freely with plaintiffs and their counsel, but that communications concerning any other matters relevant to the suit, including privileged information, were not permitted). But cf. Hammond v. City of Junction City, Kansas, 2002 WL , at *5-6 (D. Kan. 2002) (in upholding disqualification of plaintiff s counsel in precertified class race discrimination action because of ex parte contact with defendant s Director of Human Relations, court rejected argument that contact was appropriate because Director was potential class member and said that plaintiff s counsel should have filed motion with the court before communicating with Director or any potential class member). In view of the February 2002 amendments to the comments to ABA Model Rule of Professional Conduct 4.2 (see new comment [7], a revision of former comment [4]) on ex parte contact with current and former managerial employees, discussed at subsection 4.a. below, there will likely be fewer complications in the future in contacting managers who are potential discrimination victims. 4. Contacting Defendant s Employees as Potential Witnesses Each jurisdiction s rules of professional responsibility include a provision that prohibits a lawyer from communicating directly with a represented person about the subject matter of the representation without the consent of that person s lawyer. While 20 In determining whether to use questionnaires for anything beyond basic identifying information, legal units must consider the possibility that the responses will be discoverable. See discussion in Discoverability of Claimant Questionnaires in EEOC Litigation, discquest.wpd, available on insite in Litigation/OGC Resources/Substantive Legal Materials/Class Litigation/Claimants. 16

18 most jurisdictions have adopted a no-contact rule similar to ABA Model Rule of Professional Conduct (MRPC) 4.2, judicial interpretation of that rule varies from jurisdiction to jurisdiction. It is therefore very important that the EEOC attorney review the applicable rule and caselaw in the relevant jurisdictions before deciding whether an ex parte communication is permissible. a. Model Rule of Professional Conduct 4.2 (no-contact rule) ABA Model Rule 4.2 provides: 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. See Center for Professional Responsibility, American Bar Association, Annotated Model Rules of Professional Conduct (5 th ed. 2003). In February 2002, in addition to a minor change in the rule itself (see discussion in next paragraph), the ABA House of Delegates made significant revisions to the Comments to MRPC Comment [7], a revision of former Comment [4], now provides that communication with a represented organization is prohibited only with a constituent of the organization who supervises, directs or regularly consults with the organization s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. 22 Comment [7] omits language in former Comment [4] prohibiting communications with any person whose statement may constitute an admission on the part of the organization. 23 In addition, consistent with positions taken in prior ABA opinions (see ABA Comm. on Ethics and Prof l Responsibility, Formal Op n.47 (1995)), Comment [7] expressly permits ex parte contacts with all former employees: 21 Extensive information on the February 2002 amendments to the Model Rules of Professional Conduct, including a copy of all amended rules with deletions and additions indicated, can be obtained from the ABA s web site, 22 Commentary [6] of the Reporter s Observations to amended Rule 4.2 (available on the ABA web site) says that the prior Comment s inclusion of all persons having a managerial responsibility on behalf of the organization, was criticized as being vague and overly broad. The Commentary says that [i]n focusing on the constituent s authority in the matter at issue and relationship with the organization s lawyer, the [revised] Comment provides clearer guidance than the broad general reference to managerial responsibility. 23 Commentary [6] of the Reporter s Observations refers to this omitted language as a broad and potentially open-ended reference that has been read by some as prohibiting communication with any person whose testimony would be admissible against the organization as an exception to the hearsay rule. See discussion in subsection 4.b.(1) below. 17

19 Consent of the organization s lawyer is not required for communication with a former constituent. 24 The phrase or a court order was added to MRPC 4.2 in February Comment [6] to the rule provides: A lawyer who is uncertain whether a communication with a represented person is permissible may seek a court order. A lawyer may also seek a court order in exceptional circumstances to authorize a communication that would otherwise be prohibited by this Rule, for example, where communication with a person represented by counsel is necessary to avoid reasonably certain injury. In situations where EEOC counsel cannot determine whether a current employee of an organization is covered by the version of MRPC 4.2 in force in the applicable jurisdiction, he or she should seek clarification from the court prior to initiating contact with the person. In addition, EEOC counsel should seek leave of court to contact a covered employee ex parte if such contact is necessary to avoid reasonably certain injury to EEOC s interests Comment [7] reads in full: In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization s lawyer is not required for communication with a former constituent. If a constituent of the organization is represented in the matter by his or her own counsel, the consent by that counsel to a communication will be sufficient for purposes of this Rule. Compare Rule 3.4(f). In communicating with a current or former constituent of an organization, a lawyer must not use methods of obtaining evidence that violate the legal rights of the organization. See Rule 4.4 [quoted in relevant part in subsection 5.b. below]. 25 See generally Wagner v. City of Holyoke, 183 F. Supp. 2d 289 (D. Mass. 2001) (in employment action alleging retaliation for cooperating in corruption probe, plaintiffs counsel sought and obtained a court order allowing ex parte interviews with defendant city s employees, including managers, which would have been prohibited by Massachusetts ethics rule 4.2); Kaveney v. Murphy, 97 F. Supp. 2d 88, (D. Mass. 2000) (in employment action against superintendent of city police department alleging interference with plaintiff s career advancement because of participation in corruption investigation, court granted plaintiff s motion for protective order allowing ex parte interviews with members of police department covered by Massachusetts ethics rule 4.2). 18

20 Note that Rule 4.2 applies to EEOC attorneys and any individuals acting on their behalf such as paralegals, legal interns, and private investigators. See Comment [1] to MRPC 5.3. Coverage of Rule 4.2 therefore cannot be avoided by directing a nonlawyer to communicate with a represented person. MRPC 5.3 governs an attorney s responsibilities with regard to nonlawyer assistants and requires lawyers having direct supervisory authority over the nonlawyer... to make reasonable efforts to ensure that the person s conduct is compatible with the professional obligations of the lawyer. MRPC 5.3(b). The rule further provides that a lawyer shall be responsible for any violation of the Rules of Professional Conduct by the nonlawyer if (1) the lawyer orders or ratifies the conduct involved or (2) the lawyer has managerial authority in the firm or direct supervisory authority over the nonlawyer and knows of the misconduct at a time when consequences can be avoided or mitigated but fails to take remedial action. MRPC 5.3(c)(1) and (2). 26 Similarly, MRPC 8.4(a) states that it is professional misconduct for a lawyer to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another. Thus, legal unit staff should not knowingly allow enforcement unit staff to contact individuals who are considered represented persons under Rule 4.2. b. Determining who is a Represented Person of an Organizational Defendant for Purposes of MRPC 4.2 (1) Ex Parte Contact with Current Employees As indicated in subsection 4.a. above, Comment [4] to pre-february 2002 MRPC 4.2 prohibited contact with any person whose statement could constitute an admission by the organization. Given the encompassing language of Fed. R. Evid. 801(d)(2)(D), 27 some jurisdictions adopted a broad reading of Rule 4.2 forbidding contact with practically all employees because "virtually every employee may conceivably make admissions binding on his or her employer." In re Air Crash Disaster near Roselawn, Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995); see also Weibrecht v. Southern Ill. Transfer, Inc., 241 F.3d 875, 883 (7 th Cir. 2001); Cole v. Appalachian Power Co., 903 F. Supp. 975, (S.D. W. Va. 1995); Brown v. St. Joseph County, 148 F.R.D. 246 (N.D. Ind.1993). 26 Comment [1] to MRPC 5.1 places the same responsibility on legal managers in a government agency as on partners and other managers in law firms for insuring that attorneys and other legal staff conform to the Rules of Professional Conduct. 27 Federal Rule of Evidence 801(d)(2)(D) includes within the definition of party admissions not considered hearsay a statement by the party s agent or servant concerning a matter within the scope of agency or employment, made during the existence of the relationship. 19