1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Nicole Furnas, ) 9 ) CV 23-00529-TUC-RM (MAA) Plaintiff, ) 10 v. ) ) 11 Tierra Luna and Sol Enterprises, LLC; et al., ) ORDER ) 12 Defendants. ) ) 13 ______________________________________) 14 Pending before the court is a motion for protective order filed by the corporate 15 defendants (“the defendants”) on November 14, 2025. Doc. 88. The plaintiff filed a response 16 on December 5, 2025. Doc. 93. 17 The defendants filed an untimely reply on December 18, 2025. Doc. 95; see LRCiv 7.2 18 (d). It was not accompanied by a motion for leave to file. Moreover, the court finds that the 19 arguments in the reply do not change its analysis. The court does not consider the untimely 20 reply. 21 22 Background 23 The plaintiff in this action, Nicole Furnas, lived in one of the defendants’ apartments. 24 Complaint, Doc. 1, p. 1. “As the lease term neared its end without a renewal offer, Furnas 25 became afraid that [the defendants] would not renew her lease . . . .” Doc. 1, pp 1-2. One of 26 the defendants’ maintenance workers, the individual defendant since identified as Jesus Santos 27 Caceres, “said he would have her lease renewed if she performed oral sex on him.” Doc. 1, p. 28 1 2; Doc. 93, p. 3. “Feeling she had no other way to avoid losing her home, Furnas did so.” Doc. 2 1, p. 2. 3 On November 20, 2023, Furnas filed a Complaint in this court claiming (1) sexual 4 harassment in violation of the Federal Fair Housing Act, (2) discriminatory housing practices 5 in violation of the Arizona Fair Housing Act, (3) negligence for failing to train and supervise, 6 (4) assault, and (5) battery. Doc. 1. 7 In the pending motion, the corporate defendants seek a protective order precluding the 8 plaintiff from using the deposition of Kevin Young to obtain contact information for one of their 9 prior employees, Blaine Jacobson. Doc. 88. They argue that communicating ex parte with one 10 of their prior employees would violate the Arizona Rule of Professional Conduct 4.2 as 11 interpreted by Lang v. Superior Ct., In & For Cnty. of Maricopa, 170 Ariz. 602, 605, 826 12 P.2d1228, 1231 (Ct. App. 1992). Doc. 88, p. 1; see also LRCiv 83.2(e) (“The ‘Rules of 13 Professional Conduct,’ in the Rules of the Supreme Court of the State of Arizona, shall apply 14 to attorneys ... authorized to practice before [this court].”). 15 “Rule 26(c) [of the Fed.R.Civ.P.]authorizes the district court to issue any order which 16 justice requires to protect a party or person from annoyance, embarrassment, oppression, or 17 undue burden.” Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211–12 18 (9th Cir. 2002) (punctuation modified). “The Supreme Court has interpreted this language as 19 conferring broad discretion on the trial court to decide when a protective order is appropriate 20 and what degree of protection is required.” Id. 21 22 Discussion 23 On November 13, 2025, the plaintiff deposed Kevin Young, a former employee of the 24 defendant Transpacific. Doc. 88, p. 2. Young explained that another employee, Blaine 25 Jacobson, “implemented policies for employee background checks, scheduled and implemented 26 sexual harassment training, scheduled and implemented fair housing training, and oversaw 27 drafting of the employee handbook, among other things.” Doc. 88, p. 3. The plaintiff’s counsel 28 1 asked Young for Jacobson’s phone number, but the defendants’ counsel objected. Doc. 88, p. 2 3. The defendants’ counsel objected to the plaintiff’s counsel making contact with a former 3 employee who “implemented sexual harassment training, the employee handbook.” Doc. 93, 4 p. 5. 5 The defendants argue in the pending motion that any ex parte communication with 6 Jacobson would violate the Arizona Rule of Professional Conduct 4.2 (“ER 4.2”). Doc. 88, pp. 7 3-8. 8 ER 4.2 generally prohibits ex parte contacts with “a party the lawyer knows to be 9 represented by another lawyer in the matter. . . .” Lang v. Superior Ct., In & For Cnty. of 10 Maricopa, 170 Ariz. 602, 604, 826 P.2d 1228, 1230 (Ct. App. 1992). “The prohibition is 11 intended to (1) prevent unprincipled attorneys from exploiting the disparity in legal skills 12 between attorneys and lay people, (2) preserve the integrity of the attorney-client relationship, 13 (3) help to prevent the inadvertent disclosure of privileged information, and (4) facilitate 14 settlement.” Id. 15 If the party is an organization, ex parte contacts with a former employee are ordinarily 16 permitted. “Former employees are usually unaware of the corporation’s legal strategies after 17 employment is terminated and will usually have no access to privileged information while 18 employed.” Lang v. Superior Ct., In & For Cnty. of Maricopa, 170 Ariz. 602, 606, 826 P.2d 19 1228, 1232 (Ct. App. 1992). “And, while a former employee’s statements to opposing counsel 20 may be damaging to the corporation, they are no more so than the statements of a former 21 employee who merely witnessed the liability-creating acts but did not commit them.” Id. 22 (punctuation modified). Moreover, “any movement away from informal discovery procedures 23 will greatly increase the cost of litigation.” Id., p. 607, 1233. 24 However, the Rule prohibits ex parte contacts with a former employee “whose act or 25 omission in connection with the matter may be imputed to the organization.” Id., pp. 604-605, 26 1230-1231. “For example, if an employee hired to drive a truck is involved in an accident that 27 occurs in the course and scope of employment, the fact that the employee leaves his or her 28 1 employment should not determine the propriety of ex parte communications.” Id., p. 607, 1233. 2 On the other hand, ex parte contacts with a different former truck driver would be permitted 3 because that driver’s acts or omissions did not cause the accident. In sum, “ER 4.2 does not bar 4 counsel from having ex parte contacts with a former employee of an opposing party where the 5 former employer is represented by counsel unless the acts or omissions of the former employee 6 gave rise to the underlying litigation or the former employee has an ongoing relationship with 7 the former employer in connection with the litigation.” Id., p. 607, 1233. 8 In the pending motion, “Defendants ask this Court to enter a protective order precluding 9 contact with former Transpacific employees whose actions may be imputed to Transpacific.” 10 Doc. 88, p. 7. Apparently, the defendants interpret the phrase “may be imputed to” to cover all 11 employees in a management position. They instructed Young not to answer questions about 12 Jacobson “because Mr. Jacobson was in a management role at Transpacific.” Doc. 88, p. 3. 13 The court believes that the defendants’ interpretation of the rule is too broad. At one point, the 14 Lang court did use the phrase “may be imputed to the organization” to designate when ex parte 15 contact would be prohibited. ” Id., pp. 604-645, 1230-1231. Later in the opinion, however, the 16 Lang court cabined that statement by explaining that ex parte contact is prohibited where the 17 “acts or omissions of the former employee gave rise to the underlying litigation.” Id., p. 607, 18 1233. And that appears to be the proper test here. 19 For example, if Jacobson created an employee training program that was exemplary in 20 all respects but a different employee negligently failed to give Caceres that training, Jacobson’s 21 training program might be imputed to the organization as evidence of what that organization 22 believes the standard of care should be, but his acts or omissions did not give rise to the pending 23 litigation and ex parte contact with him would be permitted. Ex parte contact with the negligent 24 trainer, however, would not be proper.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Nicole Furnas, ) 9 ) CV 23-00529-TUC-RM (MAA) Plaintiff, ) 10 v. ) ) 11 Tierra Luna and Sol Enterprises, LLC; et al., ) ORDER ) 12 Defendants. ) ) 13 ______________________________________) 14 Pending before the court is a motion for protective order filed by the corporate 15 defendants (“the defendants”) on November 14, 2025. Doc. 88. The plaintiff filed a response 16 on December 5, 2025. Doc. 93. 17 The defendants filed an untimely reply on December 18, 2025. Doc. 95; see LRCiv 7.2 18 (d). It was not accompanied by a motion for leave to file. Moreover, the court finds that the 19 arguments in the reply do not change its analysis. The court does not consider the untimely 20 reply. 21 22 Background 23 The plaintiff in this action, Nicole Furnas, lived in one of the defendants’ apartments. 24 Complaint, Doc. 1, p. 1. “As the lease term neared its end without a renewal offer, Furnas 25 became afraid that [the defendants] would not renew her lease . . . .” Doc. 1, pp 1-2. One of 26 the defendants’ maintenance workers, the individual defendant since identified as Jesus Santos 27 Caceres, “said he would have her lease renewed if she performed oral sex on him.” Doc. 1, p. 28 1 2; Doc. 93, p. 3. “Feeling she had no other way to avoid losing her home, Furnas did so.” Doc. 2 1, p. 2. 3 On November 20, 2023, Furnas filed a Complaint in this court claiming (1) sexual 4 harassment in violation of the Federal Fair Housing Act, (2) discriminatory housing practices 5 in violation of the Arizona Fair Housing Act, (3) negligence for failing to train and supervise, 6 (4) assault, and (5) battery. Doc. 1. 7 In the pending motion, the corporate defendants seek a protective order precluding the 8 plaintiff from using the deposition of Kevin Young to obtain contact information for one of their 9 prior employees, Blaine Jacobson. Doc. 88. They argue that communicating ex parte with one 10 of their prior employees would violate the Arizona Rule of Professional Conduct 4.2 as 11 interpreted by Lang v. Superior Ct., In & For Cnty. of Maricopa, 170 Ariz. 602, 605, 826 12 P.2d1228, 1231 (Ct. App. 1992). Doc. 88, p. 1; see also LRCiv 83.2(e) (“The ‘Rules of 13 Professional Conduct,’ in the Rules of the Supreme Court of the State of Arizona, shall apply 14 to attorneys ... authorized to practice before [this court].”). 15 “Rule 26(c) [of the Fed.R.Civ.P.]authorizes the district court to issue any order which 16 justice requires to protect a party or person from annoyance, embarrassment, oppression, or 17 undue burden.” Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211–12 18 (9th Cir. 2002) (punctuation modified). “The Supreme Court has interpreted this language as 19 conferring broad discretion on the trial court to decide when a protective order is appropriate 20 and what degree of protection is required.” Id. 21 22 Discussion 23 On November 13, 2025, the plaintiff deposed Kevin Young, a former employee of the 24 defendant Transpacific. Doc. 88, p. 2. Young explained that another employee, Blaine 25 Jacobson, “implemented policies for employee background checks, scheduled and implemented 26 sexual harassment training, scheduled and implemented fair housing training, and oversaw 27 drafting of the employee handbook, among other things.” Doc. 88, p. 3. The plaintiff’s counsel 28 1 asked Young for Jacobson’s phone number, but the defendants’ counsel objected. Doc. 88, p. 2 3. The defendants’ counsel objected to the plaintiff’s counsel making contact with a former 3 employee who “implemented sexual harassment training, the employee handbook.” Doc. 93, 4 p. 5. 5 The defendants argue in the pending motion that any ex parte communication with 6 Jacobson would violate the Arizona Rule of Professional Conduct 4.2 (“ER 4.2”). Doc. 88, pp. 7 3-8. 8 ER 4.2 generally prohibits ex parte contacts with “a party the lawyer knows to be 9 represented by another lawyer in the matter. . . .” Lang v. Superior Ct., In & For Cnty. of 10 Maricopa, 170 Ariz. 602, 604, 826 P.2d 1228, 1230 (Ct. App. 1992). “The prohibition is 11 intended to (1) prevent unprincipled attorneys from exploiting the disparity in legal skills 12 between attorneys and lay people, (2) preserve the integrity of the attorney-client relationship, 13 (3) help to prevent the inadvertent disclosure of privileged information, and (4) facilitate 14 settlement.” Id. 15 If the party is an organization, ex parte contacts with a former employee are ordinarily 16 permitted. “Former employees are usually unaware of the corporation’s legal strategies after 17 employment is terminated and will usually have no access to privileged information while 18 employed.” Lang v. Superior Ct., In & For Cnty. of Maricopa, 170 Ariz. 602, 606, 826 P.2d 19 1228, 1232 (Ct. App. 1992). “And, while a former employee’s statements to opposing counsel 20 may be damaging to the corporation, they are no more so than the statements of a former 21 employee who merely witnessed the liability-creating acts but did not commit them.” Id. 22 (punctuation modified). Moreover, “any movement away from informal discovery procedures 23 will greatly increase the cost of litigation.” Id., p. 607, 1233. 24 However, the Rule prohibits ex parte contacts with a former employee “whose act or 25 omission in connection with the matter may be imputed to the organization.” Id., pp. 604-605, 26 1230-1231. “For example, if an employee hired to drive a truck is involved in an accident that 27 occurs in the course and scope of employment, the fact that the employee leaves his or her 28 1 employment should not determine the propriety of ex parte communications.” Id., p. 607, 1233. 2 On the other hand, ex parte contacts with a different former truck driver would be permitted 3 because that driver’s acts or omissions did not cause the accident. In sum, “ER 4.2 does not bar 4 counsel from having ex parte contacts with a former employee of an opposing party where the 5 former employer is represented by counsel unless the acts or omissions of the former employee 6 gave rise to the underlying litigation or the former employee has an ongoing relationship with 7 the former employer in connection with the litigation.” Id., p. 607, 1233. 8 In the pending motion, “Defendants ask this Court to enter a protective order precluding 9 contact with former Transpacific employees whose actions may be imputed to Transpacific.” 10 Doc. 88, p. 7. Apparently, the defendants interpret the phrase “may be imputed to” to cover all 11 employees in a management position. They instructed Young not to answer questions about 12 Jacobson “because Mr. Jacobson was in a management role at Transpacific.” Doc. 88, p. 3. 13 The court believes that the defendants’ interpretation of the rule is too broad. At one point, the 14 Lang court did use the phrase “may be imputed to the organization” to designate when ex parte 15 contact would be prohibited. ” Id., pp. 604-645, 1230-1231. Later in the opinion, however, the 16 Lang court cabined that statement by explaining that ex parte contact is prohibited where the 17 “acts or omissions of the former employee gave rise to the underlying litigation.” Id., p. 607, 18 1233. And that appears to be the proper test here. 19 For example, if Jacobson created an employee training program that was exemplary in 20 all respects but a different employee negligently failed to give Caceres that training, Jacobson’s 21 training program might be imputed to the organization as evidence of what that organization 22 believes the standard of care should be, but his acts or omissions did not give rise to the pending 23 litigation and ex parte contact with him would be permitted. Ex parte contact with the negligent 24 trainer, however, would not be proper. The trainer’s acts or omissions would have given rise 25 to the underlying negligence claim. 26 On the other hand, if Jacobson was responsible for Caceres’s training, then he was 27 responsible for seeing that Caceres received proper sexual harassment training (assuming this 28 1 is the standard of care) and his acts or omissions would have given rise to the underlying 2 litigation. And ex parte contact with him would be improper. 3 Furnas imagines a hypothetical employee “who trained Caceres, but failed to provide 4 sexual harassment training because the Corporate Defendants did not require such training.” 5 She maintains that ex parte contact with that employee would be proper because “liability 6 would arise from the Corporate Defendants’ failure to maintain and implement proper policies, 7 not the employees’ actions.” Doc. 93, p. 9. The court does not agree. A corporation acts, or 8 fails to act, through its employees. Lois Grunow Mem’l Clinic v. Davis, 49 Ariz. 277, 284, 66 9 P.2d 238, 241 (1937) (“It is elementary, of course, that a corporation acts only through its 10 agents, and it is also beyond question that an agent may only bind a principal within the scope 11 of his authority, actual or apparent. No citations are necessary to support these fundamental 12 principles of law.”). In this hypothetical, the trainer’s failure to give sexual harassment training 13 gives rise to the plaintiff’s claim that Caceres’s training fell below the standard of care 14 (assuming there is a duty, proper sexual harassment training is the standard of care, and Caceres 15 received all his training from this person). See Complaint, Doc. 1, p. 9. As far as liability is 16 concerned, it does not matter why the trainer failed to give the proper training. Ex parte contact 17 with the hypothetical trainer would not be proper. 18 The defendants further move that this court preclude certain testimony from former 19 maintenance employee Kevin Mills. Doc. 88, p. 7. The defendants assert that Mills “hired and 20 trained new maintenance workers,” and they now “seek to preclude any testimony from Mr. 21 Mills regarding his role as supervisor, his hiring practices, and any training he did or did not 22 provide to maintenance employees.” Id. The defendants do not allege that Mills hired or 23 trained or supervised Caceres specifically. Without more information, the court cannot opine 24 as to what testimony from Mills should be precluded. 25 The defendants further move for an order terminating the deposition Kevin Young 26 pursuant to Fed.R.Civ.P. 30(d)(3)(B) because the plaintiff’s counsel was improperly attempting 27 to use the deposition to obtain the contact information for Blain Jacobson. Doc. 88, p. 8. 28 1 In her response, the plaintiff discusses the deposition of Young and explains that her 2 || counsel terminated the deposition because counsel “only had a couple of additional questions” 3 |) and the defendants’ counsel was “once again improperly instructing a witness not to answer a 4 || question.” Doc. 93, p. 6. The plaintiff does not express any desire to resume the Young 5 || deposition. Jd. Accordingly, the court finds the defendants’ request for an order terminating 6 || the deposition Kevin Young pursuant to Fed.R.Civ.P. 30(d)(3)(B) to be moot. 7 In their motion, “Defendants also seek their costs and fees pursuant to Fed. R. Civ. P. 8 |} 37(a)(5).” 9 When a party files a motion to compel, Rule 37(a)(5)(A) instructs the court to make the 10 || party “whose conduct necessitated the motion” pay the movant’s reasonable expenses if the 11 || motion is granted. Fed.R.Civ.P. Here, however, the court grants the motion in part. If that 12 || happens, the Rule 37(a)(5)(C) explains that the court “may ... apportion the reasonable 13 || expenses for the motion.” The court finds that each party should pay its own expenses as a 14 || result of the motion. 15 16 IT IS ORDERED that the motion for protective order filed by the corporate defendants 17 || on November 14, 2025 is Granted in Part. Doc. 88. Ex parte contact with one of the 18 || defendants’ former employees is prohibited where the acts or omissions of the former employee 19 || gave rise to the underlying litigation. 20 DATED this 19" day of December, 2025. 21 22 _ Uf /\ 24 J Honorable Michael A. Ambri 26 United States Magistrate Judge 27 28 _6-