Queensberry v. Norfolk & Western Railway Co.

157 F.R.D. 21, 1993 U.S. Dist. LEXIS 20370, 1993 WL 727356
CourtDistrict Court, E.D. Virginia
DecidedAugust 2, 1993
DocketCiv. A. No. 3:93CV163
StatusPublished
Cited by9 cases

This text of 157 F.R.D. 21 (Queensberry v. Norfolk & Western Railway Co.) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Queensberry v. Norfolk & Western Railway Co., 157 F.R.D. 21, 1993 U.S. Dist. LEXIS 20370, 1993 WL 727356 (E.D. Va. 1993).

Opinion

MEMORANDUM OPINION

SPENCER, District Judge.

In this action, plaintiff Garland Gary Queensberry seeks damages under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§ 51-60, for injuries he is alleged to have suffered while employed by defendant Norfolk and Western Railway Company (“N & W”) at Crewe, Virginia, on July 11, 1991.

This matter is presently before the Court on defendant N & W’s Motion in Limine, in which defendant asks this Court to prohibit plaintiff from engaging, without defendant’s consent, in ex parte communication with defendant’s employees concerning the subject matter of this ease. Defendant also asks that plaintiff be required to produce for inspection by defendant any ex parte statements previously taken from such employees.

As the parties’ legal arguments are adequately presented in their written pleadings, a hearing on defendant’s motion is not required. See Local Rule 11(K); Fed.R.Civ.P. 78.

For the reasons set forth below, defendant’s motion will be GRANTED, subject to certain restrictions.

I.

Under Virginia Code of Professional Responsibility Disciplinary Rule 7-103(A) (1993):1

During the course of his representation of a client a lawyer shall not:

(1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer in that matter unless he has the prior consent of the lawyer representing such other party or is authorized by law to do so.2

When one of the parties is a corporation, this rule prohibits ex parte communication with

persons having a managerial responsibility on behalf of the organization, and ... any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

ABA Comm, on Ethics and Professional Responsibility, Formal Op. 359 (1991) (quoting comment accompanying Model Rules of Professional Conduct Rule 4.2, a rule “substantially identical” to Model DR 7-104(A)(l) and Virginia DR 7-103(A)(l)); see also ABA Comm, on Ethics and Professional Responsibility, Informal Op. 1410 (1978) (discussing Model DR 7-104(A)(l)) (“no communication with an ... employee of a corporation with the power to commit the corporation in the particular situation may be made by opposing counsel unless he has the prior consent of [23]*23the designated counsel of the corporation, or unless he is authorized by law to do so”). Thus, as an initial matter, the Court must determine whether defendant N & W’s employees are individuals “whose statements] may constitute an admission on behalf of the organization.”

Under Rule 801(d)(2) of the Federal Rules of Evidence, an employee’s statement can be used against his employer as an admission if the statement “eoncern[s] a matter within the scope of the agency or employment” and was “made during the existence of the [employment] relationship.” Fed.R.Evid. 801(d)(2)(D); see also Precision Piping & Instruments, Inc. v. E.I. du Pont de Nem-ours & Co., 951 F.2d 613, 618 (4th Cir.1991); McCallum v. CSX Transp., Inc., 149 F.R.D. 104, 110 (M.D.N.C. May 4, 1993). Thus, “virtually any employee may conceivably make admissions binding on his or her employer.” McCallum, at 110.

As the district court noted in McCollum, Because any employee might bind the corporation pursuant to Fed.R.Evid. 801(d)(2)(D), it would seem fair that the employer’s attorney ought to be present at any interview where an admission is made. On the other hand, it may be difficult to determine which employees fit into that category prior to an interview. To act cautiously may mean that no employee could be interviewed without opposing counsel’s consent or a court order. Such a result could seriously jeopardize those cases where plaintiff ha[s] a critical need to be able to inexpensively conduct informal discovery....

Id. The apparent tension among the ethics of contacting an opponent’s employees, the need for informal discovery, and the liberal scope of admissions under Rule 801(d)(2)(D), does not, however, present an insurmountable barrier in ascertaining an appropriate code of conduct.

... First, one can request permission for the company’s attorney or seek permission from the Court____ The attorney who seeks court approval before contact does not risk an ethical violation, but one who does not acts at his or her own peril....
Second, the sweep of Rule 801 is not as threatening as it may seem at first blush. It is true that the Federal Rules of Evidence ... now eliminate the need for the employee to have authority to speak before the employee’s statements can constitute an admission by the employer.... However, the statement still must be within the scope of the agency or employment of the employee____ Employees do not come under Fed.R.Evid. 801(d)(2)(D) unless their job function has something to do with the issue at hand____

Id. at 110-11.

In this case, plaintiff apparently has held, or seeks to hold, ex parte discussions with employees who have knowledge of the work conditions and practices in the car repair shop in Crewe. It is readily apparent that these employees could only have acquired such knowledge in the course and scope of their employment, and that their statements might, upon the establishment of a sufficient foundation by plaintiff, be admissible under Rule 801(d)(2)(D) as admissions by a party-opponent. See Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1567 n. 12 (11th Cir.1991) (steward’s statement regarding condition of sliding glass door would have been admissible had plaintiff established that steward “legitimately acquired knowledge of the defective door in the course and scope of his employment”). Accordingly, ex parte communications with defendant’s employees with regard to such issues are barred by Virginia DR 7-103(A), absent prior consent of defendant’s counsel, unless such communications are otherwise authorized by law.

II.

Plaintiff Queensberry argues that in this case, ex parte communications with defendant N & W’s employees are “otherwise authorized” under the provisions of FELA. Plaintiff specifically relies upon 45 U.S.C. § 60, which states in pertinent part:

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Bluebook (online)
157 F.R.D. 21, 1993 U.S. Dist. LEXIS 20370, 1993 WL 727356, Counsel Stack Legal Research, https://law.counselstack.com/opinion/queensberry-v-norfolk-western-railway-co-vaed-1993.