Interviewing Former Employees By Opposing Counsel

I’m currently involved in two, back-to-back administrative Hearings, so I haven’t posted in a few days. Despite being preoccupied with advocating for my clients (go figure), an article in today’s New York Law Journal peaked my interest, so I wanted to share it with you.

The article, discussing the Court of Appeals’ recent, unanimous decision in Muriel Siebert & Co. v. Intuit Inc., is written by Roy L. Reardon, Esq. and Mary Elizabeth McGarry, Esq. In the Siebert case, the Court held that counsel may conduct an ex parte interview of an adversary's former employees (even a high-ranking officer who had been privy to privileged information concerning the litigation) without being disqualified from the case, “so long as measures are taken to steer clear of privileged or confidential information." In short, the Court stated that the interviewing attorney was required to comply with all ethical standards in such a situation, which can include directing the witness not to disclose privileged or confidential information, or answer questions that would lead to such disclosures. Based on my reading of the opinion, if an attorney attempts to elicit privileged or confidential information from the former employee, it is likely that disqualification could result.

Sorry, folks, but there’s nothing sarcastic to say about this one. I’m juz reporting the fax (I know ... that’s a bad one, but I couldn’t resist).