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granting the motion to compel but declining to award fees because "the opposition to the motion was substantially justified as the assertion of attorney-client privilege was a valid legal argument under the facts of this case"
Summary of this case from Hartree Nat. Gas Storage v. PAA Nat. Gas StorageOpinion
No. 02C-01-016-RFS
Submitted: November 15, 2002
Decided: November 18, 2002
Dear Counsel:
This is my decision on Jaimey Showell's ("Claimant") Motion to Compel the disclosure of employee witnesses' home addresses and telephone numbers. The Motion is granted for the reasons set forth herein.
Mountaire Farms, Inc. ("Mountaire") also argues that Plaintiff has not properly noticed its Motion to Compel under Rule 37(e) and Rule 6 of the Delaware Superior Court Civil Rules. However, Mountaire's response contains no assertions nor argument as to why the motion was not properly noticed. The Court assumes that Mountaire challenges the timeliness of the motion since the motion was filed on November 6th and argument was set for November 15th less than 10 days after the motion was filed. However, the court has discretionary power under this rule and attempts to resolves disputes on their merits, not on mere technicalities. Williams v. Hall, 176 A.2d 608 (Del.Super. 1961). Moreover, the Court notes that Mountaire's response to this motion was not filed until November 14th and is also untimely under Rule 37(e).
1. Should Showell's Motion to Compel the disclosure of employee witnesses' home addresses and telephone numbers be granted pursuant to Superior Court Civil Rule 37 or is such information privileged pursuant to Rule 4.2 of the Delaware Rules of Professional Conduct?
2. Should the requested information be protected from disclosure due to a failure to establish relevance?
3. Should attorney's fees and costs be assessed against Mountaire pursuant to Superior Court Civil Rule 37?
DISCUSSION
A. Rule 4.2
Showell's motion to compel disclosure of the employee witnesses' home addresses and telephone numbers should be granted. Under Rule 37 the discovering party may seek a motion to compel an answer where a party fails to answer a question submitted under Rule 30. Del. Super.Ct.Civ.R. 37. See also Williams v. Hall, 176 A.2d 608, 617 (Del.Super. 1961) (stating that the court has discretion to order the disclosure of the information in the interests of justice based on the facts and circumstances of the case). One of the questions under the Form 30 interrogatories requests the disclosure of the names, addresses and telephone numbers of eyewitnesses "to the incident which is the subject of the litigation." Del. Super. Ct. Civ. Form 30.
In this case, Mountaire's counsel disclosed the names of the fellow employees who witnessed the explosion, but refused to disclose their addresses and phone numbers on the grounds that such information is protected under the attorney client privilege. Mountaire argues that as employees of Mountaire they are also represented by corporate counsel and any communication with the employees should be with the consent of counsel. Mountaire further asserts that since the actions of these employees may be imputed to Mountaire, these employees are represented by corporate counsel for the purposes of Rule 4.2. Rule 4.2 of the Delaware Lawyer's Rules of Professional Conduct prohibits communication with a party represented by an attorney unless counsel consents. Del. Prof. 2 Cond. R. 4.2. Thus the first inquiry is whether the party is represented by counsel, since the Rule does not apply to unrepresented persons. Monsanto Co. v. Aetna Sur. Co., 593 A.2d 1013, 1018 (Del.Super. 1990). The comments to the rule explain the operation of the rule in the context of an organization, such as the corporate party Mountaire, in this case. The Rule is intended to apply to employees "having a managerial responsibility on behalf of the organization," or whose act or omission may be imputed to the organization, or "whose statement may constitute an admission on the part of the organization." Del. Prof.Cond.R. 4.2 cmt. This rule is intended to apply to those employee's with authority to bind or to speak for the corporation. Diossi v. Edison, 583 A.2d 1343, 1346-47 (Del.Super. 1990) (noting that the Rule serves to protect the attorney client relationship, not to protect a party from the discovery of nonprivileged evidence).
Here, there is no assertion that the employees at issue served in any type of managerial capacity. The question is whether the acts or omissions of these employees in connection with the incident would be imputed to Mountaire for the purposes of criminal or civil liability. See Del. Prof.Cond.R. 4.2 cmt. Assuming that the employees were acting within the course and scope of their employment at the time of the incident, their actions could be imputed to Mountaire under established principles of agency law. However, there are no allegations in the complaint that these employees were negligent or that any of their acts or omissions contributed to the explosion. Thus, they are not persons "whose act[s] or admission[s] in connection with [the] matter may be imputed to" Mountaire. Del. Prof.Cond.R. 4.2 cmt. Based on the facts and circumstances of this case, these employees are not represented by corporate counsel for the purposes of Rule 4.2. Moreover, Showell's need to uncover the truth is outweighed by Mountaire's interest in withholding the information. See Morrison v. Brandeis Univ., 125 F.R.D. 14, 19 (Mass.Dist.Ct. 1989) (finding that plaintiff's need to search for truth and prepare for trial outweighed the organization's need for effective representation of counsel). Therefore, the addresses and phone numbers of these named employees are discoverable and should be provided to Showell.
The question of whether or not the employees were acting within the course and scope of employment is an issue presently before this Court that has not yet been resolved.
Assuming these employees are unrepresented, Showell's counsel must still comply with Rule 4.3. Del. R. Prof.Cond.R. 4.3. In Monsanto, the court established guidelines to be used in conducting informal interviews of such witnesses. 593 A.2d at 1021. The interviewer must first identify whom they work for and that this party is involved in litigation against the interviewee's employer. Id. The interviewer must next ask whether the interviewee is represented by counsel and must cease questioning if the answer is yes. Id. If the person is unrepresented then the interviewer must seek permission to interview them. Id. If the person declines to be interviewed then questioning must cease. If the person assents then the interviewer may proceed with questioning. Id. The guidelines established in Monsanto are also appropriate in this case. Accordingly, the information should be ordered disclosed, subject to the guidelines established in Monsanto.
B. Relevance
Mountaire's argument that Showell has not established the relevance of the information sought must be rejected. Here, Showell seeks the addresses and phone numbers of fellow employees who may have been eye witnesses to the incident. These employees may eventually be called as factual witnesses on behalf of Showell. Such information is clearly relevant for Showell's preparation of his case.
C. Attorney's fees and costs
Showell's request for attorney's fees and costs should be denied. Pursuant to Rule 37(a)(4)(A), upon granting the motion to compel the court shall require the opposing party to pay attorney's fees and costs "unless the Court finds that the making of the motion was substantially justified." Del. Super.Ct.Civ.R. 37(a)(4)(A). Here, although the Court grants the motion, the opposition to the motion was substantially justified as the assertion of attorney-client privilege was a valid legal argument under the facts of this case.
CONCLUSION
Showell's motion to compel is granted, subject to the guidelines in Monsanto. Showell's request for attorney's fees and costs is denied.