Opinion
No. X04 HHD CV-09-5034664 S
November 12, 2010
MEMORANDUM OF DECISION ON MOTION FOR PROTECTIVE ORDER (#119)
This matter is before the court concerning the plaintiff's motion for protective order, which seeks an order allowing him ex parte access to tenured faculty witnesses employed by the defendant (defendant or Wesleyan) for the purpose of discovery and to prepare for trial. He seeks to interview these potential witnesses, who voted on his tenure case, which is the focus of this employment matter, outside the presence of Wesleyan's counsel, and without the necessity of incurring the expense of taking depositions. In particular, he anticipates that faculty will provide favorable testimony in accordance with their votes to recommend tenure and reappointment, including what role "colleagueship" played in the process.
The plaintiff contends that to deny him access to these uniquely situated persons undermines his legitimate need for access to information in preparation for trial. He urges the court to conclude that only members of the Board of Trustees or the President and his administration have managerial responsibility for this matter and the actual authority to bind and settle disputes for Wesleyan, and to apply to them the label of "litigation control group" for the purpose of this dispute. In addition, he seeks an order compelling the defendant to advise the potential witnesses that they may meet with his counsel without fear of retaliation.
In support, the plaintiff cites Practice Book § 13-5(5), which provides, in relevant part, "[u]pon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including . . . that discovery be conducted with no one present except persons designated by the judicial authority . . ."
In response, the defendant asserts that the relief sought would permit the plaintiff to skirt Rule 4.2 of the Connecticut Rules of Professional Conduct (Rule 4.2), which prohibits plaintiff's counsel from communicating ex parte with persons having managerial responsibility on Wesleyan's behalf. The defendant contends that all of the tenured faculty voters have such managerial responsibility, putting them within the ambit of Rule 4.2.
The plaintiff also filed a reply (#138). According to this court's Case Management Order, replies may not be filed without the court's permission. Since permission to file the reply was not sought, the court has not considered it.
"Rule 4.2 provides that `in representing a client, a lawyer shall not communicate about the subject of the representation with a party 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 by law to do so . . . `The purpose of this restriction is to preserve the integrity of the lawyer-client relationship by protecting the represented party from the superior knowledge and skill of the opposing lawyer. The rule is designed to prevent situations in which a represented party may be taken advantage of by opposing counsel." (Emphasis omitted; internal quotation marks omitted.) Pinsky v. Statewide Grievance Committee, 216 Conn. 228, 235-36, 578 A.2d 1075 (1990). "The rule's primary concern is to avoid overreaching caused by disparity in legal knowledge; it is designed to protect lay parties." In Re Grievance Proceeding, United States District Court, Docket No. 3:01GP6 (SRU) (D.Conn., July 19, 2002).
The official Commentary to Rule 4.2 provides, in relevant part, "[i]n the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with 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."
The "Scope" portion of the Rules of Professional Conduct provides that, "[t]he Commentary accompanying each Rule explains and illustrates the meaning and purpose of the Rule. The Preamble and this note on Scope provide general orientation. The Commentaries are intended as guides to interpretation, but the text of each Rule is authoritative. Commentaries do not add obligations to the Rules but provide guidance for practicing in compliance with the Rules." See Practice Book, pp. 3-4.
As stated above, the Commentary states that Rule 4.2 prohibits communications "with persons having a managerial responsibility on behalf of the organization." (Emphasis added.) Nevertheless, the plaintiff argues that the tenured faculty members should not be considered as having managerial responsibility " over the organization." (Emphasis added.) See plaintiff's memorandum, p. 15.
"Generally, opposing counsel may not communicate with current employees who have managerial responsibilities within the corporation or who have the power to bind the corporation." In Re Grievance Proceeding, supra, United States District Court, Docket No. 3:01GP6 (SRU). "Managerial employees are defined as those who formulate and effectuate management policies by expressing and making operative the decisions of their employer." (Internal quotation marks omitted.) NLRB v. Yeshiva University, 444 U.S. 672, 682, 100 S.Ct. 856, 63 L.Ed.2d 115 (1980). "[T]he fact that the administration holds a rarely exercised veto power does not diminish the faculty's effective power in policymaking and implementation . . . Consistent with the concern for divided loyalty, the relevant consideration is effective recommendation or control rather than final authority." (Citation omitted; internal quotation marks omitted.) Id., 683 n. 17.
It is undisputed that, at Wesleyan, with the concurrence of the President, and subject to the approval of the Board of Trustees, the faculty determines the courses of study, the arrangements of lectures, the time and modes of examination, and the general method of instruction. See Faculty Handbook, University By-laws, Chapter IV, p. 19. In determining that faculty were managerial employees, the Supreme Court stated, "the faculty . . . exercise authority which in any other context unquestionably would be managerial. Their authority in academic matters is absolute. They decide what courses will be offered, when they will be scheduled, and to whom they will be taught. They debate and determine teaching methods, grading policies, and matriculation standards." NLRB v. Yeshiva University, supra, 444 U.S. 686.
It is also undisputed that the prospective witnesses, who participated in determining whether the plaintiff would be retained and granted lifetime tenure, including by casting votes in a three-tiered process, are all tenured professors. As in NLRB v. Yeshiva University, supra, 444 U.S. 677, at Wesleyan, tenured faculty make recommendations concerning tenure, which is another indication of managerial responsibility. As the plaintiff states in his memorandum, page 4, while Wesleyan's President made the last decision, he is not "the only decision-maker in a case where 40 faculty members reviewed Plaintiff's case for tenure and 23 found Plaintiff had satisfied the criteria." Accordingly, the court concludes that the tenured faculty witnesses come within Rule 4.2's purview.
In advancing his argument for adoption of a "litigation control group" test, the plaintiff relies, in particular, on four decisions, which are not controlling, and which, for reasons discussed below, are either distinguishable or are not persuasive. Messing, Rudavsky Weliky, P.C. v. President Fellows of Harvard College, 436 Mass. 347, 764 N.E.2d 825 (2002), interpreted Massachusetts' Rule 4.2, and was guided by the comment thereto, which the court found to be instructive. See id., 353. However, in Massachusetts, when Messing was decided, the comment interpreted Rule 4.2 as prohibiting ex parte communications by opposing counsel with "persons having managerial responsibility on behalf of the organization with regard to the subject of the representation." (Emphasis added; internal quotation marks omitted.) Id., 354. As adopted in Massachusetts, the comment is more narrow than Connecticut's commentary to Rule 4.2, quoted above. No Connecticut court has followed Messing.
Likewise, Wasmer v. Ohio Department of Rehabilitation and Correction, United States District Court, Case No. 2:05-cv-0986 (S.D. Ohio, February 21, 2007), cited by the plaintiff, construed a comment to Rule 4.2 which has not been adopted in Connecticut.
Prior thereto, in Craine v. Trinity College, Superior Court, judicial district of Hartford, Docket No. CV 95 0555013 (November 3, 1998, Peck, J.) ( 23 Conn. L. Rptr. 238), the court relied on Morrison v. Brandeis University, 125 F.R.D. 14, 19 (D.Mass. 1989), which adopted a case-by-case balancing test, and which found that the plaintiff's need to obtain information was substantial and outweighed the defendant's need to ensure effective representation. However, Morrison cited then-applicable Massachusetts Disciplinary Rule 7-104 and the Massachusetts Bar Association's interpretation thereof. See id., 125 F.R.D. 15. In particular, Morrison rejected as inadequate the comment to Rule 4.2 of the ABA's Model Rules of Professional Conduct, which contains the same language, quoted above, as in Connecticut's comment to Rule 4.2. See id., 18. Since Connecticut's Commentary has been adopted here, and is to be construed as providing guidance, this court declines to consider it to be inadequate.
Also unpersuasive are cases cited by the plaintiff which pertain to former employees. See Action Air Freight, Inc. v. Pilot Air Freight Corp., 769 F.Sup. 899, 902-03 (E.D.Pa. 1991); Hanntz v. Shiley, Inc., 766 F.Sup. 258, 261, 265 (D.N.J. 1991); Curley v. Cumberland Farms, Inc., 134 F.R.D. 77, 78, 86 (D.N.J. 1991).
Earlier, in Rivera v. Rowland, Governor, Superior Court, judicial district of Hartford-New Britain at Hartford, Docket No. CV 95 545629 (December 17, 1996, Lavine, J.) ( 18 Conn. L. Rptr. 378), the court found assistant public defenders and other non-managerial employees to be fact witnesses and not parties. See id. Its analysis was made in a context not applicable here, where "[s]pecial concerns exist in a case such as this in which governmental entities and officials are the named defendants, in which fundamental allegations about the fairness of the criminal justice system are being made, and in which claims of a constitutional magnitude are being asserted." Id. As the court noted, "the defendants are not simply private corporate defendants involved in a private lawsuit and ought not to be treated as such. They are public persons and entities carrying on the public's business. As such, they are compelled to strike a delicate balance and play a difficult dual role — vigorously defending the case, yet ensuring all the while that justice is done." Id. Here, Wesleyan is a private defendant.
As explained in the Commentary, Rule 4.2 strikes a balance, in limiting ex parte contact with persons who have managerial responsibility, as opposed to all those associated with an organization. The plaintiff is not precluded from gathering evidence and preparing for trial. He has available to him the full panoply of discovery tools which are permitted by the Rules of Practice. Under the circumstances of this case, the court concludes that if the court were to graft an exception onto Rule 4.2, in order to accommodate the plaintiff's request for permission to interview the proposed witnesses outside of the presence of defense counsel, the Rule would be undermined.
CONCLUSION
For the foregoing reasons, the plaintiff's motion for protective order is denied. It is so ordered.