Alert: California Ruling Appears to Broaden the Ability of Opposing Counsel to Directly Contact a Company's Employees

December 10, 2003

A new case decided by the California Court of Appeal appears to broaden the ability of opposing counsel to directly contact a company’s employees.  Aggressive attorneys may attempt to contact a company’s employees directly, to secure information without going through the judicial discovery processes (such as subpoenas and depositions) that guarantee the presence of the corporation’s litigation counsel.

Previous decisions had limited which employees could be contacted by opposing counsel directly.  If opposing counsel violated the rule, the attorney would be disqualified from the case.  But in Snider v. Superior Court (Quantum Productions, Inc.), (December 3, 2003), the court took a narrow view of the rule prohibiting direct contact, limiting its protection to high-level management, persons in direct communication with the company’s attorneys, and only those company employees most directly involved in the dispute.

To ensure that opposing counsel does not make an end-run around litigation counsel, companies should tell (or remind) their employees that if they are contacted by an attorney, they should not talk to that attorney.  Employees should also be told to immediately contact either the in-house counsel or the lawyer handling the case for the company.