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Judge Calls Morgan Lewis' Actions a Bid to Thwart Informal Discovery
New York Law Journal
October 29, 2008
A Brooklyn, N.Y., judge has barred Morgan, Lewis & Bockius from representing four employees of a hospital the law firm is defending against an employment discrimination claim, ruling that the firm's offer of free services to the potential witnesses constituted an improper attempt to thwart discovery.
"These witnesses are not parties to the litigation in any sense and there is no chance that they will be subject to any liability. They were clearly solicited by Morgan Lewis on behalf of [the hospital] to gain a tactical advantage in this litigation by insulating them from any informal contact with plaintiff's counsel," Supreme Court Justice Michael A. Ambrosio held in Rivera v. Lutheran Medical Center, 22050-05.
"This is particularly egregious since Morgan Lewis, by violating the Code [of Professional Responsibility] in soliciting these witnesses as clients, effectively did an end run around the laudable policy consideration of ... promoting the importance of informal discovery practices in litigation, in particular, private interviews of fact witnesses."
The decision demonstrates the lack of clarity regarding when a corporate defendant may provide an employee with counsel and, whether or not it was a guiding motivation, thereby prevent the plaintiff's counsel from communicating directly with the employee.
In his $12 million lawsuit, plaintiff Felix Rivera alleges that Brooklyn Lutheran Medical Center fired him in retaliation for a 1996 lawsuit filed against the hospital by his sister-in-law, who claimed the center's failure to provide a sign language interpreter resulted in improper treatment. That case settled for $200,000.
Seven years after his sister-in-law filed suit, Rivera, who had worked at the hospital as a housekeeper for 10 years, was fired for showing a "sexually suggestive" cartoon to a co-worker.
In his complaint, Rivera claimed the cartoon served simply as a pretext for his dismissal, noting that the co-worker with whom he shared the cartoon had previously brought in similarly suggestive materials, such as the "erotic chocolates" she sold to fellow employees.
During discovery, the hospital's counsel, Morgan Lewis, contacted all of its potential witnesses and offered to represent them at the hospital's expense. All four nonparty witnesses accepted.
Rivera filed the present motion, seeking the firm's disqualification from representing the witnesses.
Rivera claimed the law firm offered free counsel in order to thwart his ability to informally meet with witnesses. Because they were now represented by counsel, the witnesses could be contacted only through counsel, which would prove more costly and time consuming.
In opposing the motion, Morgan Lewis stated that it had advised the witnesses that Lutheran Medical had simply offered to pay for Morgan Lewis' services for its employees, and that the employees' decisions whether to accept were entirely voluntary.
"Unfortunately," Justice Ambrosio wrote, "Morgan Lewis has a history in this litigation of improperly thwarting plaintiff's attempts to obtain discovery." He cited as examples the firm's refusal to disclose numerous documents it considered "classified," which were later inspected by the court and deemed "ordinary," as well as a conditional preclusion order issued by a prior judge against the hospital for Morgan Lewis' evasive responses to discovery demands.
INFORMATION GATHERING
In the present case, Ambrosio deemed Niesig v. Team I, 76 NY2d 363, controlling.
In Niesig, a 1990 personal injury case, the New York Court of Appeals held, among other things, that "employees who were merely witnesses to an event for which the corporate employer is sued" may be interviewed informally.
As Judge Judith S. Kaye wrote for the majority, "Costly formal depositions that may deter litigants with limited resources, or even somewhat less formal and costly interviews attended by adversary counsel, are no substitute for such off-the-record private efforts to learn and assemble, rather than perpetuate, information."
In Rivera's case, the court found that the defense offered to provide counsel to nonparty witnesses in order to sidestep Niesig.
"[B]y violating the Code [of Professional Responsibility] in soliciting these witnesses as clients, [Morgan Lewis] effectively did an end run around the laudable policy consideration of Niesig [of] promoting the importance of informal discovery practices in litigation, in particular, private interviews of fact witnesses," Ambrosio ruled. "This impropriety clearly affects the public view of the judicial system and the integrity of the court."
Ambrosio ordered Morgan Lewis to inform the four nonparty witnesses that it could no longer represent them. Rivera's counsel may also contact those witnesses, the judge added, to see if they wish to be interviewed.
Alan Rich, a solo practitioner in Brooklyn, represented Rivera, as well as his sister-in-law, who filed the 1996 action.
Rich called Ambrosio's decision an "important" reaction against an increasingly common defense tactic.
"What I've seen more and more of these defense firms do is, they name everybody -- the line guy at the plant that heard something second- or third-hand -- which means you can't do an investigation," Rich said. "It's basically a way of foreclosing a reasonable avenue of investigation for plaintiffs."
Debra Morway of Morgan Lewis represented Lutheran Medical. She issued a statement, but otherwise declined to discuss the decision or her firm's relationship with Lutheran Medical.
"We are disappointed with the decision and disagree with it," Morway said. "Both our client and the firm are considering our options at this time."
Plaintiffs attorneys not involved in the case offered mixed takes on the ruling.
One called the hospital's actions a clear attempt to circumvent discovery rules.
"They're trying to cloak all of their employees in this kind of privilege even if they are not logically involved in the litigation," he suggested. "It would be like me calling up all the doctors and saying, 'I'm going to represent you.'"
Evan Torgan of Torgan & Cooper said that, Niesig's protections notwithstanding, most plaintiffs attorneys still opt to take on the added expense of formal interviews.
"A lot of plaintiffs lawyers would rather go through the deposition process than be accused of witness tampering," Torgan said.
