ELIZABETH A. CLEMONS, DAVID R. KHALIEL, and LARRY W. TAYLOR, on behalf of themselves and all other similarly situated individuals. Plaintiffs
NORTON HEALTHCARE, INC. RETIREMENT PLAN. Defendant.
MEMORANDUM OPINION AND ORDER
THOMAS B. RUSSELL, Senior District Judge.
This matter is before the Court upon Plaintiffs' Motion to Strike the Affidavit of Laura Mooser and for Sanctions. (Docket No.149.) Defendant has responded. (Docket No. 152.) Plaintiffs have replied. (Docket No. 169.) This matter is now fully briefed and ripe for adjudication. For the following reasons, the Court will GRANT Plaintiffs' Motion to Strike the Affidavit and DENY Plaintiffs' Motion for Sanctions. (Docket No. 149.)
Ms. Mooser is a retired participant in the Defendant Plan and a non-named class member. On July 26th, 2012, Defendant subpoenaed Ms. Mooser for a deposition. (Docket No. 120-3.) This deposition was to occur on August 22nd, 2012. Id. On August 18, 2012, Plaintiffs moved to quash the subpoena and requested a protective order. (Docket No. 120.) Defendants responded to the motion to quash on August 31, 2012. (Docket No. 126.) On November, 19, 2012, before the Court ruled on Plaintiffs' pending motion to quash, Defendant filed its Motion for Summary Judgment. (Docket No. 145.) In support of its motion, Defendant submitted a number of exhibits, including an affidavit from Ms. Mooser. (Docket No. 145-5.) This affidavit was executed on November 2, 2012. Id. There was no notice to or consent from Plaintiffs' Counsel as to contact by Defendant's counsel with Ms. Mooser. (Docket No. 149, Page 6.) The Court granted the Plaintiffs' motion to quash and barred Defendant from taking Ms. Mooser's deposition on November 20, 2012, holding that the Defendant had not satisfied the "particularized need" for taking Ms. Mooser's deposition. (Docket No. 146.)
Plaintiffs argues that Defendant's contact with Ms. Mooser violated Kentucky Supreme Court Rule ("SCR") 3.130(4.2), which prohibits communication with a client represented by a lawyer about the subject of the representation. In effect, Plaintiff argues that Defendant circumvented process by directly soliciting Ms. Mooser's testimony by way of affidavit while the Plaintiffs' motion to quash was pending (which was later granted).
On the other hand, Defendant argues: (1) Ms. Mooser was represented by independent legal counsel; (2) Ms. Mooser's independent legal counsel was contacted by Defendant's counsel with respect to the affidavit under attack through Plaintiffs' motion; (3) not once did counsel for Defendant speak to Ms. Mooser, and all communication were through her identified legal counsel; and (4) Ms. Mooser's affidavit was presented and signed prior to the Court's ruling that Ms. Mooser could not be compelled to participate in the action given her status as a non-named class member.
Specifically, Defendant alleges that it received a telephone call from Mr. Matthew Gay, who stated he was legal counsel retained by Ms. Mooser. (Docket No. 152, Page 3-4.) Upon being informed of the Plaintiffs' motion to quash, Defendant informed Mr. Gay that the deposition could not move forward. (Docket 152, Page 4.) In early October, with this Court not having ruled in on the motion to quash, Defendant inquired of Mr. Gay whether Ms. Mooser would be willing to supply an affidavit instead. Id. Mr. Gay stated she would, and Mr. Gay and Defendant exchanged draft affidavits. At no time, and under no circumstances did Defendant directly contact, speak to, or otherwise communication with Ms. Mooser other than through Mr. Gay. (Docket No. 152, Page 5.)
In its reply brief, Plaintiffs state that Mr. Gay never contacted them and Defendant never indicated it had been contacted by Mr. Gay. (Docket No. 169, Page 2.) Plaintiffs reiterate that Defendant's actions were a violation of Kentucky SCR 3.130(4.2)'s plain language and a circumvention of Plaintiffs' motion to quash.
I. Motion To Strike
The crux of the disagreement between the parties goes to whether or not Defendant was prohibited by Kentucky SCR 3.130(4.2) from conversing with Ms. Mooser indirectly through Mr. Gay (the attorney Ms. Mooser retained) with respect to the subject of Plaintiffs counsel's representation: the Class lawsuit. The Court finds that this was prohibited by Kentucky SCR 3.130(4.2). It is significant that Ms. Mooser had not opted out of the Class and Mr. Gay did not represent the Class when the communication occurred.
While not controlling on the Court because it is a Northern District of Illinois case, the Court adopts much of the reasoning in Blanchard v. Edgemark Fin'l Corp., 175 F.R.D. 293 (N.D. Ill. 1997). Blanchard involved a situation very similar to the present case. There, after the court certified a class and appointed class counsel, defense counsel communicated with the named plaintiff, Beale, through separate counsel (Attorney Carroll) that Beale had retained to represent him in a related state court action. Id. at 301. This ultimately resulted in a settlement of all claims (including the other related matter in federal court). The communication prompted plaintiffs to assert a Rule 4.2 violation. Id. at 303. The Blanchard defendant argued that Rule 4.2 was not violated because "defense counsel never communicated directly with Beale and thus, never communicated with a party, as proscribed by the anti-contact' rule." 175 F.R.D. at 301. Rejecting this argument, the court held:
While [defense counsel] did not communicate directly with Beale, [defense counsel's] communications were no doubt reconveyed to Beale through Attorney Carroll. Put another way, Attorney Carroll was the means of communicating to Beale. The Court finds that [defense counsel's] indirect communication with Beale through Attorney Carroll implicated many of the same concerns and posed many of the same risks that would have been present if [defense counsel] had communicated with Beale directly. Thus, the Court concludes that the distinction between the two methods of communication is insignificant and does not remove the contact from the ambit of Rule 4.2.
Similar to the Defendant here, who argues that Mr. Gay was Ms. Mooser's chosen counsel and Kentucky SCR 3.130(4.2) is not implicated, the Blanchard defendant argued that because Attorney Carroll (who was not class counsel) was Beale's chosen counsel and would protect Beale's interests, Rule 4.2 concerns were not implicated. The Blanchard court rejected the notion that Beale (who was represented by class counsel) could consent to or waive a Rule 4.2 type violation. 175 F.R.D. at 302.
In this case, Mr. Gay did not and could not represent Ms. Mooser in this matter, as she was part of the Class and was already represented by Class Counsel. Defendant was well aware of this fact, but proceeded to contact Ms. Mooser (through Mr. Gay) without notice or approval from Class Counsel. The Defendant was required to ...