A central principle that governs pre-trial investigation or discovery in civil litigation is that much of it can be done informally through private interviews rather than through the formal discovery practices outlined in Article 31 of New York’s Civil Practice Law and Rules. In fact, the New York Court of Appeals, in a case called Nieseg v. Team I, 76 NY2d 363 (1990), expressed the public policy preference that such informal discovery be available to all litigants: 

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.

The specific holding in Nieseg was that corporate employees, who were mere witnesses to an event about which the corporate employer was sued, may be interviewed informally by opposing counsel. After Nieseg, the question remained to what extent lawyers that represent corporate defendants could legally and ethically thwart informal discovery by identifying and offering to represent, often free of charge, likely corporate employee witnesses? Once these witnesses were represented by counsel, the opposing party’s only option was to resort to formal discovery (e.g. examinations before trial under oath or written interrogatories), which is time-consuming and more expensive.

Rivera v. Lutheran Medical Center

In Rivera v. Lutheran Medical Center, 2008 NY Slip Op 28406, 2008 NY Misc LEXIS 6060 (Ambrosio , J. dec. 10/16/08), the trial judge addressed this issue by disqualifying a large, New York City defense law firm from representing (at no charge) four employees of a hospital defendant that was being sued for employment discrimination. The judge noted that the employees were simply witnesses to the events in question and that there was no chance they would be subjected to any individual liability. This meant that the law firm solicited the employees as clients in order to gain tactical advantage for its hospital client by preventing plaintiff’s counsel from informal contact with the witnesses. Ruling that the law firm’s conduct was both a violation of the Code of Professional Responsibility and was contrary to the expressed policy of fostering rather than thwarting informal discovery as expressed in Nieseg, the trial judge granted plaintiff’s motion to disqualify the hospital’s law firm from representing the four employee witnesses.

The Rivera case presents a strong rebuke of the increasingly frequent tactic by corporate counsel of offering free representation to employee witnesses as a means of thwarting informal fact-finding in litigation involving the corporation. It remains to be seen whether the New York appellate courts will use the Rivera case to draw a brighter line between proper and improper conduct by corporate counsel. The Rivera court did not clarify under what circumstances counsel could properly represent both the corporation as well as its employees. It is almost certain that the hospital defendant in Rivera will appeal the trial judge’s decision. It is safe to presume that New York’s trial and appellate courts will continue to address this very important issue.