United States District Court, D. Vermont
Susan Thurston, Plaintiff: Matthew D. Anderson, Pratt
Vreeland Kennelly Martin & White, Ltd., Rutland, VT.
Okemo Limited Liability Company, doing business as Okemo
Mountain Resort, Defendant: John J. Zawistoski, Esq., Thomas
S. Valente, Esq., Ryan Smith & Carbine, Ltd., Rutland, VT.
Evaluator, ENE Evaluator: Potter Stewart, Jr., Esq.,
Phillips, Dunn, Shriver & Carroll, P.C., Brattleboro, VT.
AND ORDER RE: PLAINTIFF'S FIRST MOTION TO COMPEL FORMER
EMPLOYEE LIFT ATTENDANT CONTACT INFORMATION AND STATEMENTS
W. Crawford, United States District Judge.
Susan Thurston brought this action against Okemo LLC and CLP
Mountain, LLC (both allegedly doing business as " Okemo
Mountain Resort" ), claiming defendants were negligent
in the operation of a chair lift which injured Thurston.
Thurston moves to compel production of contact information
for former chair lift attendants employed by defendant Okemo
LLC (" Okemo" ). She further moves for permission
to contact and interview the former chair lift attendants
outside of a formal deposition setting. For reasons stated
below, plaintiff's motion is GRANTED.
alleges that on or around March 7, 2014, she attempted to
board a chair lift at Okemo Mountain Resort. She fell in the
chair loading area. After she had fallen, a chair from the
moving chair lift " ran over her." (Doc. 1 at 6.)
She claims that defendants were negligent both in designing
the chair loading area and in maintaining conditions at the
chair loading area such that skiers " could easily stop
at the loading location." ( Id. ) She also
claims defendants were negligent in operating the chair lift
" by not employing lift safety instruments or devices
that would have more quickly detected [her] fall and more
quickly shut down the lift." ( Id. ) Thurston
additionally alleges that the chair lift operator employee
failed to " timely shut the lift down after it became
apparent that [she] had fallen in the path of an oncoming
chair." ( Id. ) Thurston's injuries from
the chair lift incident included torn ligaments and strained
desires to interview two former Okemo employees who operated
chair lifts by telephone to avoid the cost associated with
formal depositions. Okemo objects to any ex parte
communication with its former employees and has refused to
provide contact information for them. (Doc. 21 at 1-2.) Okemo
argues that Rule 4.2 of the Vermont Rules of Professional
Conduct (" VRPC" ) requires Thurston to either
obtain its consent to communicate with its former employees
ex parte or to interview the former employees only
in the presence of Okemo's lawyer. Thurston responds that
Rule 26 of the Federal Rules of Civil Procedure requires
Okemo to provide the former employees' contact
information and that VRPC Rule 4.2 does not prevent her from
speaking to the former employees ex parte.
Rule 4.2 of the Vermont Rules of Professional
practicing before this court must comply with the Vermont
Rules of Professional Conduct. See In re
McDermitt, No. 05-11710, 2006 WL 1582390, at *3 (Bankr.
D. Vt. May 30, 2006). Rule 4.2 provides:
In representing a client, a lawyer shall not communicate
about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other ...