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Thurston v. Okemo Limited Liability Co.

United States District Court, D. Vermont

August 18, 2015

SUSAN THURSTON, Plaintiff,
v.
OKEMO LIMITED LIABILITY COMPANY, d/b/a Okemo Mountain Resort, and CLP OKEMO MOUNTAIN, LLC, d/b/a Okemo Mountain Resort, Defendants

          For Susan Thurston, Plaintiff: Matthew D. Anderson, Pratt Vreeland Kennelly Martin & White, Ltd., Rutland, VT.

         For 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.

         For ENE Evaluator, ENE Evaluator: Potter Stewart, Jr., Esq., Phillips, Dunn, Shriver & Carroll, P.C., Brattleboro, VT.

         OPINION AND ORDER RE: PLAINTIFF'S FIRST MOTION TO COMPEL FORMER EMPLOYEE LIFT ATTENDANT CONTACT INFORMATION AND STATEMENTS (Doc. 21)

         Geoffrey W. Crawford, United States District Judge.

         Plaintiff Susan Thurston brought this action against Okemo LLC and CLP Okemo

Page 514

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.

         I. Background

         Thurston 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 muscles.

         Thurston 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.

         II. Rule 4.2 of the Vermont Rules of Professional Conduct

         Attorneys 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 ...

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