United States District Court, D. Vermont
DECISION ON MOTION FOR AUTHORIZATION TO CONTACT
DARTMOUTH-HITCHCOCK EMPLOYEES EX PARTE AND ON MOTION TO
COMPEL (DOC. 20, 26)
Geoffrey W. Crawford, Chief Judge.
Motion for Authorization To Contact Employees
Misty Blanchette Porter, M.D., alleges wrongful discharge and
discrimination in connection with the termination of her
employment by Defendant Dartmouth-Hitchcock Medical Center
("DHMC"), where she led the Division of
Reproductive Medicine and Infertility. Dr. Porter's
attorneys seek a ruling from the court allowing them, in
preparation of their case, to contact DHMC employees, such as
nurses, technicians, secretaries, medical residents and
fellows, and other physicians in the OB/GYN Department. (Doc.
20 at 3). DMHC opposes this request on the ground that such
ex parte communications would violate Rule 4.2 of the Vermont
Rules of Professional Conduct. The parties appeared for a
hearing on the motion on July 17, 2017.
amended complaint alleges as follows. Dr. Porter is a
specialist in gynecology and reproductive medicine. She came
to DHMC in 1966 to join the Division of Reproductive
Endocrinology and Infertility ("REI") within the
Department of Obstetrics and Gynecology. She has led the REI
division for almost ten years. In May 2017, DHMC closed the
REI division and terminated Dr. Porter's employment. Dr.
Porter claims that DHMC discriminated against her on the
basis of a physical disability. She also claims that the
hospital terminated her employment in retaliation for
positions she had taken concerning standards of medical care
and her reports of billing and treatment irregularities.
counsel, Dr. Porter seeks to interview her former coworkers
who may have witnessed conduct by DHMC representatives which
would support her claims. She asserts that line staff, such
as nurses and medical residents, may have been present when
statements about her employment and her termination were made
by DHMC administrators, or that line staff could know of such
statements on a second or third-hand basis. Dr. Porter seeks
to conduct these interviews without DHMC's counsel
present to avoid the expense of taking formal depositions
from multiple members of hospital staff and to avoid the
chilling effect that a deposition taken in the presence of
hospital attorneys could have on staff members.
response, DHMC directs the court's attention to
Baisley v. Missisquoi Cemetery Ass 'n, 708 A.2d
924, 167 Vt. 473 (Vt. 1998), which adopts a relatively
expansive reading of Disciplinary Rule 7-104 of the Code of
Professional Responsibility. Rule 7-104 is the predecessor of
Rule 4.1 of the Rules of Professional Conduct adopted in
Vermont in 1999. The substance of the two rules is the same.
parties agree that the issue under consideration is
controlled by the substantive law of Vermont governing
4.2 prohibits lawyers from communicating with persons
represented by other counsel without consent of the other
lawyer or court authorization. The prohibition extends only
to the subjects covered by the representation. The scope of
the prohibition in the case of officers and employees of
corporations is described in Comment 7. The comment
identifies several classes of people who are obviously
off-limits to opposing counsel. These include a
"constituent of the organization who supervises, directs
or regularly consults with organization's lawyer"
and a constituent who "has authority to obligate the
organization with respect to the matter." Dr.
Porter's attorneys agree that they may not contact such
parties dispute the proper application of the third clause of
Comment 7, which concerns constituents "whose act or
omission in connection with the matter may be imputed to the
organization for purposes of civil or criminal
liability." In broad terms, people whose actions may
give rise to vicarious liability may not be contacted by
100 of the Restatement (Third) of the Law Governing Lawyers
considers the same issue with a greater depth of explanation.
As in the case of Rule 4.2, a current employee or agent may
not be contacted if (1) that person is in contact with the
lawyer, or (2) that person's acts may be imputed to the
organization. The Restatement adds a third category of
employees who may not be contacted: current employees or
agents whose statements, "under applicable rules of
evidence, would have the effect of binding the organization
with respect to proof of the matter." Restatement
(Third) of the Law Governing Lawyers § 100(2)(c).
Comment b addresses the policy concerns which underlie this
A very broad definition of such person [who may not be
contacted by opposing counsel] would be easily administered
but at an unacceptably high costs. Under such a rule, the
organization's lawyer . . . could deny permission for the
inquiring lawyer to speak to any employee.
defining the group of people who may not be contacted with
specificity, the Restatement -like Comment 7 - seeks to
strike a balance between the interests of the organization in
controlling contact with its decision-makers and the