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Porter v. Dartmouth-Hitchcock Medical Center

United States District Court, D. Vermont

August 9, 2018



          Geoffrey W. Crawford, Chief Judge.

         I. Motion for Authorization To Contact Employees

         Plaintiff 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.


         The 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. (Doc. 50.)

         Through 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.

         In 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.

         The parties agree that the issue under consideration is controlled by the substantive law of Vermont governing lawyers.


         Rule 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 people.

         The 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 opposing counsel.

         Section 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 rule:

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.

         By 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 ...

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