Gregory v. Riverbay Corp.

Background

This Fair Labor Standards Act action alleges that Defendants denied employee-plaintiffs overtime pay from approximately 2017 through 2023. Andre Waring opted into the case on October 31, 2023, when he was part of the plaintiff group consisting of sergeants and lieutenants in Defendants’ public safety department. Defendants promoted Waring to Chief of Department in May 2025.

Plaintiffs requested a protective order after asserting that Defendants’ counsel contacted Waring without permission from Plaintiffs’ counsel, discussed the subject of the lawsuit with him, and offered to hire him a new attorney at Defendants’ expense. Plaintiffs’ counsel argued that these contacts violated Rule 4.2 of the New York Rules of Professional Conduct, which generally bars a lawyer from communicating about a matter with a represented party without that party’s lawyer’s consent or a legal authorization.

Defendants conceded that their counsel had unauthorized, uncounseled communications with Waring about the subject of the case. They argued that the communications were necessary because of Waring’s new supervisory role and their need to prepare a defense. Defendants also stated that they intended to designate Waring as a Rule 30(b)(6) witness.

Court’s reasoning

The Court stated that federal courts may enforce professional-responsibility standards through their general supervisory authority over lawyers. It also noted that a district court’s authority to control lawyers’ conduct is particularly broad in class actions and Fair Labor Standards Act collective actions. The Court concluded that Defendants’ counsel knew Waring was represented in this matter and nevertheless discussed the subject of the representation with him without Plaintiffs’ counsel’s consent and without an applicable exception, in direct violation of Rule 4.2.

Order

The Court ordered the following:

1. Defendants’ counsel, including in-house counsel, are enjoined from speaking or conferring with Waring about the subject matter of the lawsuit unless Plaintiffs’ counsel is present or has given prior consent. The order does not prevent Waring from performing regular job duties involving communications with Defendants’ counsel about matters unrelated to the lawsuit.

2. Defendants’ counsel are enjoined from seeking Waring’s help in obtaining discovery materials for the case, including by asking him to request responsive materials from other employees. Waring may issue a general instruction to subordinates to cooperate with a designated person collecting documents or other discovery materials.

3. Defendants may not designate Waring, whom the Court described as an adverse party in this litigation, as a Rule 30(b)(6) witness.

The order is without prejudice to Defendants’ counsel seeking permission to amend it to address a future circumstance. It is also without prejudice to Plaintiffs’ counsel seeking an order barring use of statements made during contacts that violated Rule 4.2. The Clerk was directed to terminate Docket No. 53.