Miller's Tug and Barge, Inc. v. McLoughlin

Background

The opinion addresses a discovery dispute in two related proceedings: In the Matter of the Complaint of Miller’s Tug and Barge, Inc., et al. and In the Matter of the Complaint of Tappan Zee Constructors, LLC. The claimants requested Gary Worden’s address, telephone number, and last known employer. The letter states that Worden had been a Tappan Zee Constructors employee in a lower-level field engineering position but was no longer employed there. The claimants wanted to interview him about conditions at the work site, his activities, and equipment failures connected to John McLoughlin’s injuries.

The claimants’ counsel stated that documents produced by Tappan Zee Constructors referred to Worden’s work inspecting barges, arranging equipment repairs, and dealing with spud-wire failures involving demolition barges. Counsel also stated that Worden’s information was relevant to showing that Tappan Zee Constructors had “privity and knowledge” of the failures and did not adequately address the resulting hazards.

Positions of the Parties

Tappan Zee Constructors’ counsel objected to providing Worden’s contact information. According to the opinion, counsel took the position that any interview had to be arranged by him and conducted in his presence, unless a court order allowed the claimants’ counsel to interview Worden without him present.

The claimants argued that disclosure of a witness’s identifying information was separate from the ethical rules governing interviews with represented people. They relied on Niesig v. Team I, which permits opposing counsel to communicate directly with lower-level corporate employees who are fact witnesses and whose statements cannot bind the corporation. They also relied on Muriel Siebert & Co. v. Intuit Inc., which the letter described as holding that the ethical restriction does not apply to interviews of former corporate employees.

Court’s Action

The order states that Tappan Zee Constructors must respond no later than May 27, 2022. Judge Barbara C. Moses reminded Tappan Zee Constructors that contact information for a potential fact witness is presumptively discoverable under Local Civil Rule 33.3(a) and may also be subject to automatic disclosure under Federal Rule of Civil Procedure 26(a)(1)(A)(i).

The order did not finally decide whether the claimants’ counsel could interview Worden without Tappan Zee Constructors’ counsel present. It identified that as a separate question depending, among other things, on whether Worden was a current employee, a former employee, or jointly represented by Tappan Zee Constructors’ counsel.