Discovery of Information and Documents from a Litigant\u27s Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles

The role of former employees in litigated matters presents a variety of legal, ethical, and practical concerns for attorneys who wish to obtain information from their own clients\u27 or their opponents\u27 former employees. Part II of this article elucidates the competing interests of the litigators, their respective clients, the courts, and the potential witnesses when discovery is sought from former employees of a party. Part III provides a brief overview of the various legal authorities that govern an attorney\u27s discovery of former employees and the synergy created by these sources. Part IV examines the potential pitfalls attorneys encounter when pursuing informal discovery of former employees of a party. Part V presents specific issues that arise when an attorney uses formal discovery devices to obtain information from former employees of a party. Part VI outlines the major additional limitations imposed on an attorney\u27s communications and interactions with former employees of a party that must be heeded when discovery is sought under formal or informal methods. Part VII concludes the Article with the author\u27s modest suggestions for clarifying applicable standards and avoiding the myriad minefields highlighted throughout this article