same alleged tortious conduct and when
the interviews are to be conducted without the consent of the attorney
who initiated the state class action?
Plaintiffs, Dolores Dondore and Yvonne Conrad, are residents of Berks
County, Pennsylvania. From 1936 until 2000, defendants NGK Metals
Corporation, Cabot Corporation ("Cabot"), Kawecki Chemicals, Inc. and
their predecessors maintained and operated a beryllium metal
manufacturing facility in the Reading area near plaintiffs' homes.*fn1
In these diversity actions for damages, plaintiffs allege that they
suffer from chronic beryllium disease as a result of defendants'
negligent emission of beryllium dust, fumes, and particulate matter. The
parties are now in the midst of discovery, and counsel for defendant Cabot
has filed a motion "to confirm right to engage in informal discovery."*fn2
Specifically, Cabot's attorney wants to be able to speak informally to
plaintiffs' neighbors about their knowledge of plaintiffs' exposure to
In addition to the individual tort actions filed in this court, counsel
to Mrs. Conrad and Mrs. Dondore have also initiated a class action
lawsuit with other named plaintiffs against NGK Metals Corporation and
Cabot in the Court of Common Pleas of Philadelphia County. The named
plaintiffs in that action, on behalf of themselves and the potential class
members, seek the establishment of a medical monitoring services fund to
test and screen for conditions that may result from exposure to airborne
beryllium. While defendants had removed that proposed class action to
this court, we remanded it pursuant to 28 U.S.C. § 1447(c) on the
ground that none of the claims of the putative individual class members
exceeded $75,000 exclusive of interest and costs. Pohl v. NGK Metals
Corp., 117 F. Supp.2d 474, 478 (E.D.Pa. 2000). According to the second
amended complaint, the putative class members include "[a]ll residents
who have ever resided within a six (6) mile radius of the Reading plant
for at least six (6) continuous months during the period between 1950 and
1989 inclusive" and "[a]ll residents who have ever resided within a six
(6) mile radius of the Reading plant for at least six (6) continuous
months during the period between 1980 and 1989 inclusive." We have been
advised that the state court has not yet decided the issue of class
During discovery in the individual federal cases, plaintiffs have
identified and listed as potential witnesses over ninety-six neighbors
and relatives with knowledge of plaintiffs' illnesses, their exposure to
beryllium, and other relevant facts. Counsel for Cabot attempted to
interview three of these individuals. When plaintiffs' counsel, who is
also counsel in the state court action, became aware of these contacts,
he filed an emergency motion for protective order in the state court. In
response, Cabot's attorney filed the instant motion in this court to
confirm his right to interview potential witnesses about information
related to the federal suits. As of this time, the state court motion is
The current dispute requires this court to interpret and apply Rule 4.2
of the Pennsylvania Rules of Professional Conduct.
The rule, which has
been adopted by this court, provides:
In representing a client, a lawyer shall not
communicate about the subject of the representation
with a party the lawyer knows to be represented by
another lawyer in the matter, unless the lawyer has
the consent of the other lawyer or is authorized by
law to do so.
Pa. Rules Prof'l Conduct R. 4.2; E.D. Pa. R. Civ. P. 83.6, R. IV.
The application of Rule 4.2 to the circumstances now confronting this
court poses three questions. First, are the potential witnesses whom
defense counsel seeks to interview "represented by another lawyer" in the
state class action? If they are, is the representation "in the matter"
about which defense counsel desires information, that is, are the federal
tort actions part of the same matter as the state action? Finally, does
Cabot's lawyer seek to "communicate about the subject of the
representation," or is the proposed interview about separate and
The parties agree that the state action and the individual federal
cases concern the same matter — exposure to beryllium emanating
from the defendants' metals plant near Reading. In addition, while Cabot
contends that it seeks only to interview potential witnesses about issues
unrelated to the state court action, there is simply no practical way to
accomplish this feat. The proposed communications will necessarily
address issues that "overlap" between the federal and state cases.
Whatever the potential witnesses might say about their knowledge of the
health and beryllium exposure of Mrs. Conrad and Mrs. Dondore will
necessarily include the witnesses' knowledge about their own exposure to
beryllium with significant ramifications for the defendants' statute of
limitations defense in both the state and federal actions.
We therefore turn to the question whether the persons identified as
potential fact witnesses in the individual federal lawsuits are
represented by the lawyer for the named plaintiffs in the state court
action by virtue of their status as putative class members. In the
federal context, the Supreme Court has stated that a class action is "a
truly representative suit" and that "class action representation" belongs
to all parties, even "asserted class members who were unaware of the
proceedings brought in their interest." Am. Pipe & Constr. Co. v. Utah,
414 U.S. 538, 551-52 (1974). Furthermore, putative class members stand at
least in a fiduciary relationship with class counsel. In re Gen. Motors
Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litig., 55 F.3d 768, 822 (3d
The mere initiation of a class action extends certain protections to
potential class members, who have been characterized by the Supreme Court
as "passive beneficiaries of the action brought in their behalf." They
have no "duty to take note of the suit or to exercise any responsibility
with respect to it in order to profit from the eventual outcome" until
the issue of class certification has been determined. Am. Pipe & Constr.
Co., 414 U.S. at 552. For example, the filing of a class action tolls the
statute of limitations even for those who were unaware of the action and
did not rely on it in refraining from filing their own motions for
individual intervention or joinder. Id. at 551. Protecting the interests
of putative class members in this manner is necessary to meet the goal of
a class action lawsuit — to "provide a fair and efficient method
for adjudication of the controversy." Id. (quoting Fed.R.Civ.P.
Under Pennsylvania law, putative class members are "properly
characterized as parties to the action." Bell v. Beneficial Consumer
Disc. Co., 348 A.2d 734, 736 (Pa. 1975). See Alessandro v. State Farm
Mut. Auto. Ins. Co., 409 A.2d 347, 350 n. 9 (Pa. 1979). Thus, during the
interim between the filing of the action and the certification of the
class, "unnamed class members do have certain interests in the lawsuit.
They may challenge the adequacy of representation by the plaintiff; in
some circumstances, they may have a right to be informed of, or to be
included in, a settlement; and, perhaps most importantly, the statute of
limitations may be tolled during the period." Miller v. Federal Kemper
Ins. Co., 508 A.2d 1222, 1228 (Pa.Super.Ct. 1986) (quoting In re Fine
Paper Litig. State of Wash., 632 F.2d 1081, 1087 (3d Cir. 1980)). See
Bell, 348 A.2d at 736; Pa. R. Civ. P. 1701 explanatory note.
The "truly representative" nature of a class action suit affords its
putative members certain rights and protections including, we believe, the
protections contained in Rule 4.2 of the Rules of Professional Conduct.
Am. Pipe & Constr. Co., 414 U.S. at 551. "The purpose of Rule 4.2 is to
prevent lawyers from taking advantage of uncounselled lay persons and to
preserve the efficacy and sanctity of the lawyer-client relationship."
Carter-Herman v. City of Phila., 897 F. Supp. 899, 901 (E.D.Pa. 1995)
(citing G.C. Hazard, Jr. & W.W. Hodes, The Law of Lawyering 730 (2d ed.
1990); C.W. Wolfram, Modern Legal Ethics § 11.6 at 612-13 (1986)). As
a practical matter, a court cannot decide the issue of class
certification immediately upon the filing of the complaint. Discovery is
often required and the preparation and study of briefs is necessary.
Thus, certain benefits must be afforded the putative class members in the
interim. As the tolling of the statute of limitations is needed to
further the salutary purposes of class actions, restraints are likewise
needed against communications with putative class members until the issue
of class certification can be determined. If defense counsel or counsel
otherwise adverse to their interests is allowed to interview and take
statements from often unsophisticated putative class members without the
approval of counsel who initiated the action, the benefits of class action
litigation could be seriously undermined. If Cabot's position were
correct, putative class members could hardly be described as even
"passive beneficiaries" of an asserted class action. See Am. Pipe &
Constr. Co., 414 U.S. at 552.
Our conclusion, of course, does not prevent Cabot from obtaining
whatever information the potential witnesses may possess in connection
with the individual cases before this court. Cabot is free to subpoena
and depose these individuals to the extent permitted under the federal
discovery rules. In addition, the limitation on Cabot would not be
applicable in the event that the state court should decide not to certify
a class and the potential witnesses are not otherwise individually
Accordingly, we will deny Cabot's motion to confirm its right to engage
in informal discovery. Rule 4.2 of the Rules of Professional Conduct
prohibits defense counsel from contacting or interviewing potential
witnesses who are putative class members in Pohl v. NGK Metals Corp.,
July Term, 2000, No. 733 (Ct. Com. Pl. Phila. County), without the
consent of counsel for the named plaintiffs in that action.
AND NOW, this day of April, 2001, for the reasons set forth in the
accompanying Memorandum, it is hereby ORDERED that the motion of
defendant Cabot Corporation
to confirm right to engage in informal
discovery is DENIED.