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McClellan v. Ready Mixed Concrete Co. of Erie, Inc.

United States District Court, W.D. Pennsylvania

August 14, 2014

KEVIN D. McCLELLAN, Plaintiff,


MAURICE B. COHILL, Jr., Senior District Judge.

Presently before the Court are two Discovery Motions filed by Defendants E.E. Austin & Son, Inc., Ready Mixed Concrete Company of Erie, Inc., and Serv-All Concrete, Inc. A Motion for a Protective Order and to Preclude the Use of Sworn Witness Statements Taken in Violation of the Rules of Professional Conduct (ECF No. 59), and a Motion to Disqualify Robert Edwards from Testifying for and Consulting with Any Party (ECF No. 69). For the reasons that follow we will deny the motions.

The procedural history of this case involves four separate legal actions all arising out of the same accident. On May 10, 2012, while working for Defendant E.E. Austin, Plaintiff Kevin D. McClellan was injured when a hose used to pour concrete whipped and struck him. Shortly thereafter Workers' Compensation claims were commenced by E.E. Austin in Pennsylvania (where the accident occurred and where E.E. Austin is located) and by Plaintiff in New York (where Mr. McClellan resides). A question of which forum had jurisdiction arose and was apparently litigated. On August 3, 2012, Mr. McClellan filed his first civil action based on the accident in this Court at Civil No 12-178 Erie. This action was voluntarily dismissed without prejudice due to issues concerning the proper parties to be sued. On March 28, 2013, Mr. McClellan filed the within action also arising out of the same May 10, 2012 accident

Motion for a Protective Order and to Preclude the Use of Sworn Witness Statements

In Defendants' first motion they seek an Order precluding all parties from using or making reference to the existence and substance of four E.E. Austin employees' statements procured by Plaintiffs investigator. Defendants characterize the statements as ex parte communications taken in violation of the Rules of Professional Conduct because the statements were taken at a time when counsel knew the employees of E.E. Austin were represented with respect to the accident at issue in this case. Additionally, Defendants complain about the manner in which the statements were obtained. Accordingly, if we conclude that Plaintiffs counsel has not violated the Rules of Professional Conduct, Defendants request that we issue a Protective Order prohibiting counsel from questioning the employees at their depositions about the sworn statements.

The statements at issue were taken on July 25, 2012 and July 31, 2012. The interviews were conducted by Plaintiffs retained investigator Lewis R. Barone. The interviews took place at each witnesses' home in New York. The witnesses were sworn in by a stenographer prior to answering questions and the interviews were recorded by the stenographer. Prior to the interviews three of the four witnesses were shown a video depicting an animated recreation of an actual hose-whipping event.

The primary issues we must first address are whether Plaintiffs counsel had actual knowledge that the four employees were represented, and whether the representation was in connection with the matter being investigated at the time of the interviews. Pennsylvania Code of Professional Conduct Rule 4.2 states as follows:

In representing a client, a lawyer shall not communicate or cause another to 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 prior consent of the other lawyer or is authorized to do so by law.

Pa. R. Prof. Conduct 4.2.

Defendants argue that Plaintiffs counsel had actual knowledge that E.E. Austin was represented as of July 25, 2014, and that the "matter" at issue is the May 10, 2012 accident even though Plaintiff did not file his lawsuit until after the interviews occurred. By letter dated July 25, 2012, counsel representing E.E. Austin in the workers' compensation cases forwarded to Plaintiffs counsel a Notice that was sent to the New York State Workers Compensation Board indicating that the right to workers' compensation in New York was being contested (as noted, the contest concerned a jurisdictional, not substantive issue), and included an attorney certification stating that the law firm was the authorized legal representative of E.E. Austin.

We conclude that Plaintiffs counsel did not violate Rule 4.2. Although the letter is dated July 25, 2012, Plaintiffs counsel states that it did not receive the letter until August 17, 2012, and this assertion is not contested by Defendants. We conclude that there is insufficient evidence to establish that Plaintiffs counsel had actual knowledge that the four employees were represented in the matter, nor are there sufficient facts to establish that actual knowledge can be inferred from the circumstances

Moreover the representation of E.E. Austin concerned the controverted Workers' Compensation claim in New York, and specifically concerned whether Pennsylvania or New York had jurisdiction of the Workers' Compensation claim. The representation did not concern the defense of an anticipated personal injury claim. The interviews, in contrast, did not concern any aspect of the Workers' Compensation claim and instead focused on the accident itself.

In the alternative, Defendants argue that we should enter a Protective Order prohibiting the use of the statements at depositions of the witnesses because of the unorthodox and prejudicial manner in which the statements were taken. To summarize, Defendants' submit that the investigator did not ask the employees if they were represented by a lawyer, or that they had a right to counsel; the employees were placed under oath, were not informed that their statements were subject to the penalty of perjury, or that the statements might be used in subsequent litigation; and the investigator showed a prejudicial video to the employees prior to interviewing them with leading questions that inevitably tainted the employees' testimony in connection with their recall of the actual event. Defendants also note that the questions related to the video depiction are for an expert to address rather than a lay, fact witness. Finally, Defendants indicate that it does not appear that any of the witnesses were permitted to review the transcripts of their interviews for accuracy.

We cannot see a basis on which to preclude the use of the statements at the witnesses' depositions. Defendants' concerns are about the manner of the investigation and resulting potentially tainted statements. The statements of the four witnesses as well as the manner in which they were obtained are issues that go to the weight of the evidence, the credibility of the witnesses, and perhaps the credibility and ethics of the investigator. Defendants are free during the depositions to elicit testimony that the investigator behaved in a prejudicial, intimidating, or otherwise unfair manner when he took the recorded, sworn statements. The witnesses themselves will have the opportunity to explain the circumstances of the interviews and ...

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