It’s Litigation Time - Do You Know Where Your Former Employees Are?

Title:
It’s Litigation Time - Do You Know Where Your Former Employees Are?
Practices:

The first substantive task facing a party engaged in any type of litigation is learning what events actually took place. Finding the people who know what happened - often many years after the fact - can be difficult. This is especially true in environmental cases, where the spills, leaks or burial of hazardous containers happened years, even decades in the past.

There are some roadblocks that prevent as wide-ranging a search as one might like. One such roadblock is the prohibition upon counsel speaking to any person who is represented by an attorney. While this restriction probably comes as no great surprise, its apparent expansion by the Courts has made a much broader range of people "off-limits." In a December 1995 court opinion, In re: The Prudential Insurance Company of America Sales Practices Litigation, a federal judge suggested that in some situations a party should not talk to any of the former employees of the other party. The court indicated this could be the rule in any "strict liability" case. Strict liability is frequently imposed in environmental cases, regardless of whether the party is at fault, or even intended the harmful result. Under this reasoning, even one former employee talking about prior environmental practices could lead to significant liability for that person's former employer. Therefore the court prohibited counsel from interviewing former employees of the adverse party. Although by no means the last word on this question, investigation into the history of environmental claims needs to be conducted both thoroughly and carefully.