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Hayes v. Wisconsin and Southern Railroad LLC

United States District Court, E.D. Wisconsin

October 30, 2019

JUSTIN HAYES and AMANDA HAYES, Plaintiffs,
v.
WISCONSIN AND SOUTHERN RAILROAD, LLC., et al., Defendants.

          ORDER DENYING DEFENDANT'S MOTION TO STRIKE AND FOR PROTECTIVE ORDER

          WILLIAM E. DUFFIN, U.S. MAGISTRATE JUDGE

         In this action under the Federal Employment Liability Act (FELA), Wisconsin and Southern Railroad, LLC (WSOR) has moved to strike a declaration of David Paspalofski submitted in support of plaintiffs' motion for partial summary judgment. Because plaintiffs' ex parte contact with Mr. Paspalofski falls outside the type of conduct prohibited by Rule 4.2 of the ABA's Model Rule of Professional Conduct, WSOR's motion to strike will be denied. Additionally, WSOR's request for a protective order will be denied as overly broad.

         I. Background

         Justin Hayes is a current employee of WSOR. On February 12, 2018, Hayes was working as a carman welder for WSOR at its shop in Horicon, Wisconsin when he suffered a severe electrical shock. He has since undergone numerous medical and psychological examinations and treatment.

         Hayes filed this action on June 19, 2018, and the matter was randomly assigned to Magistrate Judge David Jones. Upon Judge Jones's resignation, the case was randomly reassigned to this court. All parties have consented to the jurisdiction of this court.

         On June 25, 2019, Hayes moved for partial summary judgment as to Count I of his amended complaint, arguing that no genuine issue of material fact exists as to whether WSOR breached its non-delegable duty to provide a reasonably safe work place and that such a breach was a cause of Hayes's injuries. In support of his motion for partial summary judgment, Hayes submitted a declaration from David Paspalofski, a co-worker who witnessed the incident.

         On July 25, 2019, WSOR moved to strike Paspalofski's declaration and for a protective order preventing the plaintiffs from contacting WSOR's employees. The motion is fully briefed and ready for disposition.

         II. Discussion

         WSOR has moved to strike Paspalofski's declaration based on alleged violations of Wisconsin Supreme Court Rule 20:4.2 and Fed.R.Civ.P. 26. WSOR also seeks a protective order forbidding plaintiffs from future ex parte contact with its employees.

         A. Wisconsin Supreme Court Rule 20:4.2

         In the course of investigating the underlying facts of this lawsuit, Hayes's counsel spoke with and subsequently obtained a declaration from Paspalofski, a current WSOR employee . WSOR argues that Hayes's attorney had an ethical obligation under SCR 20:4.2 to seek permission from WSOR or the Court prior to speaking with Paspalofski. Because no such permission was sought, the Court must strike Paspalofski's declaration.

         SCR 20:4.2 provides that, when representing a client, “a lawyer shall not communicate about the subject of the representation with a person 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 to do so by law or court order.” Wis. Sup. Ct Rule 20:4.2. SCR 20:4.2 is identical to Rule 4.2 of the ABA's Model Rules of Professional Conduct, the relevant commentary to which states:

In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs, or regularly consults with the organization's lawyer concerning the matter or has the authority to obligate the organization with respect to the matter or whose acts or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability.

         SCR 20:4.2, ABA Comment 7. Thus, under Comment 7, Rule 4.2 prohibits a lawyer from communicating with those employees of another party who fall within one of the following categories: (1) those who supervise, direct, or regularly consult with the organizations lawyer concerning the matter at issue; (2) those with the authority to obligate the organization with respect to the matter at issue; or (3) those whose acts or omissions in ...


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