Week Ending 9/13/13: EEOC v. FAPS, Inc.

Alan Schorr’s Employment Case of The Week ending September 13, 2013

Equal Employment Opportunity Commission v. FAPS, Inc., Civ. No. 10-3095, 2013 WL 4833535 (D.N.J. September 10, 2013)

In this week’s Case of the Week, EEOC v. FAPS, Inc., Judge Douglas E. Arpert was called upon to decide whether to take action against a law firm that hired a private investigator to interview claimants that were part of the EEOC lawsuit.

The EEOC had brought a Federal lawsuit against FAPS, Inc. (Foreign Auto Preparation Service, Inc.) alleging that FAPS was “unlawfully discriminating against Black and female applicants and employees based on their race and sex” by “refusing and failing to recruit, select, and hire Blacks and women in laborer, operative, craft worker, and service worker positions”.

The parties fought over discovery for over three years, from the beginning of the litigation. This motion was brought by the EEOC alleging that FAPS’ law firm, DeCotiis, FitzPatrick & Cole, LLP, hired a private investigator to conduct ex parte interviews with the 28 claimants and potential claimants represented by the EEOC.

The EEOC alleged and produce witness certifications that accused the investigators of misleading the claimants into believing that the investigators were from the EEOC. The claimants also alleged that, even when they told investigators they were represented by counsel, the investigators continued their interviews. The defendant also submitted certifications disputing some or all of the allegations of wrongdoing.

The legal analysis regarding EEOC claimants is more nuanced than the normal analysis regarding contact with parties and persons represented by counsel. Rule of Professional Conduct 4.2 provides that:

In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows, or by the exercise of reasonable diligence should know, to be represented by another lawyer in the matter, including members of an organization's litigation control group as defined by RPC 1.13, unless the lawyer has the consent of the other lawyer or is authorized by the law to do so, or unless the sole purpose of the communication is to ascertain whether the person is in fact represented by counsel.

Here, the parameters of the attorney-client relationship are unclear with regard to whether the EEOC claimants are actually represented by counsel. That is because sometimes the EEOC represents classes of employees, some of which have never actually contacted the EEOC. Every Court has warned that ex parte communications with such parties should be done extremely carefully. “Courts are more likely to find attorney-client relationships between the EEOC and claimants when those claimants are the defendant's current employees.”

In this case, the Court held that these claimants were not employees, since the basis for the claim is that FAPS had denied employment for discriminatory reasons. Nevertheless, the Court found that it was unlikely that the defendant’s investigator took sufficient precautions to determine whether an attorney-client relationship existed between the EEOC and the claimants prior to engaging in ex parte communication. The Court concluded that “some level of misconduct occurred.”

In fashioning an appropriate remedy, the Court noted that both parties had violated the scheduling order by continuing discovery beyond the discovery deadline. Accordingly, the Court ordered (1) the Defendant disclose all materials, documents, notes and communications between defense counsel or defense counsel's agents and the EEOC claimants; (2) the Defendant is prohibited from using any information gleaned from the investigation; (3) the Defendant is prohibited from engaging in additional ex parte communications with EEOC claimants and potential claimants; and as fact discovery has now concluded, (4) the EEOC's request to conduct further depositions is denied.

Contacting witnesses is always a landmine in employment litigation. I have lectured on this subject on numerous occasions. One of my outlines is posted on this website, and can be accessed here.

Failing to follow proper procedure when contacting witnesses can result in severe sanctions, and can impact the outcome of a case. This case is an excellent example.

Plaintiff’s Counsel: Judy Keenan, Rosemary Disavino, Michael B. Ranis, U.S. Equal Employment Opportunity Commission.

Defendant’s counsel: George Gabriel Frino, Avis A. Bishop–Thompson, DeCotiis, Fitzpatrick & Cole, LLP, John P. Nulty, Jr., Cammarata, Nulty & Garrigan, Esqs., Melissa A. Provost, Saiber LLC.

Trial Court Judge: Douglas E. Arpert, U.S.M.J.

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