Niesig v. Team I Notice of Motion for Leave to Appear as Amici Curiae

    THOMAS NIESIG,
Plaintiff-Appellant,

-against-

STATE OF NEW YORK
COURT OF APPEALS

x

TEAM I, FRED KOMSON, MAURO RICCHIUTTI, PAUL 
GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,

Defendants-Respondents. Index No. 7524/87
------------------------------------------------------------------------ x
TEAM I, FRED KOMSON, MAURO RICCHIUTTI, PAUL 
GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,

Third Party Plaintiffs-Respondents,
-against-

DE TRAE ENTERPRISES, INC.,
Third Party Defendant-Respondent.

------------------------------------------------------------------------------------------------ --

NOTICE OF MOTION FOR LEAVE TO APPEAR AS AMICI CURIAE
JULIUS LEVONNE CHAMBERS, ESQ. 
CHARLES STEVEN RALSTON, ESQ.RONALD L. ELLIS, ESQ.
Attorneys for NAACP Legal Defense& Educational Fund
99 Hudson Street
New York, New York 10013(212) 219-1900
VANESSA MERTON, ESQ.
Attorney for Plaintiff 
Employment Lawyers Association (New York Chapter)
1740 Broadway, 25th Floor 
New York, New York 10009 
(212) 489-8230
KIM GANDY, ESQ.
Attorney for National Organization for Women, Inc.
1401 New York Avenue, N.W.Suite 800
Washington, D.C. 20005-2102 (202) 347-2279



STEEL & BELLMAN, P.C. 
Attorneys for all Amici 
351 Broadway
New York, New York 10013 
(212) 925-7400



STATE OF NEW YORK
COURT OF APPEALS

x
THOMAS NIESIG,

Plaintiff-Appellant,
-against-

TEAM I, FRED KOMSON, MAURO RICCHIUTTI, PAUL 
GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,

NOTICE OF MOTION 
FOR LEAVE TO 
APPEAR AS AMICI 
CURIAE
Index No. 7524/87

Defendants-Respondents.
x

TEAM I, FRED KOMSON, MAURO RICCHIUTTI, PAUL 
GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,

Third Party Plaintiffs-Respondents,
-against-

DE TRAE ENTERPRISES, INC.,
Third Party Defendant-Respondent.--------------------------------------------x

DEAR SIR/MADAM:
PLEASE TAKE NOTICE, that upon the annexed affirmation of 

Miriam F. Clark, Esq., affirmed on the 10th day of May, 1990, the 
opinion of the Appellate Division, Second Department, dated the 
7th day of August, 1989, the NAACP Legal Defense & Educational 
Fund, the National Organization for Women, Inc. and Plaintiff 
Employment Lawyers Association, will move this Court at a term 
for motions to be held at 10:00 a.m. on the 21st day of May,
1990, in the Court of Appeals, 20 Eagle Street, Albany, New York, 
or as soon thereafter as counsel can be heard for an order 
pursuant to 22 NYCRR §500.11(3) permitting the NAACP Legal 
Defense & Educational Fund, the National Organization for Women, 
Inc. and Plaintiff Employment Lawyers Association to appear as



anici curiae in the above captioned appeal, and for any and other
additional relief the Court deems just and proper.
Dated: New York, New York Yours, etc.,

May 10, 1990
JULIUS LEVONNE CHAMBERS, ESQ. CHARLES STEVEN RALSTON, ESQ.
RONALD L. ELLIS, ESQ.
Attorneys for NAACP Legal Defense& Educational Fund
99 Hudson Street
New York, New York 10013
(212) 219-1900
VANESSA MERTON, ESQ.
Attorney for Plaintiff 
Employment Lawyers Association (New York Chapter)
1740 Broadway, 25th Floor 
New York, New York 10009 
(212) 489-8230
KIM GANDY, ESQ.
Attorney for National Organization for Women, Inc.
1401 New York Avenue, N.W.
Suite 800
Washington, D.C. 20005-2102 
(202) 347-2279
STEEL & BELLMAN, P.C.
Attorneys for all Amici 
351 Broadway
New York, New York 10013 
(212) 925-7400

TO: CLERK OF THE COURT OF APPEALS
Court of Appeals Hall 
20 Eagle Street 
Albany, New York 12207
EMILY M. BASS, ESQ.
Attorney for Plaintiff-Appellant 
330 Madison Avenue, 33rd Floor New York, New York 10017
PATRICK CROWE, ESQ.
Attorneys for Third Party Defendant-Respondent 
De Trae Enterprises, Inc.
McCoy, Agoglia, Beckett & Fassberg, P.C.
80 East Old Country Road 
Mineola, New York 11501

- 2 -



STEVEN K. MANTIONE, ESQ
Attorneys for Defendant Third Party
Plaintiff-Respondent
J.M. Frederick Construction of New York, Inc. Gerard A. Gilbride, Jr.
20 Crossways Park North 
Woodbury, New York 11797
STEVEN A. FRITZ, ESQ.
Attorneys for Defendants Third
Party Plaintiffs-Respondents
Team I, Fred Komson, Mauro Ricchiutti,
Paul Greenblat, Sol Niego and Morton Weber Purcell, Fritz & Ingrao, P.C.
204 Willis Avenue 
Mineola, New York 11501

- 3 -



STATE OF NEW YORK
COURT OF APPEALS

THOMAS NIESIG, x

Plaintiff-Appellant,
-against-

TEAM I, FRED KOMSON, MAURO RICCHIUTTI, PAUL 
GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,

AFFIRMATION IN 
SUPPORT OF MOTION 
FOR LEAVE TO 
APPEAR AS AMICI 
CURIAE

Defendants-Respondents. Index No. 7524/87-------------------------------------------- x
TEAM I, FRED KOMSON, MAURO RICCHIUTTI, PAUL 
GREENBLATT, SOL NIEGO, MORTON WEBER and 
J.M. FREDERICK CONSTRUCTION OF N.Y., INC.,

Third Party Plaintiffs-Respondents,
-against-

DE TRAE ENTERPRISES, INC.,
Third Party Defendant-Respondent. -------------------------------------------- x

MIRIAM F. CLARK, an attorney duly admitted to practice law 
in the State of New York, hereby affirms under the penalties of 
perjury, pursuant to CPLR §2106, that:

1. I am associated with the firm of Steel & Bellman, P.C., 
counsel to amici in the above referenced matter.

2. I submit this affirmation in support of motion of the 
NAACP Legal Defense & Educational Fund, the National Organization 
for Women, Inc. and the New York Chapter of the Plaintiff Employ­
ment Lawyers Association (New York "PELA") for leave to appear as 
amici curiae in the above captioned appeal.

3. The NAACP Legal Defense & Educational Fund is a non­
profit corporation, incorporated under the laws of the State of 
New York in 1939. It was formed to assist blacks to secure their



constitutional and civil rights by the prosecution of lawsuits. 
The charter was approved by a New York court, authorizing the 
organization to serve as a legal aid society.

4. The National Organization for Women, Inc. is a member­
ship organization of over 250,000 members in 800 chapters nation­
wide. The National Organization for Women, Inc. was founded in 
1966 and has among its goals the elimination of discrimination in 
employment, and the effective enforcement of laws and regulations 
regarding equal employment opportunities.

5. The Plaintiff Employment Lawyers Association is a non­
profit association of attorneys from 49 states whose practice 
involves the representation of individual employees seeking to 
vindicate basic employment rights. The clients of many PELA 
members are employees who lack union representation and need 
legal assistance to prevent or redress discriminatory or wrongful 
treatment in the workplace. New York PELA, the amicus herein, is 
the PELA Chapter for attorneys practicing in the State of New 
York.

6. The NAACP Legal Defense & Educational Fund, the National 
Organization for Women, Inc. and New York PELA believe that the 
determination by the Appellate Division, Second Department in the 
above captioned appeal will severely impair civil rights plain­
tiffs in their role as private attorneys general enforcing civil 
rights actions. Accordingly, they are seeking leave to appear as 
amici curiae. A copy of the determination is attached hereto as 
Exhibit A.

- 2 -



7. As the accompanying proposed brief demonstrates, the 
lower court's determination sets forth an overbroad construction 
of the Code of Professional Responsibility DR 7-104(A)(l). In 
the decision, the lower court interpreted DR 7-104(A)(1) to 
prohibit an attorney from interviewing any employees of an 
adverse corporation without corporate counsel's permission or 
presence. Application of this rule in civil rights actions would 
make it extremely difficult for civil rights plaintiffs and their 
attorneys to investigate and prosecute meritorious civil rights 
claims in the areas of employment and housing discrimination and 
to develop necessary evidence in support of proposed class 
actions under federal and state law.

8. Due to the experience of the NAACP Legal Defense & 
Educational Fund, the National Organization for Women, Inc. and 
New York PELA in representing civil rights plaintiffs, they will 
be able to draw the Court's attention to the manner in which the 
lower court's determination will seriously weaken the ability of 
civil rights plaintiffs and their counsel to investigate and 
prosecute civil rights cases.

WHEREFORE, I respectfully request the Court to enter an 
order granting the NAACP Legal Defense & Educational Fund, the 
National Organization for Women, Inc. and New York PELA leave to 
appear as amici curiae and for any other additional relief the 
Court deems just and proper.
Dated: New York, New York

May 10, 1990
MIRIAM F. CLARK

- 3 -



SUPREME COURT OF THE STATE OF NEW YORK 
APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

2771 w 
Z^u/ep

_____ A D 2 d_____  Argued - April 13, 1989

LAWRENCE L BRACKEN. J.P.
CHARLES B. LAWRENCE 
STANLEY HARWOOD 
VINCENT R. BALLETTA, JR., JJ.

3 1NE

Thomas Niesig, appellant, v Team I, OPINION & ORDER
et al.. defendants third-party
plainuffs-respondents; De Trae
Enterprises, Inc., third-party
defendant-respondent.

APPEAL by the plaintiff, in an action to recover damages for personal injuries, 
from so much of an order of the Supreme Court (Edward G. McCabe, J.), dated September 13, 
1988, and entered in Nassau County, as (1) denied that branch of his motion which was to compel 
the third-party defendant to respond to his interrogatories and granted that branch of the 
third-party defendant’s ctoss motion which was to vacate those interrogatories, (2) denied that 
branch of his motion which was to compel the defendant third-party plaintiff J.M. Frederick 
Construction of New York, Inc., to be deposed through its designee Mauro Ricchiud, and (3) 
denied that branch of his motion which was for authorization for his attorney to conduct ex parte 
interviews of the individuals to be named by the third-party defendant as possible witnesses to the 
accident and events which are the subject of the instant lawsuit.

Winter & Bass, New York, N.Y. (Emily Bass of counsel), for appellant.

McCoy, Agoglia, Beckett & Fassberg, P.C., Mineola, N.Y. (Patrick J. Crowe of 
counsel), for third-party defendant-respondent.

Page 1.

R/LL+ B
August 7,1989

NIESIG v TEAM I



B R A C K E N ,  J.P. Subject to cenain exceptions not relevant to

this case, DR 7-104(A)(1) of the Code of Professional Responsibility prohibits a lawyer from 
communicating with an adverse party whom he knows to be represented by an attorney in 
connection with the subject matter of that representation. The principal question presented on this 

appeal is whether the plaintiffs attorney may, consistent with the prohibition contained in DR 
7 -104(A)(1), communicate on an ex parte basis with certain individuals who, as employees of the 
corporate third-party defendant, are presumptively within the scope of the representation afforded 
by the attorneys who appeared on behalf of that corporation. We agree with those authorities 
which have expressed the view that such communications should not be permitted (see, eg., 
Hewlett Packard Company v Superior Court, 252 Cal RptT 14; Miller and Calfo, Ex Parte 
Contact with Employees and Former Employees of a Corporate Adversary: Is it Ethical, 42 
Business Lawyer 1053 [1987]), and we reject, for both theoretical and practical reasons, the 
position adopted by other authorities, which is that under certain ill-defined circumstances, 
depending on the particular employe.-witness’s status with the corporation, such communications 
may be allowed (see, e g., Wright v General Group Hosp., 103 Wash 2d 192, 691 P2d 564).

This appeal also presents the question of whether the plaintiff, in an action based 
in part on strict liability pursuant to the Labor Law, may seek pretrial disclosure from the 
defendants both by conducting depositions and by serving interrogatories. We hold that there is no 
statutory or other prohibition against conducting pretrial discovery in such a manner Chancellor v 
Boeing Co., 678 F Supp 250 [D Kan]; Comment, 82 Northwestern Univ. L Rev 1274 [1988]).

I
The plaintiff claims that on December 17, 1986, he was injured when he fell 

from scaffolding adjacent to a building under construction in Plainview, New York. In his 
complaint, he alleges that the accident occurred on property owned by the defendant Team I, a 
partnership consisting of the five individual codefendants. He also alleges that defendant J.M. 
Frederick Construction of New York, Inc. (hereinafter J.M. Frederick), was the general contractor 
on the site. The plaintiff, in seeking a money judgment against these defendants, advances two 
separate causes of action, one premised on common-law negligence, and one premised on strict 
liability pursuant to Labor Law § 240.

A third-party action was later brought against the third-party defendant, DeTrae 
Enterprises, Inc. (hereinafter E>eTrae); however, the pleadings served in connection with this 
third-party action have been omitted from the record. The plaintiff claims that he was employed 

by DeTrae at the time of the accident.

August 7, 1989
NIESIG v TEAM I

Page 2..



On July 31, 1987, during the course of pretrial discovery, the p lain tiff s attorney 

served a set of interrogatories upon the attorneys who at that time represented the defendant J.M. 
Frederick A response to at least some of these interrogatories was later served upon the plaintiff s 
attorney at a preliminary conference held on November 5, 1987. A separate set of interrogatories 
was also served by the plaintiff on the attorneys for the third-party defendant DeTrae. These

interrogatories, however, have never been answered.
A deposition of a witness for J.M. Frederick was scheduled for February 18, 

1988. In connection with this deposition, J.M. Frederick’s attorney was of the opinion that, since 
his client had already responded to the plaintiffs written questions, it was relieved of any 
obligation to produce a witness to respond to the plaintiff’s oral questions as well. Thus, at the 
deposition held on February 18. 1988, the witness produced by J.M. Frederick was instructed to 
refuse to answer any questions put to him by the plaintiffs anomey. Although this witness was 
deposed by counsel for DeTrae, this questioning was not satisfactory to the attorney for the

plaintiff.
At the conclusion of the deposition on February 18, 1988, the anomey for the 

third-parry- defendant DeTrae advised the anomey for the plaintiff that DeTrae did not consider it 
necessary to respond to the interrogatories which had been served on it several months earlier. His 
position was that a parry whose deposition upon oral questions has been demanded need not 

respond to wrinen questions as well.
DeTrae’s anomey has thus taken a position similar to that of J.M. Frederick s; 

that is, that a parry to a personal injury action based on, among other things, a claimed violation of 
the Labor Law, need not, during pretrial discovery, submit to both oral and wrinen questions. 
Since J.M. Frederick has already answered the plaintiffs interrogatories, it now refuses to allow 
its witness to be orally deposed by plaintiff’s anomey; conversely, since DeTrae has made a 
witness available for an oral deposition, it now refuses to answer the plaintiff’s intenogaiones.

The dispute between the parties concerning the scope of pretrial discovery could 

not be resolved at a second conference held on April 18, 1988, and the Supreme Court, Nassau 
County, suggested that the plaintiff make a formal wrinen motion for the relief sought. The 
plaintiff did so, and by notice of morion dated May 18, 1988, sought, inter alia: (1) to compel 
the defendant J.M. Frederick to produce its witness to be deposed by the anomey for the plaintiff, 
and (2) to compel the third-party defendant DeTrae to respond to the interrogatories served by the

plaintiff.

August 7,1989
NIESIG v TEAM I

Page 3.



In this motion, the plaintiff also sought to compel Dc'frae to respond to a demand 
for the names and addresses of all "employees present at 8:00 a.m. on December 17, 1986 at the 
DuPont Road, Plainvicw, construction site". The plaintiff also sought authorization for its 
"counsel [to] contact the individuals [to be identified by DeTrae as potential witnesses to the 
occurrence] on an ex pane basis". In support of this branch of the motion the plaintiff s attorney 

averred that a former employee of DeTrae had testified at a deposition that several DeTrae 

employees had been present at the site on the day of the accident. The plaintiff s attorney argued 
that since these employees could not be called "managerial" or "controlling . the plaintiffs

attorneys should be permitted to have "ex pane” contact with them.
j M. Frederick opposed the plaintiff s motion, and its attorney argued, among 

other things, that pursuant to CPLR 3130, his client could not properly be required to submit to a 
deposition by the plaintiff, since it had already served responses to the plaintiff s interrogatories. 
The third-party defendant DeTrae also opposed the plaintiffs motion, and cross-moved for a 
protective order. In support of the cross motion, the anomey for DeTrae argued that the plaintiff s 
artomey had already conducted depositions of two of DcTrae's employees, as well as a deposition 
of a nonpany former employee of DeTrae. Under these circumstances. DeTrae’s anomey argued. 
DeTrae should not be required to respond to the plaintiffs interrogatories. D e. rae s anomeys 
also opposed so much of the plain tiffs motion as sought permission to conduct ex parte interviews

with DeTrae’s employees.
In its order disposing of this motion and cross motion, the Supreme Court, among 

other things, (1) denied that branch of the plaintiffs motion whi'h was to compel J.M. Fredenck 
to be deposed, (2) denied that branch of the plaintiffs motion which was to compel DeTrae to 
respond to his interrogatories, and (3) denied that branch of the plaintiff s motion which was for 
authorization for plaintiff s attorney to conduct ex pane interviews of nonmanagenal employeees 

of DeTrae. The plaintiff appeals from these portions of the order.

n
The plaintiff’s first and most highly elaborated argument on appeal is that the 

Supreme Coure’s "prohibition against ex parte contact with possible witnesses [employed by 
DeTrae] is wholly without legal support, plainly unconstitutional and grossly unfair to plaintiff and 
his counsel”. We believe that this argument is wrong on all three counts. To the extent that this 
aspect of the order appealed from precludes ex pane contact with current employees of DeTrae. it 
is correct; however, the scope of the order is overbroad to the extent that it precludes such contact 
with individuals who are no longer employed by DeTrae and who therefore cannot be considered

panics to the present action.

August 7, 1989 KEESIG v TEAM I
Page 4.



A
The legal support for the Supreme Court’* determination on this issue may be 

found in Code of Professional Responsibility DR 7-104(A)(1), which provides:

"(A) During the course of his representation of a client a 
lawyer shall not:

"(1) Communicate or cause another to communicate 
on the subject of the representation with a parry 
he knows to be represented by a lawyer in that 
matter unless he has the prior consent of the 
lawyer representing such other party or is 
authorized by law to do so".

This rule prohibits the plaintiffs attorney from communicating with any "party he knows to be 
represented by a lawyer" without that lawyer’s consent.

In order to avoid the prohibition against ex parte communications reflected in 

this rule, the plaintiffs attorney seeks to have the term "party" defined by judicial construction so 
as to include only (1) parties who are themselves natural persons, and (2) those individuals who 
may be considered as the "alter egos” of parties which are not themselves natural persons. 
According to this argument, whenever a plaintiff sues a jural entity such as a corporation, a 
partnership, an unincorporated association, a joint venture, or any other business organization - or, 
for that matter, any public or private body, as opposed to the individuals of which it consists 
the plaintiffs attorney should be free to bypass the attorney appearing on behalf of such a 
defendant, and to communicate on the subject matter of the litigation with any employee or agent 
of that defendant, except for those who may be considered to be the "alter ego” of the entity 

involved.
The plaintiff does not contend that his attorney should have the right to conduct 

ex parte interviews of those nonparty employees of a corporate defendant who, for whatever 
reason, might have chosen to retain their own personal attorney in connection with the subject 
matter of this litigation. In the present case, for example, if a particular individual employed by 
DeTrae, not named as a party to this action, should have chosen to retain his own attorney, we do 
not understand the plaintiff to argue that his attorney could have the right, consistent with the 
ethical dictates of DR 7-104(A)(1), knowingly to conduct an interview of that nonparty employee 
in the absence of the attorney. Thus, the plaintiffs argument in the present case seems to be 
premised on an assumption which is invalid, namely, the assumption that the attorneys who 
represent DeTrae in fact do not represent its employees. The plaintiff assumes, in other words, 
that DeTrae’s attorneys have no attorney-client relationship with the employees of DeTrae 
whom the plaintiff seeks to interview. On the contrary, unless there is proof that the scope of the

August 7,1989
N1ESIG v TEAM I

Page 5.



representation of DeTrae is more limited, it must be presumed to extend not only to DeTrae as a 
corporate abstraction, but aJso to every current agent or employee of DeTrae who is connected in 
any way with the present civil action for damages. ^

It is clear, for example, that any agent of DeTrae could avail himself of the 

anomey-client privilege with respect to communications made by him to DeTrae’s attorneys on 
the subject matter of this litigation. The general rule is that the attorney-client privilege may apply 

to communications made by all corporate employees to corporate counsel in connection with a 
particular litigation, and that the privilege is not limited to only those communications made by the 
corporation’s "control group". This was the essential holding of the Supreme Court in Upjohn 
Co. v United States (449 US 383).

In the Upjohn case, it appeared that the general counsel for Upjohn Company 
had solicited confidential information from various Upjohn Company employees in connection 
with an internal investigation into certain "questionable payments" to foreign governments 
(Upjohn Co. v United States, supra, at 386). In connection with a subsequent investigation of 
these payments by the Internal Revenue Service, the United States District Court for the Western 
District of Michigan ordered the enforcement of a subpoena which called for the production of 
documents, including ones compiled by counsel for the Upjohn Company in connection with his 
investigation (Upjohn Co. v United States, supra, at 387-388). The United States Court of 
Appeals for the Sixth Circuit held that a hearing was necessary in order to distinguish the 
corporation's "control group" from its other agents, upon the theory that only communication with 
counsel made by the "control group” would be covered by the anomey-client privilege (Upjohn 
Co. v United States, supra, at 388-89).

The Supreme Court reversed and held that Federal Rules of Evidence, rule 501, 
which codifies the anomey-client privilege which existed at common law, applies to all corporate 
employees and not only to the corporation’s "control group". The court stated that the "nanow 
'control gTOup test’ sanctioned by the Court of Appeals in this case cannot, consistent with 'the 
principles of common law as *** interpreted *** in light of reason and experience', Fed Rule Evid 
501, govern the development of the law in this area" (Upjohn Co. v United Suites, supra, at 397).

1. By the same token, DeTrae’s anomeys cannot be presumed to represent former employees or 
agents of DeTrae. Thus, DR 7-104(A)(l) does not apply at all to former employees of DeTrae, 
unless it is shown that a particular former employee has retained his own attorney.

August 7, 1989
NTESIG v TEAM  I

Page 6.



TJ r Upjohn ca-e. defines the scope of the common-law attorney-client 

privilege, which has N*en adopted in New York (see, CPLR 4503, 3101(c); Rossi v Blue Cross
and Blue Shield o f Greater New York______ N Y 2d______(June 6, 1989) (memo from corporate
staff anomey to corporate officer hc‘d privileged); Cornell Manufacturing Co v Mushlin, 85 
AD2d 592 (statements made by corporate employees to attorney for corporate plaintiff held 
privileged); see also, d ry  of Elmira v Larry Walter, Inc., 89 AD2d 645 (communication 
berween insurance company’s account analyst and surety anomey employed by insurance 
company held privileged)). There h i .o logical reason to limit the application of the definition in 
the Upjohn case of the scope of the anomey-clici.t relationship to situations where only the 
scope of the attorney-client privilege is in issue. Applying the Upjohn definition of the scope of 
the anomey-client relationship to the instant case, we find that the attorney-client relationship 
berween DeTrae's attorneys and De'.'iae extends prima facie to all current DeTrae employees who

t
are connected any way with the subject ol this litigation.

Thus, it must be presumed, at least until the contrary is shown, that each 
employee of DeTrae whom the pi, w dff’s attorney seeks to interview on an ex parte basis is 
currently within the scope of the confidential attorney-client relationship between DeTrae and its 
attorneys. By relying on the dictates of DR 7-104(A)(l), DeTrae s attorneys are, in connection 
with the present litigation, holding themselves out as attorneys for DeTrae s employees, as well as 
for DeTrae itself, and absent a conflict of some sort, this is entirely proper. It is important to note, 
by the same token, that the plaintiffs attorneys neither allege nor prove that the scope of the 
representation by DeTrae’s attorneys of their client is more limited, for it is obvious that, in a 
typical case, the attorneys for one p j^ y  will rarely if ever be in any position to dictate the scope of

~v«
the representation afforded by the attorney for an adverse party.

Acceptance of the plaintiffs contention that the prohibition against ex parte 
CQOtact with an adverse party found in DR 7-104(A)(1) applies only to a corporate party s control 
eioup" or "alter ego" would require either a holding that the scope of the attorney-client 
relationship is more narrow with res -ect to questions arising in connection with ethical rules such 
as DR 7-104(A)(l), than it is with respect to questions arising in connection with the scope of the 
anomey-client privilege (Upjohn Co. v United States, supra, at 383), or a holding that certain 
low-level employees of a corporate prirty may be interviewed on an ex parte basis by adverse 
counsel irrespective of the fact that tl*.y are within the scope of the representation provided by the

f
corporation's attorney. Neither of th* se propositions is theoretically sound.

SD

August 7, 1989
vtfESIG v TEAM I

Page 7.



B
The rule advocated by the plaintiff should be rejected nut only by virtue of its 

theoretical deficiency, but also because of the immense practical difficulties which, it may easily 
be foreseen, would result from attempts to apply the rule in particular cases. Most importantly, the 
plaintiff has offered no concrete standard by which the courts could distinguish, in a consistent 
manner, between the type of corporate employees wuth respect to whom ex pane contact by 
adverse counsel would be forbidden, on the one hand, and the type of corporate employees with 

respect to whom such contact would be allowed, on the other.
The plaintiff suggests that the "alter egos" of any given corporate or institutional 

pans may be distinguished from that pany’s other agents by reference to the evidentiary question 
of whether the panicular agent could "speak for" or "bind" the corporation free. Wright v 
General Group Hosp., 103 Wash 2d 192, 691 P2d 664). In other words, the rules which govern 
the admissibility of hearsay statements made by the agents of a corporate or other type of 
institutional party would also serve as the standard b> which to distinguish those high-level 
employees who may not be contacted on an ex parte basis from those low-level employees w'ho 

may.
Application of the test proposed by the plaintiff would lead to the development of 

a rule which would, in effect, permit attorneys to conduct ex parte interviews with virtually all of 
the employees of an adverse corporate party. This is so because under New York law hearsay 
statements made by an agent are admissible in evidence against the agent’s employer only when 
the statement is made (1) within the scope of the agent's authority, and (2) during tne course of 
the agent’s performance of his duties (see, e g., Loschiavo v Port Auth. of N Y . <4 N J .. 86 AD2d 
624, affd 58 NY 2d 1040; Brusca v El Al Israel Airlines, 75 AD2d 798; Prado v Onor Oscar, 
Inc., 44 AD2d 604, 605; Menkelunas v City o f New York 270 App Div 827; Golden v Horn <4 
Hardart, 244 App Div 92. affd 270 NY 544; Richardson, Evidence § 253 [Prince 10th ed); 
Fisch, New York Evidence § 300 [2d ed]; McCormick, Evidence § 267 [2d ed]). It is exceedingly 
rare that a corporate litigant, represented by counsel, will explicitly confer upon any of its 
employees the authority to engage in ex parte communications with adverse counsel; similarly, it 
is difficult to imagine any circumstances in which a corporate party would implicitly confer such 
authority. It is also difficult to understand how any statement which might be made by a corporate 
employee in response to an ex parte interrogation by an attorney for an adverse party, during the 
pendency of litigation, could ever be viewed as having been made in the course of that employee’s 
actual duties. In general, one would think that it would be the duty of any employee to refuse to

August 7, 1989
NIESIG v TEAM I

Page 8.



sp-cik to an attorney whose interest is hostile to that of his employer; it is certainly difficult to 
imagine, in the context of any legal action or proceeding, circumstances under which the employee 
of a corporate party would actually be duty-bound by the terms of employment to cooperate 

with a hostile attorney.
The adoption of a rule authorizing attorneys to conduct ex parte interviews with 

any agent of an adverse corporate party whose statements may not later be admissible at trial 
would thus constitute the granting of a virtual carte blanche to conduct ex parte interviews with the 
employees of institutional defendants under almost any circumstance. It is thus clear that the 
evidentiary Riles governing the admissibility of hearsay statements made by corporate agents do 
not provide an adequate standard to distinguish a corpor. n ’s "control group" from its other 

agents.
Thrre have been different formulations of various other standards for 

distinguishing a corporation's control group from its other employees (see, Annot., Right of 
attorney to conduct ex pane interviews with corporate pany’s nonmanagements employees, 50 
ALR4th 691 [1984]). We find that all of these standards are unacceptably imprecise and we

believe that all of them would prove to be unworkable.
The standard mentioned in the Comment to ABA Model Rules of Professional 

Conduct rule 4.2, which states that that rule's prohibition against ex pane contact "does not 
prohibit communication with lower echelon employees who are not representatives of the 
organization" (see, e.g., Porter v Arco Metals, Div. o f Atlantic Richfield, 642 F Supp 1116, 
1117) seems to us to be totally unworkable. There simply is no available criterion by which to 
determine which corporate employees belong to any given corporation’s "higher echelon", and

which employees belong to its "lower" one.
Another standard, adopted in a different case, is based on the question of whether 

the particular corporate employee sought to be interviewed could routinely be compelled to submit 
to a deposition on behalf of the corporation (Sobel v Yeshiva Univ., 28 Empl. Prac. Dec. [CCH], 
at 32,749). This standard is virtually meaningless when applied under New York law, since under 
CPLR article 31 the scope of disclosure by way of deposition extends to any 'ofneer, director, 
member, agent or employee of a pany" (CPLR 3101[a][l]; 3016[b]). Although a corporate parry

2. As a matter of fact, the plaintiff expressly states in his brief on appeal that "(t]he interviews 
which [he] proposes to conduct would only concern factual matters 'outside' the scope of such 
individuals’ employment". This amounts to a concession that under New York rules of evidence 
any statements obtained in such interviews might not be admissible against DeTrae at trial. The 
plaintiff fails to note, however, that the same would be true of the statements made by any agent 
of DeTrae during an ex parte interview with adverse counsel, even if that agent were the 
corporation’s chief executive officer or principal shareholder. There is no correlation between the 
status which a particular witness occupies within the hierarchy of his corporate employer and the 
question whether a particular statement made by the witness could be viewed as having been made 
in the scope of his employment.

August 7, 1989 Page 9.
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may, in the'fust instance, choose whom to produce as its witness at a deposition (eg.  National 
Reporting. Inc. v Slate o f New York. 46 AD2d 576, 578; Prudential Ins. Co. o f Amer. v Ward 
Prods. Corp., 57 AD2d 259, 261, revd on other grounds, 43 NY2d 867), an adverse party, 
subject to the discretionary regulation of the trial court, is entitled to conduct further depositions so 
as to obtain testimony from any corporate employee who is shown to have knowledge of the facts 
in issue. Thus, the supposed criterion of whether a particular corporate employee could 
"routinely'' be compelled to testify at a deposition is so vague as to be illusory.

A third proposed standard is based on whether the employee in question would 
have the power to settle legal controversies in which his corporate employer is involved (see, 
e g ,  McKitry v Board o f Educ., Nyack Union Free School Dist., United States District Court, 
SDNY, Dec 16, 1987, Tayler J.; Frey v Department o f Health and Human Services, 106 FRD 
32). Aside from its lack of clarity, this standard suffers from the obvious practical defect that in 
many cases no officer of a corporate litigant will have the exclusive power to settle a case, since 
such power is often shared with the corporation’s liability insurance carrier, which, in many cases, 

has undertaken to defend the litigation.
Ln short, there is no reliable criterion which allows us to distinguish between the 

corporation’s "control group” and its other employees. There is, consequently, no firm basis upon 
which to distinguish those employees of a corporation represented by counsel who, pursuant to the 
plaintiff's argument, could properly be contacted ex pane by an adverse attorney, from those who 
could not. For this practical reason alone, the plaintiff s argument must be rejected.

It is also readily apparent that acceptance of the plaintiff's argument would 
engender a significant amount of litigation addressed to the question of whether, in paniculai 
cases, particular corporate employees are or are not within the company's "control group". Since 
an attorney who violates DR 7-104(A)(1) is subject to disqualification, as well as to disciplinary 
sanctions (see, e g., Matter o f Shapiro, 90 AD2d 22), it is to be expected that, if we were to 
adopt the rule advocated by the plaintiff, any attorney planning to engage in ex parte contact with 
an individual employed by an adverse party would first seek judicial authorization.^ This could 
easily result in a flood of pretrial litigation involving the question of v/hether, in a particular case, 
a particular employee of a particular corporate party is, or is not, that party’s "alter ego". Such a

%

3. The attorneys for the plaintiff in the present case acted properly in seeking an advance ruling 
on this issue.

August 7, 1989
NIESIG v TEAM I

Page 10.



torrent of litigation would be all the more unfortunate in light of the plaintiffs failure to specify 
any workable standard by which the courts could be guided in making such a determination.

Acceptance of the plaintiffs argument would therefore also relegate to the courts 
the onerous task of distinguishing between "control group" employees and "noncontrol group" 
employees in the absence of any clear standard against which to make such a distinction. In the 
interest of clarity, then, we reject the "control group" test, and hold, as has at least one other court, 
that "it is not proper for opposing counsel or its investigator to contact ex parte an employee of a 
corporation that is a party to a suit knowing that the information sought from the employee relates 
to the subject of the controversy" (Hewlett-Packard Co. v Superior Court, 252 Cal Rptr 14, 
supra; see also, Mills Land & Water Co. v Golden West Refining Co., 186 Cal Anp 3d 116, 230 
Cal Rptr 461, 168 Cal App 3d 116; Miller and Calfo, Ex parte Contact with Employees and 
Forme: Employees cf a Corporate Adversary: Is it Ethical, 42 Business Lawyer 1053 [ 1987];.

C
We hold that the terms of DR 7-104(A)(1) may effectively be enforced "only by 

viewing all present employees of a corporation as ’parties’" (Opinion No. 80-46 of the 
Committee on Professional Ethics of the Bar of the City of New York [emphasis added]).

The plaintiff’s claim that "public policy considerations" require that his attorney 
be permitted to have ex parte contact with DeTrae’s current employees is meritless. It is clear that 
the considerations referred to by the plaintiff are, in fact, not ones of public policy at all, but 

rather ones of personal expedience.
The plaintiff seeks to have us view the legal issue at hand as one requiring the 

balancing of two competing interests: the plaintiff s need to obtain information in order to aid in 
his "search for the truth" {see, Frey v Department o f Health <Sc Human Sen's., 106 FRD 32, 
36-37), on the one hand, and DeTrae’s interest in preventing its employees from supplying its 
adversaries with prejudicial informarion, on the other. However, it has not been suggested, much 
less proved, that the witnesses sought to be interviewed ex parte could not be compelled to testify 
at regular pretrial depositions; certainly, if there is reason to believe that any one cf them in fact 
possesses relevant information (something which cannot be inferred from mere presence at the 
scene of the accident), the Supreme Court could properly direct DeTrae to produce the witness for 
a deposition. The Supreme Court did not prohibit plaintiffs counsel from interviewing these 
witnesses; it merely prohibited such interviews from occurring ex parte. Thus, it is clear that the 
interest sought to be advanced by the plaintiff is not that of obtaining the information necessary to 
prepare for trial, but rather, that of obtaining such information in a particular way, that is,

August 7, 1989
NIESIG v TEAM I

Page 11.



through the procedure of an ex parte interview. Once it is seen for what it is, the plaintiffs 
argument that such ex parte interviews shouJd be allowed in order to advance his "search for the 
truth" is likely to persuade only those who, contrary to the basic axioms of the American legal 
system, believe that one-sided, inquisitorial procedures are more effective than adversarial ones in 

arriving at the truth.
The real interests which the plaintiff seeks to advance in this case are too obvious 

to be concealed by his repeated references to "the quest for truth". First, it is obvious that the 
practice of conducting ex parte interviews with adverse parties would be more inexpensive than 
seeking their testimony through normal discovery channels. Second, the likelihood that a witness 
will, in response to an improperly phrased or leading question, make an improvident response 
prejudicial either to his employer or to himself is greater when that witness has no counsel 
present. It is therefore obvious that the plaintiff's personal interests in achieving a Financial and a 
tactical advantage in the litigation are the real policies which would be advanced by acceptance of 
his argument; the "public policy" to which he alludes would not only not be advanced in any way, 
but w ould in fact suffer if, as the plaintiff proposes, the ethical norms reflected in the terms of DR 

7-104(A)( 1) were relaxed.
The plaintiff s resort to constitutional law in his attempt to persuade us that his 

attorney should be allowed to conduct ex parte interrogations of employees of adverse parties is 
even more ill-founded than his resort to "public policy”. The cases relied upon by the plaintiff in 
connection with this argument (e g., Brotherhood of Railroad Trairvr>en v Virginia ex rel. 
Virginia State Bar, 377 US 1; G ulf Oil Co. v Bernard. 452 US 89) are inapposite. We do not 
believe that either the United States Constitution or the New' York State Constitution secures a 
right to anomeys who art actively involved in litigation to conduct ex pane examinations of the 

employees of adverse parties.

D
For all the foregoing reasons, we conclude that DR 7-104(A)(l) should be 

construed in a manner which provides the attorneys who practice law in this State with a cieai and 
unambiguous definition of what does and what docs not constitute unethical conduct. This is all 
the more important, given the fact that anomeys have an obligation not only to avoid engaging in 
conduct which is actually unethical, but also to avoid engaging in conduct which even appears to 
be unethical (see, Code of Professional Responsibility, EC 9-6; Cardinale v Golinello, 43 
NY2d 288, 296; Matter of Kelly, 23 NY 2d 368, 376; Bridges v Alcan Construction Corp., 134 
AD2d 316, 317). The integrity of the legal profession would not be well served by the creation of

August 7, 1989
NIESIG v TEAM I

Page 12.



a rule which infuses a substantial amount of ambiguity into one of the most important and most 
widely recognized of all ethical precepts (Code of Professional Responsibility, DR 7- 104[A][1 ]). 
The principal argument advanced by the plaintiff on appeal should therefore be rejected.

r a

The second issue raised on appeal may be resolved by reference to CPLR 

3130(1), which authorizes the service of interrogatories under stated conditions. This statute 
provides, in part, that "[i]n the case of an action to recover damages for persona] injury *** 
predicated solely on a cause or causes of action for negligence, a party shall not be permitted to 
scrve interrogatories on and conduct a deposition of the same pany *** without leave of court” 
(emphasis added). The plaintiff is correct in arguing that the present action is not one "predicated 
solely on a cause or causes of action for negligence", and it follows that this statutory limitation

does not apply.
The phrase "predicated solely on a cause or causes of action for negligence" 

should be given a literal construction. Actions which arc based in part on negligence and in part 
on some other legal theory should not be held to be predicated solely on *** negligence . It is 
noteworthy that, in construing the terms of CPLR 3130 as it existed prior to 1979 {see, L 1979, 
ch 197, eff Sept. 1, 1979), the courts defined the phrase "action to recover damages for * "  a 
personal injury resulting from negligence" so as to exclude actions premised, in part, on some 
other theory {e.g., Allen v Minskoff, 38 NY2d 506, 509-510; Gellis v Searle <4 Co.. 40 AD2d 
676; Ford Motor Co. v Burk/ Co., 51 Misc 2d 420 [breach of warranty]; Ribley v Harsco

Corp., 57 AD2d 228 [strict products liability]).
It is clear that, like an action based in strict products liability or breach of 

warranty, an action based on a claimed violation of Labor Law § 240 is substantively different 
from an action based on negligence. Liability may be imposed on an owner or general contractor 
pursuant to Labor Law § 240 "without regard to principles or concepts of negligence" {Cranford 
v Leimzider, 100 AD 2d 568; see also, Bland v Manocherian, 66 NY 2d 452; Zimmer v 
Chemung Counry Performing Arts, 65 NY2d 513). The stria  Lability that may be imposed under 
this section is not the equivalent of liability premised on proof of actual negligence.

It might be argued that the plaintiff’s use of dual discovery devices 

(interrogatories and depositions) should be limited to his cause of action brought pursuant to the 
Labor Law. Thus, for example, it could be argued that defendant DeTrae should be required to 
answer only those interrogatories which relate to the plaintiff's Labor Law cause of action. We

August 7,1989
NIESIG v TEAM I

Page 13.



need not pause to answer this question of law because we find, as a matter of discretion, that under 
,he particular facts of this case, the "leave of court" authorized by the terms of CPLR 3130. should 
have been granted. DcTrae should be directed to serve responses to the plaintiff’s interrogatories 
and J.M. Frederick should be directed to produce its witness to be examined by the attorney for the 
plaintiff. In the interest of full pretrial disclosure, the courts should not be reluctant to authorize, 

under appropriate circumstances, the use of interrogatories even where depositions have been

h e ld 4

IV
Accordingly, the order under review is modified, (1) by deleting the provisions 

thereof which (a) denied those branches of the plaintiffs motion which were to compel the 
defendant J.M. Construction to submit to a deposition conducted by the plaintiffs attorney, and to 
compel the third-party defendant to respond to the plaintiffs interrogatories, and (b) granted that 
branch of the third-party defendant’s cross motion which was to vacate the plaintiff's 
interrogatories, and substituting therefor provisions granting those branches of the plaintiffs 
motion, denying that branch of the third-party defendant’s cross motion and directing J.M. 
Construction to produce Mauro Ricchiuti. or, if he is no longer employed by it. another witness to 
be deposed by the plaintiff, and directing the third-party defendant to respond to the plaintiff s 
interrogatories and (2) by deleting the provision thereof which denied that branch of the plaintiffs 
motion w-hich was for authorization to the plaintiff’s attorney to conduct ex parte interv iews of the 
individuals named by the third-party defendant as possible witnesses, and substituting therefor a 
provision granting that branch of the plaintiff s motion only to the extent of authorizing the 
plaintiff s attorney to interview persons who are not currently employed by any adverse party 
represented by an attorney and otherwise denying that branch of the motion; so as modified, the 
order is insofar as appealed from, without costs or disbursements, the third-party defendant shall 
answer the plaintiff's interrogatories within 20 days after service upon it of a copy of this decision 
and order with notice of entry, and J.M. Construction shall produce a witness to be deposed by the 
plaintiff upon written notice of not less than 10 days, to tx: provided by ’he plaintiff.

LAWRENCE, HARWOOD and BALLETTA, JJ-. concur.

4 sTncTDeTrac did not object to th7plaintiffs interrogatories within 10 days, it may seek to have 
fhem vacated only upon certain limifed grounds (see. CPLR 3133(a); Albany Custom Floors v 
Urbach Kahn. tiW erlin . 128 AD2d 924; Kleinberg v Mayflower Life Ins. Co.. 106 AD2d :286 
Rinaldo v Syracuse University. 51 AD2d 675). Since the interrogatories axe not patently 
improper, and do not invade any privilege, we find that they should not be vacated.

August 7, 1989
NIESIG v TEAM I

Page 14.



ORDERED that the order is modified, (1) by deleting the provisions thereof 
which (a) denied those branches of the plaintiff s motion which were to compel the defendant J.M. 
Construction of New York, Lnc., to submit to a deposition conducted by the plaintiff’s attorney, 
and to compel the third-party defendant to respond to the plaintiffs interrogatories, and (b) 
granted that branch of the third-party defendant’s motion which was to vacate the plaintiffs 
interrogatories, and substituting therefor provisions granting those branches of the plaintiffs 
motion, denying that branch of the third-party defendant's cross motion, and directing J.M. 
Contruction of New York, Inc. to produce Mauro Ricchiuti, or if he is no longer employed by it, 
another witness to be deposed by the plaintiff, and directing the third-party defendant to respond to 
the plaintiffs interrogatories, and (2) by deleting the provision thereof which denied that branch of 
the plaintiff's motion which was for authorization to the plaintiffs attorney to conduct ex pane 
interviews of the individuals named by the third-party defendant as possible witnesses, and 
substituting therefor a provision granting that branch of the motion only to the extent of 
authorizing the plaintiffs attorney to interview persons who are not currently employeJ by any 
adverse parry represented by an attorney, and otherwise denying that branch of the motion, as so 
modified, the order is affirmed insofar as appealed from, without costs or disbursements; the 
third-party defendant shall answer the plaintiff s interrogatories within 20 days after service upon 
it of a copy of this decision and order, with notice of entry , and the defendant J.M. Frederick 
Construction of New York, lnc. shall produce a witness to be deposed by the plaintiff upon wrinen 
notice of not less than 10 days, to be provided by the plaintiff.

ENTER:

Martin H. Brownstein 
Clerk

August 7, 1989
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