Wednesday, June 20, 2018

Defense Counsel Ordered to Turn Over Information Pertaining to Potential Witnesses in a Civil Litigation Matter

In the case of Newsuan v. Republic Services, No. 00528 (C.P. Phila. Co. April 11, 2018 Rau, J.), the court granted a Plaintiff’s Motion to Compel the defense to produce certain information about potential witnesses who worked at a facility at the time of the Plaintiff’s accident.  

According to the Opinion, the Plaintiff filed the motion because of the alleged conduct of the defense lawyers in purportedly refusing to provide contact information for the potential fact witnesses in order that the defense lawyers could allegedly contact the witnesses first and interview them, and offer to represent them for free.   The trial court found that such alleged conduct compromised the fairness in the litigation process by obstructing the Plaintiff’s access to evidence.

As such, the Plaintiff’s Motion to Compel was granted.  

In her Opinion, Judge Rau noted that, because the Defendants’ lawyers admitted in court that the interviews with the witnesses were conducted prior to the Defendants’ lawyer offering to represent these witnesses, the court found that the interviews did not constitute attorney-client privilege communications.  

The court also noted that the Pennsylvania Rules of Professional Conduct require that the defense lawyers advised the witnesses of the potential conflict of interest in representing both the witnesses and the company being sued, nor did the lawyers obtain the informed consent from the fact witnesses in order to waive any potential conflicts.  

In her Order, the judge required that the defense provide the Plaintiff with the information regarding the current and former employees of the witnesses along with the notes of the interviews and all written communications.  

The court additionally ruled that the Defendants’ lawyers were disqualified from representing the former and current employee fact witnesses at a deposition or trial unless the attorneys secure a written waiver from the witnesses explaining the conflict of interest.  

The Defendants’ lawyers were also ordered to inform Plaintiff’s counsel as to which witnesses have or have not signed the written waivers of conflicts of interest. 

The defense lawyers were additionally ordered not to contact any witnesses that they had not succeeded in interviewing to date.  

Anyone wishing to review a copy of this decision may click this LINK.

I send thanks to Attorney William P. Corcoran, Esquire of the legal division of Septa for bringing this case to my attention.  

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