## Facts

- Marsha Eagle worked as a pharmacy technician at Hurley Medical Center (HMC) from 1989, typically on the second shift.
- Eagle was diagnosed with lupus in 2008/2009 and later sought workplace limitations and intermittent FMLA leave for flare-ups.
- Her duties included “dispensing” and “IV admixture” assignments; Eagle asserted dispensing required more standing and was more physically demanding.
- On July 14, 2011, after several consecutive dispensing shifts with limited break coverage, Eagle told her supervisor she could not perform dispensing another day and left work, stating she was taking FMLA leave.
- HMC terminated Eagle for walking off the job and fraudulent use of FMLA leave.
- Eagle sued under the FMLA, ADA, and Michigan PDCRA.
- HMC moved for summary judgment and separately sought a protective order to strike affidavits from two employees, Lavonda Rimmer and Patricia Ramirez, obtained by Eagle’s counsel without HMC’s consent after discovery closed.
- Rimmer was a non-managerial employee uninvolved in Eagle’s supervision or termination; Ramirez was a non-managerial employee who served as Eagle’s union representative and communicated with management while advocating for Eagle.

## Issues

1. Whether affidavits from non-managerial hospital employees obtained ex parte after the discovery cutoff should be stricken under a protective order based on Michigan Rule of Professional Conduct 4.2 and the scheduling order.
2. Whether HMC showed “good cause” under Federal Rule of Civil Procedure 26(c) to justify striking the affidavits.
3. Whether disputes of material fact precluded summary judgment on Eagle’s FMLA, ADA, and PDCRA claims.

## Decision

- The court denied HMC’s motion for a protective order and declined to strike the Rimmer and Ramirez affidavits.
- The court held that ex parte contact with Rimmer and Ramirez did not violate Michigan Rule of Professional Conduct 4.2 because neither employee was managerial, a decision-maker, or otherwise in a category whose statements or conduct could bind or be imputed to HMC for liability purposes.
- The court rejected the request to strike the affidavits based solely on being obtained after the discovery deadline, finding no specific showing of prejudice or unfair surprise.
- The court denied HMC’s motion for summary judgment, concluding that factual disputes required trial on the FMLA, ADA, and PDCRA claims.

## Legal Principles

- Under Michigan Rule of Professional Conduct 4.2 in the organizational context, ex parte contact is generally barred only for employees with managerial authority, authority to bind the organization, or involvement whose acts or omissions are imputable to the organization for liability in the matter.
- A protective order under Federal Rule of Civil Procedure 26(c) requires the movant to show “good cause,” including concrete harm such as undue burden or prejudice; striking evidence is a severe remedy.
- Evidence obtained after a discovery cutoff is not automatically excluded; courts consider prejudice, surprise, and the relevance of the material in enforcing scheduling orders.
- Summary judgment is improper where record evidence creates genuine disputes about job demands, notice and use of FMLA leave, and whether the employer met accommodation-related obligations under the ADA and analogous state law.

## Conclusion

The court allowed Eagle’s employment claims to proceed and refused to strike affidavits taken from non-managerial employees, holding that the no-contact rule did not apply to those witnesses and that HMC failed to show good cause or prejudice warranting a protective order or exclusion based on the timing of the affidavits.


Eagle v. Hurley Med. Ctr., 292 F.R.D. 466 (E.D. Mich. 2013)