## Facts

- Hobart Corporation and other parties (plaintiffs) filed suit regarding alleged hazardous-waste disposal at the South Dayton Dump and Landfill Site (the landfill).
- The complaint alleged that Dayton Power & Light Co. (DP&L) (defendant) had coordinated the disposal of hazardous waste at the landfill.
- Plaintiffs sought testimony from Charles Fields, a current DP&L employee who began working for DP&L as a truck driver in 1962 and who had potential first-hand knowledge about landfill-related hauling in the 1960s.
- Plaintiffs moved the federal magistrate judge to compel Fields’s deposition.
- DP&L opposed the deposition and sought a protective order, arguing that plaintiffs’ counsel, Leslie Wolfe, engaged in improper ex parte communications with Fields about facts at issue in the lawsuit.
- DP&L supported its request with an affidavit from Fields describing two telephone calls from Wolfe.
- During the first call, Wolfe identified herself as an attorney representing people who were suing DP&L and asked whether she could call Fields again to discuss his personal experience with the landfill cleanup; Fields agreed.
- During the second call, Wolfe learned that Fields was still employed at DP&L and asked questions about whether Fields had transported fly ash or other waste to the landfill during the 1960s.
- DP&L argued the calls violated Ohio Rule of Professional Conduct 4.2 (the no-contact rule) and asked the court to prevent or limit Fields’s deposition and to restrict use of information from the calls.

## Issues

1. Whether Ohio Rule of Professional Conduct 4.2 barred plaintiffs’ counsel from speaking ex parte with a current DP&L employee about the landfill-related facts involved in the litigation.
2. Whether Fields fell within the category of organizational employees treated as represented “persons” for Rule 4.2 purposes (such that opposing counsel must communicate only through DP&L’s counsel).
3. Whether, if the contacts were improper, the court should issue a protective order blocking or limiting Fields’s deposition and related discovery.

## Decision

- The magistrate judge granted plaintiffs’ motion to compel Fields’s deposition.
- The magistrate judge denied DP&L’s request for a protective order that would prevent or restrict the deposition based on the ex parte calls.
- The court declined to impose discovery limits or other sanctions tied to Wolfe’s communications with Fields.

## Legal Principles

- Ohio Rule of Professional Conduct 4.2 generally prohibits a lawyer, when representing a client, from communicating about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the other lawyer consents or the communication is authorized by law or court order.
- When the represented party is an organization, Rule 4.2 does not treat every current employee as off-limits. The restriction typically applies to those employees who (a) have authority to speak for or bind the organization in the matter, or (b) whose acts or omissions in connection with the matter may be imputed to the organization for purposes of liability.
- Contacts with a current, non-managerial employee who is sought primarily as a fact witness—especially regarding historical events—are generally not barred solely because the employee works for the represented organization.
- Even where an ethical rule is invoked in discovery practice, the remedy sought must fit the problem shown. Blocking a deposition or excluding discovery is not a default response; the court considers the nature of the contact, the employee’s role, and whether any concrete prejudice has been demonstrated.

## Conclusion

In Hobart Corporation v. Waste Management of Ohio, Inc., the magistrate judge allowed plaintiffs to depose DP&L employee Charles Fields and rejected DP&L’s attempt to stop or limit the deposition based on plaintiffs’ counsel’s two phone calls with Fields, concluding that the circumstances did not justify a protective order or other discovery restrictions under Ohio’s no-contact rule for represented persons.


Hobart Corporation v. Waste Management of Ohio, Inc., 2012 WL 996525 (2012)