## Facts

- Monsanto and Aetna were litigating insurance coverage in Delaware Superior Court.
- During the coverage dispute, Aetna retained private investigators to interview several former Monsanto employees outside formal discovery.
- Former employees submitted affidavits asserting investigators did not clearly identify whom they represented or the interview’s purpose.
- The affidavits also alleged that, in some instances, investigators misrepresented their employer and/or the nature of the matter.
- The investigators allegedly did not ask whether the former employees were represented by counsel in connection with the litigation.
- Monsanto moved for a protective order and related relief, arguing the contacts violated ethical limits on communications, compromised discovery fairness, and warranted sanctions or restrictions on further interviews.
- Aetna argued former employees were generally permissible ex parte interview subjects absent personal representation and that Monsanto sought to improperly restrict informal witness interviews.

## Issues

1. Whether counsel (through investigators) may conduct ex parte interviews of a corporate party’s former employees without treating them as represented persons solely due to prior employment.
2. Whether alleged failures to disclose identity/purpose, including misrepresentation, justified a broad protective order or sanctions limiting informal interviews.

## Decision

- The court denied Monsanto’s request for the broad protective order and sanctions it sought.
- The court declined to impose sweeping restrictions on Aetna’s ability to interview former Monsanto employees.
- The court criticized investigative practices involving lack of clarity or misrepresentation about identity and purpose and treated investigators as agents subject to attorney ethical norms.
- The court emphasized case-specific supervision and future compliance with ethical constraints rather than categorical prohibitions on contacting former employees.

## Legal Principles

- Former employees of a corporate party are generally not treated as represented persons solely by virtue of their former employment; ex parte contact is ordinarily permissible unless the lawyer knows the witness is personally represented in the matter or other special circumstances apply.
- Investigators retained by counsel act as counsel’s agents and are governed by the same professional conduct limits applicable to attorneys.
- Misrepresentation or lack of candor about identity or purpose in witness interviews is improper and may trigger judicial oversight and potential evidentiary consequences.
- Courts are reluctant to issue broad protective orders that would substantially restrict informal discovery absent a showing of serious prejudice warranting drastic relief.

## Conclusion

The court refused to bar or tightly regulate ex parte interviews of Monsanto’s former employees as a class, holding such witnesses are generally available for informal interviews, while warning that investigators must act candidly and consistently with attorney ethical obligations and that improper tactics may invite targeted judicial control.


Monsanto Co. v. Aetna Cas. & Sur. Co., 593 A.2d 1013 (Del. Super. Ct. 1990)