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ORLOWSKI v. DOMINICK'S FINER FOODS

August 9, 1996

HELENE ORLOWSKI, MELBA J. KOCH MARGARET MROZOWSKI, CAROL ANN SCHMALL, ALMA L. AGUIRRE, ROANN D. KEATY, Plaintiffs,
v.
DOMINICK'S FINER FOODS, INC., Defendants.



The opinion of the court was delivered by: KEYS

 This matter comes before the Court on Defendant's Motion For Protective Order and Plaintiff's Motion to File Second Amended Complaint pursuant to Federal Rule of Civil Procedure 15. For the following reasons, Defendant's motion is granted in part and denied in part, and Plaintiff's motion is granted.

 BACKGROUND

 Plaintiffs bring this sex discrimination suit against Defendant, Dominick's Finer Foods, Inc. ("Dominick's"), as a class action "on behalf of women who have worked in the Dominick's stores." (Plaintiffs' Memorandum in Opposition to Defendant's Motion for Protective Order [Pls.' Mem. Opp'n] at 1.) They allege that Dominick's has discriminated against them in the following manner:

 (Complaint at 7-8.)

 On May 1, 1995, this Court granted Plaintiffs' unopposed Motion to File First Amended Complaint, thereby entitling Plaintiffs to add four named plaintiffs to the suit. On August 22, 1995, this Court granted Plaintiffs' Motion to Compel Defendant to Provide Complete Responses to Their Outstanding Interrogatories and Documents. Dominick's was required to turn over to Plaintiffs data base information, including the name, sex, race, educational background, and employment status of each Dominick's employee. This information provided the identities of approximately five thousand potential class members (female employees of Dominick's), to which Plaintiffs' counsel sent a form letter apprising them of the pending law suit. (Defendant's Reply in Support of Its Motion for Protective Order [Def.'s Reply Supp.] at 2.) The letter stated the nature of the suit, and requested that individuals with information pertaining to Dominick's alleged discriminatory practices contact Plaintiffs' attorneys. *fn1" (Pls.' Mem. Opp'n at 2.) As a result of this letter, many women contacted Plaintiffs' counsel, indicating that they were subjected to the described acts of discrimination. Plaintiffs' counsel communicated only with those women who responded to the letter. Some of the women who received the letter, and subsequently contacted the attorneys, were current managers. Plaintiffs assert that these contacts were inadvertent and that their counsel did not intend to direct the letter to female managers. (Id. at 3.)

 Upon discovering that some managers had received Plaintiffs' letter, Dominick's brought its Motion for Protective Order, claiming that Plaintiffs' counsel violated the Northern District of Illinois' Rule of Professional Conduct 4.2 ("Rule 4.2"). Rule 4.2 prohibits a lawyer from communicating "on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party . . . ." Dominick's seeks to preclude Plaintiffs and their counsel from engaging in communications with Dominick's present and former managers, *fn2" unless express consent of Dominick's, or authorization from this Court, is obtained. (Def.'s Reply Supp. at 9.) Dominick's argues that, since all of these managers are represented by Dominick's counsel, Plaintiffs' counsel is barred from any, and all, ex parte communications with them. (Id.)

 As a result of the mass mailing of letters, Plaintiffs discovered additional, pivotal information, and now bring their Motion to File Second Amended Complaint, in order to add three women, Georgine Arvanites, Janet M. Tripp, and Maureen Gleixner, as named plaintiffs. (Plaintiffs' Memorandum in Support of Motion to File Second Amended Complaint [Pls.' Mem. Supp.] at 1.) Dominick's opposes this motion on the grounds that the three proposed additional plaintiffs: (1) can not adequately represent the class in this matter; (2) failed to exhaust their administrative remedies; and (3) were discovered as the result of the improper conduct of Plaintiffs' counsel. (Defendant's Response in Opposition to Plaintiffs' Motion to File Second Amended Complaint. [Def.'s Resp. Opp'n] at 4-6.)

 DISCUSSION

 I. DEFENDANT'S MOTION FOR PROTECTIVE ORDER

 Dominick's argues that Plaintiffs' counsel should be barred from communicating with current and former managers, co-managers, assistant managers, department managers, and supervisors, without the presence of its counsel, because all are represented by Dominick's and contact is, therefore, barred by Rule 4.2.

 A. Scope and Purpose of Rule 4.2

 Rule 4.2 of the Rules of Professional Conduct for the Northern District of Illinois states:

 
During the course of representing a client a lawyer shall not communicate or cause another to communicate on the subject of the representation with a party the lawyer knows to be represented by another lawyer in that matter unless the first lawyer has obtained the prior consent of the lawyer representing such other party or as may otherwise be authorized by law.

 See also In Re Air Crash Disaster Near Roselawn, Ind., 909 F. Supp. 1116, 1121 (N.D. Ill. 1995).

 The purpose of Rule 4.2 is "to protect the attorney-client relationship with a corporate client." Breedlove v. Tele-Trip Co., Inc., 1992 U.S. Dist. LEXIS 12149, No. 91 C 5702, 1992 WL 202147, at *1 (N.D. Ill. Aug. 14, 1992). The Comment to Rule 4.2 addresses the issue of corporations as parties, and discusses which corporate employees may constitute represented parties:

 
In the case of an organization, this Rule prohibits communications by a lawyer for one party concerning the matter in representation with persons having a managerial responsibility on behalf of the organization, and with any other person whose act or omission in connection with that matter may be imputed to the organization for purposes of civil or criminal liability or whose statement may constitute an admission on the part of the organization.

 Dominick's argues that all of its managerial positions (including current and former managers, current co-managers, current assistant managers, current department managers, and current supervisors) are covered under Rule 4.2. Thus, Dominick's argues that Plaintiffs' counsel is barred from communicating with any of these individuals, without the consent of its counsel.

 B. Former Employees of Dominick's

 This Court finds that former employees, including former managers, are not encompassed by Rule 4.2, and may freely engage in communications with Plaintiffs' counsel. Neither Rule 4.2, nor the Comment, makes any reference to former employees, or implies that former employees constitute parties "represented by another lawyer." Brown v. St. Joseph County, 148 F.R.D. 246, 252 (N.D. Ind. 1993) (emphasis omitted). Although the Seventh Circuit has not specifically held that former employees are excluded from Rule 4.2, most courts addressing this issue have concluded that Rule 4.2 "does not encompass a defendant organization's former employees." Ahern v. Board of Educ. of City of Chicago, 1995 U.S. Dist. LEXIS 16982, No. 92 C 4074, 1995 WL 680476, at *1 (N.D. Ill. Nov. 14, 1995); see also Shamlin v. Commonwealth Edison Co., 1994 U.S. ...


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