Nebraska Law Review
discovery, former employees, attorney conduct, model rules, work product doctrine
The goal of this Article is to untangle some of the issues surrounding the recurring dilemmas posed by discovery of information held by former employees. Part II of this Article elucidates the competing interests of the litigators, their respective clients, the courts, and the potential witnesses when discovery is sought from former employees of a party. Part III provides a brief overview of the various legal authorities that govern an attorney's discovery of former employees and the synergy created by these sources. Part IV examines the potential pitfalls attorneys encounter when pursuing informal discovery of former employees of a party. Part V presents specific issues that arise when an attorney uses formal discovery devices to obtain information from former employees of a party. Part VI outlines the major additional limitations imposed on an attorney's communications and interactions with former employees of a party that must be heeded when discovery is sought under formal or informal methods. Part VII concludes the Article with the author's modest suggestions for clarifying applicable standards and avoiding the myriad minefields highlighted throughout this Article.
Susan J. Becker, Discovery of Information and Documents from a Litigant's Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles, 81 Nebraska Law Review 868 (2003)