November 2012 Vol. 9, No. 3


Rule 2-100: Ex Parte Contact with a Represented Party


Guthrey v. California Department of Corrections and Rehabilitation (E.D.Cal. 2012) 2012 WL 3249554


In an employment discrimination lawsuit brought by a former counselor at a correctional facility, was plaintiff’s counsel entitled to discovery of the home addresses and phone numbers of rank-and-file correctional officers, who allegedly witnessed a brief encounter between plaintiff and a supervisor at the facility that plaintiff contended was evidence of the supervisor’s hostility toward him based on religion and perceived race and ancestry, for the purpose of contacting those officers ex parte?


No.  The Court found that these correctional officers could not be contacted ex parte as “public officers” under Rule 2-100(C)(1) since that exception applies only where an individual is exercising his constitutional right “to contact a policy level official for change in policy or to address a grievance,” which was not the case here.  (2012 WL 3249554 at *5, following U.S. v. Sierra Pacific Industries (E.D.Cal. 2010) 759 F.Supp.2d 1206 (EQ 8.2.20).)

The Court further found that the officers were “represented parties” under Rule 2-100 since, under Federal Rule of Evidence 801(d)(2), a statement the officers made concerning a matter within the scope of their employment could constitute a party admission.  (2012 WL 3249554 at *6.)  The Court declined to follow Snider v. Superior Court (2003) 113 Cal.App.4th 1187 (EQ 1.1.1), limiting the prohibition on ex parte communication to a party’s “managing agents,” because Snider applied California’s more limited party admissions rule.  (Ibid.)  The Court instead followed U.S. v. Sierra Pacific Industries (E.D.Cal. 2011) 2011 WL 5828017 (EQ 8.4.7) reaching the same result for the same reason on similar facts.  “Here, Plaintiff is attempting to elicit statements from [correctional facility employees] concerning the substance of Plaintiff’s civil claims.  These statements, if made, would concern a matter within the scope of his or her employment during the existence of that employment relationship.  Thus, a statement from a [correctional facility employee] may be imputed to [the correctional facility] in a manner creating civil liability.”  (2012 WL 3249554 at *6.)

In sum, plaintiff’s counsel could not contact the correctional officers ex parte under the “public official” exception to Rule 2-100 because the officers did not make policy and counsel could not contact the officers as outside of the scope of the represented party-agency because the officers’ statements about matters within the scope of their employment could be considered party admissions under federal evidence law.


The Court denied plaintiff’s motion to compel production of the officers’ home addresses and phone numbers on the primary ground that the benefits of producing the information to plaintiff did not outweigh the burden of the production on the safety of the correctional officers and their families.  (Id. at *3, note 2.)  The Court addressed the issue of ex parte contact with the officers to provide guidance to the parties because, except for a single statement in the defendants’ brief on the privacy rights and security interests of the officers, the parties focused exclusively on whether plaintiff’s counsel could contact these officers ex parte if the Court did not allow plaintiff to take more than the ten depositions to which plaintiff was limited under Federal Rule of Civil Procedure 30.  (Ibid.)

The Court denied plaintiff’s request to take more than ten depositions as premature.  The Court explained that plaintiff had not yet taken the deposition of either of the two witnesses plaintiff had identified to the brief encounter at issue between him and the correctional facility supervisor.  Plaintiff therefore could not show good cause that depositions of the 19 correctional officers were warranted.  (Id. at *7.)

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