Ex-Parte Interviews of Former Employees

Perhaps this sounds familiar. A former employee, years ago, created the fodder for an ongoing series of lawsuits by gratuitously authoring a critical assessment of a product's potential problems in a company memorandum or e-mail. His literary excess was fueled by a creative writing course he was taking on the side, which suggested that embellishment was good for imaginative story-telling. The employee, who continues to stand by the company, is long gone, but his document has taken on a life of its own. Or, perhaps there is a former employee, involved with labor and wage issues in the past, who now sees an opportunity for “pay-back” by claiming that all kinds of interesting transgressions were committed on your production line. Product manufacturers are often faced with the dreaded notice: Plaintiff's counsel seeks to depose these former employees who authored the so-called “bad” document, or left with a grudge. Even worse, a manufacturer finds out, after the fact, that former employees have already been contacted and have given statements. What, if anything, can manufacturers do to protect themselves?