14 Trial Lawyer • Summer 2023 By Angie Ferrer Whether they are providing valuable context that helps an attorney understand their case or testimony to corroborate (or refute) key facts, thirdparty witnesses can play an important role in litigation. How an attorney approaches obtaining information from third-party witnesses will vary depending on the circumstances of each case and the type of information the witnesses may have to offer. In one recent case, third-party witnesses were particularly essential. After his sudden termination from his job, my client, John, demanded his contractual severance and other unpaid wages. Rather than paying the outstanding wages, the company went on the defensive and filed a lawsuit against John, alleging, among other claims, that he was in violation of a noncompetition and non-solicitation agreement, and had lured away its customers. The company’s allegations were unfounded. In forming his own business after his termination, John was careful to operate within the scope of his contractual post-employment restrictions and to refrain from contacting or working with any of the company’s customers. In fact, multiple customers had contacted him after his termination to seek his services and, mindful of the restrictive covenants and the company’s lawsuit against him, John had told them he could not work with them for the time being. Because we were in federal court, the parties had to provide initial disclosures identifying individuals likely to have knowledge of relevant facts and, since the company alleged that John had taken its customers, I insisted that the company’s initial disclosures list the customers it contended John had lured away. Many of the potential witnesses on the company’s disclosures were the same individuals who had reached out, unsolicited, to John, and whose business he had politely declined. These third-party witnesses’ testimony would be essential in defending against the company’s claims. Direct contact One of the first things to consider before reaching out to a third-party witness is whether the lawyer may communicate directly with the person. Does the witness have an attorney? Under Oregon Rule of Professional Conduct 4.2: In representing a client or the lawyer’s own interests, a lawyer shall not communicate or cause another to communicate on the subject of the representation with a person the lawyer knows to be represented by a lawyer on that subject unless: (a) The lawyer has the prior consent of the lawyer representing such other person; (b)The lawyer is authorized by law or by court order to do so; or (c) A written agreement requires a written notice or demand to be sent to such other person, in which case a copy of such notice or demand shall also be sent to such other person’s lawyer. In John’s case, I reached out directly to many of the customers listed on the company’s initial disclosures, and most of them were happy to help. One of the witnesses decided to retain his own attorney to help him determine whether he should sign a declaration. Although that meant I could not talk with the witness directly anymore — or, at least, not without his lawyer’s permission—the Angie Ferrer From Third-Party Witnesses OBTAINING INFORMATION In John’s case, I reached out directly to many of the customers listed on the company’s initial disclosures, and most of them were happy to help.
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