Court Excludes Evidence Developed Through Plaintiff's Surreptitious Contact with Corporate Defendant's Employees

On March 27, 2015, Jalal Haidar brought suit in federal court, alleging that he had been injured by a dangerous condition in a hotel.  According to Haidar, he sat motionless on a hotel toilet for approximately fifteen seconds when, without making any contact with the toilet tank, the tank lid suddenly fell.  The lid broke on impact with the floor, surprising Haidar, who jumped up, cut his foot on a piece of porcelain, and then fell to the ground, further injuring himself.

During his discovery phase of his federal lawsuit, Haidar developed the theory that the toilet was negligently designed because its lid did not adhere to the tank with Velcro straps.  On August 13, 2015, Haidar voluntarily dismissed his federal action because he planned on adding the toilet's designer and manufacturer as a defendant.  Because the manufacturer was a non-diverse defendant, Haidar planned on bringing back his action in state court.  On September 18, 2015, Haidar filed an action in state court against both defendants.

Starting on July 15, 2015, Haidar launched a plan to obtain information from the toilet manufacturer for the benefit of his lawsuit.  Posing as a curious customer, he contacted a series of the manufacturer's technical and customer support employees by email to ask questions about various elements of the design of the toilet tank lid.  Haidar never disclosed to the manufacturer's employees that he believed he had been injured by one of its products, or that he was engaged in any related litigation.  Following each exchange with an employee of the toilet manufacturer, Haidar provided a copy of the email correspondence to his attorneys.  This pattern continued until February 25, 2016, months after Haidar filed suit against the manufacturer.  At that point, the toilet manufacturer's counsel became aware of the contacts and requested that Haidar cease all contact with the manufacturer's employees.  At his deposition, Haidar admitted that his "contact with [the toilet manufacturer] from the get-go, from the beginning, was related to this lawsuit," and that he needed to contact the manufacturer because "I have to do what I have to do to protect myself."

The toilet manufacturer moved to exclude all evidence obtained from Haidar's contacts with its employees, arguing that this ex-parte discovery, executed through deceptive means, was clearly improper and should not be rewarded.  The Court agreed, noting Haidar's scheme was a "jig" that "was up" once it was discovered by the manufacturer's attorneys.  Relying on Rule 4.2 of the Virginia Rules of Professional Conduct, the Court concluded that "Haidar's communications with [the manufacturer], if permitted, would encourage impermissible communications with an opposing party during litigation."  It also concluded that limiting ex-parte communications permits "a more controlled process of discovery," which "better serves the administration of justice."  The Court found this rationale alone was a sufficient basis for exclusion, before noting an additional reason: the improper communications were not party admissions because the employees were not members of the manufacturer's control group, and the manufacturer had never authorized its employees to speak on a matter of pending litigation.  For this reason, the improperly gathered evidence was also hearsay.

Especially for large companies, it is simply not feasible to track the identity of every adverse litigant and instruct public-facing employees to avoid contact.  Therefore, to a large extent, courts must rely on plaintiffs and their counsel to police their own behavior and ensure that improper contacts do not occur.  This case helps clearly delineate proper contact from improper gamesmanship or sharp litigation practices.  It also emphasizes how important it is for corporate defense counsel to thoroughly investigate and discover all potential communications between their client and the plaintiff, so the propriety of those contacts can be tested, and any ill-gotten gains excluded by the court.