New Interview Standards For Former Employees Of Adverse Party

The Texas Disciplinary Rules of Professional Conduct permit ex parte interviews of unrepresented former employees of an adverse corporate party. Tex. Disciplinary R. Prof'l Conduct 4.2. But an attorney cannot use such interviews to obtain an opponent's privileged materials outside the normal course of discovery. If he does, he may be subject to disqualification. That is what happened in In re RSR Corporation, NO. 13-0499, 59 Tex. S. Ct. J. 116 (Dec. 4, 2015).

Bickel & Brewer's client, RSR, licensed its anode-production information to Inppamet. RSR sued Inppamet for breach of the licensing agreement and misappropriation of trade secrets. Hernan Sobarzo was Inppamet's finance manager. His employment contract stated all information he obtained during his employment was confidential and could not be disclosed to third parties. He participated in an audit of Inppamet's payments to RSR, was involved in litigation strategy, communicated with Inppamet's lawyers, and reviewed invoices describing the attorneys' work. When he resigned from Inppamet, he took 2.3 gigabytes of data consisting primarily of 15,000 to 17,000 emails, including privileged material. After resigning, he met with Bickel & Brewer's attorneys and consultants at least 19 times for a total of more than 150 hours. Bickel & Brewer eventually hired him as a consultant on the case. The parties disputed whether he disclosed privileged and confidential information to Bickel & Brewer.

Inppamet moved to disqualify Bickel & Brewer. The trial court applied the standard set forth in In re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998) (orig. proceeding). The Supreme Court held it should have instead considered disqualification under the factors outlined in In re Meador, 968 S.W.2d 346 (Tex. 1998), which applies when attorneys gain access to...