Metcalf v. Yale University

          RULING AND ORDER ON MOTION TO DISQUALIFY COUNSEL AND MOTION FOR PROTECTIVE ORDER

          VICTOR A. BOLDEN UNITED STATES DISTRICT JUDGE

         On October 24, 2018, eight days before the parties' deadline to submit a joint trial memorandum, Yale University (“Defendant” or “Yale”) moved to disqualify the counsel of William Metcalf (“Plaintiff”) for alleged violations of Connecticut Rule of Professional Conduct 4.2. See Motion to Disqualify, dated Oct. 24, 2018 (“Disqual. Mot.”), ECF No. 98. Yale also moved for a protective order. See Motion for Protective Order, dated Oct. 24, 2018 (“Mot. for Prot. Ord.”), ECF No. 99.

         For the following reasons, the motion to disqualify counsel is DENIED, without prejudice to renewal, and the motion for a protective order is DENIED as moot, without prejudice to renewal.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Factual Allegations

         Mr. Metcalf, a former Curator of Coins and Medals at the Yale University Art Gallery, alleges that Yale discriminatorily terminated him due to his age in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 623 et seq., and the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq. See Amended Complaint, dated Mar. 22, 2016 (“Am. Compl.”), ECF No. 27, ¶¶ 28-41. Specifically, Mr. Metcalf alleges that Jock Reynolds, the Director of the Yale University Art Gallery, “summarily terminated his employment as Curator” on August 29, 2014. Id. ¶¶ 17-18.

         In Yale's motion to disqualify, Yale alleges that Ethan Levin-Epstein, Esq., one of Mr. Metcalf's attorneys, telephoned Classics Professor Kirk Freudenburg on August 30, 2018. Memorandum of Law in Support of Disqual. Mot., dated Oct. 24, 2018 (“Yale Mem.”), ECF No. 99-1, at 2. During his employment with Yale, Mr. Metcalf was also appointed as an Adjunct Professor in the Classics Department. Id. at 1-2; Am. Compl. ¶ 1. Yale alleges that Professor Freudenburg served as Mr. Metcalf's supervisor with respect to his role in the Classics Department, and that he participated in Mr. Metcalf's termination from that department. Yale Mem. at 2.

         Yale alleges that, after Mr. Levin-Epstein reached Professor Freudenburg, Mr. Levin-Epstein interviewed Professor Freudenburg for thirty-four minutes about the case. Id. Mr. Levin-Epstein's paralegal, Deborah French, was also allegedly on the call and “undoubtedly taking notes.” Id. Yale claims that Professor Freudenburg did not appreciate the significance of the situation, did not take notes, and did not call Yale's counsel right away; thus, Yale's counsel only learned of the interview from Professor Freudenburg a month and a half later. Id. at 2-3.

         Yale argues that Professor Freudenburg is properly considered a represented party under Connecticut Rule of Professional Conduct 4.2 (“Rule 4.2”). Id. at 4-5. Yale argues that where an organization is a party, three classes of employees are also considered parties: “(1) any employee having managerial responsibility; (2) any employee whose act or omission may be imputed to the employer for purposes of liability; and (3) any employee whose statement may constitute an admission on the part of the employer.” Id. at 5 (citing Official Commentary to Rule 4.2). Yale alleges that, during the interview, Mr. Levin-Epstein “inappropriately obtained confidential information of a party in direct violation” of Rule 4.2. Id. at 2.

         In support of its motion, Yale submitted an affidavit from Professor Freudenburg, who provides this account of the call:

On August 30, 2018 I received a telephone call from Attorney Ethan Levin-Epstein who identified himself as Mr. Metcalf's lawyer and stated he wished to ask me some questions. He mentioned that an assistant by the name of Ms. French was on the phone with him. I responded that I was busy and did not have time, but he persisted, telling me that he just had “a few questions.” He immediately began questioning me about the termination of Mr. Metcalf and the extent of my involvement in it. The conversation lasted 34 minutes, based on the information on my cell phone. At no time did Attorney Levin-Epstein suggest that I call Yale's lawyers to determine whether I should participate in this interview. I had not been involved in a lawsuit before and it did not occur to me during the interview that I needed to consult with Yale's lawyers before answering questions.

         Affidavit of Kirk Freudenburg, dated Oct. 23, 2018, ECF No. 100, ¶ 5.

         Mr. Metcalf does not dispute that this interview occurred. See Plaintiff's Memorandum of Law in Opposition to Disqual Mot. and Mot. for Prot. Order, dated Nov. 9, 2018 (“Pl.'s Opp.”), ECF No. 105, at 1.

         Mr. Metcalf claims that counsel telephoned Professor Freudenburg “in anticipation of calling him as a witness” at trial, and to “confirm Freudenburg's [previous] testimony at the grievance hearing.” Pl.'s Opp. at 6. Mr. Metcalf argues that Professor Freudenburg was not involved in Yale's decision to terminate:

Contrary to Yale's representations, Freudenburg's only involvement with Metcalf's employment in Classics was to try to extend it as long as possible, not to terminate it . . . . rather than being involved in the decision to terminate Metcalf, Freudenburg actually tried to help Metcalf as much as he could, ensuring that he would get paid and receive benefits through 2014. Freudenburg's effort to keep Metcalf “as is” in the Classics Department as long as possible was then approved by Yale HR. The document Yale offered as evidence of Freudenburg being “involved in the termination process” is evidence, in reality, of exactly the opposite. Far from participating in the termination decision, Freudenburg tried to ease Metcalf's departure from Classics. That departure was inevitable, though, because Classics simply lacked the financial resources to pay Metcalf past the end of the year.

Id. at 4-5. Mr. Metcalf further notes that in interrogatory responses, Yale never previously identified Professor Freudenbrug as a person with material knowledge of the reasons for the termination or as a decision-maker ...