WILLIAM HEATH HORNADY, CHRISTOPHER MILLER and TAKENDRIC STEWART, individually and on behalf of all other similarly situated, Plaintiffs, v. OUTOKUMPU STAINLESS USA, LLC, Defendant CIVIL ACTION NO. 18-00317-JB-N United States District Court, S.D. Alabama, Southern Division Signed December 16, 2019 Counsel Ian David Rosenthal, Holston Vaughan & Rosenthal LLC, Patrick H. Sims, Cabaniss, Johnston, Gardner, Dumas & O'Neal, Mobile, AL, for Plaintiffs William Heath Hornady, Christopher Miller, Takendric Stewart. Ian David Rosenthal, Holston Vaughan & Rosenthal LLC, Mobile, AL, for Plaintiffs Lafayette Wilson, Brian Moore. Jennifer F. Swain, Charles A. Powell, IV, Littler Mendelson, P.C., Devin Clarke Dolive, Ronald W. Flowers, Jr., Burr & Forman, LLP, Birmingham, AL, Gavin S. Appleby, Pro Hac Vice, Littler Mendelson, Atlanta, GA, H. William Wasden, Burr Forman, Mobile, AL, Sinead Daly, Pro Hac Vice, Schanzle-Haskins, Tom, United States Magistrate Judge ORDER *1 This action is before the Court on the “Motion to Compel Concerning Second Set of Discovery to Defendant” (Doc. 160) filed by the Plaintiffs under Federal Rule of Civil Procedure 37(a).[1] In accordance with the Court's briefing schedule (Doc. 162), the Defendant timely filed a response (Doc. 163) to the motion, and the Plaintiffs timely filed a reply (Doc. 164) to the response. The undersigned also held a hearing on the matter with the parties on the record December 9, 2019. With regard to the Defendant's assertion that any ex parte communication by the Plaintiffs’ counsel with its former employee Chris Comstock is prohibited, the undersigned has recently addressed such a contention in a different case, (see EEOC v. Austal USA, LLC, 1:18-cv-00416 PageID.697-706), and the Defendant has given the undersigned no cause to reconsider that reasoning. As noted in the EEOC v. Austal order, as well as the Plaintiffs’ present motion to compel (see Doc. 160, PageID.1005), several opinions of the Office of General Counsel for the Alabama State Bar have affirmed that Alabama Rule of Professional Conduct 4.2[2] does not prohibit a lawyer from making ex parte contact with an opposing party's uncounseled former employed, even if the former employee was the actual person giving rise to the cause of action at issue, “unless the ex parte contact is intended to deal with privileged matter, i.e., the inquiring counsel is asking the former employee to divulge prior communications with legal counsel for the adverse party, and these communications were conducted for purposes of advising the adverse party in the litigation or claim.” ASBOGC RO-92-12 (July 13, 1992) (https://www.alabar.org/office-of-general-counsel/formal-opinions/1992-12/). This is because former employees “are no longer in positions of authority and thus, cannot bind the corporation.” Id. (quoting ABA Committee on Ethics and Professional Responsibility Formal Opinion 91-359 (1991)).[3] The undersigned currently has no reason to doubt that counsel for the Plaintiffs will abide by their ethical obligations to avoid discussing privileged matter with Mr. Comstock, or any other former employee of the Defendant, should they contact them. Accordingly, the Defendant's objections as to the propriety of ex parte contact with Mr. Comstock and other former employees are OVERRULED. *2 The undersigned SUSTAINS the Defendant's objection to subparts g, h, and i of Interrogatory 5 of the Plaintiffs’ second set of discovery requests as being overly broad and disproportional to the needs of the case. Responding to those subparts would essentially require the Defendant to individually question each of the 85 current “Managers” it has disclosed to the Plaintiffs. The chances that such an endeavor will uncover new material information are speculative, and the Plaintiffs have failed to convince the undersigned that any benefit from the new information will outweigh the burden and expense of obtaining it. See Fed. R. Civ. P. 26(b)(1). As for the remaining issues raised, the Plaintiffs’ “Motion to Compel Concerning Second Set of Discovery to Defendant” (Doc. 160) is GRANTED in part, DENIED in part, and MOOT in part, consistent with the undersigned's rulings made on the record at the December 9, 2019 motion hearing. The Clerk of Court is DIRECTED to provide counsel for the parties with copies of the hearing's digital recording (Doc. 165) upon request. To the extent that any party feels they may be entitled to an award of reasonable expenses under Federal Rule of Civil Procedure 37(a)(5) in connection with the disposition of the subject motion to compel, that party must file and serve a motion for such expenses, supported by adequate briefing and evidence showing both entitlement to such expenses and the reasonableness of the amounts requested, no later than Monday, December 30, 2019. Any party who fails to timely file such a motion shall be deemed to have waived the right to request such expenses in connection with the subject motion to compel. DONE and ORDERED this the 16th day of December 2019. Footnotes [1] The assigned District Judge has referred this motion to the undersigned Magistrate Judge for appropriate action under 28 U.S.C. § 636(a)-(b), Federal Rule of Civil Procedure 72, and S.D. Ala. GenLR 72(a). See S.D. Ala. GenLR 72(b); (11/26/2019 electronic reference). [2] Violation of Alabama Rule 4.2 would also constitute a violation of the Court's local rules, which specify that “[a]ttorneys appearing before this Court shall adhere to this Court's Local Rules, the Alabama Rules of Professional Conduct, and the Alabama Standards for Imposing Lawyer Discipline.” S.D. Ala. GenLR 83.3(i). [3] See also In the Matter of: Anita Kelly Circuit Judge, 15th Judicial Circuit, Ala. Court of the Judiciary Case No.: 50, 2018 WL 1374342, at *9 (Feb. 14, 2018) (“[T]he Alabama State Bar, American Bar Association, and courts have repeatedly addressed the ethical propriety of contacting former employees of an adverse party as part of counsel's informal discovery or investigative efforts. For example, focusing on Alabama Rule of Professional Conduct 4.2 (Communication with Person Represented by Counsel), the State Bar has deemed it ethically permissible for counsel to contact a former employee of an adverse party ... without consulting with the adverse party's counsel. E.g., ASB Formal Op. 92-12, at 1; ASB Formal Op. 93-05, at 1-2. The State Bar's opinions adopted the reasoning of ABA Formal Opinion 91-359, which expressly permitted such ex parte contact because former employees are no longer in a position to bind the adverse party. E.g., ASB Formal Op. 92-12, at 1; ASB Formal Op. 93-05, at 2; ABA Formal Op. 91-359, at 4.” (record citations omitted)).