How far can you go in Pre-Suit Investigative Contacts with Opposing Parties?

By David Hricik, Mercer Law School

I’m often asked questions about how far a lawyer can go (directly or through a private investigator) in determining the facts before filing suit. On the one hand, Rule 11 (and Section 285) require investigation; on the other, certain ethical rules limit the ability to do so. For example, Rule 4.2 precludes communicating about a “matter” with a person “represented by counsel” in it — and, a “matter” can exist before a suit is filed and, further, in the cases of entities, even very low level people can be “represented by counsel.”  Further, in communicating with a person who is not “represented by counsel in a matter,”  Rule 4.3 requires lawyers to not appear “disinterested” and, in some circumstances, to explain their role to the person with whom they’re communicating.

Of course, normally, a lawyer can do what an ordinary consumer can do. There’s nothing unethical about walking into a store — even the defendant’s store — and buying a product.  There’s usually nothing wrong with asking the kinds of questions that an ordinary consumer would ask.  On the other hand, there’s a line and it’s not a bright one, between ordinary consumer questions and asking about the “matter.”  (These same observations hold true with on-line business-to-consumer chat rooms, e-mail, and the like.)

Lawyers in a recent patent case crossed the line. They avoided disqualification but found the “admissions” they had obtained excluded. The decision in Dareltech, LLC v. Xiaomi, Inc., (S.D.N.Y. April 11, 2019) is here.  It doesn’t illuminate the line very much — the lawyers, it seemed to the court, secretly recorded an opposing party’s employees seeking admissions that related to personal jurisdiction, not basic consumer questions — but is a good reminder that pre-suit investigations need to be done with care.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

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