No. 03 € 9421 Page 4

In light of their agreement, Freeman argues that the intent of AHMA’s letter and phone
calls was to intimidate Boyer into withholding information that is not subject to her
confidentiality agreement, but that relates to this lawsuit. Given these circumstances,
Freeman’s suspicion is not completely baseless, Nonetheless, it does not warrant a protective
order prohibiting AHMA from contacting Boyer directly or affirming Freeman’s right to
speak with Boyer. Neither Local Rule 83.54,2 nor AHMA’s actions, thus far, justify such an
order. As Boyer is an executive assistant, not a managerial employee, at Freeman, AHMA or
its counsel need not contact her through Freeman’s attorney. Nor does Freeman need a
protective order to contact Boyer, who is a former employee of AHMA, because Local Rule
83.54.2 does not apply to former employees of opposing parties. See Orlowski v. Dominick’s
Finer Foods, Inc., 937 F.Supp. 723, 728 (N.D.III. 1996).

CONCLUSION

Freeman’s motion for a protective order is denied.

@ Mea

JAMES B. MORAN
Senior Judge, U. S. District Court

LE_, 2005.


IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
AMERICAN HARDWARE )
MANUFACTURERS ASSOCIATION, _ )
Plaintiff, }
vs. ; No. 03 C 9421
REED ELSEVIER, INC., et al., ,
Defendants. }

MEMORANDUM OPINION AND ORDER

Carol Boyer has worked as an Executive Administrative Assistant for Freeman
Decorating Company and Freeman Decorating Services, Inc. (collectively Freeman) in Dallas,
Texas, since April 4, 2005. Prior to her employment with Freeman, a defendant in this action,
she worked for the plaintiff, American Hardware Manufacturers Association (AHMA), as an
Executive Administrative Assistant to William Farrell, Sr., AHMA’s Vice-Chairman. She held
that position from November 4, 2003, through April 1, 2005, during which time this action was
filed. In early May 2005, Timothy Farrell, President and CEO of AHMA, made three attempts
to contact Boyer by phone, leaving a voice mail on his final attempt. Then he sent her a letter,
dated May 11, 2005, expressing his concern about her new position with Freeman. He
reminded her that in her previous position at AHMA she was privy to confidential
information, “much relating to the lawsuit that if shared with either or both of the defendants
would be detrimental to AHMA’s case.” He asked Boyer to call him to discuss the situation.
The letter indicated that a failure to respond would be met with legal action. First it stated,

“Becoming more comfortable with this situation would eliminate any further considerations,


No. 03 € 9424 Page 2

including legal action consistent with the Confidentiality Agreement with AHMA that you
signed on November 16, 2004.” The letter also warned: “If I don’t hear back from you by his
[sic] time, I will instruct AHMA’s law firm to take the appropriate action.”

In response to this letter, Freeman’s counsel contacted AHMA’s counsel requesting that
“these improper and harassing contacts” stop and any future communication to Boyer be
directed to him. The letter stated that Boyer had not been asked to disclose, nor had she
disclosed, any privileged information concerning AHMA’s lawsuit. In a letter to Freeman’s
counsel, AHMA’s attorney denied that the voice message and letter were improper or
harassing. He explained that Boyer’s employment raised concern because she had informed
AHMA upon her departure that she was going to Florida to care for her ailing father. He
further stated that AHMA was concerned not only about privileged information, but also
confidential information. Unsatisfied with AHMA’s response, Freeman now secks a protective
order, pursuant to Federal Rule of Civil Procedure 26(c), prohibiting any further contact by
AHMA with Boyer, except through Freeman’s counsel. It also seeks an express allowance to
interview Boyer and/or other former employees of AHMA.

AHMA’s contact with Boyer was not improper under Local Rule 83.54.2 of the Rules
of Professional Conduct for the Northern District of Illinois', which governs communications
with parties represented by counsel. The rule prohibits a lawyer representing a client from
communicating on the subject of the action with another party whom the lawyer knows is
represented by counsel, prior to receiving that counsel’s consent. In actions involving

corporate parties, the rule applies to “persons having a managerial responsibility on behalf

' Freeman refers to Local Rule 83,.54.2 by its former citation Rule 4.2, See Mundt v. U.S. Postal
Service, 2001 WL 1313780 at *4 (N.D.II1 2001).


No. 03 € 9421 Page 3

of the organization.” Boyer is not in a managerial position for Freeman, Furthermore, the
contact with Boyer was not initiated by, nor is there any allegation that it was caused by,
AHMA’s counsel. Rather, AHMA’s president contacted Boyer. As the Committee Comment
to Local Rule 83.54.2 states, “parties to a matter may communicate directly with each other.”
Nonetheless, Freeman contends that AHMA’s contacts were harassing and, therefore, even if
Local Rule 83.54.2 does not mandate it, future communication should be directed to its
attorney.

The brief three-day period between Boyer’s last day at AHMA and first day at
Freeman, and her alleged deception concerning her departure could naturally give rise to some
concern for AHMA as to the security of its confidential information. Therefore, a letter from
AHMA to Boyer reminding her of her confidentiality agreement would have been
unremarkable. However, AHMA’s letter does more than remind Boyer of her confidentiality
agreement — it conflates confidential information with information relevant to AHMA’s
lawsuit with Freeman and implies that AHMA will seek legal action if Boyer does not contact
the Association. Boyer’s confidentiality agreement applies to “information relating to the
business operations, services and activities of AHMA, including customer and member
information, pricing, cost and revenue information, processes, methods, trade secrets, technical
information, computer data, and any other information relating to AHMA or its business that
is not generally in the public domain and is of value by virtue of it remaining confidential.”
As Freeman points out, this is the same information that the parties have safeguarded through
a Protective Order Regarding Confidentiality. Thus, while there may have been reason for
AHMA’s concern, the parties had already taken measures to protect against the dissemination

of any information that Boyer was bound to keep confidential.