The Atchison, Topeka and Santa Fe Ry. By suing the organization under a theory of respondeat superior, the plaintiff is alleging that the organization is responsible for the acts of the organizations employees done within the scope of the employees employment. He binds the organization by his acts and omissions at the time of his employment , not because he is still working for the organization at the time of suit. This seems to confuse a former employee with a current employee. At the time of the act or omission, a current employee is employed by the organization.
Former employees have no relevance here.
At the time of the ex parte contact, a current employee is still employed by the organization, while a former employee is no longer employed by the organization, but was at the time of the act or omission that is at issue. The imputation of liability under agency law comes from the employees acts or omissions when he was employed, not because they are still employed or acting as an agent for the organization. Thus, because the second clauses two provisions are currently misconstrued, there is a definite advantage given to a plaintiffs attorney who desires to speak to a former employee whose acts and omissions are at issue in the litigation. For example, if the two negligent water heater installers from Pitts had been fired by their employer after the explosion and were not represented, then the plaintiffs attorney would face no bar to an ex parte contact. The attorney making ex parte contacts must not inquire into any privileged attorney-client communications, because the privilege belongs to the corporation and can only be waived by the corporation.