Although the issue involves ethics more than privilege, courts disagree about whether a corporation’s adversary can initiate ex parte contacts with former corporate employees.
In Smith v. Kalamazoo Ophthalmology, 322 F. Supp. 2d 883 (W.D.Mich. 2004), the court explored these differing approaches, finally adopting the majority view that such ex parte contacts do not violate applicable ethics rules.
Lawyers must be vigilant about this issue. For instance, Virginia’s ethics rules (which would presumably guide state courts) specifically permit such ex parte contacts – while the federal court for the Western District of Virginia has prohibited them.