Defense Counsel’s ex parte Investigation of EEOC Claimants Leads to Sanctions by New Jersey District Court

In EEOC v. FAPS, Inc., 2013 WL 4833535 (D.N.J. Sept. 10, 2013) (unpub.), the employer’s attorneys hired a private investigator to conduct ex parte interviews with claimants in a pending civil suit brought by the Equal Employment Opportunity Commission (EEOC). While such ex parte communications are permissible if they occur before an attorney-client relationship exists between the EEOC and the individuals, the court sanctioned the employer’s attorneys because neither they nor their investigation exercised “sufficient diligence in determining whether the claimants were represented [and] the private investigators may have concealed the fact that they were working for [the employer].”