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United States v. State

United States District Court, S.D. Mississippi, Northern Division

October 12, 2018

UNITED STATES OF AMERICA PLAINTIFF
v.
STATE OF MISSISSIPPI DEFENDANT

          ORDER

          F. KEITH BALL UNITED STATES MAGISTRATE JUDGE

         The United States of America has filed suit against the State of Mississippi, alleging, inter alia, that the State's administration of its mental health system has violated Title II of the Americans with Disabilities Act of 1990. The parties are currently in the discovery phase of the litigation. They have each filed a motion, [62] and [64], requesting that the Court apply Mississippi Rule of Professional Conduct 4.2 to determine which, if any, current and former State of Mississippi employees the United States may interview ex parte. The two motions identify the following subjects of disagreement:

(1) the scope of the Mississippi Attorney General's Office's representation of current State of Mississippi employees in this case;
(2) the application of Rule 4.2 to current employees of the State of Mississippi;
(3) the application of Rule 4.2 to former employees of the State of Mississippi; and
(4) the United States' disclosure requirements with regard to any ex parte interviews.[1]

         The Court addresses each of these subjects in turn.

         I. Scope of Mississippi Attorney General's Representation

          The first dispute concerns the scope of the Mississippi Attorney General's representation of State of Mississippi employees. The United States requests that the Court take a narrow view, finding that, for the purposes of this litigation, the Attorney General's Office only represents Mississippi's Division of Medicaid (“DOM”) and Department of Mental Health (“DMH”). [63] at 3. The United States points to a discovery stipulation the parties entered in which “State” is defined to mean DOM and DMH. Id. (citing [39] at 9). They contend that this stipulation was part of an agreement “early on in the litigation that the agencies represented in this matter were DMH and DOM. . . .” Id. The United States then uses the stipulation as part of its argument that Rule 4.2 cannot apply to non-DMH and non-DOM employees, because the Mississippi Attorney General does not represent them. Id. at 3-6, 10.

         A review of the full stipulation, however, shows that its purpose was to facilitate document production. See [39] at 8-17. There is no evidence that the Mississippi Attorney General's Office intended the stipulation to act as a limitation of the scope of its representation in this matter. Nor can the Court find any other such limitation of representation in the record.

         The State of Mississippi is the defendant, and it is represented by the Mississippi Attorney General's Office. The Attorney General's representation of Mississippi is not limited to Mississippi's DMH and DOM. To the degree that this suit implicates the State of Mississippi, including its employees, the State is represented by the Mississippi Attorney General's Office.

         II. Application of Miss. R. Prof'l Conduct 4.2 to Current Employees of the State of Mississippi

         Rule 4.2 states as follows:

         Communication with Person ...


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