*1 This matter is before the Court on the Motion for a Protective Order (#51) filed by a non-party, the Board of Trustees of the University of Illinois (“University”) against Plaintiffs. Plaintiffs filed a Response (#55) and a Motion to file an Amended Response (#57) in opposition to the University's Motion. For the reasons explained below, the University's Motion (#51) is granted in part and denied in part. Additionally, Plaintiffs' Motion to file an Amended Response (#57) is denied.

I. Factual Background

The three Plaintiffs are two former students and one professor, and they are suing former University of Illinois Professor Gary Xu (“Xu”). The first Plaintiff, Xingjian Sun (“Sun”), is a former student, and she attended the University from 2012 to 2016. Sun claims Xu raped her, forced her to get an abortion, beat her, and attempted to hit her with a car during their two-year relationship from 2013 until 2015. The second Plaintiff, Xing Zhao (“Zhao”), is a former graduate student at the University from 2013 until 2015. Zhao claims Xu sexually harassed her and took credit for her work. (Plaintiffs' Complaint #1, p. 4). The third Plaintiff, Ao Wang (“Professor Wang”), is a professor at Wesleyan University. Professor Wang claims that in 2018 Xu tried to ruin his career in retaliation for an online article Professor Wang wrote about Xu abusing female students.

II. Procedural History

On September 10, 2019, the three Plaintiffs filed a ten-count Complaint alleging Gary Gang Xu (“Xu”) is liable under federal and state law for sex trafficking, forced labor, trafficking in servitude, gender violence, involuntary servitude, trafficking in persons, intentional infliction of emotional distress, and negligent infliction of emotional distress. (Complaint #1, p. 70-85). On January 15, 2021, Sun and Zhao filed a separate state-court lawsuit against the University alleging breach of contract, violations of the Gender Violence Act, and violations of the Trafficking Victim Protection Act.[1] (University Br. #51, p. 3, 14).

On March 5, 2021, the non-party University filed a Motion to Quash Plaintiffs' Subpoena before this Court. Plaintiffs' subpoena, which was issued by the Central District of Illinois, commanded the non-party University to produce all documents related to Sun, Zhao, and Xu in its possession. (University Ex. #40-1, p. 2-5). The Court granted the University partial relief and narrowed the scope of Plaintiffs' subpoena. (Court Order #52, p. 1-7).

On May 3, 2021, the non-party University filed the instant Motion for a Protective Order. (University Br. #51, p. 1-15). In this Motion, the University alleged Plaintiffs' attorneys violated Illinois Rule of Professional Conduct 4.2 by contacting represented parties. Specifically, Plaintiffs' attorneys contacted University professors for discovery information in the instant federal lawsuit where Xu is the Defendant. Non-party University argues these communications violate Rule 4.2 because Plaintiffs' attorneys are suing the University in state court and attempting to hold the University liable for the professors' failure to properly respond to Xu's alleged abusive conduct.[2] (University Br. #51, p. 3). Moreover, the University counsel represents the professors to the extent they are witnesses in this federal case.

III. Legal Standard

*2 The Federal Rules of Civil Procedure state: “A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending —or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken.” Fed. R. Civ. P. 26(c)(1). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... forbidding the disclosure or discovery[.]” Fed. R. Civ. P. 26(c)(1)(A).

As a threshold matter, this dispute between the University and Plaintiffs' counsel pertains to the federal lawsuit because Plaintiffs' counsel contacted the University's professors to obtain discovery information relating to the federal lawsuit. (Plaintiff Br. #55, p. 7). As noted above, the University's counsel represents University professors who may be called as witnesses in this case. For this reason, the Court will rule on the Motion.

The University argues Plaintiffs' attorneys violated Illinois Rule of Professional Conduct 4.2 by contacting professors that work for the University.[3] Rule 4.2 of the Illinois Rules of Professional Conduct (“Rule 4.2”) states:

Additionally, Comment 7 of Rule 4.2 explains when communications with employees of a represented organization are prohibited. Specifically, Comment 7 of Rule 4.2 states:

Ill. R. P. Con. 4.2 Cmt. 7 (emphasis added).

“Cases in this jurisdiction ... guide an attorney to take a conservative, rather than aggressive approach, when interacting with ambiguities in the anti-contact rule.” Moore v. Club Exploria, LLC, 2021 WL 260227, at *4 (N.D. Ill. Jan. 26, 2021). Additionally, courts in this circuit have noted: “[p]rudence dictates avoiding even the remote appearance of impropriety, and the onus is on the attorney to dodge improper contacts with represented persons.” Moore v. Club Exploria, LLC, 2021 WL 260227, at *4 (N.D. Ill. Jan. 26, 2021) (internal citations omitted) (alteration in original); see also In re Air Crash Disaster Near Roselawn, Indiana on Oct. 31, 1994, 909 F. Supp. 1116 (N.D. Ill. 1995).

IV. Analysis

For the instant motion, the University argues Plaintiffs' attorneys violated Illinois Rule of Professional Conduct 4.2 (“Rule 4.2”) by contacting the University's current and former employees (i.e. current and former professors). (University Br. #51, p. 1). Additionally, the University argues Plaintiffs' attorneys violated Rule 4.2 by sending three public messages to two Twitter accounts that represent the University of Illinois Alumni Association. The University argues these communications are improper because Plaintiffs' attorneys are trying to impute liability on the University for the alleged actions or inactions of the professors. (University Br. #51, p. 3, 10). In support of this theory, the University notes the state-court complaint states: (1) the professors knew about Xu's conduct and did not report it; and (2) the professors' alleged actions or inactions are the basis of “certain claims” against the University in state court. (University Br. #51, p. 2-4).

*3 In response, Plaintiffs' attorneys acknowledge they: (1) emailed one current professor and one former professor on April 1, 2021, (2) contacted a current professor on April 15, 2021, (3) received a telephone call from a current professor to discuss a subpoena on April 7, 2021, and (4) sent three public messages to two Twitter accounts associated with the University's alumni association. (University Br. #55, p. 5-7). Plaintiffs' attorneys argue they did not violate Rule 4.2 because the professors' actions could not be imputed on the University. (University Br. #55, p. 11-12). However, Plaintiffs' brief also states that to establish their claims in state court, Plaintiffs need to establish that University employees “with authority to act on behalf of the University, acted or failed to act in a way that was legally required[.]” (Plaintiffs' Br. #55, p. 12).

The Court grants the University's Motion for a Protective Order in part, and the Court prohibits, as more specifically described below, Plaintiffs' attorneys from contacting the University's current employees about the subject matter in the federal lawsuit unless Plaintiffs' attorneys receive permission from the University's attorneys or a court order. The University's employees' statements regarding formal or informal policies could potentially bind the University in this matter under Fed. R. Evid. 801(d)(2)(D).[5] See Moore v. Club Exploria, LLC, 2021 WL 260227, at *4 (N.D. Ill. Jan. 26, 2021) (citations omitted). Additionally, the current professors are clearly represented parties as defined in Rule 4.2 and should not have been contacted ex parte.

Plaintiffs' attorneys' conduct is sanctionable. Moore v. Club Exploria, LLC, 2021 WL 260227, at *4 (N.D. Ill. Jan. 26, 2021) (sanctioning a defense attorney for speaking with a plaintiff about the ownership of a cell phone because the ownership of the cell phone pertained to one of the defendant's defenses); see also In re Air Crash Disaster Near Roselawn, Indiana on Oct. 31, 1994, 909 F. Supp. 1116, 1119, 1122, 1126 (N.D. Ill. 1995) (sanctioning the plaintiffs' attorneys for distributing a deceptive questionnaire to the Airline Defendant's pilots that asked about the pilots training in icing conditions before and after the airplane accident). However, the Court denies the University's request for sanctions. The University's Motion did not contain relevant information the Court needed to consider the severity of the conduct, including the names and employment status of the professors contacted, their role in this case, or the state court complaint that contains a description of the claims asserted against the University in the related action. This information is important because it could have shown how the federal case was being used to obtain binding information for the state case. Rather, Plaintiffs' attorneys provided the majority of the relevant details for this Motion, even though the information was not beneficial to the Plaintiffs' attorneys.[6] (Plaintiffs' Br. #55, 7-8). Therefore, the Court exercises its discretion to deny the University's request for sanctions.

*4 The Court also denies the University's Motion for a Protective Order to the extent it relates to the University's former employees. Rule 4.2 Comment 7 explicitly states that: “Consent of the organization's lawyer is not required for communication with a former constituent.” Ill. R. P. Con. 4.2 Cmt. 7; see also E.E.O.C. v. Dana Corp., 202 F. Supp. 2d 827, 830 (N.D. Ind. 2002) (concluding the plaintiff's counsel did not violate the no-contact rule by contacting former employees of the defendant); see also E.E.O.C. v. Univ. of Chicago Med. Ctr., 2012 WL 1329171, at *3 (N.D. Ill. Apr. 16, 2012) (“Courts in this District have held that the protections of Rule 4.2 do not attach to former employees, even those in managerial positions.”). However, this may change if the former professors actually engage University counsel to represent them in this matter.

Also, the Court denies the University's request to restrict the Plaintiffs' attorneys from publicly messaging two Twitter accounts associated with the Illinois Alumni Association. The University did not explain how public postings to the two Alumni accounts constitute communication with a represented party. (University Br. #51, p. 14-15). Nonetheless, Plaintiff's counsel is cautioned that social media communications could be directed at represented parties and thereby run afoul of Rule 4.2. The Court's ruling here is not intended in anyway to condone direct communications with a represented party through social media, even if it is done through a public posting. Rather, the Court simply lacks information to find that the communications were intentionally directed at represented individuals.

V. Conclusion

For the reasons provided above, the non-party University's Motion for a Protective Order (#51) is GRANTED IN PART and DENIED IN PART. The Court bars Plaintiffs' counsel from having any further ex parte contacts with persons they know are represented by counsel in connection with their deposition testimony in this case and current University professors and employees who otherwise fall within the scope of Rule 4.2, including but not limited to Defendant Xu's colleagues in his college and department, those who had any role to play in the University's determination regarding Defendant Xu, and those individuals whose actions and/or inactions Plaintiffs may seek to impute liability to the University in this lawsuit or a related action. Plaintiffs' Motion to file an Amended Response (#57) is DENIED.

ENTERED this 6th day of July, 2021.

The Court does not know the specific allegations in the state-court Complaint because neither litigant attached the state-court Complaint to its filings. (University Br. #51, p. 13); (Plaintiffs' Br. #55, p. 1).

Plaintiffs' attorneys in this case are the same attorneys that represent the plaintiffs in the state-court case against the University.

The Illinois Rules of Professional Conduct are applicable in the Central District of Illinois under the District's Local Rules. L.R. 83.6 (“The Rules of Professional Conduct adopted by this court are the Rules of Professional adopted by the Supreme Court of Illinois[.])”

The Court notes the text of Illinois Rule of Professional Conduct 4.2 and Comment 7 mirror the ABA's Model Rule of Professional Conduct 4.2 and Comment 7.

Moreover, the Court notes that Plaintiffs allege that the professors knew of Xu's allegedly abusive conduct and did not try to stop Xu from abusing students. (Plaintiffs' Br. #55, p. 14). The Court reasons that Plaintiffs could use the professors' “failure to act” to support the breach element of the breach of contract claim in state court.

For example, the University argues the plaintiff-side attorneys made improper contact on April 1, 2021, with Xu's “former colleague.” However, it is not clear, from the University's brief, whether this “former colleague” is a current or former employee of the University. (University Br. #51, p. 5-6). In contrast, Plaintiffs' brief contains the names and employment status of the professors that were contacted on April 1, 2021. (Plaintiffs' Br. #55 p. 7-8).