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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 1 of 34
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`ALBERT B. SAMBAT (CABN 236472)
`CHRISTOPHER J. CARLBERG (CABN 269242)
`MIKAL J. CONDON (CABN 229208)
`PARADI JAVANDEL (CABN 295841)
`U.S. Department of Justice
`Antitrust Division
`450 Golden Gate Avenue
`Box 36046, Room 10-0101
`San Francisco, CA 941092
`Tel: 415.934.5300 /Fax: 415.934.5399
`albert.sambat@usdoj.gov
`
`CHRISTOPHER CHIOU
`Acting United States Attorney
`Nevada Bar Number 14853
`RICHARD TONY LOPEZ
`Assistant United States Attorney
`501 Las Vegas Boulevard South, Suite 1100
`Las Vegas, Nevada 89101
`Tel: 702.388.6336 / Fax: 702.388.6418
`RAlopez@usdoj.gov
`Attorneys for the United States
`
`
`
`UNITED STATES OF AMERICA,
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF NEVADA
`
` Case No.: 2:21-cr-00098-RFB-BNW
`
`
`Plaintiff,
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`
`
`
`
`v.
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`
`
`RYAN HEE; and VDA OC, LLC, formerly
`ADVANTAGE ON CALL, LLC,
`
`
`
`OPPOSITION TO DEFENDANT RYAN
`HEE’S MOTION TO DISMISS OR IN THE
`ALTERNATIVE TO SUPPRESS
`
`
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`Defendants.
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES .................................................................................................... ii
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`INTRODUCTION ....................................................................................................................1
`
`FACTUAL BACKGROUND ...................................................................................................2
`
`A.
`
`B.
`
`C.
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`D.
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`The Government’s Investigation Into Defendants’ Collusive Agreement ............................2
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`Defendant’s Consensual Interview ..................................................................................3
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`Consensual Copying of Defendant’s Devices ...................................................................5
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`The Grand Jury Subpoenas ............................................................................................6
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`9
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`E.
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`The Government’s Disclosure .........................................................................................7
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`10
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`LEGAL ANALYSIS ................................................................................................................9
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`11
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`A.
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`The Prosecutors’ Conduct Did Not Violate Rules of Professional Conduct..........................9
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`1.
`
`2.
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`3.
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`4.
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`Nevada’s Rules of Professional Conduct Govern .................................................9
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`The Prosecutors’ Conduct Did Not Violate Rule 4.2 ........................................... 10
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`a. Defendant Was Not Represented by CCH’s Counsel for the Purposes of
`Rule 4.2 ............................................................................................... 11
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`b. Even If the Defendant Were a “Represented Person,” The Government’s
`Contacts Were Authorized Under Rule 4.2’s Law Enforcement Exception.
` ........................................................................................................... 15
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` The Prosecutors’ Conduct Did Not Violate Rule 8.4 .......................................... 20
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`Violation of a Rule of Professional Conduct Does Not Give Rise to the Sanctions
`Sought by Defendant ....................................................................................... 22
`
`B.
`
`The Government Did Not Violate Defendant’s Constitutional Rights ........................... 24
`
`1.
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`The Government’s Conduct Did Not Implicate Defendant’s Constitutional
`
`Rights............................................................................................................. 24
`
`C.
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`Defendant Was Not Prejudiced .................................................................................... 28
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`CONCLUSION ...................................................................................................................... 29
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 3 of 34
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`
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`1
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`
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`TABLE OF AUTHORITIES
`
`
`Cases
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`Chavez v. Robinson, No. 18-36083, --- F.4th ---, 2021 WL 4075369 (9th Cir. Sept. 8, 2021) .....26
`
`Doe v. Superior Ct., 36 Cal. App. 5th 199 (2019) ......................................................... 12, 18, 19
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`Fitzgerald v. Mercedes Benz USA, LLC, 2021 WL 3620429 (C.D. Cal. April 5, 2021). .............11
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`G.K. Las Vegas LP v. Simon Prop. Group, Inc., 204CV01199DAEGWF, 2008 WL 11388585
`
`(D. Nev. June 18, 2008) ................................................................................................ 11, 12
`
`In Disciplinary Proceedings Regarding Doe, 876 F. Supp. 265 (M.D. Fla. 1993) ......................18
`
`Joseph Binder Schweizer Emblem Co., 167 F. Supp. 2d 862 (E.D.N.C. 2001) ..................... 18, 23
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`Malinksky v. New York, 324 U.S. 401 (1945). ..........................................................................27
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`Marina Dist. Dev. Co., LLC v. AC Ocean Walk, LLC, No. 220CV01592-GMN-BNW, 2020 WL
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`5821836 (D. Nev. Sept. 30, 2020) .......................................................................................13
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`Mincey v. Arizona, 437 U.S. 385 (1978) ..................................................................................27
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`Palmer v. Pioneer Inn Associates, Ltd., 59 P.3d 1237 (Nev. 2002) ..................................... 12, 14
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`Rebel Commc’ns v. Virgin Valley Water Dist., No. 2:10–cv–00513–LRH–GWF, 2011 WL
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`677308 (D. Nev. Feb. 15, 2011) ..........................................................................................12
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`Reck v. Pate, 367 U.S. 433 (1961) ...........................................................................................27
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`Rothgery v. Gillespie County, Tex., 554 U.S. 191 (2008) ..........................................................26
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`Schneckloth v. Bustamonte, 412 U.S. 218 (1973) .....................................................................28
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`Snider v. Superior Ct., 113 Cal. App. 4th 1187 (Cal. 2003) ......................................................12
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`United States v. Bynum, 362 F.3d 574 (9th Cir. 2004) ..............................................................22
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`United States v. Carona, 660 F.3d 360 (9th Cir. 2011) ................................................. 17, 18, 21
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`United States v. Grass, 239 F. Supp. 2d 535 (M.D. Pa. 2003) ............................................ passim
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 4 of 34
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`United States v. Guerrerio, 675 F. Supp. 1430 (S.D.N.Y. 1987) ......................................... 20, 24
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`United States v. Kenny, 645 F.2d 1323 (9th Cir. 1981) ............................................17, 18, 19, 27
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`United States v. Lopez, 4 F.3d 1455 (9th Cir. 1993) .................................................................23
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`United States v. Powe, 9 F.3d 68 (9th Cir. 1993).....................................................16, 17, 19, 20
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`United States v. Scozzafava, 833 F. Supp. 203 (W.D.N.Y. 1993) ..............................................19
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`United States v. Talao, 222 F.3d 1133 (9th Cir. 2000) ..............................................................23
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`United States v. Tingle, 658 F.2d 1332 (9th Cir. 1981) .............................................................27
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`United States v. Tucker, 8 F.3d 673 (9th Cir. 1993) ..................................................................29
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`Statutes
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`18 U.S.C § 2511 .....................................................................................................................22
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`28 C.F.R. § 77.5 .....................................................................................................................24
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`28 U.S.C. § 530B ...................................................................................................................24
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`Rules
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`ABA Model Rule 4.2 ....................................................................................................... passim
`
`ABA Model Rule 8.4 ....................................................................................................... passim
`
`California Rule of Professional Conduct Rule 1-100(A) ...........................................................24
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`California Rule of Professional Conduct Rule 4.2 ...................................................10, 11, 16, 17
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`California Rule of Professional Conduct Rule 8.4. ............................................................ passim
`
`California Rule of Professional Conduct 8.5 ............................................................................10
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`Nevada Rule of Professional Conduct 1.0(f) ............................................................................14
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`Nevada Rule of Professional Conduct 1.0A(d) .........................................................................24
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`Nevada Rule of Professional Conduct 4.2 .................................................................1, 10, 14, 16
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`Nevada Rule of Professional Conduct 8.4 .................................................................... 10, 20, 21
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`INTRODUCTION
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`Defendant Hee’s Motion to Dismiss makes sweeping, legally and factually unsupported
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`accusations of prosecutorial misconduct arising from purported ethical and constitutional
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`violations. Defendant’s arguments are facially invalid and legally meritless. The government
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`violated no ethical rules or constitutional requirements.
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`The government did not violate Nevada’s Rule 4.2 because Defendant was not
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`represented at the time of his interview. In addition, the ABA’s Model Rule 4.2 (and
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`California’s) contains an express exception for law enforcement investigative activities, which is
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`incorporated by reference in Nevada and which Defendant ignores. Defendant also ignores
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`countless Ninth Circuit precedents. The law is clear: even if Defendant was represented by
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`counsel in connection with the government’s investigation (he was not), preindictment,
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`noncustodial interviews of represented persons for a law enforcement purpose do not violate
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`Rule 4.2.
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`Similarly, the government did not violate Rule 8.4. The Ninth Circuit has routinely
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`found that a prosecutor’s supervision of otherwise lawful investigatory techniques—including
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`those involving subterfuge or deceit—do not constitute a violation of her ethical obligations.
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`And the ABA’s Standing Committee on Ethics and Professional Responsibility has endorsed
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`surreptitious recordings under circumstances akin to those here, including for counsel not
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`engaged in law enforcement. Given the seriousness of the purported violations he is seeking to
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`remedy, Defendant’s failure to acknowledge this substantial authority to the contrary is
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`troubling.
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`Defendant’s attempt to shoehorn the government’s authorized preindictment contact with
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`him into a panoply of alleged constitutional violations is similarly unavailing. The Fifth
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`Amendment is implicated only when a defendant is in custody or when his statements are
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`coerced or involuntary; the Sixth Amendment right to counsel does not attach preindictment.
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`Neither right was implicated by Defendant’s voluntary, uncoerced, noncustodial preindictment
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`confession. Finally, Defendant’s argument that his Fourth Amendment rights were violated
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 6 of 34
`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page6 of 34
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`whenthe FBI
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`imaged his personal cell phone
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`oral and written, consent to that search. Defendant’s motion provides
`voluntary,
`support for his clam that the consent was
`mvohmntary, and any resultmg search did not violate
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`and work computer is undermmed by his
`no factual
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`the Fourth Amendment.
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`Finally, while the government’s mterview of Defendant and search of his devices were
`lawful, there is no
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`prejudice arismg from any actions of the government. The government did
`or review the documents on Defendant’s work computer. Further,
`as set forth below,
`the mterview can be
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`not process
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`to which Defendant admitted durmg
`the details of the illegal agreement
`established through Defendant’s email correspondence and the government does not mtend to
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`offer the Defendant’s admissions.
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`Underany applicable factual and
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`legal analysis, the government’s conduct here wasboth
`ona contorted and
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`lawful and ethical Defendant’s accusatory and wide-sweepmg clams rely
`law,tarnish the namesandactions of the
`misleadmg reading of the law, ignore bmdmg
`legal support, and are meritless. Defendant’s motion
`on this case without factual or
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`prosecutors
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`to dismiss should be
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`summarily denied.
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`FACTUAL BACKGROUND
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`A.
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`The Government’s
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`Investigation
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`Into Defendants’ Collusive
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`Agreement
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`In 2019, the Antitrust Division of the Department of Justice began
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`an
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`mvestigation
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`mto a
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`collusive agreement entered mto m October 2016 between two medical staffing companies
`wasto
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`the
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`operating m the Las Vegas, Nevada region. The object of the
`conspracy
`depress
`wagesof nurses
`to work at the Clark County School District (“CCSD”).
`
`assigned
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`To achieve
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`that end, the
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`not to
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`companies, by and through their respective Regional Managers, agreed
`recruit or hire each other’s active nurses to
`reject requests for wage mcreases from those nurses.
`was memorialized in a 2016 email written
`by Defendant, who wasat the time the
`on
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`The conspracy
`Regional Manager of a company then-known as
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`Advantage
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`Call, LLC
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`(Ohio) (“AOC, Ohio”):
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`—_
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`NS
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`w
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`ed
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`nn
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`ON
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`~“
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`oo
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`©
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 7 of 34
`7 of 34
`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page
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`at
`mmutes
` His counterpart
`competitor respon
`Just
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` His competitor then forwarded this email exchange
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`to most of the Las Vegasoffice
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`staffnng
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`employees and his supervisor.
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`During
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`the
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`conspiracy,
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`neither company hired a nurse from thei rival and wagesforthe
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`nurses
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`subject
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`to the agreement remamed at $25 per hour. The conspwacy contmued forat least
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`ten months
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`through July 2017, when Cross
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`Country Healthcare (“CCH”),
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`a
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`national
`larger
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`staffmg agency, purchased substantially all of AOC, Ohio’s assets and mstituted
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`compliance
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`and
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`vertical non-compete policies.
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`Pursuant to the purchase agreement, CCH
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`purchased only the
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`assets of AOC, Ohio; the
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`existmg
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`habilities of the company remamed with AOC, Ohio.
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`In
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`conjunction with the purchase,
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`CCH created a new
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`subsidiary called Advantage
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`On Call, LLC
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`(Delaware) (heremafter “AOC, Delaware”)
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`to
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`acquire
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`the assets
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`previously owned by AOC,
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`Ohio.! After sellmg its assets, AOC, Ohio changed its name to VDA OC, LLC
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`(“VDA”).
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`B.
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`Defendant’s Consensual Interview
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`On October 31, 2019,
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`as
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`part of the government’s mvestigation,
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`an FBI
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`Special Agent
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`went to Defendant’s office and, after advismg him about the fact and nature of the mvestigation,
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`asked if he would be
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`willmg
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`to be mterviewed.* Defendant
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`agreed
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`to be mterviewed, and, m the
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`:
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`were
`At all tmes, AOC, Ohio and AOC, Delaware
`separate entities, operatmg separately,
`formed in different states and with entirely separate ownership, management and corporate
`structure.
`2
`Defendant’s Motion makes multiple references to the FBI agent havmg conducted his
`to attend witness
`two FBIagents
`interview “mn violation of FBI
`policy which requires
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`_
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`NS
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`w
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`ed
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`nn
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`ON
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`oo
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 8 of 34
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`course of the approximately 30-minute consensual conversation, made admissions that
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`corroborated what he had previously memorialized in his October 21, 2016 email: that Defendant
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`and a competitor had reached a “gentlemen’s agreement” to restrain nurses’ employment
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`mobility and suppress their wages.
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`During the course of the interview, the agent asked Defendant about the communications
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`in the October 21, 2016 email thread authored by Defendant, quoted above, which is at the heart
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`of the government’s investigation. At no point during the interview did Defendant request to
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`have an attorney present, or indicate that he was represented by individual counsel or that he
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`believed himself to be represented by CCH’s counsel.
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`During the interview, three Antitrust Division prosecutors had real-time audio access to
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`the interview through a livestream link provided by the agent. Defendant was not informed that
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`the prosecutors could listen to, or that they were listening to, the interview. However, the agent
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`did not claim he was not transmitting the interview, or represent that no other persons were
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`listening in.
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`The software that was used to transmit the interview of Defendant in October 2019 was
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`an FBI proprietary application installed on the agent’s smartphone. The application had
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`recording capabilities if selected by the user.3 The software did not have a default setting.
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`Rather, the user had to select between two options: (1) transmit only, or (2) record and transmit.
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`If the user selected the transmit only option, the application would generate a link that could be
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`interviews.” This allegation contains no factual or legal citation. The government is unaware of
`any case finding a constitutional or ethical violation arising from failure to adhere to this
`purported policy.
`3
`The following information regarding the capabilities of the system used to livestream
`Defendant’s interview, as well as the specifics of the October 31 livestream, were recently
`obtained by the prosecutors in an attempt to respond the questions raised in Defendants’ August
`3 letter. It was not provided to the defense earlier because the government had not finalized its
`investigation at the point at which Defendant filed the subject motion.
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`used to access a webpage to stream the audio transmission using a standard web browser. In
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`addition, the application would automatically create a backup copy of the transmission in a
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`compressed file format that was temporarily stored on a remote server. The backup was saved at
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`this location for 30 days, after which it was automatically deleted. If the user selected the record
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`and transmit option, a full, high-fidelity recording would be stored on the smartphone, in
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`addition to the remotely-stored, temporary backup.
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`When he selected the transmit only option at the time of the interview, the agent was
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`aware that the application would create a backup of the transmission. However, based on his
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`training on the use of the application, his understanding was that a backup should not be used as
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`evidence. The agent did not know for how long the backup would be maintained on the remote
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`server and did not listen to, download, or confirm the existence of the backup before it was
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`automatically deleted. The prosecutors were unaware that the application would create a
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`temporary, automatic backup file until they began investigating the operation of the application
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`in response to the defendants’ recent discovery requests. By the time the prosecutors learned this
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`fact and sought to download the file, it was no longer available on the FBI’s system.
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`Consequently, the backup of the October 31 interview between the agent and Defendant was
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`inadvertently not preserved. The application does not generate any log files relating to live
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`transmissions or backup files, only the date that the user last logged into the application. This
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`was the only instance in which the application was used during the investigation.
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`The prosecutors could not communicate in real time with the agent through the
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`application. The prosecutors were located in their San Francisco offices and did not
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`communicate with the agent through any means (telephone, text, or other real-time chat
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`program) while he was questioning Defendant in Las Vegas.
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`C.
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`Consensual Copying of Defendant’s Devices
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 10 of 34
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`At the conclusion of the questioning, the agent left the room and briefly conferred with
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`the prosecutors by telephone. Following his conversation with the prosecutors, the agent asked
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`for and obtained consent from Defendant to the imaging of his personal cell phone and work
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`computer. (See Exs. A & B)
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`Defendant’s personal cell phone was his personal property—not that of his then-
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`employer AOC, Delaware or its parent company CCH—and he had authority and control to
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`consent to its search.
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`With respect to Defendant’s work laptop, although the Defendant had common authority
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`and control of the laptop and, therefore, the authority to consent to the search, ultimately,
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`prosecutors agreed not to search the laptop if CCH’s counsel agreed to search the laptop and
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`produce documents on the laptop that were responsive to the subpoena. CCH’s counsel did so.
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`Defendants were informed in the government’s initial discovery letter, sent on May 13, 2021,
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`that an image of Defendant’s laptop was never processed or searched but was available for
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`review.
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`Because the government never processed or searched the laptop, no evidence from the
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`image of the laptop obtained on October 31st, 2019 was ever obtained by the government. 4
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`D.
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`The Grand Jury Subpoenas
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`On October 30, 2019, the day before Defendant’s interview, the government served a
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`subpoena on “Advantage On Call Staffing.” The prosecutors also had a call with the General
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`Counsel of CCH, who advised them that she represented CCH. In that call, she did not inform
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`4
`Other copies of the inculpatory email excerpted above were obtained from other sources,
`including from CCH, but not from any search by the government of the October 31st image of
`Defendant’s laptop.
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 11 of 34
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`prosecutors that she purported to represent Defendant. A summary of that call is contained
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`within a letter received from outside counsel for CCH, received on November 1:
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`On October 30, 2019, Ms. Ball and you had a phone conversation in which she identified
`herself to you as the Company’s General Counsel. You emailed Ms. Ball a copy of the
`Subpoena shortly thereafter, that same day. As a result of those communications the day
`prior to the FBI’s search at the Premises, the government, including the FBI, officially
`was on notice that the Company was represented by counsel with respect to the
`Investigation.
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`(See Ex. C, (emphasis added).)
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`In the same letter, outside counsel for CCH claimed that Defendant “lacked the authority
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`to give consent” to the FBI’s search of his company laptop, and accordingly, that any such
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`consent “was not voluntary[.]” (See Ex. C.)
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`In a separate communication on November 1, outside counsel for CCH clarified that
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`Advantage On Call Staffing was not a subsidiary or affiliate of CCH, and that the appropriate
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`entity was AOC, Delaware. Following this clarification, the Division subpoenaed AOC,
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`Delaware and CCH on November 4.
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`Neither AOC, Delaware nor CCH is a party to this Indictment. The Indictment alleges
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`that Defendant, while employed by AOC, Ohio, now entitled VDA, entered into an
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`anticompetitive agreement to allocate and fix the wages of nurses with a competitor. On October
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`31, 2019, VDA had not received a subpoena, and did not receive one until nearly a year later, on
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`October 20, 2020. Defendant and VDA—not AOC, Delaware—were charged by the subject
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`Indictment on March 30, 2021, over sixteen months after Defendant was interviewed.
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`E.
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`The Government’s Disclosure
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`The prosecutors produced the FBI 302 of Defendant’s consensual interview on May 13,
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`2021, as part of its initial discovery production. That 302 contains the following statements:
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 12 of 34
`12 of 34
`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page
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`_
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`N
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`w
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`ed
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`nn
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`ON
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`~“
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`oo
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`\o
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` On
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`July 15, 2021,
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`as
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`part of its contmumg discovery obligations, the government
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`disclosed that three prosecutors had listened to a livestream of Defendant’s consensual mterview
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`with the agent. Defendants responded with a
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`five-page
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`letter on
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`August 3, raismg
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`over two
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`dozen additional questions about the details and capabilities of the livestream as well as other,
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`unrelated
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`discovery questions.
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`The government began
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`further
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`mvestigation
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`mto the
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`capabilities
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`of the livestream software m order to
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`respond
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`to the questions raised by the defendants. While
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`the
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`vestigation
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`was
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`ongomg,
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`on
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`August 13, the government
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`sent
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`letter, providmg responses
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`to many of defendant’s discovery requests that were
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`readily
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`available and unrelated to the
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`livestreambut indicatmg that “a separate letter addressmg your requests for mformation related
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`to the FBI’s mterview of defendant Ryan
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`Heeis
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`forthcommg.”
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`On
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`September3, without meetmg and conferrmg m advance (and before the government
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`was able to
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`complete
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`its
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`mvestigation
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`and
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`provide
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`its response to counsel’s
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`questions
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`about
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`Defendant’s mterview), Defendant filed the
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`subject
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`motion.
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`In response to Defendant’s request, prosecutors
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`are
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`producing the rough
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`notes of the
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`agent’s mterview with Defendant. Those notes corroborate the
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`mculpatory
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`statements made
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`by
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`Defendant m the mterview that were
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`captured nn the FBI 302, mcluding the description that
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`

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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 13 of 34
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`
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`LEGAL ANALYSIS
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`The FBI’s livestreaming of Defendant’s voluntary interview to three prosecutors did not
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`violate Rule 4.2’s restriction on contacts with represented persons. Defendant was not
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`represented by counsel, and, in any event, the contact was authorized by Rule 4.2’s law
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`enforcement exception.
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`The livestream also did not violate the prosecutors’ obligations under Rule 8.4 to refrain
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`from misrepresentations. Neither the attorneys nor the agent made any misrepresentations, and
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`the Ninth Circuit has made clear that prosecutors may supervise agents and witnesses in
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`investigative activities involving surreptitious recordings of targets, and other acts of subterfuge.
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`Nor did the conduct violate Defendant’s constitutional rights. Neither his Fifth nor Sixth
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`Amendment rights were triggered by Defendant’s voluntary participation in a preindictment,
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`noncustodial, consensual interview. And Defendant’s consent to allow the FBI to image his cell
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`phone and work laptop was knowing and voluntary, and did not violate his Fourth Amendment
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`rights (or that of his employer, who has made no such claims).
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`In addition, the remedies Defendant seeks—dismissal of the indictment, forced recusal of
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`the prosecutors, or, in the alternative, suppression of Defendant’s volunteered inculpatory
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`statements—are not warranted. Defendant was not prejudiced in any way by the government’s
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`conduct, and the government is not seeking to use Defendant’s inculpatory statements or texts or
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`emails seized from his devices.
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`A.
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`The Prose cutors’ Conduct Did Not Violate Rules of Professional Conduct
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`1.
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`Nevada’s Rules of Professional Conduct Govern
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 14 of 34
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`The Nevada Rules govern the analysis of the government’s conduct in this case.
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`Although the prosecutors are barred in California, California Rule of Professional Conduct 8.5(b)
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`provides:
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`In any exercise of the disciplinary authority of California, the rules of professional
`conduct to be applied shall be as follows: […]
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`(2) the rules of the jurisdiction in which the lawyer’s conduct occurred, or, if the
`predominant effect of the conduct is in a different jurisdiction, the rules of that
`jurisdiction shall be applied to the conduct. A lawyer shall not be subject to
`discipline if the lawyer’s conduct conforms to the rules of a jurisdiction in which the
`lawyer reasonably believes the predominant effect of the lawyer’s conduct will
`occur.
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`(emphasis added.) Here, Defendant’s interview occurred in Nevada and the subpoenas in
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`question were issued by a Nevada grand jury.
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`Nevada and California have adopted substantially similar versions of ABA Model Rule
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`4.2, prohibiting a lawyer in a matter from communicating with a person that lawyer knows to be
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`represented by another lawyer in the matter, and Rule 8.4, prohibiting attorney “dishonesty,
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`fraud, deceit, or reckless or intentional misrepresentation.” Nevada Rule 4.2, 8.4(c); California
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`Rule 4.2, 8.4(c).5 The prosecutors violated no ethical rules under the application of either state’s
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`rules of professional conduct.
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`2.
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`The Prosecutors’ Conduct Did Not Violate Rule 4.2
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`The prosecutors’ conducts did not violate Rule 4.2 because Defendant was not
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`represented at the time of his interview. Even if he was, his voluntary, preindictment,
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`noncustodial contact was authorized by the law enforcement exception.
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`5
`Nevada Rule 4.2 is identical to the ABA Model Rule, and provides “In representing a
`client, a lawyer shall not communicate about the subject of the representation with a person the
`lawyer knows to be represented by another lawyer in the matter”; California Rule 4.2 precludes a
`lawyer representing a client from: “communicat[ing] directly or indirectly about the subject of
`the representation with a person the lawyer knows to be represented by another lawyer in the
`matter.”
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`Case 2:21-cr-00098-RFB-BNW Document 44 Filed 09/21/21 Page 15 of 34
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`a.
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`Defendant Was Not Represented by CCH’s Counsel for the
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`Purposes of Rule 4.2
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`As a threshold matter, at the time of his interview, Defendant was not a represented
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`employee for purposes of Rule 4.2.6 “[N]ot every current employee of a represented
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`organizational entity is a ‘represented’ person for purposes of Rule 4.2[.]” Fitzgerald v.
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`Mercedes Benz USA, LLC, 2021 WL 3620429 (C.D. Cal. April 5, 2021). Such a finding would
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`allow companies to effectively preclude opposing counsel from investigating their cases or
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`claims. See G.K. Las Vegas LP v. Simon Prop. Group, Inc., 204CV01199DAEGWF, 2008 WL
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`11388585, at *2 (D. Nev. June 18, 2008) (“The policy underlying this rule balances the
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`organizational party’s legitimate interest in protecting its representatives from overbearance,
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`while also preserving the opposing attorney’s legitimate interest in conducting an adequate [pre-
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`litigation] investigation.”); State Bar of Nevada Standing Committee on Ethics and Professional
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`Responsibility, Formal Opinion No. 27, p.2, 9 (“Interviews [of represented company employees]
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`are one method of satisfying an attorney’s obligations under Rule 11 to conduct a reasonable
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`inquiry to ensure that a claim is well grounded in fact.”). See also Doe v. Superior Ct., 36 Cal.
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`App. 5th 199, 207 (2019) (“The purpose of the Rule is not to wall off every employee with
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`firsthand knowledge of the relevant facts and prevent them from b