Earlier this week, visiting Judge McCalla issued an order denying a motion to preclude a third-party factual declaration. Along the way, the Court addressed an ethics rule that should probably come up more often than it does.
As set forth by the Court, ABA Model Rule 3.4(f) precludes attorneys from requesting that third parties withhold relevant information from another party:
Model Rule 3.4(f) states a “lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party.”
Arctic Innovations, LLC v. Edwards Lifesciences Corp., C.A. No. 23-158-JPM, at 4 (D. Del. June 4, 2025).
This could be a land mine for the unwary attorney. It's easy to envision scenarios where an attorney in a case is strongly inclined to ask a third party not to turn over information to the other side absent a subpoena.
In the Arctic Innovations case, that's not quite what happened. There, it appears that the plaintiff subpoenaed the deposition testimony of a third party called Atex. That party did not want to testify, and the plaintiff offered to withdraw the subpoena as long as Atex did not provide documents to the other side or testify at trial:
Plaintiff served a deposition subpoena on Atex, setting the deposition for November 4, 2024. . . . Atex informed Plaintiff it did not want to be burdened by the deposition subpoena. . . . Atex asked Plaintiff to withdraw the subpoena on the condition that Atex agree not to provide information for either party. . . . On October 28, 2024, Plaintiff responded and said it would withdraw the deposition subpoena if Atex (1) confirmed it would not voluntarily provide documents to Defendants and (2) would sit for a deposition if Atex later decided to testify at trial. . . . On November 14, 2024, Atex agreed to both conditions.
Id. at 2. Later, as part of a dispute over a declaration from Atex, the Court held that plaintiffs conduct did not violate the ABA Model Rule:
[T]he Court finds Plaintiff [did not] violate[] ABA Model Rule 3.4(f). Plaintiff’s “demand” that Atex not voluntarily produce evidence to Defendants was part of negotiations to reduce the burden on Atex regarding a third-party subpoena. There is no unambiguous evidence showing Plaintiff sought to deter Atex from providing relevant information. Thus, Plaintiff’s conduct does not implicate Model Rule 3.4(f). See Applied Predict. Techs., Inc. v. MarketDial, Inc., No. 2:19-cv-00496-JNP-cmr, 2023 WL 1802033, at *5 (D. Utah Feb. 7, 2023) (finding Rule 3.4(f) sanctions inappropriate when “the actual communication does not unambiguously deter the non-client from communicating”) . . . .
Id. at 5.
Still, I definitely don't blame the defendant for raising the issue under these circumstances. It's worth keeping this ethics rule in mind regardless of which side you are on (seeking third-party information or hoping that the third party doesn't produce it).
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