Furnas v. Tierra Luna and Sol Enterprises LLC et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Nicole Furnas,
Plaintiff,
v.
Tierra Luna and Sol Enterprises, LLC; et al.,
Defendants.
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CV 23-00529-TUC-RM (MAA)
ORDER
Pending before the court is a motion for protective order filed by the corporate
defendants (“the defendants”) on November 14, 2025. Doc. 88. The plaintiff filed a response
on December 5, 2025. Doc. 93.
The defendants filed an untimely reply on December 18, 2025. Doc. 95; see LRCiv 7.2
(d). It was not accompanied by a motion for leave to file. Moreover, the court finds that the
arguments in the reply do not change its analysis. The court does not consider the untimely
reply.
Background
The plaintiff in this action, Nicole Furnas, lived in one of the defendants’ apartments.
Complaint, Doc. 1, p. 1. “As the lease term neared its end without a renewal offer, Furnas
became afraid that [the defendants] would not renew her lease . . . .” Doc. 1, pp 1-2. One of
the defendants’ maintenance workers, the individual defendant since identified as Jesus Santos
Caceres, “said he would have her lease renewed if she performed oral sex on him.” Doc. 1, p.
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2; Doc. 93, p. 3. “Feeling she had no other way to avoid losing her home, Furnas did so.” Doc.
1, p. 2.
On November 20, 2023, Furnas filed a Complaint in this court claiming (1) sexual
harassment in violation of the Federal Fair Housing Act, (2) discriminatory housing practices
in violation of the Arizona Fair Housing Act, (3) negligence for failing to train and supervise,
(4) assault, and (5) battery. Doc. 1.
In the pending motion, the corporate defendants seek a protective order precluding the
plaintiff from using the deposition of Kevin Young to obtain contact information for one of their
prior employees, Blaine Jacobson. Doc. 88. They argue that communicating ex parte with one
of their prior employees would violate the Arizona Rule of Professional Conduct 4.2 as
interpreted by Lang v. Superior Ct., In & For Cnty. of Maricopa, 170 Ariz. 602, 605, 826
P.2d1228, 1231 (Ct. App. 1992). Doc. 88, p. 1; see also LRCiv 83.2(e) (“The ‘Rules of
Professional Conduct,’ in the Rules of the Supreme Court of the State of Arizona, shall apply
to attorneys ... authorized to practice before [this court].”).
“Rule 26(c) [of the Fed.R.Civ.P.]authorizes the district court to issue any order which
justice requires to protect a party or person from annoyance, embarrassment, oppression, or
undue burden.” Phillips ex rel. Ests. of Byrd v. Gen. Motors Corp., 307 F.3d 1206, 1211–12
(9th Cir. 2002) (punctuation modified). “The Supreme Court has interpreted this language as
conferring broad discretion on the trial court to decide when a protective order is appropriate
and what degree of protection is required.” Id.
Discussion
On November 13, 2025, the plaintiff deposed Kevin Young, a former employee of the
defendant Transpacific. Doc. 88, p. 2. Young explained that another employee, Blaine
Jacobson, “implemented policies for employee background checks, scheduled and implemented
sexual harassment training, scheduled and implemented fair housing training, and oversaw
drafting of the employee handbook, among other things.” Doc. 88, p. 3. The plaintiff’s counsel
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asked Young for Jacobson’s phone number, but the defendants’ counsel objected. Doc. 88, p.
3. The defendants’ counsel objected to the plaintiff’s counsel making contact with a former
employee who “implemented sexual harassment training, the employee handbook.” Doc. 93,
p. 5.
The defendants argue in the pending motion that any ex parte communication with
Jacobson would violate the Arizona Rule of Professional Conduct 4.2 (“ER 4.2”). Doc. 88, pp.
3-8.
ER 4.2 generally prohibits ex parte contacts with “a party the lawyer knows to be
represented by another lawyer in the matter. . . .” Lang v. Superior Ct., In & For Cnty. of
Maricopa, 170 Ariz. 602, 604, 826 P.2d 1228, 1230 (Ct. App. 1992). “The prohibition is
intended to (1) prevent unprincipled attorneys from exploiting the disparity in legal skills
between attorneys and lay people, (2) preserve the integrity of the attorney-client relationship,
(3) help to prevent the inadvertent disclosure of privileged information, and (4) facilitate
settlement.” Id.
If the party is an organization, ex parte contacts with a former employee are ordinarily
permitted. “Former employees are usually unaware of the corporation’s legal strategies after
employment is terminated and will usually have no access to privileged information while
employed.” Lang v. Superior Ct., In & For Cnty. of Maricopa, 170 Ariz. 602, 606, 826 P.2d
1228, 1232 (Ct. App. 1992). “And, while a former employee’s statements to opposing counsel
may be damaging to the corporation, they are no more so than the statements of a former
employee who merely witnessed the liability-creating acts but did not commit them.” Id.
(punctuation modified). Moreover, “any movement away from informal discovery procedures
will greatly increase the cost of litigation.” Id., p. 607, 1233.
However, the Rule prohibits ex parte contacts with a former employee “whose act or
omission in connection with the matter may be imputed to the organization.” Id., pp. 604-605,
1230-1231. “For example, if an employee hired to drive a truck is involved in an accident that
occurs in the course and scope of employment, the fact that the employee leaves his or her
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employment should not determine the propriety of ex parte communications.” Id., p. 607, 1233.
On the other hand, ex parte contacts with a different former truck driver would be permitted
because that driver’s acts or omissions did not cause the accident. In sum, “ER 4.2 does not bar
counsel from having ex parte contacts with a former employee of an opposing party where the
former employer is represented by counsel unless the acts or omissions of the former employee
gave rise to the underlying litigation or the former employee has an ongoing relationship with
the former employer in connection with the litigation.” Id., p. 607, 1233.
In the pending motion, “Defendants ask this Court to enter a protective order precluding
contact with former Transpacific employees whose actions may be imputed to Transpacific.”
Doc. 88, p. 7. Apparently, the defendants interpret the phrase “may be imputed to” to cover all
employees in a management position. They instructed Young not to answer questions about
Jacobson “because Mr. Jacobson was in a management role at Transpacific.” Doc. 88, p. 3.
The court believes that the defendants’ interpretation of the rule is too broad. At one point, the
Lang court did use the phrase “may be imputed to the organization” to designate when ex parte
contact would be prohibited. ” Id., pp. 604-645, 1230-1231. Later in the opinion, however, the
Lang court cabined that statement by explaining that ex parte contact is prohibited where the
“acts or omissions of the former employee gave rise to the underlying litigation.” Id., p. 607,
1233. And that appears to be the proper test here.
For example, if Jacobson created an employee training program that was exemplary in
all respects but a different employee negligently failed to give Caceres that training, Jacobson’s
training program might be imputed to the organization as evidence of what that organization
believes the standard of care should be, but his acts or omissions did not give rise to the pending
litigation and ex parte contact with him would be permitted. Ex parte contact with the negligent
trainer, however, would not be proper. The trainer’s acts or omissions would have given rise
to the underlying negligence claim.
On the other hand, if Jacobson was responsible for Caceres’s training, then he was
responsible for seeing that Caceres received proper sexual harassment training (assuming this
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is the standard of care) and his acts or omissions would have given rise to the underlying
litigation. And ex parte contact with him would be improper.
Furnas imagines a hypothetical employee “who trained Caceres, but failed to provide
sexual harassment training because the Corporate Defendants did not require such training.”
She maintains that ex parte contact with that employee would be proper because “liability
would arise from the Corporate Defendants’ failure to maintain and implement proper policies,
not the employees’ actions.” Doc. 93, p. 9. The court does not agree. A corporation acts, or
fails to act, through its employees. Lois Grunow Mem’l Clinic v. Davis, 49 Ariz. 277, 284, 66
P.2d 238, 241 (1937) (“It is elementary, of course, that a corporation acts only through its
agents, and it is also beyond question that an agent may only bind a principal within the scope
of his authority, actual or apparent. No citations are necessary to support these fundamental
principles of law.”). In this hypothetical, the trainer’s failure to give sexual harassment training
gives rise to the plaintiff’s claim that Caceres’s training fell below the standard of care
(assuming there is a duty, proper sexual harassment training is the standard of care, and Caceres
received all his training from this person). See Complaint, Doc. 1, p. 9. As far as liability is
concerned, it does not matter why the trainer failed to give the proper training. Ex parte contact
with the hypothetical trainer would not be proper.
The defendants further move that this court preclude certain testimony from former
maintenance employee Kevin Mills. Doc. 88, p. 7. The defendants assert that Mills “hired and
trained new maintenance workers,” and they now “seek to preclude any testimony from Mr.
Mills regarding his role as supervisor, his hiring practices, and any training he did or did not
provide to maintenance employees.” Id. The defendants do not allege that Mills hired or
trained or supervised Caceres specifically. Without more information, the court cannot opine
as to what testimony from Mills should be precluded.
The defendants further move for an order terminating the deposition Kevin Young
pursuant to Fed.R.Civ.P. 30(d)(3)(B) because the plaintiff’s counsel was improperly attempting
to use the deposition to obtain the contact information for Blain Jacobson. Doc. 88, p. 8.
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In her response, the plaintiff discusses the deposition of Young and explains that her
counsel terminated the deposition because counsel “only had a couple of additional questions”
and the defendants’ counsel was “once again improperly instructing a witness not to answer a
question.” Doc. 93, p. 6. The plaintiff does not express any desire to resume the Young
deposition. Id. Accordingly, the court finds the defendants’ request for an order terminating
the deposition Kevin Young pursuant to Fed.R.Civ.P. 30(d)(3)(B) to be moot.
In their motion, “Defendants also seek their costs and fees pursuant to Fed. R. Civ. P.
37(a)(5).”
When a party files a motion to compel, Rule 37(a)(5)(A) instructs the court to make the
party “whose conduct necessitated the motion” pay the movant’s reasonable expenses if the
motion is granted. Fed.R.Civ.P. Here, however, the court grants the motion in part. If that
happens, the Rule 37(a)(5)(C) explains that the court “may . . . apportion the reasonable
expenses for the motion.” The court finds that each party should pay its own expenses as a
result of the motion.
IT IS ORDERED that the motion for protective order filed by the corporate defendants
on November 14, 2025 is Granted in Part. Doc. 88. Ex parte contact with one of the
defendants’ former employees is prohibited where the acts or omissions of the former employee
gave rise to the underlying litigation.
DATED this 19 day of December, 2025.th
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