ORDER
Pending is Defendants’ motion for order prohibiting Plaintiffs counsel from directly communicating with Defendant and Defendants’ manager and employees. After careful consideration, the Court DENIES the motion.
The Court notes that during litigation communications between parties are governed by Model Rule of Professional Conduct 4.2:
Communication with Person Represented by Counsel:
In representing a client, a lawyer shall not communicate about the subject matter of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so. (Emphasis added.)
Thus, generally, communications with a represented adverse party should proceed through that party’s lawyer, pursuant to Model Rule 4.2.
Here, however, both Defendants are government agencies. Government remains the servant of the people, even when citizens are litigating against it. Thus, when citizens deal with government agencies, several sorts of direct contact are “authorized by law” and permissible. Official comment to Rule 4.2 notes:
*622 Communications authorized by law include, for example, the right of a party to a controversy and a government agency to speak with government officials about the matter.
As interpreted in an American Bar Association Formal Ethics Opinion, this right to speak with government officials about a matter in controversy refers to the constitutionally protected right to petition the government and the derivative public policy of ensuring a citizen’s right of access to government decision makers. ABA Formal Op. 97-408.
Additionally, statutory provisions may authorize communications with government officials. Freedom of information statutes, “sunshine” statutes, and “whistle blower” statutes “may have the effect of authorizing lawyers who represent clients in related disputes to receive information from the government employees without consent of or notice to government counsel assigned to the matter.” 1 Id. at n. 5. Where such statutes have formal requirements for communications under the statute, those requirements must, of course, be met to assure that communications are, indeed, authorized by law.
Information gathering under these citizen-access statutes does not extend, however, to materials produced incident to litigation. The federal Freedom of Information Act provides: “this section does not apply to matters that are ... inter-agency or intraagency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 USC § 552(b)(5). Our Court of Appeals has held that “this open-ended exemption incorporates both the deliberative process and work-product privileges.”
Virginia Beach v. United States Department of Commerce,
To ensure that information gathering under citizen-access statutes such as freedom of information act does not undermine orderly discovery procedures in pending cases, the Court HOLDS that Plaintiff must prepare and sign off on an inventory of any materials received from Defendant government agencies by such procedures. The list also must be provided to Defendants within the discovery deadlines scheduled by the Court.
Notes
. Where Model Rule 4.2 does not apply to bar such ex parte communications, the requirements of Model Rules 4.3 and 4.4 should be met. Id.