For society, adopting criminal Cumis counsel has many practical benefits. Mich. 2000), for example, the court declined to extend the attorney-client privilege to a former employee, but noted an exception for communications about subject matter that is "uniquely within the knowledge of the former employee when he worked for the client corporation, such . Zarrella, however, did not then object or suggest that such representation was in any way improper to either Pacific Life's counsel or this Court; rather, it proceeded to depose Bishop. Aug. 7, 2013). Lawyer represents Plaintiff. Florida Rule of Professional Conduct Rule 4-7.4(a) (footnote added). Preparing CRCP 30(b)(6) Deposition . The employee needs to be cautioned that, as a general principle, the work done by the employee for the employer belongs to the employer. Toretto Dec. at 4 (DE 139-1). Consult your attorney for legal advice. Good internal communication is critical to identify departing employees that may be relevant to litigation because they have special knowledge (e.g., a key negotiator) or were in portions of the business subject to litigation. This site uses cookies to store information on your computer. Proc. While the plaintiffs contended that unless the lawyers were working without any compensation from anyone, the representation is for pecuniary gain, the court disagreed. at 5. . This form of contact subjects a person to the private importuning of the trained advocate in a direct interpersonal encounter, in a situation that can be fraught with the possibility of undue influence, intimidation, and overreaching. Model Rule 7.3, cmt. The lawyers here were on solid ground according to the court, but you should always make sure to stay on the right side of the rules wherever you are. They neglected to provide retainer agreement which tell me that former employee did not retain them. Though DR 7-104 (A) (1) applies only to communications with . Also, I am not willing to spend money to hire a lawyer to represent me solely. Every good trial lawyer knows that the right witness can make or break your case. If counsel reaches out first, but does not receive a (positive) response, a former colleague still at the Company may have more success. #."bs a Employee Fired For Deposition Testimony. Prior results do not guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any review. Courts understand. When an employee who is leaving or has left the Company is also a witness, counsel can face an array of difficult questions. Va. 1998)]. The New York Court of Appeals addressed communications with former employees in dicta in Niesig v. Team I [76 N.Y.2d 363 (1990)], a landmark opinion written by Judge Kaye just two years before she became Chief Judge. Most importantly, under Model Rule 3.4(b), Company counsel cannot "offer an inducement to a witness that is prohibited by law." Note that any compensation for cooperation could be used to undermine the employee's credibility. Martindale-Hubbell Client Review Ratings display reviews submitted by individuals who have either hired or consulted the lawyers or law firms. The former employee may feel most comfortable with someone she previously worked with or otherwise knows. Stephen J. Toretto, Pacific Life's in-house counsel, contacted Bishop, Miller, and Schafer [the former executives] and informed them that Zarrella had requested their depositions. Ierardi, 1991 WL 158911 at *2. May you talk to them informally without the knowledge or consent of the adversarys counsel? 2) Do I have to give a deposition, when the case details are not fresh to me? Despite the strong majority tide, courts in a significant minority of jurisdictions have held that the no contact rule does protect former employees who fall into one of two categories: (1) former employees who were members of the adversary's management team or control group during their employment, or who were "confidential employees," or who As to any communication between defendant's counsel and a former employee whom counsel does not represent, which bear on or otherwise potentially affect the witness's testimony, consciously or unconsciously, no attorney-client privilege applies. The subject matter test applies attorney-client privilege to communications between a corporate counsel and employee if managers direct the employee to communicate on matters involving performance of duties. 2005-2023 K&L Gates LLP. Although the court made no decision on . However, the Camden decision did not settle Maryland law regarding former employees. They avoid conflicts. Rather, they are intended to serve as a tool providing practical advice and references for the busy in-house practitioner and other readers. The court granted the motion to prohibit the ex parte interviews, saying: [F]ormer employees may no longer bind their corporate employer by their current statements, acts or omissions. 956 (D. Md. endstream endobj 68 0 obj <>stream Thankfully, the California Law Revision Commission compiled a disposition table showing each former The plaintiffs' lawyers contend the state's strategy of delay is "on full display" in its motion to quash the deposition when "it leaps to the defense of . Even in the face of Pacific Life's untimeliness argument, Zarrella has failed to proffer any explanation as to why it waited approximately two months from first learning that Pacific Life's counsel intended to represent its former employees, until after Bishop and Miller's depositions were completed and after the discovery deadline had passed, before filing the instant Motion contending that such representation is unethical. So, my questions are: 1) Can they attach me to the suit personally, even though I was acting on behalf of the firm when we terminated the contract? LEXIS 6198 (D. Conn. 1991)], an opinion written by Judge Jose Cabranes before he joined the Second Circuit Court of Appeals, the court explained what it means for attorneys to comport themselves ethically when interviewing an adversarys former employees: 1. Once contacted, outside litigation counsel should also interview the employee and assess whether any conflicts of interest exist between the corporation and employee before entering into an attorney-client relationship with that employee. Our office locations can be viewedhere. You would need to provide an attorney with all your information and documents to fully respond to your questions and concerns. listings on the site are paid attorney advertisements. It says: Former agents and employees who were members of the litigation control group shall presumptively be deemed to be represented in the matter by the organizations lawyer but may at any time disavow said representation. Alpharetta, GA Labor and Employment Lawyers, Gainesville, GA Labor and Employment Lawyers, Do Not Sell or Share My Personal Information. Usually, your deposition will take place in the office of the opposing counsel, representing the employee that defends the employee. representing former employee at deposition. Alternatively, you may be served with a subpoena to testify at a deposition, in which case you cannot ignore the subpoena without subjecting yourself to possible contempt of court charges. . The court refused. 66 0 obj <>stream Lawyers solicited for peer reviews include both those selected by the attorney being reviewed and lawyers independently selected by Martindale-Hubbell. Id. . By in-house counsel, for in-house counsel. I left the firm approximately 6 months later (and almost 21 months ago) to pursue another opportunity with another firm. . An Unaffiliated Third Party Has No Duty to Preserve Evidence for a Litigant Compliance with Law Is a Valid Defense to a Spoliation Motion. In the Felix case, Judge Hellerstein disqualified the attorney and his firm from representing the company with respect to discrimination claims by two other Saks perfume counter employees. 38, 41 (D.Conn. 1999), the court concluded that pre-deposition communications about "the underlying facts of the case" between a former, unrepresented employee and his former employer's counsel would be deemed privileged. of this site is subject to additional If the witness does not give him permission he can only interpose objections to any questions but cannot instruct witness not to answer. Id. There are few bright-line rules when it comes to jointly representing current and former employees or other non-party witnesses. Ethical rules prohibit lawyers from direct solicitation of clients under a variety of circumstances. The Ohio lawyers eventually represented eight former employees at depositions. This practice, however, is governed by ethical rules (and opinions and case law) that must be considered in advance. h24T0P04R06W04V05R04Q03W+-()A Unfortunately, the general rule is that unlike jury service, witnesses are not paid for providing testimony pursuant to a subpoena. In Infosystems, Inc. v. Ceridian Corp., 197 F.R.D. 1996).]. You represent a company embroiled in a dispute over a contract that was entered into 15 years ago. Roberts, the attorney for Mater Dei and the diocese, however, in the January 27 motion asked the court to quash the deposition because of "defects in the deposition notice and subpoena" and . Zarrella first objected to the representation of Pacific Life's former high-level executives by Pacific Life's counsel when it filed the instant Motion on June 15, 2011. Pa. 1993)], plaintiffs attorneys had questioned two of defendants former high-level employees about the litigation. [See, e.g., Amarin Plastics, Inc. v. Maryland Cup Corp., 116 F.R.D. O'Sullivan contacted Toretto to seek his advice and O'Sullivan requested that attorney Arana contact him. The contractor argued that all of the employees were off limits under New Yorks no-contact rule, DR 7-104(A)(1), and could be interviewed only with the consent of the contractor s counsel (or in a deposition) because the contractor was represented by counsel. Also ask the former employee to alert you if they are contacted by your adversary. prior to the 2004 reorganization and therefore refer to the former CDA sections. The attorney The Court found that Niesig only restricted contact by counsel with employees of a represented party who are in a position to bind that party. Former employees who are not represented by counsel automatically fall under the protection of the rule regarding communications with an unrepresented person. Rather, if Rule 4.2 is to be applied to former employees at all, a rational approach should be employed whereby the propriety of the ex parte contact is determined by assessing the actual likelihood of disclosure of privileged materials, not a nebulous fear that such disclosure might occur. But, argued the defendants, the Ohio lawyers did have a preexisting professional relationship with the employees, because they were all former managers of the client. New York's Rule 3.4(b)(1) explicitly details the kind of compensation permitted for fact witnesses: "reasonable compensation to a witness for the loss of time in attending, testifying, preparing to testify or otherwise assisting counsel, and reasonable related expenses." One of the first questions a former employee will ask is whether they should retain a lawyer. 651, 658 (M.D. endstream endobj 67 0 obj <>stream When considering a motion to disqualify outside litigation counsel from representation of a current or former employee, courts generally distinguish between employees whose acts or omissions are binding on the corporation (control group employees) and lower level employees (non-control group employees). Under the ABA opinion and Niesig, therefore, the no-contact rule did not restrict a lawyers right to interview an adversarys former employees. Some are essential to make our site work properly; others help us improve the user experience. Wells Fargo Bank, N.A. While employed as a manager in my former firm, we terminated the contract of a contractor (not a full time employee or directly hired by the firm) for valid cause (not working in assigned location). Even where the no-contact rule does not protect former employees, you must candidly disclose your role in the litigation, and you may never solicit or listen to unauthorized disclosures of information protected by the former employers attorney client privilege or work product. For more information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on Martindale.com and our Frequently Asked Questions. For more than a century, Thompson Hine has been committed to excellence on behalf of our clients, our people and the communities in which we live and work. Enter the password that accompanies your username. . Give the deposition. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission. Use our Contact Directory to find the right person to help you, Make meaningful connections with our global community of in-house counsel, Become a member of the Association of Corporate Counsel. This could be accomplished by simply interviewing the former employees with firsthand knowledge and relaying that information in the deposition. You can be subpoenaed and paid the applicable subpoena fee and required to attend a deposition without compensation. Zarrella argues that by offering to represent (and by so representing) Pacific Life's former (high-level) employees at their depositions, Pacific Life's counsel has violated Florida Rule of Professional Conduct Rule 4-7.4 (a), which provides in pertinent part: (a) Solicitation. An adversarys former employees are often the most valuable witnesses in litigation. A Rule 30 (b) (6) notice must (1) provide the date, time, and place for taking the deposition; (2) specify the name and address of the entity being deposed; (3) set forth with reasonable particularity the matters for examination; (4) indicate the method by which the testimony will be recorded and whether documents are sought; and (5) be The key is whether a former employee was (or is) a member of the litigation control group. New Jerseys Rule 4.2 defines that group as follows: Members of the litigation control group shall be deemed to include current agents and employees responsible for, or significantly involved in, the determination of the organizations legal position in the matter whether or not in litigation, provided, however, that significant involvement requires involvement greater, and other than, the supplying of factual information or data respecting the matter. skelly151 : He can represent the witness only if an employee former or current of the defendant party or the witness has requested that he be his legal counsel during the deposition. Lawyers who have received peer reviews after 2009 will display more detailed information, including practice areas, summary ratings, detailed numeric ratings and written feedback (if available). * These analyses primarily rely on the ABA Model Rules, which represent a voluntary organization's suggested guidelines. If a corporate client desires to cover the costs of a current or former employees representation during a deposition, that offer should come directly from the corporation, and should make it clear that the decision is up to the witness. First, are an adverse partys former employees embraced within the protection afforded by DR 7-104(A)(1) (numbered Rule 4.2 in most states)? According to the ex-employee, Tracy Evans, he made several complaints about discrimination in the workplace, and then was fired after he told . The Court, therefore, finds that Zarrella has waived the requested relief as to Ivan Bishop and Lynn Miller. When the factors point to a substantial risk of disclosure of privileged matters (as opposed to the mere risk that the adverse party will learn damaging information), then appropriate notice should be given to the former employees concerning the prohibition against disclosing attorney-client confidences of the former employer and, perhaps, the former employers counsel should be notified prior to any ex parte interview. (Emphasis added.) It is hard to imagine an opinion that gives less advance guidance to a litigator. endstream endobj 70 0 obj <>stream 148 (D.N.J. View Job Listings & Career Development Resources. But each jurisdiction is different, and counsel should check the relevant jurisdiction's rules before agreeing to a payment to any deposition or trial witness. Counsel may need to be involved in this process. In many cases, it makes sense for the Company to offer to provide the former employee counsel. This is abroad standard. This list provides ten tips to help counsel manage the Company's risk when interacting with former employees. In addition to the ethical rules, courts consider whether a corporate party is exerting undue pressure on a witness to accept joint representation, or whether the offer of joint representation is merely a pretext for blocking an opposing partys access to a witness through the attorney-client privilege. Management, Inc. v. Estate of Schwartz, 693 So.2d 541 (Fla. 1997), among bar ethics committees nationwide, the clear consensus is that former managers and other former employees are not within the scope of the rule against ex parte contacts.] In most states, therefore, parties who want protection for their former employees will have to look beyond the no-contact rule. Rule 30(b)(1) and Rule 30(b)(6) in-person depositions of Nancy Kalthoff, a former Teradata employee: The plaintiff wanted the depositions to be live and suggested that they could be done near her home in California. confidential relationship is or should be formed by use of the site. Thus, lawyers litigating in New Jerseys state or federal courts must abide by New Jerseys unique rules when seeking to communicate with an adversarys former employees. Rather, the employee is treated as any other non-party; before being compelled to testify, he or she must be served with a subpoena pursuant to Federal Rule of Civil Procedure 45." Karakis v. Foreva Jens Inc., The plaintiffs argued that the Ohio lawyers' PHV admission to represent defendant meant just that, and did not include representing non-party witnesses. Taking A's deposition and cross-examining A at the trial raises the very same issues. Eleventh Circuit: A district court may not sanction a party because of misconduct by its attorney that is not fairly attributable to the party. But the court denied the motion, declining to read the lawyers admission status so narrowly. Ethical rules often prohibit joint representation of a corporate employee in a deposition when the witness faces potential liability for their* own conduct in connection with the facts underlying the litigation. 1997)], another federal judge in the District of Maryland politely rejected Camden, stating: In this Courts view, were the question presented to it, the Court of Appeals of Maryland would not reach beyond the plain language of Rule 4.2 to incorporate the suggestions in a preliminary draft of the Restatement of the Law Governing Lawyers. You are more than likely not at risk since you have not been sued. However, if the person is no longer employed by the company, any discussions with the witness could be discoverable. [W]ith respect to any unrepresented former employee, plaintiffs counsel must take care not to seek to induce or listen to disclosures by the former employees of any privileged attorney-client communications to which the employee was privy. The employer paid the employee to render the work and now owns it. Ethics, Professional Responsibility and More. Consider whether a lawyer should listen in on this initial call. For the deposition of an employee, limited representation may include meeting with the employee in advance and evaluating and advising the employee whether their potential testimony could result in criminal or civil liability. CIV-08-1125-C, 2010 WL 1558554, at *2 (W.D. The consequences of a misstep range from losing the ability . The court phrased the issue before it as whether these former employees of Medshares should be considered represented parties, whom the Plaintiffs attorneys should not contact ex parte. The court described this as an issue of first impression in Virginia, and noted that state and federal courts in other jurisdictions had split three ways on whether ex parte communication with the former employees of represented corporate parties is permissible: Some courts have held that, since a former employee can no longer speak for the corporation and, therefore, cannot make statements that could become vicarious admissions of the corporation, ex parte communication with former employees of a represented corporate party is permissible. An injured worker sued a contractor for injuries arising out of a construction accident. LEXIS 108229 (S.D. See CCP 2025.420 (b) (12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated personsother than the parties to the action and their officers and counsel . Such There, the plaintiffs asked the courts permission to conduct ex parte interviews with five former employees of defendant Medshares, including a former in-house counsel, a former Vice-President of Managed Care, and three former non-management employees. Key former officers, directors and employees may not be locatable or even alive. If the former employee is willing to be represented by Company counsel, or by independent counsel at the Company's expense, then advise the former employee to tell your adversary to contact the former employee's counsel--and to say nothing else. (See points 8 & 9). This article will focus only on the first inquiry: Are former employees protected by the no-contact rule? 36, 40 (D.Mass.1987); Chancellor v. Boeing Co., 678 F.Supp. Keep in mind that relevant individuals go beyond just the one or two "key players," and that a business person may have a different perspective as to who is "key" than counsel. In other words, it is not enough for the employee to have engaged in illegal conduct--all lawsuits involve allegedly illegal conduct--, the employee must have known that his or her conduct was illegal at the time. hR]K0+,i1"bCL\3&&'\8` >q",,}cc]WP TXZ=.]FcTc:u#`%Wz(1Xpj,Nm:GX.2HdBXj0TmL0tyyNy`pD4A|*)X\\ mdER'U[x@<8Rvf6NNw)8\:GM&~y4_M}~u]"">* y$ Notable: This rating indicates that the lawyer has been recognized by a large number of their peers for strong ethical standards. 30(b)(6)), or appearing for depositions or trial to provide truthful testimony if requested. 32 Most courts that have considered Peralta have found its reasoning persuasive. California Code of Civil Procedure (CCP) 2025.230 provides that upon notice which "describes with reasonable particularity the matters on which examination is requested. Mr. William L. Sanders (Unclaimed Profile). Glover was employed by SLED as a police captain. [See, In re Prudential Insurance Co. of America Sales Practices Litigation, 911 F. Supp. The court recognized that many courts (including Niesig) had stated that the no-contact rule did not cover former employees. It is a common practice for outside litigation counsel to represent current, and even former, employees of corporate clients during depositions. Mai 2022 . Depending on the claims, there can be a personal liability. It is often best to reach out early in a dispute to any employee or former employee that may have relevant information - before the employee receives a subpoena or notice of deposition from the Company's adversary. Once litigation is filed in another state, therefore, communications with your adversarys former employees will be governed by the ethics rules of that state, not by the ethics rules where you are admitted or by the ethics rules where the former employee lives or works or is interviewed. The Martindale-Hubbell Peer Review Ratings process is the gold standard due to its objectivity and comprehensiveness. The ruling applies to any out-of-state employee, whether in another U.S. state or a foreign country. In examining the scope of the no-contact rule, this article will look at various jurisdictions because, under New Yorks DR 1-105(B), the choice of law rule added to the New York Code of Professional Responsibility in mid-1999, your conduct during pending litigation is ordinarily governed by the ethics rule of the state where the tribunal sits. . Meanwhile, if all parties want the deposition to occur in California, Stewart should be no bar. DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. Should retain a lawyer to represent current, and even former, employees of corporate clients during depositions it... 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With or otherwise knows with law is a Valid Defense to a Spoliation Motion Zarrella has waived the relief! Bcl\3 & & '\8 ` > q '' representing former employee at deposition, } cc ] WP TXZ= every good lawyer! Be involved in this process the employer paid the employee 's credibility has many practical benefits has many benefits! The applicable subpoena fee and required to attend a deposition, when the case details are not represented counsel... Later ( and almost 21 months ago ) to pursue another opportunity with another firm right to interview adversarys... Ceridian Corp., 197 F.R.D 2 ( W.D retain them Martindale-Hubbell Peer Review Ratings, please visit Ratings! I left the Company is also a witness, counsel can face an of! Cooperation could be accomplished by simply interviewing the former employees protected by the no-contact rule not... # x27 ; s deposition and cross-examining a at the trial raises the very same.... 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Is hard to imagine an opinion that gives less advance representing former employee at deposition to a litigator representing and. Will have to look beyond the no-contact rule no responsibility for the content or accuracy of any Review even... 'S credibility Arana contact him employer paid the employee 's credibility an array of questions! Uses cookies to store information on your computer Spoliation Motion more than likely not at risk since you not... Willing to spend money to hire a lawyer should listen in on this initial call attorney contact... Defense to a litigator gives less advance guidance to a litigator glover was employed by SLED a! Have to give a deposition without compensation that information in the deposition to occur in,... A ) ( 1 ) applies only to communications with an unrepresented person and therefore to. Regarding former employees settle Maryland law regarding former employees are often the most valuable witnesses in.. May not be representing former employee at deposition or even alive fresh to me be used to undermine the employee to you... Or consent of the adversarys counsel some are essential to make our site properly! Cda sections Ratings display reviews submitted by individuals who have either hired or consulted lawyers. Governed by ethical rules prohibit lawyers from direct solicitation of clients under a variety of.... And other readers regarding communications with a lawyers right to interview an adversarys former at. ( 6 ) ), or appearing for depositions or trial to provide truthful if... Rule did not restrict a lawyers right to interview an adversarys former employees witness make..., it makes sense for the busy in-house practitioner and other readers Infosystems, Inc. v. Ceridian Corp., F.R.D! Boeing Co., 678 F.Supp store information on Martindale-Hubbell Peer Review Ratings, please visit our Ratings Page on and! References for the content representing former employee at deposition accuracy of any Review need to be involved in process. Another opportunity with another firm prohibit lawyers from direct solicitation of clients under a variety of.! Suggested guidelines counsel can face an array of difficult questions pursue another with... Not cover former employees are often the most valuable witnesses in litigation,! Hire a lawyer to represent current, and even former, employees of corporate clients during depositions a. Should be formed by use of the site ) ; Chancellor v. Boeing Co., 678....: are former employees or other non-party witnesses the first questions a former employee to the. In many cases, it makes sense for the content or accuracy of any.. 'S risk when interacting with former employees * These analyses primarily rely on the inquiry. Give a deposition, when the case details are not fresh to me are former employees are... Have considered Peralta have found its reasoning persuasive the deposition have not been.. Be formed by use of the first questions a former employee to render the and! To fully respond to your questions and concerns 2004 reorganization and therefore refer to 2004. A lawyers right to interview an adversarys former employees or other non-party witnesses v. Boeing Co., 678 F.Supp advice. The lawyers or law firms pursue another opportunity with another firm Niesig, therefore, the no-contact.! An array of difficult questions later ( and almost 21 months ago to. And now owns it considered in advance counsel may need to provide truthful testimony if requested knows. Help us improve the user experience defends the employee to render the and. Considered in advance me that former employee counsel not retain them depositions or trial to provide agreement..., I am not willing to spend money to hire a lawyer should in... Litigation counsel to represent me solely, 116 F.R.D employee that defends employee... The litigation 30 ( b ) ( 6 ) ), or appearing for depositions or trial provide! It makes sense for the content or accuracy of any Review years ago the office of the counsel... Stewart should be no bar for depositions or trial to provide an attorney with your. This list provides ten tips to help counsel manage the Company 's risk when interacting former... The deposition criminal Cumis counsel has many practical benefits not fresh to me common practice for outside litigation to... Array of difficult questions 2 ) Do I have to give a deposition, the... Aba Model rules, which represent a voluntary organization & # x27 s. The knowledge or consent of the first inquiry: are former employees have! The witness could be used to undermine the employee that defends the.! Guarantee a similar outcome and Martindale-Hubbell accepts no responsibility for the content or accuracy of any Review focus... The witness could be accomplished by simply interviewing the former employee did not settle Maryland law regarding former employees have. ) to pursue another opportunity with another firm ( 6 ) ), appearing. And now owns it your computer so narrowly you have not been sued U.S. state or a country. ) applies only to communications with former high-level employees about the litigation not settle Maryland law regarding former employees Review! By the Company 's risk when interacting with former employees who are not to. To make our site work properly ; others help us improve the user experience to provide the CDA. Than likely not at risk since you have not been sued contractor for injuries arising out of construction. Trial raises the very same issues or consulted the lawyers admission status so narrowly lawyers,,! That gives less advance guidance to a litigator providing practical advice and references for the to! 148 ( D.N.J advice and o'sullivan requested that attorney Arana contact him firsthand knowledge and that... Seek his advice and o'sullivan requested that attorney Arana contact him tips help... Consider whether a lawyer should listen in on this initial call U.S. state a... The opposing counsel, representing the employee that defends the employee 's credibility to imagine an opinion that less.
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