Depositions of Opposing Counsel

Authors: David Markowitz and former Markowitz Herbold litigator Lynn Nakamoto

Neither the Federal Rules of Civil Procedure nor the Oregon Rules of Civil Procedure prohibit the deposition of the opposing party’s attorney. Fed. R. Civ. P. 26 and 30(a); ORCP 36 and 39 A. Given civil procedure rules allowing liberal discovery, it is not unheard of for a party to assert that it must depose opposing counsel during the course of litigation. In that circumstance, the general rule of liberal discovery collides with the bedrock value of adversarial adjudication. Besides often creating controversy within the litigation, issuance of a subpoena to or notice of deposition of opposing counsel raises the specter of invasion of the attorney-client relationship and intrusion upon attorney work-product and trial preparation. This article discusses the two primary approaches courts have developed to analyze the propriety of a deposition of opposing counsel.

The protectionist approach. The protectionist approach emphasizes the role of counsel during litigation, and the disruption that a deposition of the opponent’s lawyer may create. The seminal case taking this approach is Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986).

Shelton was a product liability action brought by parents of a teenager killed in an accident after the teenager’s vehicle rolled over. The plaintiffs noticed the deposition of Rita Burns, an attorney in AMC’s litigation department who was assigned to the litigation. AMC then moved for a protective order and to quash the deposition subpoena. 805 F.2d at 1325. The magistrate judge granted the motion for a protective order in part, but denied the motion to quash. When Burns was first deposed, she refused to answer a number of questions about the existence of various documents regarding the vehicle, basing her refusal on either the work product doctrine or the attorney-client privilege. 805 F.2d at 1324-25. After another deposition before the magistrate judge (where he overruled AMC’s objections and ordered Burns to answer but she refused) and a show-cause hearing, the district court entered a default judgment on liability against AMC as a sanction. Id. at 1325-26.

The Eighth Circuit reversed, holding that where “the deponent is opposing counsel and has engaged in a selective process of compiling documents from among voluminous files in preparation for the subject litigation, the mere acknowledgment of the existence of those documents would reveal counsel’s mental impressions, which are protected as work product.” Shelton, 805 F.2d at 1326. The court viewed what it perceived as the growing use of depositions of opposing counsel as a “negative development in the area of litigation.” Id. at 1327. The court recited numerous problems potentially raised by a deposition of opposing counsel in litigation: (a) disruption of the adversarial system; (b) lowering of the standards of the profession; (c) additional time and cost of litigation; (d) reduction in the quality of client representation; and (e) creation of a chilling effect on attorney-client communications. See also Timothy Flynn, Jr., Note, On “Borrowed Wits”: A Proposed Rule for Attorney Depositions, 93 Colum. L. Rev. 1956 (1993) (describing in further detail those problems and others, including the potential that the deposed lawyer will be called as a witness and will be disqualified from continuing as counsel). The Eighth Circuit concluded that it should significantly limit the circumstances under which opposing counsel’s deposition should be taken at all.

The threshold for a party seeking to depose an opposing party’s attorney under Shelton is a high one. The party seeking the deposition must establish that “(1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” 805 F.2d at 1327. Notably, the burden of proof on the issue of privilege is reversed from the typical case. The familiar rule is that the party opposing discovery and asserting a privilege or work product immunity must establish that the information sought in fact is privileged or immune from discovery. See, e.g., Clarke v. American Commerce Nat’l Bank, 974 F.2d 127, 130 (9th Cir. 1992) (burden of establishing that attorney-client privilege applies to information in question rests on the party asserting the privilege).

The Shelton test has been adopted by the Sixth Circuit. See Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002). It also has been cited with approval by the Tenth and Fifth Circuits, but those circuits have used the broad discretion accorded to trial courts under Fed. R. Civ. P. 26 as the basis for affirming the decision of the district court. See Boughton v. Cotter Corp., 65 F.3d 823, 830-31 (10th Cir. 1995) (district court may exercise its discretion regarding discovery under Rule 26, regardless of whether the Shelton criteria are met); Nguyen v. Excel Corp., 197 F.3d 200, 208-09 (5th Cir. 1999) (deposition of opposing counsel permitted under Rule 26).

Numerous district courts, including the District of Oregon, have also taken the Shelton approach to attorney depositions. See, e.g., Sause Bros. Ocean Towing v. Ocean Service, 144 F.R.D. 111 (D. Or. 1991). In Sause Bros., the court granted a protective order prohibiting the deposition of the opposing party’s attorney. The court based its ruling on the failure of the party seeking the deposition to show several of the Shelton factors, namely, that the attorney’s deposition was the only means to discover the information sought and that the deposition would not invade the opposing party’s attorney-client privilege. 144 F.R.D. at 116-17.

The discovery rule approach. The second approach emphasizes the application of the Federal Rules of Civil Procedure, particularly Rule 26, and the liberal discovery that is presumed by the Rules. This approach is exemplified by cases such as Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348 (D.N.J. 1990); In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003), and v. ALN Associates, Inc., 132 F.R.D. 492 (N.D. Ill. 1990). See also Munn v. Bristol Bay Housing Authority, 777 P2d 188, 196 (Alaska 1989) (rejecting Shelton under a state law analysis).

In Johnston, the defendants served deposition subpoenas on the plaintiffs’ lead counsel and a vice president and general counsel for the corporation to inquire regarding meetings they had attended with various defendants prior to the filing of the lawsuit. The Johnston court set forth an alternative to the Shelton analysis, a balancing test that placed the burden of proof on the plaintiffs seeking a protective order to quash the subpoenas. 130 F.R.D. at 352-53.

The court held that although a court should proceed cautiously where a deposition of litigation counsel is sought, the analysis is not different just because of the status of the deponent. Rather, the party seeking to block the deposition of its counsel must show good cause pursuant to Rule 26(c) to limit or preclude such a deposition, measured by: (1) the relative quality of information in the attorney’s knowledge, that is, whether the burden of the deposition would be disproportional to the discovering party’s needs; (2) the availability of information from other sources that would be less burdensome on the adversarial process; and (3) the harm to the party’s representational rights by requiring its attorney to give deposition testimony. Johnston, 130 F.R.D. at 353. The court denied the motion for a protective order, finding that the importance and degree of uniqueness of the information that the attorneys possessed outweighed the potential negative impact upon the attorney-client relationship and the adversary process. However, the court entered an order specifically limiting the scope of questioning that would be permitted at the depositions. Id. at 353-56.

In dicta, the Second Circuit in the Friedman matter commented at length on the proper analysis to be used in assessing the propriety of a deposition of opposing counsel, even though the appeal had become moot because the attorney agreed to testify before the opinion was issued. 350 F.3d at 66. The Second Circuit criticized the Shelton rule as too rigid, id., and emphasized that the deposition-discovery regime in the federal rules is “an extremely permissive one.” 350 F.3d at 69. The court urged a “flexible approach” to lawyer depositions, one in which the court must take into account the need to depose the lawyer, the lawyer’s role regarding the matter on which discovery is sought, the lawyer’s role in the litigation, the risk of encountering work-product and attorney-client privilege issues, and the extent of discovery already conducted. 350 F.3d at 72. Accord, 132 F.R.D. at 495 (noting the discretion accorded to trial courts, the court rejected the Shelton approach as overbroad).

We express no preference for either approach. We note only that the Ninth Circuit has yet to address the Shelton rule, and there is no reported Oregon case on the depositions of opposing counsel, leaving counsel with room to stake out a position on the rule that should apply.

This article appeared in the September 2004 issue of the Oregon State Bar's Litigation Journal.

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