August 27, 2012 Articles

So You Want to Depose Opposing Counsel?

A license to practice law does not automatically exempt an attorney from being subject to a subpoena to produce documents or to testify.

By Edna Selan Epstein

Prepared for 38th ABA National Conference on Professional Responsibility May 30–June 2, 2012, held in Boston, Massachusetts

It is beyond dispute that attorneys are not automatically exempt from being subject to a subpoena to produce documents or to testify solely by virtue of their license to practice law or by virtue of a blanket assertion of privilege and work product protection. Probably no case has put that proposition more uncategorically than:

  • United Phosphorus, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245, 247 (D. Kan. 1995). The court observed: “Fed. R. Civ. P. 26(b)(3) clearly contemplates discovery from attorneys as well as from the parties themselves or their agents. When work product is sought under Rule 26(b)(3), such discovery is limited to circumstances where the party seeking discovery can establish a substantial need and an inability to obtain the substantial equivalent by other means. The burden of establishing the criteria set forth in Rule 26(b)(3) is upon the party seeking discovery. Neither the criteria for determining the appropriateness of discovery or the burden of establishing the existence of the criteria are altered because the documents were prepared by or in the custody of an attorney. Not only are attorneys not exempt from this rule, discovery from them is clearly contemplated. It is inconceivable that had the drafters of the Federal Rules of Civil Procedure, the Supreme Court or Congress intended to exempt attorneys from the provisions of Rule 30 or to otherwise limit discovery from attorneys, they would not have included a provision in Rule 30 similar to that contained in Rule 26(b)(3). Had the Court or Congress intended to engraft a preliminary showing when deposition discovery was sought from attorneys, such an exception would likely have been found in Rule 30 or otherwise within the Rules of Civil Procedure. Attorneys with discoverable facts, not protected by attorney-client privilege or work product, are not exempt from being a source for discovery by virtue of their license to practice law or their employment by a party to represent them in litigation.”

The status of the law in respect to deposing attorneys is fully and accurately stated in the United Phosphorous opinion. The implication of the opinion is that there should be virtually no situation in which a notice of depostion, even for opposing counsel, or a subpoena for a lawyer will subcumb to a motion to quash on the basis that the testimony would necessarily invade domains that are either attorney-client or work-product protected. And that in fact seems to be the trend in the cases.

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