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.

Courts are increasingly reluctant to quash a subpoena for an attorney to testify, provided the attorney is not litigation counsel in the case where the testimony is sought, before a proper factual record can be made and privilege asserted question-by-question rather than globally.

The procedure is that a notice for deposition or a subpoena issues.

The opponent of the notice or subpoena brings a motion to quash.

The court undertakes an inquiry into the proposed scope of the deposition.

More often than not, no order quashing the deposition will issue. A protective order outlining the permissible subject scope of the deposition may issue, based more often than not, on the scope of inquiry that the party seeking the deposition represented would be the areas of inquiry. The attorney deponent will be told what is self-evident in privilege law: There is no blanket objection to protect attorney-client or work-product. Make your objection question-by-question and document-by-document. Make a record upon which a court can base its ruling.

  • Pritchard v. County of Erie, 2006 U.S. Dist. LEXIS 74356 (W.D.N.Y. 2006). The court declined to resolve a privilege dispute prior to a deposition taking place and a privilege objection being interposed as to specific questions. The court noted that "normal practice" dictates that deposition should proceed so that parties may "create a record of where questionable inquiries, objections, or assertions of privilege arose and furnish a context for the dispute," thereby enabling court to resolve the dispute on "concrete record."

Some courts are willing to be on telephonic stand-bye to make on the spot rulings on privilege objections. Others warn the litigants not to make frivolous objections since if there are costs incurred in resuming the deposition after rulings have been made on the objections, they will be borne by the party responsible for having required, unnecessarily, the resumption of the deposition after improper privilege and work product objections have been judicially ruled on.

But there are still courts that consider the entire process of subpoena the files and taking the depositions of attorneys too invasive and therefore the matter best dealt with by quashing the deposition notice or the subpoena. This option, however, has decidedly become the minority judicial position.

Yet there is no denying the potentially disruptive effect of attorney subpoenas and depositions. The danger is always that their use is a strategic one, to drive a wedge between client and counsel and to force a disqualification of opposing counsel if counsel is transformed from litigation counsel for a party or even from a reliable counselor into witness either for or implicitly against their client. So small wonder that courts were leery of the potential and legal trade associations (i.e. bar associations) as amici were up in arms when the question of whether counsel could be deposed were first litigated.

And even if there was not a danger of disruption to the very litigation at issue, there was always something unseemly when an attorney is required to testify, on whatever grounds and for whatever reason, against or seemingly against a client.

What is clear from the case law is that a continuum exists. The closer the proposed deposition and its subject matter is to being too disruptive of the adversarial process, the more it is that some protective order, either quashing the deposition altogether or limiting its scope, will be issued. The farther the proposed attorney deponent is from the adversarial process in which the subpoena for documents and the deposition are sought, the less invasive to the adversarial process the proposed subject matter of the deposition is the more likely it also is that a court will permit it to take place.

What some have regarded as the touchstone of attorney depositions, the Shelton case and its tri-factorial test for whether an attorney deposition should be permitted to go forward, are used far less than at first appeared to be the case. The Shelton factors are:

  • The information sought is relevant and non-privileged;
  • The information sought is crucial to the preparation of the case; and
  • No less invasive or alternative means exist to get information relevant and necessary to the preparation of the case.

If strictly applied as a test for whether any deposition of an attorney may proceed, the Shelton tri-factorial test would operate to preclude most attorney depositions from going forward.

The Shelton factors are rarely strictly applied. The approach taken is usually a more “holistic” one. The result is that a great many attorney depositions are permitted, with or without a protective order as to scope of permissible inquiry.

  • Shelton v. Amer. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). The case before the Eighth Circuit was whether the trial judge properly imposed sanctions on in-house counsel for refusing to answer questions on work product protection grounds as to whether she possessed documents concerning testing done on the vehicle involved in a death case. Plaintiff's counsel admitted that the sole purpose in asking these questions was to determine whether defendant's counsel had, in fact, truthfully complied with his document requests and interrogatories and to confirm the information he had already received.

The Eighth Circuit reversed the imposition of sanctions. And in passing, formulated what came to be known as the tripartite Shelton factors test for when opposing counsel (whether litigation or in-house) could be deposed.

Even as it formulated its tri-factorial test, the court warned, in language oft forgotten: "We do not hold that opposing counsel is absolutely immune from being deposed.”

Nor did the Eighth Circuit hold that the magistrate judge should not have allowed the deposition to be taken. Rather, it in fact held only that because responses to the particular questions asked would provide a roadmap of trial counsel's litigation strategy, the deponent’s answers were protected by the work-product doctrine and no sanctions for a failure to respond should have been imposed.

It is often forgotten that what the Eighth Circuit in fact did is no more and no less than reverse the imposition of sanctions that had been applied by the trial court when in-house counsel refused to answer questions going to questions that invaded work product issues in the litigation at hand.

The Eighth Circuit itself subsequently made clear that the Shelton factors were to be applied in the limited circumstances when there was a genuine possibility of invading the trial strategy of current litigation counsel by virtue of the deposition of an attorney. Thus the Shelton factors were to be applied to limit depositions of attorneys in two instances: (1) when the depositions of trial and/or litigation counsel were sought and (2) when a line of questioning risked invading and exposing litigation strategy in the pending case.

  • Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002) 726, 730-31 (8th Cir. 2002). The Eighth Circuit revisited the Shelton case holding and explained: “We held in Shelton that requiring the attorney to answer the questions posed to her regarding the existence of certain documents would require her to reveal her mental selective process … The Shelton test was intended to protect against the ills of deposing opposing counsel in a pending case which could potentially lead to the disclosure of the attorney's litigation strategy. Because this abuse of the discovery process had become an ever increasing practice, this Court erected the Shelton test as a barrier to protect trial attorneys from these depositions. But Shelton was not intended to provide heightened protection to attorneys who represented a client in a completed case and then also happened to represent that same client in a pending case where the information known only by the attorneys regarding the prior concluded case was crucial. In such circumstances, the protection Shelton provides to opposing counsel only applies because opposing counsel is counsel in the instant case and not because opposing counsel had represented the client [earlier].” (emphasis added)

Obviously, in the Eighth Circuit, the district courts and magistrate courts cite the Shelton factors when depositions of counsel are sought. The results, however, are quite to the contrary and depositions are usually allowed.

  • Hina v. Anchor Glass Container Corp., 2008 U.S. Dist. LEXIS 41577 (S.D. Oh. May 23, 2008). The Shelton factors were discussed but the deposition of litigation counsel was permitted to proceed as relevant to the question of whether a test conducted on machinery at issue in the litigation had been properly conducted.

Only the Sixth Circuit has expressed approval of and adopted the Shelton factors, but when it did so, at issue was the question of whether opposing trial counsel and arbitrators could be deposed on an issue in dispute. It is not in the least surprising that the Sixth Circuit found that factual situation to be a reach too far.

  • Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 2002 U.S. App. LEXIS 1101 (6th Cir. Jan. 28, 2002). Quoting the Shelton factors with approval, the Sixth Circuit in fact based its holding on the observation that the proponent for the deposition had not demonstrated either its relevance or its necessity and therefore the district court was not clearly erroneous in refusing to allow the depositions of arbitrators in a prior proceeding and current litigation counsel to go forward on the issue of the arbitrators’ alleged bias to ward the claimant.

Where the counsel, whose deposition is sought, is not involved in the very litigation at hand but has knowledge concerning corporate affairs, nothing precludes such a deposition from going forward, even if the matters are tangential to the issues sub judice in the case.

  • U.S.A. v. Philip Morris, Inc. 209 F.R.D. 13, 16, 2002 U.S. Dist. LEXIS 15787 (D.D.C. Aug. 23, 2002). The court reversed the magistrate judge who had quashed subpoenas of three in-house counsel. The court found that the Shelton factors were inapplicable the depositions sought by the government on multiple grounds. First, the deponents were employees to whom the company had knowingly assigned substantial non-legal, non-litigation responsibilities, including corporate, business, managerial, public relations, advertising, scientific, as well as research and development responsibilities. Second, the government was not seeking to depose the various in-house counsel about the defense or litigation strategies related to this case. Third, the principal rationale driving the Shelton decision was not raised by the facts of this case. Fourth, the proposed deponents were not litigation or trial counsel.

“Defendants contend that the three criteria apply to any attempt to depose an attorney, without regard to the subject matter of the deposition or the attorney's role in the pending litigation. This is not only a misinterpretation of the holding in Shelton and the subsequent case law re-affirming that holding, but is contrary to the language and philosophy of the Federal Rules of Civil Procedure.”

It is thus based on proximity and involvement in the adversarial process that a deposition of an attorney will be quashed or allowed to proceed.

Subpoena Quashed
Courts have found that the critical factor in determining whether the Shelton test applies is not the status of the lawyer as “trial counsel,” but the extent of the lawyer's involvement in the pending litigation.

  • National Western Life Insur. Co. v. Western Nat’l Life Insur. Co., 2010 U.S. Dist. LEXIS 132024 (W.D. Tex. Dec. 13, 2010). The deposition of outside counsel for 50 years was quashed where Shelton factors had not been met and there was no showing of the need or purpose of the deposition.
  • Lincoln Nat’l. Life Ins. v. TCF Nat’l Bank, 2011 U.S. Dist. LEXIS 142371 (N.D. Ill. Dec. 12, 2011). Deposition of in-house, deeply involved in the preparation of the litigated case, was quashed where the Shelton factors were not demonstrated and where nothing crucial to the case that would not be privilege or work product protected was likely to be known by in-house counsel.
  • Harris v. Koenig, 2010 U.S. Dist. LEXIS 127057 (D.C. D.C. Dec. 2, 2010). Deposition of opposing counsel quashed where court saw no possible utility in it that would not invade the work product protection. And, finally, a court saw fit to require both sides to respond to a Rule to Show Cause why they should not be sanctioned under 28 U.S.C. Sec. 1927 for how they conducted themselves in respect to that motion. Kudos for Judge Facciola!
  • Gruenbaum v. Werner Enterprises, Inc., 270 F.R.D. 298, 2010 U.S. Dist. LEXIS 107274, 2010 WL 3942818 (S.D. Ohio October 7, 2010). Deposition of in-house counsel was quashed based on the Shelton factors. In-house counsel had been involved in investigating the litigated car accident and similar ones and was also involved with formulate trial strategy. Plaintiff wished to depose in-house counsel on the issues of preventability of the accidents. However, defendant’s director of safety had already been deposed on that issue, the driver of the car and various state troopers.
  • Newkirk v. ConAgra Foods, Inc., 2010 U.S. Dist. LEXIS 60835 (D. Neb. May. 27, 2010). The court applied the Shelton criteria to quash a subpoena to depose an attorney who was neither litigation counsel nor an in-house attorney but who had provided legal advice and conducted studies on behalf of defendant on the effect of organic compounds on the health of defendant’s employees. That issue was the subject matter in the litigation in which the deposition was sought. In seeking to obtain the deposition, plaintiff’s claimed, but apparently did not convince the court that “they should be allowed to depose Ms. Morar and McGrath North as fact witnesses, based on their speculation that counsel's participation in the various studies ‘was more likely for business or technical purposes, not litigation.’ In their concluding paragraphs, the plaintiffs accused ConAgra of engaging in a ‘fraudulent scheme to investigate its own products' dangerous propensities and then shroud the investigation and its findings under the veil of privilege’.”

Query: Were the Shelton factors properly applied in this instance where so sweeping a claim was made or should plaintiff have been permitted to depose non-litigation counsel to demonstrate the contention that the study had been conducted for business as well as litigation purposes? To this commentator it is dubious whether the court correctly foreclosed that opportunity.

But no doubt this is one instance where it would indeed have been “unseemly” were counsel obliged to testify against their employer and were the testimony harmful to the employer/client/defendant.

  • Massillon Management, Llc. v. Americold Realty Trust, 2009 U.S. Dist. LEXIS 22415 at *16-17 (N.D. Oh. Jan. 21, 2009). The district court reversed the magistrate judge who had entered a ruling that would have permitted a deposition of defendant’s in-house counsel to proceed. The district court discussed at length the manner in which the magistrate judge had misapplied Shelton by believing, erroneously, the factors to be limited only to litigation counsel. Here the in-house counsel was intimately involved with defendant’s litigation strategy and thus fell within the application and protection of the Shelton factors.

“Under these specific circumstances, it appears both that Metz has been intimately involved in this dispute since well before it blossomed into a lawsuit, and has played an integral role in developing Defendant's litigation strategy. Both requirements set forth in Phillip Morris are therefore satisfied. Thus, Plaintiffs' attempt to take Metz's deposition therefore implicates the Shelton test, whether viewed strictly as a matter of Sixth Circuit law (which, having adopted Shelton wholesale, clearly applies to an in-house attorney in Metz's position), or even under the considerably more nuanced approach articulated in Philip Morris (which requires non-trial counsel seeking to avoid deposition by invoking Shelton to establish both a certain level of direct involvement in the litigation and a likelihood that the deposition topics would reveal the client's litigation strategy.”

  • Murphy v. Adelphia Recovery Trust, 2009 U.S. Dist. LEXIS 1232027 at *13 (N.D. Tex. Nov. 3, 2009). The court rejected the argument thatShelton factors should only be applied to trial counsel and went on to quash a subpoena served on non-trial counsel based on them. The lawyer whose subpoena was quashed represented Bank of America in the negotiations and drafting for a credit facility, which then became a tangential subject in the instant litigation. One such proceeding is a multi-billion dollar lawsuit brought by the Adelphia Recovery Trust, as successor-in-interest to Adelphia and its Official Committee of Unsecured Creditors, against more than 40 commercial and investment banks, including, Bank of America. Although the subpoened lawyer was not trial counsel, she was part of the “litigation team” and participated in strategy discussions, assisted in drafting pleadings, met with witnesses, and helped collect and review documents.
  • In the motion to quash, the subpoened lawyer argued that her deposition would be cumulative to that of “hundreds” (!!!) of other deponents and be based on thousands if not millions of documents already produced.

    Thus although the court’s wording may have been based on a seeming application of the Shelton factors, in fact the court was persuaded that the deposition attempt was pointless and hence unduly burdensome for any possible benefit to be derived there from. The court also noted that when alternative witnesses had been deposed, counsel had done a bad job, inquiring into privileged communications which were correctly objected to, rather than the factual underpinnings known to the deponent. When answers were given to these without objection, counsel had failed to properly follow up to obtain the information it belated sought to obtain through the deposition of the subpoened attorney. “If ART now lacks a "viable alternative" to obtain additional information about the credit transaction, it is only because counsel squandered the opportunity to obtain that information from BOA employees and other key witnesses during their depositions. The court will not allow the deposition of opposing counsel under these circumstances.”

  • Fresenius Medical Care Holdings, Inc. v. Roxane Laboratories, Inc., 2007 U.S. Dist. LEXIS 12018 at *12-13 (S.D. Oh. Feb. 16, 2007). The deposition of general counsel of a third party defendant was sought. The court denied the request, referring to the Shelton factors and stating “the combination of the likelihood that many questions put to the witness would call for the invocation of the privilege and the witness's unique relationship with the client, which ought not to be infringed upon absent some showing of substantial need, justifies caution in permitting the deposition of opposing counsel to proceed.” The determinant factor was that the information had been obtained from other deponents with less disruption of a crucial attorney client relationship. Ultimately and here is the crux of the matter, the court was not persuaded that anything to which the subpoened general counsel might testify was relevant to any issue in dispute.

If there is no clear statement of the nature of the non-privileged testimony sought, the deposition is more likely to be quashed.

  • Unigene Laboratories, Inc. v. Apotex, Inc., 2007 U.S. Dist. LEXIS 78410 (N.D. Cal. Oct. 10, 2007). Where a total of 8 employees were listed with knowledge of the facts of a certification letter drafted by the lawyer and where there was no articulation of what non-privileged facts were being sought from the attorney that were not known by the other employees, the court quashed the subpoena.
  • Desert Orchid Partners, Llc v. Transaction System Architects, Inc., 237 F.R.D. 215; 2006 U.S. Dist. LEXIS 32217 (D.C. Neb. May 19, 2006). The subpoena to take the deposition of former in-house counsel was quashed based on the application of Shelton factors. The subpoena served on former in-house counsel was moot because the requested documents had already been produced. What stands out in the opinion is a total lack of any clarity as to what the deposition was intended to accomplish or why it was necessary. Small wonder that it was quashed.
  • Delor v. Intercosmos Media Group, Inc. 2005 U.S. Dist. LEXIS 13410 (E.D. La. June 27, 2005). The court applied the Shelton factors to quash a deposition of in-house counsel, stating in a formulaic purported summary of the law on deposing attorneys which is not in fact accurate: “The federal courts disfavor depositions of a party's attorney and allow them only in limited circumstances.” Since the party seeking the deposition had already withdrawn the request, the opinion and its dicta seem as pointless as it is inaccurate. The ruling should have been that the issue was moot since the issuer of the subpoena had withdrawn it. Instead the case hangs out there, cited by other courts and litigants for a purported precedent for which it does not in fact stand when examined with any care.
  • Cardenas v. Prudential Ins. Co. of America, 2003 U.S. Dist. LEXIS 9510 at *4-5 (D. Minn. May 16, 2003). “Moreover, plaintiffs have not demonstrated that deposing Sangillo and Schwimmer -- Prudential's in-house lawyers -- would satisfy the Eighth Circuit's requirement that deposition of in-house counsel must not disclose Prudential's litigation strategy.” The court cited both Shelton and Pamida for that proposition but gave no facts as to what the deposition proponents had or had failed to show.

Subpoena Not Quashed

  • Vita-Mix Corp. v. Basic Holdings, Inc., 2007 U.S. Dist. LEXIS 59755 (N.D. Ohio August 15, 2007). Since counsel whose deposition was sought was not litigation counsel, the court held that the Shelton factors, as promulgated by the Sixth Circuit in Nationwide, supra., were inapplicable.Instead the court shifted the burden of proof as to why the deposition should not proceed upon the party resisting the deposition and then found that the burden had not been met. The deposition of patent counsel was thus allowed to proceed. If a privilege objection to a particular question was appropriate, the deponent should interpose such an objection to a particular question.
  • In re Grand Jury Subpoena (Osterhoudt), 722 F.2d 594-95, 1983 U.S. App. LEXIS 14045 at *10-11 (9th Cir. Dec. 30, 1983). “The government stipulated that counsel need produce only the date, amount, and form of payment, and that this evidence could be delivered to the United States Attorney informally without the necessity for an appearance before the grand jury. The information required was so distinct from any confidential communication between appellant and his counsel and so clearly unprotected by the attorney-client privilege that no reasonably informed client could have supposed that it would be protected from disclosure. Since the attorney was not required to testify before the grand jury, this possible source of client concern was also eliminated. Moreover, the government established by uncontradicted affidavits that the evidence was sought for a legitimate purpose, that it was relevant to the grand jury inquiry, and that it was not available from another source, thus establishing all appellant suggests the government should be required to show in a preliminary hearing. The hearing suggested by amici would also have been inappropriate since whether or not there is a pattern of abuse nationwide, this case was clearly not an example.”
  • The key to the ruling was that what was sought was clearly discoverable and no testimony was in fact required.

Courts will also assess how relevant the testimony of opposing counsel might be to any issue in dispute that would not require a constant invocation of work product. Few courts wish to police such a deposition by phone availability to rule on each objection when the possible relevance of the information sought is minimal to nil.

  • Awgi, Llc v. Duncan & Elbaz, Inc., 2010 U.S. Dist. LEXIS 122043 at *6-7 (N.D. Cal. Nov. 3, 2010). The deposition of counsel was permitted in order to determine whether the location of the client was a matter, which could be encompassed by a claim of privilege where the affidavits of counsel were considered inadequate. The court also was of opinion that hiding the location of a client so that he might avoid service of process was not a legitimate basis on which to privilege protect the location.
  • Williams v. Wellston City School Dist., 2010 U.S. Dist. LEXIS 122796 at *15 (S.D. Oh. Nov. 2, 2010). After a very useful survey of existing case law on when counsel may be deposed, the court declined to use the Shelton factors, since counsel whose deposition was sought had never represented a party in the current litigation nor had his law firm. Counsel had been instrumental in the decision to fire the plaintiff in his capacity as a teacher for the pornographic use of a school computer. In so ruling, the court said: “The court, extensively reviewing courts which had and had not applied the Shelton factors in the context of depositions of attorneys, concluded: “that one of the motivating factors behind Shelton itself, and decisions which have applied that case to attorneys who are not actively litigating the current controversy, is the need to protect an opposing party's litigation strategy. When the attorney whose deposition is requested is not litigation counsel, is not in-house counsel who is involved to some extent in directing litigation, or is not an attorney who has advised the client concerning the same or similar litigation or has helped develop its defense strategy, the reasons for applying Shelton are much less compelling because there is little or no risk that the attorney's testimony might reveal any litigation strategy, or that the purpose of the deposition is to drive a wedge between the opposing party and its current counsel.”

That said, the court further concluded that the burden of showing why a deposition subpoena on counsel, who was not litigation counsel, should be quashed lay with the movant. Since the movant had not met the burden, the court concluded that the deposition should be allowed to proceed.

When a subpoena is sought of attorneys who are not involved directly or indirectly with current litigation, then the concerns that gave rise to the Shelton factors are not applicable and depositions will be far more readily granted.

  • Advanced Technology Incubator, Inc. v. Sharp Corp., 263 F.R.D. 395, 399 (W.D. Tex. 2009) 2009 U.S. Dist. LEXIS 109376 at *9-10 (W.D. Tex. June 10, 2009). The court denied the motion to quash a subpoena served upon an attorney who was not of record in the litigation and whose advice may well have been more of a business than of a legal nature in all events. A blanket assertion of privilege with the resultant quashing of a subpoena was not the proper way of adjudicating such issues. “Plaintiff's assertion that the entirety of the deposition would concern privileged matters is the type of blanket assertion of privilege that is disfavored. Consequently, the motion to quash must be denied. It is impossible to know whether individual questions may elicit information that is protected by privilege. As Plaintiff recently admitted by producing a significant number of documents, not all information in Fiur's possession is protected by privilege. Simple possession of a law license does not result in blanket immunity from a deposition. Therefore, the motion to quash on this ground is denied. This decision does not, however, prevent Fiur from asserting the privilege, if applicable, in response to certain questions during the deposition.”
  • Wright v. Life Investors Ins. Co. of America, 2009 U.S. Dist. LEXIS 116799 at *6-7 (N.D. Miss. Nov. 24, 2009. The court found that Shelton factors were not controlling since the lawyer whose deposition was sought had acted primarily in a business capacity. “In this case, the plaintiffs seek information regarding the implementation of the change in claims procedure, including the role of the task force and the training of employees. According to Edwards's sworn statement, the purpose of the task force was to "examine the cause of premium rate increases on the policies." Edwards makes the blanket assertion that his involvement with the task force was "to provide legal analysis, legal strategy and litigation-related advice" and that he realized changes in the claims procedure could result in litigation for which he sought possible outside legal advice. The court, however, does not find the blanket assertion of the privilege to be compelling enough too quash his deposition.” (record citations omitted).

Purportedly state law was applied, but then the court reasoned based entirely on federal law precedent, allowing the deposition to proceed on a claim of fraud. “[C]ounsel must determine whether assertion of the attorney-client privilege is proper on a question-by-question basis. Consequently, the court declines to quash the deposition of Mark Edwards. The defendant remains entitled to invoke the attorney-client privilege and the work product doctrine in good faith in accordance with [local rules].”

Increasingly, it appears that attorneys are subpoened to testify and motions to quash the subpoena served upon the attorney on the grounds that the depositions may invade the privilege are going nowhere. Indeed what seemed to have a minority position taken on the subject by the Second Circuit is becoming more prevalent.

  • In re Friedman, 350 F.3d 65, 71-2, 2003 U.S. App. LEXIS 23749 at *18-19 (2nd Cir. Nov. 21, 2003)(Sotomayor). The court said: "[W]e have never adopted the Shelton rule and have stated specifically that the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature.” Thus the court reversed the lower court, which had refused to order the deposition of former counsel and current counsel in another proceeding, but found that since counsel had voluntarily agreed to submit to the deposition, actually ordering it to go forward was “moot.”

And where the attorney sought to be deposed is alleged to have been engaged in widespread improprieties in other forums, courts are particularly reluctant to quash the deposition and instead state that it should go forward and any protections based on privilege or work product protection should be raised and then properly adjudicated. In a word, the “process” of adjudicating rather than prejudging the existence of the privilege or the protection should go forward.

  • In re Application of Chevron Corp., 749 F. SUPP. 2D 141, 168; 2010 U.S. DIST. LEXIS 117679 at *72-73 (S.D.N.Y. NOV. 4, 2010). The court allowed the deposition of adverse counsel to go forward after an extensive assessment and a preliminary conclusion that most of counsel’s actions outside of the United States did not seem to be the provision of legal services at all, but political in nature, lobbying, media and public relations. “In this Court's judgment, the need is extremely great in view of the extraordinary evidence already before it. To turn a blind eye to evidence suggesting improper influence on and intimidation of the Ecuadorian courts by both Donziger [the attorney whose deposition the court refused to quash] and the GOE, improper manipulation of the criminal process in that country, knowing submission by the Lago Agrio plaintiffs of at least one fraudulent report, and improper collusion with Cabrera, the supposedly neutral court-appointed expert, could defeat the purpose of Section 1782, deprive the Individual Petitioners of evidence needed for their defense in a criminal case, and frustrate the BIT arbitration.

Considering all of the facts and circumstances before the Court, including the need to resolve privilege issues, the fact that Donziger is a lawyer and that he is allied with Chevron's adversaries in the Lago Agrio litigation is not sufficient to warrant the quashing of these subpoenas. The proper course is to allow the process to go forward and to adjudicate the claims of privilege in due course.”

The courts generally state that the privilege protects the content of the communications not the surrounding facts of the engagement and the privilege protection accorded to such contents are best protected by adequate and well considered objections to specific questions.

  • Allstate Insur. Co. v. Nassiri, 2011 U.S. Dist. LEXIS 27234 at *9 (D. Nev. Mar. 1, 2011). Deposition of an attorney called to testify as to client referrals. Proposed topics of inquiry were presented, albeit without any guarantee that they were “all-inclusive.” The court allowed the deposition to proceed. “The mere fact that requested information relates to an attorney-client relationship does not entitle it to protection under the attorney-client privilege.” As the court pointed out, nothing precluded the deponent to objecting to a specific question that sought to invade a real privilege.
  • Trans-Industries, Inc., v. Figgie, 2011 U.S. Dist. LEXIS 37911 (N.D. OH. 2011). Deposition of managing partner of a law firm, representing the executrice of an estate, was allowed where there was evidence presented that he participated in discussions whose purpose was to administer the plan.

Depositions of attorneys have become legion and generally any motion to quash the taking of the deposition seems to be denied, at times even without recourse to the Shelton factors. Courts seem to deny the motion to quash and tell the parties that any privilege claims can be preserved by objection and will be ruled upon in due course.

Some courts will rule in advance of a deposition on the permissible scope of inquiry, which in part will depend on whether the attorney will be called as a witness to prove some issue in dispute.

  • Nicholson v. Great Lakes Towing Co., 2008 U.S. Dist. LEXIS 57559 at *6-7 (E.D. Mich. July 29, 2008). “Accordingly, the deposition of Mr. Beaton may proceed, as long as Defendant’s counsel is careful to limit his questions to the purpose for which Mr. Beaton was retained and to the general nature of those legal services. To the present point, Plaintiff Nicholson has not waived the attorney client privilege. In those instances where the content of the communication would be disclosed by revealing the purpose, such information is accorded protection. Yet, if Plaintiff Nicholson intends to call Mr. Beaton at trial as a witness to refute any fraud or fabrication charges by Defendant, it will be assumed that Plaintiff has waived the attorney client privilege and Mr. Beaton can be deposed in full on all subjects pertaining to accusations of fraud. The parties should once again meet and confer to discuss the scope and parameters of Mr. Beaton’s deposition in light of this Order, and to determine whether Plaintiff intends to call Mr. Beaton at trial as a witness. In the event Plaintiff will not be calling Mr. Beaton, Defendant shall provide this Court on or before August 4, 2008, with the topics and subjects it intends to depose Mr. Beaton, so that this Court can make a final determination regarding the parameters of Mr. Beaton’s deposition.”

Depositions can also be taken of opposing counsel to explore whether waiver has occurred or what information may have been conveyed to third parties.

  • Chambers v. School District of Philadelphia Bd of Education, 2007 U.S. Dist. LEXIS 9871 (E.D. Pa. 2007). Counsel could be deposed to determine to which third parties she may have conveyed information, subject to any privilege objections to be resolved by the court.

Depositions can be taken of counsel and counsel can be compelled to testify if a prima facie case is made that his services were solicited to commit a fraud or crime.

  • United States v. Edison, 2008 U.S. Dist. LEXIS 6825 (N.D. Cal. 2008). Counsel for defendant could be subpoened to testify as to solicitation to forge documents. He would not be required to testify as to communications after the client’s arrest.

If a deposition of counsel who represented the client in some other proceeding is requested, it is rare that a motion to quash is successful. The court allows the deposition to go forward with the caveat that inquiries into privileged communications are to be avoided.

  • Nemirofsky v. Seok Ki Kim, 523 F. Supp. 2d 998; 2007 U.S. Dist. LEXIS 81609 (N.D. Cal. Oct. 23, 2007). Motion to quash deposition was not granted. The court reviewed 19 separate subject areas and ruled as to which would be allowed and to what extent. Adoption of such a procedure may spare much contention and litigation wheel spinning and unnecessary costs.
  • M.Y. v. Danly, Inc., 2010 U.S. Dist. LEXIS 118287 (D. Me. Nov. 3, 2010). The permissible areas of deposition of an attorney were spelled out in a protective order.

Not only is the issue of deposing counsel often subject to an attempted protective order, it is also sometimes subject to a request that the court delineate in advance the parameters of what questions will be permissible. Not surprisingly, courts are justifiably unwilling to give such “advisory opinions.” They will however, repeat the elements of the privilege, refer counsel to applicable cases and warn counsel inclined to interpose overly broad objections that should motions to compel have to be brought and should the objections not be sustained, the objecting party will bear the costs of the motion and the costs of continuing the deposition, including where it involves travel costs.

  • Fluid Control Products, Inc. v. Aeromotive, Inc., 2011 U.S. Dist. LEXIS 283 (E.D. Mo. Jan. 4, 2011). The court refused to provide what it deemed would be an advisory opinion on the acceptable scope of questioning of an attorney, yet cognizant of the costs involved in travelling to another city for that deposition, the court warned that it would impose sanctions for unsupportable privilege objects to questions that would be posed.

Keywords: litigation, pretrial practice and discovery, attorney-client privilege, work-product doctrine, professional responsibility

Edna Selan Epstein is the author of the definitive text on attorney-client privilege, published by the Section of Litigation, The Attorney-Client Privilege and the Work Product Doctrine, now available in a package with its new supplement, Attorney-Client Privilege and the Work-Product Doctrine, Fifth Edition and Supplement 3-Volume Set. She has handled a wide variety of litigated matters, including employment discrimination, pension fraud class actions, medical and legal malpractice, and business torts. Epstein has also represented defendants in criminal cases in the United States District Court. Epstein has taught courses in trial practice and negotiations at NITA, the University of Chicago Law School and IIT-Kent Law School. She has been on any number of panels dealing with a wide range of legal issues and has written articles on various areas of the law.

Reprinted with permission from The Attorney-Client Privilege and the Work Product Doctrine. © 2007 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.


Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).