Showing 178 of 178 results

Chapter: 58.202

Case Name: Alexander v. BF Labs Inc., Case No. 14-2159-KHV, 2015 U.S. Dist. LEXIS 94536 (D. Kan. July 21, 2015)
("In the context of an objection to an interrogatory, this court has held that unless the interrogatory (1) specifically inquires into an attorney's mental impressions, conclusions, or legal theories, or (2) asks for the content of a document protectable as work product, it's inappropriate to raise a work product objection. The work product doctrine also doesn't protect 'facts concerning the creation of work product or facts contained within work product.'"; "The court finds that plaintiffs' work product objection in this case is frivolous. The interrogatories in question do not specifically request nor inquire into the mental impressions, conclusions, or legal theories of plaintiffs' counsel. Nor do the document requests ask for any documents or materials that plaintiffs have shown to be protected by work product. Rather, these discovery requests unremarkably require plaintiffs to identify the facts and documents supporting contentions made in their complaint. Plaintiffs have failed to show that answering these interrogatories or requests for production would reveal the mental impressions, conclusions, opinions, or legal theories of their counsel.")

Case Date Jurisidction State Cite Checked
2015-07-21 Federal KS

Chapter: 58.202

Case Name: Alexander v. BF Labs Inc., Case No. 14-2159-KHV, 2015 U.S. Dist. LEXIS 94536 (D. Kan. July 21, 2015)
("Although Rule 33(a)(2) does permit the court to delay the obligation to respond to contention interrogatories until other designated discovery has been completed, plaintiffs' brief is conspicuously devoid of any facts, or any relevant authority, supporting their assertion that they cannot presently respond fully. The court finds no persuasive reason in the record for plaintiffs to defer their answers to their discovery responses. Plaintiffs should answer these interrogatories now as fully as they can, keeping in mind their continuing obligation to supplement their discovery responses as additional or different information becomes available.")

Case Date Jurisidction State Cite Checked
2015-07-21 Federal KS

Chapter: 58.202

Case Name: Lawrence v. Schlumberger Technology Corp., Case No.: 1:14-cv-00524 JLT, 2015 U.S. Dist. LEXIS 78024 (E.D. Cal. June 16, 2015)
(explaining that a plaintiff suing a former employer for violation of California's overtime wages law could not seek defendant's work product through contention interrogatory such as the following: "'Plaintiff's Interrogatory No. 3. Please state all facts on which defendant SLB based the classification of Plaintiff Kenneth Lawrence as exempt pursuant to the California Labor Code and the applicable IWC Wage Orders (4-2001 and/or 16-2001) after November, 2001.'"; "On its face, the Court agrees the interrogatory may invade the attorney work product privilege. Had Plaintiff not intended to invade this privilege, he would not have referenced California law or the Wage Orders. As worded, the interrogatories ask, in essence, 'Why do you think that the facts, as you knew them, when applied to California Law and the Wage Orders, meant that Field Engineers/Field Specialists/Plaintiff were properly classified as exempt?' However, the Court was informed at the hearing that Defendant is currently unaware of any relevant work product and, on based upon the breadth of the request, Defendant has not produced a privilege log. Thus, at this time, the objection is not well-taken and is OVERRULED."; "Here, the Court concludes that requiring a response to the unobjectionable part of the interrogatories would significantly advance the litigation since these facts go to the very heart of the key issues raised in this litigation. Likewise, the Court can see no undue burden in requiring a response or any prejudice that would result. . . . Thus, when the objectionable material is carved away, there remains a permissible question as to each Interrogatory which should be answered."; "As to Interrogatory No. 1, the Court ORDERS Defendant to respond to the clarified and narrowed request which reads, 'State the facts that explain why Defendant determined Plaintiff's position, 'Field Engineer,' was exempt. The interrogatory is limited to the period of time that Plaintiff was employed by Defendant.'"; "As to Interrogatory No. 2, the Court ORDERS Defendant to respond to the clarified and narrowed request which reads, 'State the facts that explain why Defendant determined the position, 'Field Specialist,' was exempt. The interrogatory is limited to the period of time that Plaintiff was employed by Defendant.'"; "As to Interrogatory No. 3, the Court ORDERS Defendant to respond to the clarified and narrowed request which reads, 'State the facts that explain why Defendant determined Plaintiff's position, while he was employed by Defendant, was classified as exempt.'")

Case Date Jurisidction State Cite Checked
2015-06-16 Federal CA

Chapter: 58.202

Case Name: Lawrence v. Schlumberger Technology Corp., Case No. 1:14-cv-00524 JLT, 2015 U.S. Dist. LEXIS 78024, at *3-6 (E.D. Cal. June 16, 2015)
August 12, 2015 (PRIVILEGE POINT)

"When Do Contention Interrogatories Impermissibly Seek Protected Work Product?"

Under the Federal Rules and parallel state rules, litigants may use what are called "contention interrogatories" to explore adversaries' factual support for their legal contentions. Courts normally regulate the timing of those, generally prohibiting litigants from using that tactic too early in the discovery process. This timing issue highlights the "intensely practical" nature of the work product doctrine — in contrast to the more abstract and absolute attorney-client privilege.

In Lawrence v. Schlumberger Technology Corp., Case No. 1:14-cv-00524 JLT, 2015 U.S. Dist. LEXIS 78024, at *3-6 (E.D. Cal. June 16, 2015), plaintiff submitted contention interrogatories asking defendant to "state all facts" on which the defendant based certain employee classifications pursuant to the California Labor Code and other regulations. The court agreed with defendant that "the interrogatory may invade the attorney work product privilege" — noting that "[h]ad Plaintiff not intended to invade this privilege, he would not have referenced California law or the Wage Orders." Id. At *11. But the court concluded that "when the objectionable material is carved away, there remains a permissible question." Id. At *14. The court therefore ordered defendant to provide the facts underlying its employee classification of plaintiff's job position (with no reference to the law).

Although litigants ultimately must explain the factual basis for their legal contentions, they should be on the lookout for contention interrogatories that impermissibly seek their work product before applicable rules, court orders, or the trial process require the disclosure.

Case Date Jurisidction State Cite Checked
2015-06-16 Federal CA
Comment:

key case


Chapter: 58.202

Case Name: Christison v. Biogen Idec, Case No. 2:11-cv-01140-DN-DBP, 2014 U.S. Dist. LEXIS 104232 (D. Utah July 29, 2014)
(ordering plaintiff to answer contention interrogatories; "Similarly, Defendants persuasively argue that Plaintiff must answer Defendant Elan's contention interrogatories because such interrogatories merely serve 'to narrow and define issues for trial and to enable the propounding party to determine the proof required to rebut the respondent's position.")

Case Date Jurisidction State Cite Checked
2014-07-29 Federal UT

Chapter: 58.202

Case Name: Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950 (AT) (JCF), 2013 U.S. Dist. LEXIS 173986, at *2-3, *4 (S.D.N.Y. Dec. 11, 2013)
(within an opinion by Magistrate Judge James Francis, holding that defendant's contention interrogatories were too broad; "Local Civil Rule 33.3(c) provides that '[a]t the conclusion of other discovery, and at least 30 days prior to the discovery cut-off date, interrogatories seeking the claims and contentions of the opposing party may be served unless the Court has ordered otherwise.' Where, as here, certain discovery has been directed specifically to the issue of class certification, the triggering date for contention interrogatories directed to class certification is logically the close of class discovery, not the completion of all discovery, which will come well after the class motion has been decided and after any interrogatories related to class issues would have been rendered superfluous. Therefore, the defendants' interrogatories are neither premature nor contrary to the local rules."; "The purpose of contention interrogatories is not to require the adversary to regurgitate information disclosed during discovery or preview the record that will be created at trial (or, as in this case, on a motion for class certification).")

Case Date Jurisidction State Cite Checked
2013-12-11 Federal NY B 5/14

Chapter: 58.202

Case Name: Chen-Oster v. Goldman, Sachs & Co., No. 10 Civ. 6950 (AT) (JCF), 2013 U.S. Dist. LEXIS 173986, at *3-4 (S.D.N.Y. Dec. 11, 2013)
(within an opinion by Magistrate Judge James Francis, holding that defendant's contention interrogatories were too broad"Finally, the plaintiffs' assertion of work product protection is without merit. 'There are many legitimate ways in which an attorney's thoughts and strategy may be revealed, e.g., in pleadings, interrogatory answers, requests for admissions, responses to contention interrogatories and pre-trial orders. In those contexts, the work product privilege affords little or no protection.'" (citation omitted))

Case Date Jurisidction State Cite Checked
2013-12-11 Federal NY B 5/14

Chapter: 58.202

Case Name: Skibinski v. Lunger, 74 Va. Cir. 428, 431, 432, 420 (Va. Cir. Ct. 2008)
(addressing a discovery issue arising from plaintiff home purchaser's lawsuit against defendant home sellers, based on defendants' alleged failure to disclose defects in the house in violation of various zoning requirements; noting that plaintiffs had spoken to the contractor who built the defective addition on the plaintiffs' home and who admitted to plaintiffs that he had advised defendants of the defect; noting that plaintiffs had not identified the contract in responding to interrogatories asking plaintiffs for the identity of persons with knowledge of relevant facts and asking plaintiffs to "'[i]dentify the factual basis'" for their contention that the defendants were aware of the defects (citation omitted); acknowledging that plaintiffs had filed a general objection to the interrogatories on the basis of "attorney work product" and concluding the interrogatories were not objectionable; "If Defendant William Lunger's interrogatories had requested the identification of witnesses the Plaintiffs intended to call at trial, attorney work product would have been a colorable objection. But simply seeking the identification and knowledge of all witnesses who had knowledge of the facts of the case is not."; rejecting plaintiffs' argument that "there is no prejudice to the Defendants, since they have known of Hudlow's existence since 1990 and have had equal access to him, and further, that all of the information about Hudlow has now been discovered more than six months before trial"; declining to dismiss plaintiffs' complaint, but ordering plaintiffs to pay attorneys' fees relating to the issue) [Alper, J.]

Case Date Jurisidction State Cite Checked
2008-01-01 State VA B 3/09; n

Chapter: 58.202

Case Name: Burnett v. Brown, No. CL99-8045,Va. Laws. Wkly. 000-8-246 (Va. Cir. Ct. June 6, 2000)
(refusing to compel a party to answer contention interrogatories asking defendant to list all facts supporting any contention that the plaintiff's injuries were not the result of the accident at issue; described and quoted as follows in Virginia Lawyers Weekly's Aug. 7, 2000, opinion digest: "In the case at bar, both plaintiff and defendant have equal access to the documents in question, plaintiff's medical records and bills. Indeed, plaintiff has easier access to her own medical records than defendant. If plaintiff does not have those records it is more convenient and less burdensome that she obtain them from the hospital rather than the defendant. Further, plaintiff has had ample opportunity to get those documents. Here, what is placed in question by the disputed interrogatory is any injury which defendant believes did not result or only partially resulted from the accident. Plaintiff asks for specific events or incidents that had previously caused the injuries the defendant deems unrelated. This obviously goes to the plaintiff's personal and medical history, both of which are available to plaintiff. Plaintiff is easily able to determine what injuries she claims are a result of the car accident and what potential past events or injuries are related enough that defendant might use them in preparing the defense. When plaintiff asks defendant for "the basis of this contention;' that any or all of the injuries claimed by plaintiff are not the results of the accident, the plaintiff is asking for the theory on which defendant is resting that part of the defense. The reasons why defendant contends that injuries are not the result of the accident are clearly protected from discovery. Further, the choice of what part of the documents to use is just that: a choice. It is thus legal strategy. Plaintiff should work to determine what the most convincing defense arguments will be from the documents at hand and prepare accordingly. Plaintiff has not shown good cause why the information she seeks cannot be obtained without undue hardship. The facts and events giving rise to a possible defense theory that not all the injuries were caused by the accident are already in the hands of the plaintiff. Those facts that are not can easily be obtained elsewhere. The information plaintiff truly seeks is what specific facts the defense plans to use out of the larger set of facts that both sides already possess. The defendant is not required to explain what he intends to strategically pick out of those materials.")

Case Date Jurisidction State Cite Checked
2000-06-06 State VA B 3/16

Chapter: 58.203

Case Name: In re MGM Mirage Securities Litig., Case No. 2:09-cv-1558-GMN-VCF, 2014 U.S. Dist. LEXIS 165486 (D. Nev. Nov. 25, 2014)
("[T]he court finds as a matter of law that MGM's contention interrogatories are not premature, as the Lead Plaintiffs' contend. Rule 33 does not limit when contention interrogatories may be propounded. FED. R. CIV. P. 33(a)(2)."; "The Lead Plaintiffs argue that the court should excuse the Lead Plaintiffs from answering MGM's contention interrogatories because discovery is substantially incomplete and the Lead Plaintiffs are not prepared to answer. . . . A responding party is not 'irrevocably bound' to its answers. . . . Responding parties must simply do their best, move on, and supplement as required."; "The court may not depart from this procedure by adding a new rule -- (viz., that contention interrogatories should not be propounded until the end of discovery) -- because the effects of doing so seem desirable.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal NV

Chapter: 58.203

Case Name: Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253, at *16-17 (S.D. Ohio Jan. 14, 2013)
(holding that a law firm sued for malpractice should not have sought documents from the former client's other law firms when those documents were generally available from the client itself; "Of greater concern to the Court is the Firm's conduct in issuing a subpoena to Baker & Hostetler for documents available from, and already provided in large part by, Mr. Davis. Such conduct seems at odds with the spirit of the federal rules relating to discovery. Further, given the conduct of counsel to date as detailed in the Court's previous orders, the Court finds this a close case for sanctions. However, the Court declines to impose sanctions at this time but cautions counsel that it may well do so in the future.")

Case Date Jurisidction State Cite Checked
2013-01-14 Federal OH B 7/13

Chapter: 58.301

Case Name: Chandola v. Seattle Hous. Auth., Case No. C13-557 RSM, 2014 U.S. Dist. LEXIS 132193, at *12-13 (W.D. Wash. Sept. 19, 2014)
("[T]he Court agrees with Defendants that aspects of the decision to designate Mr. Fearn as a Rule 30(b)(6) deponent, including the identity of the designators and their motivations, is protected by attorney-client privilege. This decision took place within the course of this litigation, entrenches on confidential communications between SHA and its legal counsel, and has indiscernible relevance to the facts underlying this case. Accordingly, the Court denies Plaintiff's request to compel SHA to answer questions regarding Mr. Fearn's designation.")

Case Date Jurisidction State Cite Checked
2014-09-19 Federal WA

Chapter: 58.301

Case Name: Integrated Global Concepts, Inc. v. j2 Global, Inc., Case No. 5:12-cv-03434-RMW (PSG), 2014 U.S. Dist. LEXIS 37027 (N.D. Cal. March 20, 2014)
("As a deponent designated under Fed. R. Civ. P. 30(b)(6), Morosoff had a duty to do more than rely on his memory. He had a duty to investigate. To remedy this situation, no later than March 27, 2014, IGC may take an additional 4 hours of deposition on the designated topics. To the extent any information discovered is relevant to the j2's pending summary judgment motion, IGC may request leave of Judge Whyte to supplement the record.")

Case Date Jurisidction State Cite Checked
2014-03-20 Federal CA

Chapter: 58.303

Case Name: A.R. v. Dudek; United States v. Florida, Case No. 12-60460-CIV-ZLOCH/HUNT, 2015 U.S. Dist. LEXIS 6426 (S.D. Fla. Jan. 15, 2015)
(holding that there was no per se prohibition on a Rule 30(b)(6) deposition of the government)

Case Date Jurisidction State Cite Checked
2015-01-15 Federal FL

Chapter: 58.303

Case Name: SEC v. Kovzan, Case No. 11-2017-JWL, 2013 U.S. Dist. LEXIS 23637, at *6, *6-7 (D. Kan. Feb. 21, 2013)
(ordering the government to produce witnesses for a Rule 30(b)(6) deposition; "On its face, the deposition notice does not seek the deposition of opposing counsel. The SEC, however, argues that a number of topics seek the judgment and assessments of the SEC's attorneys in responding to discovery and articulating the factual basis for the SEC's clams in this case. The SEC argues that other topics essentially require the SEC to articulate and explain the law, and the SEC has cited several cases in which courts have prohibited the depositions of governmental agencies. First, there is no blanket rule prohibiting the deposition of a governmental agency in an action such as this one. The court acknowledges that some judges, in their discretion, have found it appropriate to prohibit Rule 30(b)(6) depositions of governmental agencies lacking any first-hand knowledge of the facts at issue. This line of cases, however, does not relieve the SEC of its obligation to come forward with a particular and specific demonstration of fact that would justify the entry of a protective order -- particularly when Rule 30(b)(6) expressly allows for the depositions of governmental agencies."; "Second, Rule 30(b)(6) deponents need not have independent personal knowledge of the deposition topics. The rule requires deponents 'to testify about information known or reasonably available to the organization.' 'In other words, personal knowledge of the designated subject matter by the selected deponent is of no consequence.' Thus, a party is not permitted to undermine the rule by suggesting it has no available witnesses with direct knowledge of the deposition topics." (citations and footnote omitted)

Case Date Jurisidction State Cite Checked
2013-02-21 Federal KS B 3/14

Chapter: 58.303

Case Name: Sloan Valve Co. v. Zurn Indus., No. 10 C 204, 2012 U.S. Dist. LEXIS 161749, at *8 (N.D. Ill. Nov. 13, 2012)
("Zurn's Rule 30(b)(6) notice improperly seeks testimony implicating the mental impressions and legal theories of the trial counsel who drafted them.")

Case Date Jurisidction State Cite Checked
2012-11-13 Federal IL B 7/13

Chapter: 58.303

Case Name: Sloan Valve Co. v. Zurn Indus., No. 10 C 204, 2012 U.S. Dist. LEXIS 161749, at *6-7 (N.D. Ill. Nov. 13, 2012)
("[T]he Court would not require Sloan to produce a Rule 30(b)(6) witness to testify about the infringement contentions. First, Zurn has not shown that it needs to obtain information specifically from an attorney. Second, Zurn cannot show any exceptional circumstances justifying discovery of the 'facts known or opinions held by' Sloan's consulting experts who conducted the tests at issue. See Fed. R. Civ. P. 26(b)(4)(D)(ii).")

Case Date Jurisidction State Cite Checked
2012-11-13 Federal IL B 7/13

Chapter: 58.304

Case Name: Garcia v. Completely Kids, No. 8:14CV119, 2016 U.S. Dist. LEXIS 5356, at *9, *9 10 (D. Neb. Jan. 15, 2016)
(finding that an employer defendant did not impliedly waive privilege protection, although the evidence showed that the decision-maker consulted with a lawyer before firing the plaintiff; noting that the employer's Rule 30(b)(6) representative mentioned the consultation in response to a leading question; "As to the good faith defense, Parker, as the 30(b)(6) representative for Completely kids [sic], provided a long explanation for the basis of defendant's good faith defense, mentioning consultation with counsel in response to only one leading question."; "There is nothing of record stating Defendant relied on counsel in deciding whether to terminate, discriminate, or retaliate against Plaintiff. At most, Defendant testified that it relied on defense counsel regarding the necessary procedural steps for termination under Defendant's employee policies and plans. Plaintiff is not pursuing an action for breach of company policies. As such, the record fails to show Defendant asserted reliance on an attorney's advice regarding any 'element of a claim or defense' at issue. Under the facts presented, and as to the claims alleged in this case, Defendant is not relying on the advice of counsel such that it would be unfair and inconsistent to permit Defendant to retain the privilege. In accordance with the high protection afforded attorney-client communications, and the caution to be exercised in finding any implied waiver, IT IS ORDERED that Defendant's Motion for Protective Order . . . is granted.")

Case Date Jurisidction State Cite Checked
2016-01-15 Federal NE B 7/16
Comment:

key case


Chapter: 58.304

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
(analyzing defendant's duty to designate and educate a Rule 30(b)(6) deposition witness; rejecting plaintiffs' motion to compel defendant's Rule 30(b)(6) witness to review witness interview memoranda created during an internal corporate investigation -- because the facts contained in such memoranda inevitably intertwined with the defendant's lawyer's opinion; "From these authorities, the undersigned derives the following conclusions: (1) the DAPs' [Direct Action Plaintiffs] motion should be analyzed under the work-product doctrine, not the attorney-client privilege; (2) the work product doctrine forecloses disclosure of the non-privileged facts in Thomson's internal investigation memoranda if the attorneys' mental impressions and strategy cannot reasonably be separated from the underlying non-privileged facts; (3) a Rule 30(b)(6) witness educated on the internal investigation materials may be deposed without invasion of the attorney work-product unless the work-product so permeates the materials making invasion inevitable; and (4) the DAPs should be denied access to the non-privileged facts in the internal investigation memoranda if the DAPs have had access to these facts from other sources. . . . The Upjohn v United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), Hickman, Linerboard and Kellogg Brown & Root decisions are analogous and require denial of the DAPs' motion to compel. In particular, a Rule 30(b)(6) deposition requiring the corporate designee to prepare by reading all of Thomson's outside counsels' interview memoranda and testifying to the underlying facts would violate the protection afforded to 'core' or 'opinion' work product. . . . Based on this review, the undersigned finds that: (1) the interview memoranda so intertwine facts and attorney mental impressions that the facts cannot be readily separated from the attorney impressions; (2) the facts reported in the interview memoranda are subject to 'grave dangers of inaccuracy and untrustworthiness' due to faulty memory or transcription, noted in Hickman v Taylor (329 US at 512-513) and (3) requiring a Rule 30(b)(6) corporate designee to study the interview memoranda and attempt to extract underlying 'facts' known to the corporation would be an exceedingly time-consuming and problematic undertaking. In light of the extensive and intertwined attorney thoughts and mental impressions contained in the interview memoranda, the undersigned concludes that the memoranda constitute primarily 'core' or 'opinion' work product. To the extent there are 'facts' reported, it appears that these 'facts' reflect the filter of the attorney transcriber of these interview memoranda."; "The undersigned finds that: (1) Thomson's Rule 30(b)(6) witness was adequately prepared, having spent over 100 hours preparing for the deposition, which the DAPs do not contest; (2) the DAPs have deposed ten Thomson current or former employees from whom facts pertinent to Thomson's conduct were obtained or could have been obtained; (3) the DAPs have thus had the opportunity to obtain the information that appears in the internal investigation materials from other non-privileged sources, including knowledgeable individuals whose depositions have been taken or could have been taken as well as Thomson's document productions; and (4) the DAPs have not provided reasons why any additional information that appears in the internal investigation materials is crucial to their case.")

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA

Chapter: 58.304

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litigation, Master Case No. 3:07-cv-05944SC, 2015 U.S. Dist. LEXIS 147413, at *219-20 (N.D. Cal. Oct. 5, 2015)
December 16, 2015 (PRIVILEGE POINT)

"Court Analyzes Rule 30(b)(6) Witness's Preparation Duties"

Under Fed. R. Civ. P. 30(b)(6), an entity must prepare a designated witness to testify about specified topics. This type of deposition implicates several competing principles, because (1) such witnesses must provide historical facts, which are never privileged; and (2) those witnesses almost invariably learn such historical facts during deposition preparation sessions with the company's lawyer, which normally deserve privilege and work product doctrine protection.

In In re Cathode Ray Tube (CRT) Antitrust Litigation, plaintiffs sought to compel a defendant's Rule 30(b)(6) witness to testify about its outside lawyers' internal investigation into pertinent facts — insisting that the "corporate designee must be prepared to testify about factual information transmitted to or from counsel." Master Case No. 3:07-cv-05944SC, 2015 U.S. Dist. LEXIS 147413, at *219-20 (N.D. Cal. Oct. 5, 2015). Among other things, plaintiffs asked that the designated witness be compelled to review the company lawyers' witness interview memoranda. The court rejected plaintiffs' motion, concluding that (1) the company lawyers' witness interview memoranda "so intertwine facts and attorney mental impressions that the facts cannot be readily separated from the attorney impressions"; (2) the facts contained in the interview memoranda might be inaccurate, "due to faulty memory or transcription"; and (3) requiring the designated witness to "study the interview memoranda and attempt to extract underlying 'facts' known to the corporation would be an exceedingly time-consuming and problematic undertaking." Id. At *227. The court also noted that plaintiffs had already deposed ten current or former company employees involved in the underlying events.

Not all courts would so readily protect corporate defendants' work product. However, many courts struggle when analyzing privilege and work product protection issues involving Rule 30(b)(6) depositions.

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA
Comment:

key case


Chapter: 58.304

Case Name: Deborah Osborne, Etc. v. Mountain Empire Operations, LLC, Case No. 1:14CV00042, 2015 U.S. Dist. LEXIS 76732, at *4, *2, *3, *3-4, *4 (W.D. Va. June 15, 2015)
(finding that a lawyer had acted improperly in preparing a Rule 30(b)(6) witness and in instructing the witness not to answer certain questions, and holding that the court could deal with these violations despite the case's settlement; declining to award sanctions, but "formally" disapproving of the lawyer's conduct; "[T]he deposition's purpose clearly was frustrated by the inadequate preparation of the Rule 30(b)(6) witness. See Fed. R. Civ. P. 30(b)(6) (stating that corporate representatives in deposition 'must testify about information known or reasonably available to the organization') . . . . While I accept defense counsel's explanation that the witness was supplied by her clients and not chosen by her, she had an independent obligation to make sure that the rules were satisfied by the production of a properly-prepared witness. Indeed, defense counsel admits that she instructed the witness not to talk with important witnesses to the events in preparation for the deposition, but to rely solely on a review of the documentary evidence."; "Moreover, defense counsel plainly violated the rules by instructing the witness not to answer certain questions. See Fed. R. Civ. P. 30(c)(2) ('A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).'; Ralston Purina Co. v. McFarland, 550 F.2d 967, 973 (4th Cir. 1977) . . . . While certain of the questions were repetitive, if justified, defense counsel could have followed the procedure permitted by the rules by moving to terminate the deposition and promptly obtaining a ruling by the court."; "In addition, on other occasions, counsel interjected comments after questions in ways that could have suggested answers by the witness or otherwise improperly interrupted the question and answer process."; "While these violations of the rules have been established, I will not impose sanctions of Defendants or their counsel. It does not appear that Plaintiff was prejudiced by the conduct of the 30(b)(6) deposition, even had the case gone to trial. . . . Moreover, the Motion for Sanctions was filed not long before trial and over two months after the deposition, thus foreclosing any effective remedial sanctions, such as a retaking of the deposition at the cost of Defendants. Finally, I trust that defense counsel will not repeat the conduct described here.")

Case Date Jurisidction State Cite Checked
2015-06-15 Federal VA B 5/16

Chapter: 58.304

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "At oral argument on this Petition, Barko took the absurd position that KBR's mistake was having Heinrich personally review the COBC documents rather than having someone give him a summary. Barko asserted that in order to avoid privilege waiver KBR should have produced a Rule 30(b)(6) representative with only second -- or third-hand knowledge of the investigation rather than first-hand knowledge. This makes no sense. Such a rule would encourage entities to provide less knowledgeable corporate representatives for deposition, thus defeating the purpose of civil discovery to establish 'the fullest possible knowledge of the issues and facts before trial.'")

Case Date Jurisidction State Cite Checked
2015-04-11 Federal DC
Comment:

key case


Chapter: 58.304

Case Name: Mitre Sports International Ltd. v. Home Box Office, Inc., 08 Civ. 9117 (GBD) (HBP), 2015 U.S. Dist. LEXIS 3812 (S.D.N.Y. Jan. 13, 2015)
(holding that the subject matter waiver doctrine did not require plaintiff to disclose additional work product protected documents based on its Rule 30(b)(6) witnesses testimony or its attachment of investigation-related documents to its complaint against HBO; "HBO argues that Mitre waived work-product protection by (1) permitting James Boocock to testify to certain matters concerning Mitre's investigation and designating that testimony as its 30(b)(6) testimony and (2) by attaching the products of its investigation to its complaint."; "Boocock's answering HBO's deposition questions did not put Mitre's investigation in issue for the simple reason that providing such testimony was not an attempt by Mitre to use protected information to influence a decision maker. In many cases, the vast majority of deposition testimony taken in discovery is never put before any decision maker; frequently, only a small fraction of the deposition testimony taken in a case is cited in connection with a summary judgment motion or offered at trial. Thus, the mere fact that a party makes a partial disclosure of privileged or protected information in a deposition does not result in a subject-matter waiver because there is no use of the testimony by the party holding the privilege."; "HBO's second argument concerning Boocock's testimony -- that Mitre has made affirmative use of the testimony by designating portions as Mitre's 30(b)(6) testimony does not alter this result. The authorities cited above teach that the critical inquiry is whether protected information has been partially disclosed to a decision maker in an effort to influence a decision. A party's deposition testimony, whether from an individual witness or a 30(b)(6) witness, does not constitute such a use. Although HBO argues that Mitre is trying to utilize the work-product doctrine as both a sword and a shield, it has not cited any instance in which Mitre affirmatively used Boocock's testimony and has not, therefore, established Mitre's use of the work-product doctrine as a sword."; "'I am aware that subsequent to Boocock's deposition, the parties have submitted voluminous materials in connection with their motions for summary judgment. However, HBO does not cite any instances in which Mitre has made any affirmative use of Boocock's testimony in connection with these motions.'")

Case Date Jurisidction State Cite Checked
2015-01-13 Federal NY
Comment:

key case


Chapter: 58.305

Case Name: Long v. Destination Maternity Corp., Case No. 15-cv-2836 WQH-RBB, 2017 U.S. Dist. LEXIS 69302 (S.D. Cal. May 5, 2017)
(holding that a notebook brought by a Rule 30(b)(6) witness to a deposition deserved work product protection; also holding that application of Rule 612 required an analysis the magistrate judge had not undertaken; "Defendant has made a sufficient showing that the materials in the binder were prepared by counsel acting in anticipation of the deposition. The order of the Magistrate Judge does not make any findings regarding waiver, substantial need, or undue hardship required to order the production of materials protected by attorney-client privilege or Rule 26(b)(3).")

Case Date Jurisidction State Cite Checked
2017-05-05 Federal CA

Chapter: 58.305

Case Name: Long v. Destination Maternity Corp., Case No. 15-cv-2836 WQH-RBB, 2017 U.S. Dist. LEXIS 69302 (S.D. Cal. May 5, 2017)
(holding that a notebook brought by a Rule 30(b)(6) witness to a deposition deserved work product protection; also holding that application of Rule 612 required an analysis the magistrate judge had not undertaken; "In this case, the transcript of the deposition shows that the witness relied upon some limited reference to the binder while testifying. However, the order fails to identify any document subject to disclosure under Rule 612 and does not make any finding regarding the interests of justice. Based upon the record before this Court, the Court concludes that the order . . . is contrary to law.")

Case Date Jurisidction State Cite Checked
2017-05-05 Federal CA
Comment:

key case


Chapter: 58.305

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07-cv-05944SC,No 13-cv-01173;No 13-cv-05724;No 13-cv-05261;No 13-cv-05264;No 13-cv-05727;No 13-cv-05726;No 13-cv-05723;No 13-cv-05725;No 13-cv-05668;No 3:13-cv-05262;No 13-cv-05686;No 13-cv-00157;No 14-cv-02510, 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015) (analyzing defendant's duty to designate and educate a Rule 30(b)(6) deposition witness; rejecting plaintiffs' motion to compel defendant's Rule 30(b)(6) witness to review witness interview memoranda created during an internal corporate investigation -- because the facts contained in such memoranda inevitably intertwined with the defendant's lawyer's opinion; "From these authorities, the undersigned derives the following conclusions: (1) the DAPs' [Direct Action Plaintiffs] motion should be analyzed under the work-product doctrine, not the attorney-client privilege; (2) the work product doctrine forecloses disclosure of the non-privileged facts in Thomson's internal investigation memoranda if the attorneys' mental impressions and strategy cannot reasonably be separated from the underlying non-privileged facts; (3) a Rule 30(b)(6) witness educated on the internal investigation materials may be deposed without invasion of the attorney work-product unless the work-product so permeates the materials making invasion inevitable; and (4) the DAPs should be denied access to the non-privileged facts in the internal investigation memoranda if the DAPs have had access to these facts from other sources. . . . The Upjohn v United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), Hickman, Linerboard and Kellogg Brown & Root decisions are analogous and require denial of the DAPs' motion to compel. In particular, a Rule 30(b)(6) deposition requiring the corporate designee to prepare by reading all of Thomson's outside counsels' interview memoranda and testifying to the underlying facts would violate the protection afforded to 'core' or 'opinion' work product. . . . Based on this review, the undersigned finds that: (1) the interview memoranda so intertwine facts and attorney mental impressions that the facts cannot be readily separated from the attorney impressions; (2) the facts reported in the interview memoranda are subject to 'grave dangers of inaccuracy and untrustworthiness' due to faulty memory or transcription, noted in Hickman v Taylor (329 US at 512-513) and (3) requiring a Rule 30(b)(6) corporate designee to study the interview memoranda and attempt to extract underlying 'facts' known to the corporation would be an exceedingly time-consuming and problematic undertaking. In light of the extensive and intertwined attorney thoughts and mental impressions contained in the interview memoranda, the undersigned concludes that the memoranda constitute primarily 'core' or 'opinion' work product. To the extent there are 'facts' reported, it appears that these 'facts' reflect the filter of the attorney transcriber of these interview memoranda."; "The undersigned finds that: (1) Thomson's Rule 30(b)(6) witness was adequately prepared, having spent over 100 hours preparing for the deposition, which the DAPs do not contest; (2) the DAPs have deposed ten Thomson current or former employees from whom facts pertinent to Thomson's conduct were obtained or could have been obtained; (3) the DAPs have thus had the opportunity to obtain the information that appears in the internal investigation materials from other non-privileged sources, including knowledgeable individuals whose depositions have been taken or could have been taken as well as Thomson's document productions; and (4) the DAPs have not provided reasons why any additional information that appears in the internal investigation materials is crucial to their case.").

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA

Chapter: 58.305

Case Name: In re Kellogg Brown & Root, Inc., No. 14-5319, 2015 U.S. App. LEXIS 14016 (D.C. App. Aug. 11, 2015)
(issuing a writ of mandamus and reversing the trial court's holding that KBR waived protections by disclosing documents while preparing its Rule 30(b)(6) deponent, and by inferring in a pleading footnote that its investigation did not uncover any wrongdoing; "At oral argument on this Petition, Barko took the absurd position that KBR's mistake was having Heinrich personally review the COBC documents rather than having someone give him a summary. Barko asserted that in order to avoid privilege waiver KBR should have produced a Rule 30(b)(6) representative with only second -- or third-hand knowledge of the investigation rather than first-hand knowledge. This makes no sense. Such a rule would encourage entities to provide less knowledgeable corporate representatives for deposition, thus defeating the purpose of civil discovery to establish 'the fullest possible knowledge of the issues and facts before trial.'")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal DC
Comment:

key case


Chapter: 58.306

Case Name: Singh v. Shonrock, Case No. 15-9369-JWL-GEB, 2017 U.S. Dist. LEXIS 25549 (D. Kan. Feb. 22, 2017)
(ordering a Rule 30(b)(6) witness to testify about document holds; "Plaintiff asks what ESU did, after it received a retention letter from Plaintiff's former counsel, to preserve documents and ESI. . . . Defendants argue they have produced the single non-privileged email in their possession regarding implementation of the litigation hold, and expressed some concern during the conference regarding potential disclosure of attorney-client privileged information. Although Defendants are correct their communications with their attorneys are privileged, the actions taken by the college after being notified of the litigation hold are not, without some other showing, subject to privilege. Additionally, the production of a single email does not provide information sufficient to respond to Plaintiff's request. Therefore, Defendants' objections to Topic No. 10 are overruled, and defendant ESU must prepare and produce a witness most knowledgeable and prepared to discuss the university's actions to preserve evidence.")

Case Date Jurisidction State Cite Checked
2017-02-22 Federal KS

Chapter: 58.306

Case Name: Storer v. Crown Cork & Seal Co., Civ. A. No. 14-2488, 2017 U.S. Dist. LEXIS 13349 (W.D. La. Jan. 31, 2017)
(ordering defendant Trane to designate a Rule 30(b)(6) about the following matters; "At the September Rule 30(b)(6) deposition, Trane's attorney instructed the corporate representative not to answer the following questions: 'What Mr. Dorman was told on the April 2016 call that led him to believe that "'Mr. Hopkins and other individuals inside of Trane did considerable amount of work to try and bring together the necessary information'"; "'After Mr. Dorman testified that he was given the opportunity to ask Mr. Hopkins questions during the April 2016 call to ensure that preparation for the Rule 30(b)(6) deposition was adequate, thorough, and accurate], what is an example of a question he asked Mr. Hopkins and a satisfactory answer he received . . .'"; "'What investigation was done regarding any topic in the Rule 30(b)(6) notice . . . '"; "'What questions Mr. Dorman asked to ensure that all documents regarding any particular matter in the notice were examined . . . ; and'"; "'Who at Trane conducted the investigation into any particular topic in the notice . . .'"; "Trane agrees that plaintiffs have the right to discover what actions were taken by Hopkins to discharge his task of searching for the requested information. . . . For their part, plaintiffs correctly argue that they were not seeking information about legal advice provided by counsel. . . . Rather, they sought information regarding Trane's efforts to search for responsive records and documents."; "Trane is hereby ORDERED to produce one or more representatives fully prepared to discuss all of the 30(b)(6) deposition matters noticed by plaintiffs, including the efforts made to research those matters.")

Case Date Jurisidction State Cite Checked
2017-01-31 Federal LA
Comment:

key case


Chapter: 58.306

Case Name: Miller v. NEP Group, Inc., Case No. 15-cv-9701-JAR, 2016 U.S. Dist. LEXIS 150808 (D. Kansas Oct. 28, 2016)
(in connection with a defendant's general counsel's testimony of a Rule 30(b)(6) witness, holding that the witness could not refuse to answer factual questions about the basis for its affirmative defenses to the extent the facts were provided to the Rule 30(b)(6) witness by the defendants' lawyer; "'[Defendants' Counsel]: No, that is not counsel's objection. The objection as it was on the record . . . the objection was to the extent he is able to testify absent information gained through counsel, then he can; however, to the extent he has to rely on conversations with counsel and information gained through counsel, then I am, instructing him not to answer since those would clearly be privileged and attorney-client communications. That was the objection.'"; "'Instructions like these have been found to be inappropriate witness coaching. See Cincinnati Ins. Co. v. Serrano, No. 11-2075-JAR, 2012 U.S. Dist. LEXIS 1363, 2012 WL 28071, at *5 (D. Kan. Jan. 5, 2012) ('Instructions to a witness that they may answer a question 'if they know' or 'if they understand the question' are raw, unmitigated coaching, and are never appropriate. This conduct, if it persists after the deposing attorney requests that it stop, is misconduct and sanctionable.'")

Case Date Jurisidction State Cite Checked
2016-10-28 Federal KS
Comment:

key case


Chapter: 58.306

Case Name: Zimmer, Inc. v. Stryker Corp., Civ. No. 3:14-CV-152-JD, 2016 U.S. Dist. LEXIS 65133 (N.D. Ind. May 18, 2016)
(analyzing a Rule 30(b)(6) deposition; finding that some topics were improper because they would have invaded the attorney-client privilege, including the following: "'The actions Stryker took or attempted to take, if any to ensure Stovall, Smith, Whilden, Dickerson, Terrell, and Barnhardt did not violate the Zimmer Agreements, including, but not limited to, Stryker's contentions regarding whether those individuals' employment with Stryker and Crosslink was compliant with the Zimmer Agreement, and if so, how.'"; explaining the court's analysis; "Stryker further objects to the Magistrate Judge's legal findings on Topics 4, 5, and 6 seeking production of a 30(b)(6) witness to provide testimony as to why Stryker believes that the actions Stryker took comply with non-compete restrictions, and whether certain conduct violates the duty of loyalty or breach non-compete or non-solicitation restrictions. Stryker claims these topics seek testimony on Stryker's legal analysis and conclusions with respect to the causes of action in this case and its defenses. The Magistrate Judge applied the correct legal standard and recognized that the law prohibits discovery which inevitably invades the attorney client privilege . . . and he did partially deny the motion to compel, limiting the discovery on these three topics."; "The Magistrate Judge agreed with Stryker's position that Zimmer's pursuit of Topic 4 would improperly invade the attorney-client and work product privilege if it was to result in the disclosure of Stryker's legal theories of defense to Zimmer's claims and specifically noted that 'Stryker need not reveal its legal theories or how it used the facts of the case to shape its defenses.'. . . However, in response to Zimmer's contention that it merely seeks to investigate, discover, and understand: (1) what factual actions Stryker undertook (if any) to ensure the sales representatives at issue complied with their obligations to Zimmer; and (2) how, factually, Stryker believes those representatives' respective employment did so, the Magistrate Judge found that Topic 4 was relevant and appropriate, and must be addressed by the deposition witness. The Magistrate Judge did, however, limit the inquiry to: (1) what factual actions Stryker undertook (if any) to ensure the sales representatives at issue complied with their obligations; and (2) how, factually, Stryker believes those representatives' respective employment did so.")

Case Date Jurisidction State Cite Checked
2016-05-18 Federal IN

Chapter: 58.306

Case Name: Variety Stores, Inc. v. Wal-Mart Stores, Inc., No. 5:14-CV-217-BO(2), 2016 U.S. Dist. LEXIS 30085, at *3, *5-6 (E.D.N.C. Mar. 9, 2016)
(holding that Wal-Mart's Rule 30(b)(6) witness did not waive the company's privilege protection by testifying management learned from its lawyer about a trademark issue, because the testimony did not disclose the substance of the communications; also finding Wal-Mart had not impliedly waived the privilege, and that it disclaimed any intent to rely on the privilege at trial; "Variety contends that Wal-Mart impliedly waived its attorney-client privilege by allowing its Rule 30(b)(6) deponent to testify that Wal-Mart's Brand Team learned of Variety's registered tradename THE BACKYARD and associated marks from Wal-Mart's legal team. . . . Variety further argues that Wal-Mart waived the privilege by arguing on summary judgment that it acted prudently in vetting potential brand names."; "Wal-Mart has not waived its attorney-client privilege with respect to the information sought by Variety. The deposition testimony of Wal-Mart's Rule 30(b)(6) deponent did not disclose the substance of communications between legal counsel and its client. Nor did Wal-Mart place its attorney's advice in issue by disclosing or describing privileged communications in support of any claim or defense raised by Wal-Mart. Accordingly, the undersigned denies Variety's motion to compel production of the documents to which Wal-Mart has asserted attorney-client privilege.")

Case Date Jurisidction State Cite Checked
2016-03-09 Federal NC B 8/16

Chapter: 58.306

Case Name: 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., Case No. 1:06-cv-253, 2016 U.S. Dist. LEXIS 3011, at *6 (N.D. Ohio Jan. 10, 2016)
March 30, 2016 (PRIVILEGE POINT)

"Another Court Deals with Rule 30(b)(6) Depositions"

Under Fed. R. Civ. P. 30(b)(6), corporations must designate a witness to testify about the corporation's knowledge. Surprisingly few courts have reconciled this requirement with the common if not universal role that lawyers play in preparing such witnesses.

In 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., the plaintiff "inquired [during its deposition of Citrix's Rule 30(b)(6) witness] whether Citrix believed that any of its products infringed [Citrix's licensor's] patents and whether Citrix believed the . . . Patents were valid." Case No. 1:06-cv-253, 2016 U.S. Dist. LEXIS 3011, at *6 (N.D. Ohio Jan. 10, 2016). Citrix's witness refused to answer the questions, "on the basis that Citrix's beliefs were inseparable from the legal advice it received with respect to those issues." Id. The court upheld the magistrate judge's conclusion that "Citrix's beliefs regarding the legal issues of infringement and validity were based entirely on the advice of counsel" — meaning that "Citrix's beliefs are one and the same as the advice of counsel, regardless of whether [plaintiff's] questions attempted to directly elicit privileged information." Id. At *9.

Not all courts would be this generous to corporations claiming privilege during their Rule 30(b)(6) witness's deposition testimony. At some point, corporations must state their positions in pleadings, deposition testimony or at trial — but some courts provide more protection than others in the deposition context.

Case Date Jurisidction State Cite Checked
2016-01-10 Federal OH
Comment:

key case


Chapter: 58.306

Case Name: 01 Communique Laboratory, Inc. v. Citrix Systems, Inc., Case No. 1:06-cv-253, 2016 U.S. Dist. LEXIS 3011 (N.D. Ohio Jan. 10, 2016)
(while concluding that a corporation's Rule 30(b)(6) witness could refuse to answer questions about the corporation's "belief," because the corporation relied solely on its lawyer for determining its positions; "During the Rule 30(b)(6) deposition, Communique inquired whether Citrix believed that any of its products infringed the Tridia patents, and whether Citrix believed the Tridia patents were valid. (MOO at 11303-04.) Feldman declined to answer these questions on the basis that Citrix's beliefs were inseparable from the legal advice it received with respect to those issues, therefore, he could not answer without disclosing attorney-client privileged communications."; "Communique contends that the magistrate judge erred in concluding that a corporation does not hold personal beliefs the same way that a natural person does, pointing out that litigants are regularly required to testify regarding their beliefs, which are not privileged, and the deposition questions at issue were not directed to the advice of counsel received by Citrix. . . . But Communique misses the point. Magistrate Judge Burke did not hold that Feldman properly asserted the privilege simply because a corporation cannot hold a belief. Rather, the magistrate judge found that 'Citrix's beliefs on such legal questions [regarding validity and infringement] were inseparable from its counsel's advice because Citrix 'relies exclusively on the advice of counsel for such legal determinations.'"; "The magistrate judge did not err in finding Davis [Davis v. PMA Co., Inc., No. CIV-11-CV-359-C, 2012 U.S. Dist. LEXIS 130944, 2012 WL 3933967 (W.D. Okla. Sept. 7, 2012)] inapposite. In this case, Feldman was not deposed as a natural person, but as Citrix's Rule 30(b)(6) witness. When Feldman testified as Citrix's Rule 30(b)(6) witness, he was testifying on behalf of the corporate entity, not individually as an officer or employee of Citrix, as was the case in Davis. As a witness for the corporation, Feldman was not, and could not be, asked about his personal beliefs. Moreover, the magistrate judge found that Citrix's beliefs regarding the legal issues of infringement and validity were based entirely on the advice of counsel. Thus, Citrix's beliefs are one and the same as the advice of counsel, regardless of whether the Communique's questions attempted to directly elicit privileged information.")

Case Date Jurisidction State Cite Checked
2016-01-10 Federal OH

Chapter: 58.306

Case Name: Epic Systems Corp. v. Tata Consultancy Services Ltd., 14-cv-748-wmc, 2015 U.S. Dist. LEXIS 166438 (W.D. Wis. Dec. 10, 2015)
(analyzing privilege and work product issues in connection with internal corporate investigations conducted by Loeb & Loeb; finding the privilege inapplicable and concluding that the plaintiff could overcome any possible work product protection; finding that the privilege did not apply because (among other things) "the report contains no legal advice."; inexplicably concluding that the investigation's focus might have deserve privilege protection; "The court found Muthuswami's [Defendant's president] reliance on summary documents to be routine, and did not constitute a waiver of the underlying attorney-client privilege, although counsel rightly disclosed the summary documents as an aid to Muthuswami's testimony. To the extent that the information in the summary documents came from Loeb & Loeb's earlier investigations, perhaps the production of those documents coupled with Muthuswami's testimony would have constituted waiver, but TCS's counsel at the hearing represented that she had independently prepared those summary documents and the court has no basis to find otherwise. While the court continues to find fault with the designation of Muthuswami as the sole 30(b)(6) designee given his limited knowledge on a variety of designated subjects, this, too, is no basis for stripping away at the attorney-client privilege between defendants and their trial counsel.").

Case Date Jurisidction State Cite Checked
2015-12-10 Federal WI

Chapter: 58.306

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917,Master Case No 3:07cv05944SC,No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
(analyzing defendant's duty to designate and educate a Rule 30(b)(6) deposition witness; rejecting plaintiffs' motion to compel defendant's Rule 30(b)(6) witness to review witness interview memoranda created during an internal corporate investigation -- because the facts contained in such memoranda inevitably intertwined with the defendant's lawyer's opinion; "From these authorities, the undersigned derives the following conclusions: (1) the DAPs' [Direct Action Plaintiffs] motion should be analyzed under the work-product doctrine, not the attorney-client privilege; (2) the work product doctrine forecloses disclosure of the non-privileged facts in Thomson's internal investigation memoranda if the attorneys' mental impressions and strategy cannot reasonably be separated from the underlying non-privileged facts; (3) a Rule 30(b)(6) witness educated on the internal investigation materials may be deposed without invasion of the attorney work-product unless the work-product so permeates the materials making invasion inevitable; and (4) the DAPs should be denied access to the non-privileged facts in the internal investigation memoranda if the DAPs have had access to these facts from other sources. . . . The Upjohn v United States, 449 U.S. 383, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981), Hickman, Linerboard and Kellogg Brown & Root decisions are analogous and require denial of the DAPs' motion to compel. In particular, a Rule 30(b)(6) deposition requiring the corporate designee to prepare by reading all of Thomson's outside counsels' interview memoranda and testifying to the underlying facts would violate the protection afforded to 'core' or 'opinion' work product. . . . Based on this review, the undersigned finds that: (1) the interview memoranda so intertwine facts and attorney mental impressions that the facts cannot be readily separated from the attorney impressions; (2) the facts reported in the interview memoranda are subject to 'grave dangers of inaccuracy and untrustworthiness' due to faulty memory or transcription, noted in Hickman v Taylor (329 US at 512-513) and (3) requiring a Rule 30(b)(6) corporate designee to study the interview memoranda and attempt to extract underlying 'facts' known to the corporation would be an exceedingly time-consuming and problematic undertaking. In light of the extensive and intertwined attorney thoughts and mental impressions contained in the interview memoranda, the undersigned concludes that the memoranda constitute primarily 'core' or 'opinion' work product. To the extent there are 'facts' reported, it appears that these 'facts' reflect the filter of the attorney transcriber of these interview memoranda."; "The undersigned finds that: (1) Thomson's Rule 30(b)(6) witness was adequately prepared, having spent over 100 hours preparing for the deposition, which the DAPs do not contest; (2) the DAPs have deposed ten Thomson current or former employees from whom facts pertinent to Thomson's conduct were obtained or could have been obtained; (3) the DAPs have thus had the opportunity to obtain the information that appears in the internal investigation materials from other non-privileged sources, including knowledgeable individuals whose depositions have been taken or could have been taken as well as Thomson's document productions; and (4) the DAPs have not provided reasons why any additional information that appears in the internal investigation materials is crucial to their case.").

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA

Chapter: 58.306

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litigation, Master Case No. 3:07-cv-05944SC, 2015 U.S. Dist. LEXIS 147413, at *219-20 (N.D. Cal. Oct. 5, 2015)
December 16, 2015 (PRIVILEGE POINT)

"Court Analyzes Rule 30(b)(6) Witness's Preparation Duties"

Under Fed. R. Civ. P. 30(b)(6), an entity must prepare a designated witness to testify about specified topics. This type of deposition implicates several competing principles, because (1) such witnesses must provide historical facts, which are never privileged; and (2) those witnesses almost invariably learn such historical facts during deposition preparation sessions with the company's lawyer, which normally deserve privilege and work product doctrine protection.

In In re Cathode Ray Tube (CRT) Antitrust Litigation, plaintiffs sought to compel a defendant's Rule 30(b)(6) witness to testify about its outside lawyers' internal investigation into pertinent facts — insisting that the "corporate designee must be prepared to testify about factual information transmitted to or from counsel." Master Case No. 3:07-cv-05944SC, 2015 U.S. Dist. LEXIS 147413, at *219-20 (N.D. Cal. Oct. 5, 2015). Among other things, plaintiffs asked that the designated witness be compelled to review the company lawyers' witness interview memoranda. The court rejected plaintiffs' motion, concluding that (1) the company lawyers' witness interview memoranda "so intertwine facts and attorney mental impressions that the facts cannot be readily separated from the attorney impressions"; (2) the facts contained in the interview memoranda might be inaccurate, "due to faulty memory or transcription"; and (3) requiring the designated witness to "study the interview memoranda and attempt to extract underlying 'facts' known to the corporation would be an exceedingly time-consuming and problematic undertaking." Id. At *227. The court also noted that plaintiffs had already deposed ten current or former company employees involved in the underlying events.

Not all courts would so readily protect corporate defendants' work product. However, many courts struggle when analyzing privilege and work product protection issues involving Rule 30(b)(6) depositions.

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA
Comment:

key case


Chapter: 58.306

Case Name: In re Cathode Ray Tube (CRT) Antitrust Litig., MDL No 1917, Master Case No 3:07cv05944SC, No 13cv01173; No 13cv05724; No 13cv05261; No 13cv05264; No 13cv05727; No 13cv05726; No 13cv05723; No 13cv05725; 2015 U.S. Dist. LEXIS 147413 (N.D. Cal. Oct. 5, 2015)
(analyzing defendant's duty to designate and educate a Rule 30(b)(6) deposition witness; rejecting plaintiffs' motion to compel defendant's Rule 30(b)(6) witness to review witness interview memoranda created during an internal corporate investigation -- because the facts contained in such memoranda inevitably intertwined with the defendant's lawyer's opinion; "Citing a number of cases, the DAPs [Direct Action Plaintiffs] argue that a company cannot shield from discovery facts learned by its attorney's investigation because the attorney-client privilege does not protect underlying facts. . . . While the DAPs' statement of black letter law is accurate, the DAPs' cases are distinguishable because none of them involve compelling a Rule 30(b)(6) witness to review privileged or work product protected memoranda from an internal investigation and testifying as to the contents of such memoranda. Nor do they involve internal investigation materials in which attorney mental impressions are inextricably intertwined with alleged facts. Great America [Great Am. Ins. Co. of NY v Vegas Constr Co., 251 FRD 534, 541 (D Nev 2008)] is further distinguishable because the Rule 30(b)(6) witness was completely unprepared.").

Case Date Jurisidction State Cite Checked
2015-10-05 Federal CA

Chapter: 58.306

Case Name: VC Management, LLC v. Reliastar Life Ins. Co., No. 14 CV 1385, 2015 U.S. Dist. LEXIS 51343 (N.D. Ill. April 20, 2015)
(analyzing Rule 30(b)(6) deposition; "VCM claims that because Kusick 'relied heavily on these privileged E-mails' during her deposition testimony, they are discoverable. . . . ('It follows that when a Rule 30(b)(6) witness testifies on behalf of a corporation based upon information obtained from another corporate source (even an otherwise privileged source), that the adverse party is entitled to discovery of the source material.').) VCM argues that Kusick 'did not and could not deactivate the portion of her brain containing information related to the officer signature requirement[.]'. . . By VCM's reckoning, clients would initiate subject matter waivers each and every time they recalled information, privileged or not, that was discussed in a privileged communication with an attorney, even if other sources supplied the exact same knowledge. VCM does not supply any authority for this principle, and its bare assertion is unpersuasive. Kusick has not revealed any privileged information, and certainly has not done so in such a way that would give ReliaStar any unfair advantage in this litigation. The analysis on this issue might be different if Kusick's exclusive source of knowledge about the signature policies at ReliaStar were the privileged emails and if she had testified about the content of those emails. But because Kusick testified based on her work experience and without disclosing the substance of the privileged emails, there was no subject matter waiver.")

Case Date Jurisidction State Cite Checked
2015-04-20 Federal IL
Comment:

key case


Chapter: 58.306

Case Name: Am. Home Assurance Co. v. Greater Omaha Packing Co., No. 8:11CV270, 2013 U.S. Dist. LEXIS 129638, at *9 (D. Neb. Sept. 11, 2013)
("To the extent that Topic No. 36 seeks strategic information or attorney impressions, conclusions, or opinions such as 'calculations and evaluations related to any settlements,' the Court finds such information should be protected from inquiry in the 30(b)(6) deposition. However, if a Cargill [plaintiff] representative has knowledge of the underlying facts, regardless of whether such facts were the subject of a privileged communication or committed to writing in attorney work product, they are non-privileged and must be disclosed if inquired upon.")

Case Date Jurisidction State Cite Checked
2013-09-11 Federal NE B 5/14

Chapter: 58.306

Case Name: Cotton v. Costco Wholesale Corp., Case No. 12-2731-JWL, 2013 U.S. Dist. LEXIS 103367, at *11-12 (D. Kan. July 24, 2013)
("Courts have generally declined to uphold privilege or work-product objections to Rule 30(b)(6) deposition notices unless the deposition topics, on their face, call for testimony that would be protected from disclosure. That is not the case here, and it would be speculative to prohibit inquiry into this subject matter on the basis that Mr. Cotton's counsel could potentially ask a question regarding privileged information. The more appropriate vehicle for raising privilege and work-production objections in the context of a deposition is for counsel to lodge objections to specific questions. Counsel may then explore background facts concerning the objection, and the deponent can have an opportunity to substantiate the objection." (footnoted omitted))

Case Date Jurisidction State Cite Checked
2013-07-24 Federal KS B 4/14

Chapter: 58.306

Case Name: Martin v. Allstate Ins. Co., Civ. A. No. 3:12-CV-00923-G-BK, 2013 U.S. Dist. 50675 (N.D. Tex. April 4, 2013)
(analyzing discovery about discovery; "Plaintiff's proposed Rule 30(b)(6) deposition Topics 2-7 include (1) Defendant's document retention policies; (2) Defendant's efforts in responding to Plaintiff's discovery; (3) Defendant's computer systems; (4) the date by which Defendant anticipated that Plaintiff would sue; and (5) Defendant's efforts, including any instructions to employees, to preserve documents and electronic information relevant to the anticipated suit. (Doc. 23-1 at 3)."; "While Plaintiff speculates that Defendant may have additional documentation that it has not produced, there is no evidence to support that supposition at this point. Defendant's explanation for the manner in which it has produced documents, based on Plaintiff's staggered discovery requests and clarifications, is plausible. Moreover, defense counsel are surely aware that they are under an ongoing obligation to supplement their discovery responses if additional responsive information is located. Fed. R. Civ. P. 26€(1). As to Topic 4, which seeks testimony about Defendant's computer systems, if Defendant refuses to supply the necessary information, Plaintiff is under no obligation to accept Defendant's request to use search terms to locate responsive discovery. Defendant will simply be obligated to manually search for the requested documents.")

Case Date Jurisidction State Cite Checked
2013-04-04 Federal TX

Chapter: 58.306

Case Name: SEC v. Kovzan, Case No. 11-2017-JWL, 2013 U.S. Dist. LEXIS 23637, at *8-9 (D. Kan. Feb. 21, 2013)
(ordering the government to produce witnesses for a Rule 30(b)(6) deposition; "Courts have generally declined to uphold privilege or work-product objections to Rule 30(b)(6) deposition notices unless the deposition topics, on their face, call for testimony that would be protected from disclosure. The first two categories of topics --the factual basis for the SEC's contentions and theories in this case and the SEC's actions in discovery -- do not, on their face, implicate the attorney-client privilege or the work-product doctrine. These topics indicate that Mr. Kovzan is seeking the facts that support the theories and information about how the SEC has gone about identifying responsive information in discovery. The SEC even suggests that many of these topics would be more appropriately discovered through interrogatories. But the fact that discovery is sought through another vehicle --in this case a Rule 30(b)(6) deposition --does not transform discoverable material into protected material." (footnote omitted))

Case Date Jurisidction State Cite Checked
2013-02-21 Federal KS B 3/14

Chapter: 58.306

Case Name: SEC v. Kovzan, Case No. 11-2017-JWL, 2013 U.S. Dist. LEXIS 23637, at *9-10 (D. Kan. Feb. 21, 2013)
(ordering the government to produce witnesses for a Rule 30(b)(6) deposition; "As for the third category of topics -- those concerning the interpretation and meaning of certain regulatory terms and guidance and any confusion regarding the same -- certain questions could conceivably call for information protected by the deliberative-process privilege. Mr. Kovzan may not obtain through deposition privileged information contained in documents he could not obtain through written discovery. Again, however, it would be speculative to prohibit the deposition on this basis. For example, the SEC has also set forth public guidance and communicated with third parties about these topics. This information would not be privileged and would likely form the basis for at least some of the deponent's answers. The SEC is free to raise privilege and work-product objections to specific questions during the deposition. Counsel may then explore background facts concerning the objection, and the deponent can substantiate the objection.")

Case Date Jurisidction State Cite Checked
2013-02-21 Federal KS B 3/14

Chapter: 58.306

Case Name: SEC v. Kovzan, Case No. 11-2017-JWL, 2013 U.S. Dist. LEXIS 23637, at *2-3, *2 n.2 (D. Kan. Feb. 21, 2013)
(ordering the government to produce witnesses for a Rule 30(b)(6) deposition; "On December 18, 2012, Mr. Kovzan served on the SEC his Rule 30(b)(6) Notice of the SEC's Deposition. The notice lists twenty-six deposition topics that fall into one of three general categories. Several topics concern the factual basis for the SEC's contentions and theories of this case and the related case, SEC v. NIC, Inc., 11-2016-EFM. Other topics concern the steps the SEC took to obtain and produce discovery documents in this case and the reasons for the SEC's objections to certain discovery requests. The remainder of the topics concern the interpretation and meaning of certain regulatory terms and guidance and any confusion regarding those terms and guidance. The SEC has now moved for a protective order barring the deposition." (footnotes omitted); "The final topic asks the deponent to be prepared to testify about the steps taken to prepare answers for the deposition.")

Case Date Jurisidction State Cite Checked
2013-02-21 Federal KS B 3/14

Chapter: 58.306

Case Name: Norco Indus., Inc. v. CPI Binani, Inc., Civ. No. 2:12 cv 313, 2012 U.S. Dist. LEXIS 176588, at *12-14 (N.D. Ind. Dec. 13, 2012)
(analyzing a Rule 30(b)(6) deposition; holding that asking for factual support was the equivalent of an improper deposition of a lawyer; "Norco's deposition topics exceed the scope of discovery and attempt to discover the legal conclusions and mental impressions of CPI's attorneys. The proposed topics state Norco's intent to inquire about the factual basis of CPI's possible defenses. The factual basis of any defenses that may be raised is a determination made by CPI's attorneys. This would amount to an attempt to depose opposing counsel. . . . To respond, Norco either would need to depose CPI's attorney or CPI's attorney would need to prepare a witness to testify about the basis of its defenses. In either case, it would reveal the factual and legal theories of the defenses CPI's attorney intends to raise. If Norco were to make this inquiry to a CPI employee who has been informed about the basis of the defenses for the purpose of the deposition, this would infringe upon the attorney-client privilege, which shields from discovery any communications between the attorney and his client. . . . If Norco were to depose CPI's attorney, this directly would reveal his or her mental impressions and the legal theories on which he or she basis the defenses.")

Case Date Jurisidction State Cite Checked
2012-12-13 Federal IN B 9/13

Chapter: 58.306

Case Name: Norco Indus., Inc. v. CPI Binani, Inc., Civ. No. 2:12 cv 313, 2012 U.S. Dist. LEXIS 176588, at *14-15 (N.D. Ind. Dec. 13, 2012)
(analyzing a Rule 30(b)(6) deposition; holding that asking for factual support was the equivalent of an improper deposition of a lawyer; "Norco attempts to remove its proposed topic from the shield of these privileges by limiting the inquiry to the 'factual basis' of the defenses rather than the attorney's legal basis. However, the court cannot fathom a manner in which the factual basis can be revealed without disclosing CPI's attorney's mental conclusions, legal theories, and conclusions. Discovery of the factual basis of the defenses would reveal the attorney's impression of the facts and legal theory of the case. Additionally, Norco will learn of CPI's proposed defenses when CPI files its response to Norco's motion for a preliminary injunction. For these reasons, the court agrees that proposed deposition topics 6-8 are improper.")

Case Date Jurisidction State Cite Checked
2012-12-13 Federal IN B 9/13

Chapter: 58.306

Case Name: Gueniot-Kornegay v. Blitz U.S.A., No. 3:10CV429-TSL-MTP, 2012 U.S. Dist. LEXIS 172468, at *7 (S.D. Miss. Dec. 5, 2012)
(analyzing a Rule 30(b)(6) deposition of a Wal-Mart employee; "Wal-Mart voices its concerns of revealing privileged or work-product protected information if its designee were to testify in detail about actions taken by its counsel in defending prior and ongoing lawsuits. The court recognizes that deposition questions about the expert reports beyond the date they were received by Wal-Mart could possibly invade the attorney-client privilege or work-product protected information. However, this is easily avoided by Wal-Mart simply producing the expert reports with the limitations described above along with a written statement as to when Wal-Mart received the reports.")

Case Date Jurisidction State Cite Checked
2012-12-05 Federal MS B 9/13

Chapter: 58.306

Case Name: Foster v. City of N.Y., Nos.14 Civ. 4142 & 9220 (PGG) (JCF), 2016 U.S. Dist. LEXIS 14594, at *532 (S.D.N.Y. Feb. 5, 2016)
(in an opinion by Magistrate Judge James Francis, finding that the defendant City triggered a waiver by seeking to avoid liquidated damages by claiming subjective good faith in attempting to comply with FLSA guidelines, and finding a broad scope of waiver that included communication with any level of City employees, but not extending to lawyer-to-lawyer communications that did not involve City employees; "In addition, the City must produce a witness to provide testimony pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure regarding the City's efforts to comply with the Fair Labor Standards Act. This opinion has clarified the extent of the City's waiver of privilege, as well as the requirements for a proper assertion of work product privilege. The deponent may interpose appropriate objections based on privilege when specific questions are asked.")

Case Date Jurisidction State Cite Checked
Federal NY B 8/16

Chapter: 58.402

Case Name: Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253, at *16-17 (S.D. Ohio Jan. 14, 2013)
(holding that a law firm sued for malpractice should not have sought documents from the former client's other law firms when those documents were generally available from the client itself; "Of greater concern to the Court is the Firm's conduct in issuing a subpoena to Baker & Hostetler for documents available from, and already provided in large part by, Mr. Davis. Such conduct seems at odds with the spirit of the federal rules relating to discovery. Further, given the conduct of counsel to date as detailed in the Court's previous orders, the Court finds this a close case for sanctions. However, the Court declines to impose sanctions at this time but cautions counsel that it may well do so in the future.")

Case Date Jurisidction State Cite Checked
2013-01-14 Federal OH B 7/13

Chapter: 58.403

Case Name: Tillman v. Advanced Public Safety, Inc., Case No. 15-cv-81782-MARRA/MATTHEWMAN, 2017 U.S. Dist. LEXIS 26549 (S.D. Fla. Feb. 16, 2017)
(rejecting plaintiff's efforts to depose defendant's general counsel and vice president; essentially using the Shelton standard; "Since James Kirkland is also the general counsel for Trimble, Plaintiff's request to take his deposition causes additional concerns. The confidentiality of attorney-client privileged communications 'is an interest traditionally deemed worthy of maximum legal protection.'. . . a party seeking an attorney's deposition 'must demonstrate that the deposition is the only practical means available of obtaining the information.' Id. Moreover, the party seeking the deposition of an attorney has the burden to show 'that the information sought (1) is relevant; (2) its need outweighs the dangers of deposing a party's attorney; and (3) the information sought will not invade the realm of the attorney's work product or interfere with the attorney-client privilege.'")

Case Date Jurisidction State Cite Checked
2017-02-16 Federal FL

Chapter: 58.403

Case Name: Natural Alternatives Int'l, Inc. v. Creative Compounds, Inc., Case No.: 15-cv-02081-JM-AGS, 2016 U.S. Dist. LEXIS 175231 (S.D. Cal. Dec. 16, 2016)
("The taking of attorney depositions in this district is controlled by the so-called Shelton test, which was first set out in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1987). Although the Ninth Circuit has not yet explicitly adopted it, our district has routinely applied the test to situations where, as here, a party seeks to take the deposition of opposing counsel concerning the instant litigation."; "NAI focuses its argument primarily on whether the information it wishes to obtain from Nolte is privileged, but that addresses only one of these three prongs. Setting aside the privilege issues (addressed below) and whether other means exist to glean the information, NAI has not shown how deposing the opposing legal team is crucial to its case. NAI argues that it wants to know the steps Nolte took in investigating and making the legal conclusions and opinions set out in the email. That information would certainly be relevant to some of NAI's claims. But NAI does not explain, and this Court's own research has not disclosed, how that information would be critical to any element of any of its causes of action or would be necessary to clear up any critical factual issues left unresolved by other discovery avenues. Thus, the Court concludes that NAI has not met its burden under Shelton and grants Creative's motion for a protective order as to that issue.")

Case Date Jurisidction State Cite Checked
2016-12-16 Federal CA

Chapter: 58.403

Case Name: CTB, Inc. v. Hog Slat, Inc., No. 7:14-CV-157-D, 2016 U.S. Dist. LEXIS 39024, at *16 (E.D.N.C. Mar. 23, 2016)
("The Fourth Circuit has not definitively ruled that the Shelton [Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986)] test applies in this circuit, although other district courts within the circuit have applied it or a similar test to determine if the deposition of trial counsel is warranted.")

Case Date Jurisidction State Cite Checked
2016-03-23 Federal NC B 8/16

Chapter: 58.403

Case Name: Nelson v. Hardacre, Case No. 15-7454-JWL, 2016 U.S. Dist. LEXIS 3760 (D. Kansas Jan. 12, 2016)
(apply Shelton, and declining to allow a deposition)

Case Date Jurisidction State Cite Checked
2016-01-12 Federal KS

Chapter: 58.403

Case Name: Stevens v. Corelogic, Inc., Case No.: 14cv1158 BAS (JLB), 2015 U.S. Dist. LEXIS 165874 (S.D. Cal. Dec. 10, 2015)
("Having considered the parties' positions, the Court finds that Shelton provides the proper standard to determine whether Plaintiffs should be allowed to depose Defendant's in-house counsel. While the Ninth Circuit has not issued a published decision governing depositions of opposing counsel in the context of soliciting testimony about a pending case, courts in this district and elsewhere in the Ninth Circuit recognize Shelton as the leading case on attorney depositions and follow the three-factor test laid out in the case."; "[A]s Defendant correctly points out in its Motion, Plaintiffs may not depose Mr. Tabaddor [In-house lawyer] about the facts contained in Defendant's interrogatory responses because the facts are available to Plaintiffs by other means -- the discovery responses themselves.").

Case Date Jurisidction State Cite Checked
2015-12-10 Federal CA

Chapter: 58.403

Case Name: SEC v. Zufelt, Case No. 2:10-cv-00574-DB-DBP, 2015 U.S. Dist. LEXIS 155885 (D. Utah Nov. 17, 2015)
(apply the Shelton doctrine in denying the SEC's effort to depose a lawyer; "[T]here are several alternative sources of information. In fact, the SEC noticed the deposition of Pelican Station itself for the same day the SEC intends to depose Counsel. . . . The SEC has also noticed the deposition of Anthony Zufelt for December. . . . These depositions provide alternative sources for the SEC to obtain the information it seeks. The SEC appears to believe that these alternatives may not be successful based upon other discovery-related difficulties. This may or may not be correct, but precedent makes clear that the SEC must at least pursue these alternatives before deposing Counsel.").

Case Date Jurisidction State Cite Checked
2015-11-17 Federal UT

Chapter: 58.403

Case Name: Alomari v. Ohio Dept. of Public Safety, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
(in a discrimination case; holding that the attorney-client privilege protected communications about defendant's response to media inquiries; "The district court did not abuse its discretion by applying Massillon Management to the facts below. Similarly to the in-house attorney in Shelton and Massillon Management, OSPS's three attorneys gathered documents about Plaintiff from Columbus State in order to conduct an administrative investigation, something that could give rise to a legal dispute. As the district court correctly noted: 'Attorney Reed-Frient provided legal advice to ODPS regarding the decision to terminate Plaintiff, which the court found to be sufficient in Massillon Management. Further, the other two attorneys who Plaintiff seeks to depose were involved in acquiring and handing documents related to the investigation that led to Plaintiff's termination, which the court in Shelton found to be sufficient involvement.'"; "This case, like Shelton involved attorneys who obtained documents in relation to potential litigation.")

Case Date Jurisidction State Cite Checked
2015-09-09 Federal OH

Chapter: 58.403

Case Name: In re GM LLC Ignition Switch Litig., 14-MD-2543 (JMF), 14-MC-2543 (JMF), 2015 U.S. Dist. LEXIS 106170 (S.D.N.Y. Aug. 11, 2015)
(limiting plaintiffs' questioning of the lawyer who investigated GM's ignition switch issue; noting that GM pledged not to call the lawyer or rely on the report at trial; "[T]o the extent that Plaintiffs intend to ask whether Valukas considered certain documents or facts in preparing the Report . . . Those questions would invariably reveal Valukas's 'mental impressions [and] personal beliefs,'. . . Shelton v. American Motors Corp., 805 F.2d 1323, 1326 (8th Cir. 1986) ('[W]here, as here, the deponent is opposing counsel and has engaged in a selective process of compiling documents from among voluminous files in preparation for litigation, the mere acknowledgment of the existence of those documents would reveal counsel's mental impressions, which are protected as work product.")

Case Date Jurisidction State Cite Checked
2015-08-11 Federal NY
Comment:

key case


Chapter: 58.403

Case Name: Gebremedhin v. American Family Mutual Insurance Company, Civ. A. No. 1:13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948 (D. Colo. July 15, 2015)
("American Family contends that it should not be required to set forth such a showing, because Ms. Norton is not trial counsel for any party still a party to this action. . . . Although some courts have held that the Shelton standards apply only to trial counsel, it is clear that the circumstances of this case continue to present significant issues with respect to privilege and waiver for Ms. Norton and the Turners. Therefore, this court -- like many others within and outside this circuit -- finds that consideration of the Shelton factors is appropriate.")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal CO

Chapter: 58.403

Case Name: Espejo v. Santander Consumer USA, Inc., No. 11 CV 8987, 2014 U.S. Dist. LEXIS 164758 (N.D. Ill. Nov. 25, 2014)
(analyzing the Shelton doctrine; "[W]e note that, as was the case with one of the attorneys in Quality Croutons [Quality Croutons, Inc. v. George Weston Bakeries, Inc., 05 C 4928, 2006 U.S. Dist. LEXIS 60715, 2006 WL 2375460 (N.D. Ill. August 14, 2006) (Schenker, J.)] who was 'Vice President-General Counsel,' Mr. Jones [defendant's in-house lawyer] holds a dual title: Senior Vice President and Deputy General Counsel. The significance of the dual title is that Mr. Jones may wear both 'a legal and business hat.' which would mean that his communications and knowledge would not be privileged if made or obtained in his business, rather than legal, capacity. . . . We make no determination about whether all of the information Mr. Jones possesses with respect to defendant's compliance policies and procedures is in fact privileged. However, we cannot exclude the possibility that Mr. Jones possesses non-privileged, relevant information he gained as a Santander Senior Vice President.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal IL

Chapter: 58.403

Case Name: Espejo v. Santander Consumer USA, Inc., No. 11 CV 8987, 2014 U.S. Dist. LEXIS 164758 (N.D. Ill. Nov. 25, 2014)
(analyzing the Shelton doctrine; "[I]t is not evident that all of Mr. Jones's [defendant's in-house lawyer] knowledge would implicate the attorney-client privilege. To be sure, Mr. Jones's knowledge of what was said at the meeting with the FCC is not privileged, given that the meeting took place with a third-party governmental entity. A conversation involving a client's lawyer and a third party plainly is not privileged.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal IL

Chapter: 58.403

Case Name: Espejo v. Santander Consumer USA, Inc., No. 11 CV 8987, 2014 U.S. Dist. LEXIS 164758 (N.D. Ill. Nov. 25, 2014)
("We recognize that the deposition of a party's attorney -- whether in-house or trial counsel -- does impose more of a burden than the deposition of other fact witnesses. Whether the attorney is questioned on matters that implicate the attorney-client privilege or not, the possibility of such a situation requires extra vigilance on the part of party being deposed. Such a deposition also increases the likelihood that further motion practice will be required if the parties cannot agree whether a particular line of questioning implicates privileged matters. Therefore, where the deposition of an attorney can be avoided because the same information is available from other, non-privileged sources, it is prudent for the parties to pursue that course of discovery first.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal IL

Chapter: 58.403

Case Name: Busey v. Richland School Dist., No. 13-CV-5022-TOR, 2014 U.S. Dist. LEXIS 50579 (E.D. Wash. April 10, 2014)
("While no published Ninth Circuit cases address this matter directly, district court cases in this circuit have adopted the Shelton standard for evaluating whether counsel may be deposed.")

Case Date Jurisidction State Cite Checked
2014-04-10 Federal WA

Chapter: 58.403

Case Name: M.A. Mobile Ltd. v. Indian Inst. of Tech. Kharagpur, Case No. C-08-02658-RMW, 2014 U.S. Dist. LEXIS 26376, at *6 n.1 (N.D. Cal. Feb. 28, 2014)
(applying the Shelton (Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir.1986)) standard; "Although plaintiffs argue for the more flexible 'totality of the circumstances test,'. . . the Shelton test is widely accepted in this district.")

Case Date Jurisidction State Cite Checked
2014-02-28 Federal CA B 8/14

Chapter: 58.403

Case Name: DeWitt v. Sw. Bell Tel. Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *22-23 (D. Kan. Feb. 24, 2014)
(finding that a plaintiff had not established the Shelton standard and therefore did not depose defendant's lawyer; "As for Ms. DeWitt's arguments about the affirmative defenses, the court lacks much information about the facts forming the basis for these defenses. Southwestern Bell states it plans to rely on . . . its policies and anti-discrimination enforcement efforts. This being the case, it seems unlikely that Mr. Bourgeacq, a general attorney in the labor and human resources department, would be the exclusive source for information relevant to these defenses. Ms. DeWitt has not shown the information she seeks is unavailable from other sources. Additionally, Ms. DeWitt has not addressed the third criterion: that the information is crucial to the preparation of her case. Because she has failed to establish two of the three criteria of the Shelton test [Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cirl 1986)], the court will not compel the deposition of Mr. Bourgeacq. The court declines to consider the second-listed criterion.")

Case Date Jurisidction State Cite Checked
2014-02-24 Federal KS B 7/14

Chapter: 58.403

Case Name: Couturier v. Am. Invsco Corp., Case No. 2:12-cv-01104-APG-NJK, 2013 U.S. Dist. LEXIS 118001 (D. Nev. Aug. 20, 2013)
(using the Shelton (Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir.1986)) standard)

Case Date Jurisidction State Cite Checked
2013-08-20 Federal NV B 4/14

Chapter: 58.403

Case Name: Ford Motor Co. v. Nat'l Indem. Co., Civ. A. No. 3:12cv839, 2013 U.S. Dist. LEXIS 102985, at *6 (E.D. Va. July 22, 2013)
("The test for determining whether it is appropriate to allow the deposition of an opposing party's counsel is set forth in Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). The Shelton standard has been adopted by the First, Fifth, Sixth and Tenth Circuits. Our Court of Appeals has not decided the issue; however, district court decisions within the circuit rather uniformly have followed the Shelton standard.")

Case Date Jurisidction State Cite Checked
2013-07-22 Federal VA B 9/13

Chapter: 58.403

Case Name: McFarland v. McFarland, Case No. (Chancery) 116434, 1992 Va. Cir. LEXIS 597, at *1-2 (Va. Cir. Ct. Jan. 29, 1992)
(quashing a litigant's deposition of the adversary's lawyer; "The premise for the underlying deposition subpoena is based upon cross-motions for sanctions under § 8.01-271.1 of the Code of Virginia, 1950, as amended. I find that the Defendant has failed to establish that alternative discovery avenues have been exhausted or proven impractical and that there is a substantial need for the deposition of opposing counsel in this case. See generally Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986); Niagara Mohawk Power v. Stone & Webster Eng'g, 125 F.R.D. 578, 593 (N.D.N.Y. 1989). The circumstances of this case suggest a risk of exposure of privileged information if the subpoena is not quashed, despite the existence of apparently viable discovery alternatives. Therefore, the Court in the exercise of its discretion grants the motion to quash the deposition subpoena issued to counsel for the complainant/cross-defendant.")

Case Date Jurisidction State Cite Checked
1992-01-29 State VA B 3/16

Chapter: 58.404

Case Name: Diamond Consortium, Inc. v. Manookian, Civ. A. No. 4:16-CV-00094, 2017 U.S. Dist. LEXIS 83252 (E.D. Tex. May 31, 2017)
(allowing deposition of an adverse party's paralegal; "The Federal Rules of Civil Procedure do not specifically prohibit deposing an opposing party's paralegals."; "Here, Plaintiffs allege Defendants created public websites and advertisements accusing Plaintiffs of cheating customers and selling over graded diamonds. Plaintiffs allege Rice and Pepe may have knowledge about the creation of these allegedly negative websites and advertisements. Defendants generally respond that any work Rice and Pepe completed was in anticipation of litigation or at the direction of attorneys. Defendants do not explain how the attorney-client and work-product privilege apply to public websites and advertisements that were not for the purpose of obtaining or rendering legal advice. Defendants thus have not met their burden of showing an applicable privilege for the categories of information Plaintiffs seek from Rice and Pepe.")

Case Date Jurisidction State Cite Checked
2017-05-31 Federal TX

Chapter: 58.404

Case Name: FTC v. DIRECTV, Inc., Case No. 15-cv-01129-HSG (MEJ), 2016 U.S. Dist. LEXIS 103602 (N.D. Cal. Aug. 5, 2016)
("Courts have held that Shelton does not apply to all circumstances where a party seeks to depose opposing counsel. . . . The problem is that the precise nature and extent of Mr. Suzuki's involvement in this case is unclear; DIRECTV did not elaborate on what exactly Mr. Suzuki has done. As the FTC points out, some courts have declined to apply Shelton to situations where the attorney sought to be deposed is not trial counsel or does not directly represent the party in the pending litigation."; "It is undisputed that Mr. Suzuki has not formally appeared in this matter. But because the Court cannot ascertain the extent of Mr. Suzuki's involvement in this case, the Court does not resolve Shelton's applicability. The Court is instead guided by Rule 26(b)(2)(C), which requires courts to 'limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the discovery sought . . . can be obtained from some other source that is more convenient, less burdensome, or less expensive[.]' Fed. R. Civ. P. 26(b)(2)(C). The Court finds there are ways the FTC can obtain the information it seeks without deposing Mr. Suzuki, specifically, by deposing a Rule 30(b)(6) designee.")

Case Date Jurisidction State Cite Checked
2016-08-05 Federal CA

Chapter: 58.404

Case Name: Herron v. Best Buy Co., Inc., No. 2:12-cv-2103 GEB CKD, 2015 U.S. Dist. LEXIS 58287 (E.D. Cal. May 4, 2015)
(applying the Second Circuit rather than the Shelton [Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)] standard for analyzing depositions of opposing lawyers; "Although defendant is correct that Shelton has not been adopted by the Ninth Circuit, the privileged nature of the information defendant seeks here by deposing plaintiff's attorneys must be considered in determining whether a protective order should issue. Those courts which have not found Shelton to be persuasive take a more global approach in weighing the propriety of deposing counsel, but acknowledge that one factor that should be considered is the risk of encountering privilege and work-product issues. See, e.g. Younger Mfg. Co. v. Kaenon, Inc., 247 F.R.D. 586 588 (C.D. Cal. 2007) (court adopted reasoning of Second Circuit, concluding that multi-factor approach is appropriate in considering whether counsel should be deposed; factors include 'the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted).")

Case Date Jurisidction State Cite Checked
2015-05-04 Federal CA

Chapter: 58.404

Case Name: Espejo v. Santander Consumer USA, Inc., No. 11 CV 8987, 2014 U.S. Dist. LEXIS 164758 (N.D. Ill. Nov. 25, 2014)
(analyzing the Shelton doctrine; "It is true that some judges in the Northern District of Illinois have used the Shelton test to determine whether to allow the deposition of a party's attorney. . . . Others, however, including the district judge precisely in this matter, employ a more flexible approach that looks at all the circumstances of the particular case.")

Case Date Jurisidction State Cite Checked
2014-11-25 Federal IL

Chapter: 58.404

Case Name: Gropper v. David Ellis Real Estate, L.P., No. 13 Civ. 2068 (ALC) (JCF), 2014 U.S. Dist. LEXIS 29799, at *3, *5, *6, *6-7 (S.D.N.Y. Mar. 4, 2014)
(analyzing work product issues in an Americans with Disabilities Act case; "Although depositions of opposing counsel are not forbidden, they are disfavored."; "[T]here is no need whatsoever to depose Mr. Parker [plaintiff's lawyer]. The information he possesses concerning the physical layout and various features of the Blue Water Grill is readily available to the defendants, who own the premises and operate the restaurant."; "With respect to the second factor, Mr. Parker's function has been exclusively as trial counsel. In some cases, an attorney may be deposed because he or she has engaged in the very conduct that gave rise to the litigation. For example, an attorney who prosecuted a patent may have taken actions relevant to equitable defenses in subsequent patent litigation."; "[A]s will be discussed in more detail in connection with the document subpoena, the risk of impinging upon the attorney-client privilege and work product protection is substantial in this case. Mr. Parker's investigation was conducted in anticipation of the litigation that was ultimately filed, and communications he had with Mr. Gropper would have been in connection with the provision of legal advice."; "[T]here has been ample discovery concerning the physical attributes of the Blue Water Grill, both in this lawsuit and in a parallel investigation by the United States Department of Justice. No legitimate purpose would be served by obtaining duplicative information from Mr. Parker. The deposition subpoena is therefore quashed.")

Case Date Jurisidction State Cite Checked
2014-03-04 Federal NY B 8/14

Chapter: 58.404

Case Name: FDIC v. Fid. & Deposit Co., No. 3:11-cv-00019-RLY-WGH, 2013 U.S. Dist. LEXIS 167833, at *7, *9 (S.D. Ind. Nov. 26, 2013)
(finding that an insurance company could not depose a lawyer who had represented a bank for which the FDIC was acting as receiver; noting that the lawyer had represented the bank in several matters, but no longer represented the bank after it was taken over by the FDIC; "Because there appears to be no majority approach in this jurisdiction, the court is not left with a strong conviction that the Magistrate Judge erred in applying the Shelton [Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986)] test. Therefore, the Magistrate Judge's decision to apply Shelton is not contrary to law."; "The court agrees with the Magistrate Judge and finds the information sought can be obtained by deposing the third parties with whom Mr. Rifken [lawyer] conversed. Although an admission by the opposing party's counsel may carry more weight with a jury, the protection of the attorney client relationship requires more than a desire for the information; an actual need must be shown.")

Case Date Jurisidction State Cite Checked
2013-11-26 Federal IN B 5/14

Chapter: 58.404

Case Name: Games2U, Inc. v. Game Truck Licensing, LLC, No. MC-13-00053-PHX-GMS, 2013 U.S. Dist. LEXIS 114907, at *21 (D. Ariz. Aug. 9, 2013)
("Although depositions of an opposing party's counsel are generally discouraged, courts allow the deposition of patent prosecution counsel where knowledge of counsel is relevant to the deposing parties' claims or defenses, at issue in the case, and cannot be derived from other sources." (footnote omitted); quashing the lawyer's deposition)

Case Date Jurisidction State Cite Checked
2013-08-09 Federal AZ B 4/14

Chapter: 58.404

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *3 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "The Court begins with the proposition that depositions of opposing trial counsel are disfavored. Courts 'have resisted the idea that lawyers should routinely be subject to broad discovery.' Nevertheless, '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.'" (footnotes omitted))

Case Date Jurisidction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 58.404

Case Name: Chevron Corp. v. Donziger, No. 11 Civ. 0691 (LAK), 2013 U.S. Dist. LEXIS 36353, at *91 (S.D.N.Y. Mar. 15, 2013)
(ordering the law firm of Patton Boggs to produce documents to Chevron based on the crime-fraud exception; "Many of the concerns that arise when an adverse trial counsel is subjected to deposition -- e.g., possible compromise of the attorney-client relationship or intrusion on an attorney's work product -- also are present when a law firm involved behind the scenes is required to provide documents to an adversary. Chevron has presented no compelling reason that the Court should not be guided by the factors set forth in Friedman [In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003)], taking account of all of the relevant circumstances.")

Case Date Jurisidction State Cite Checked
2013-03-15 Federal NY B 3/14

Chapter: 58.404

Case Name: Axiom Worldwide, Inc. v. HTRD Grp. Hong Kong Ltd., Case No. 8:11-cv-1468-T-33TBM, 2013 U.S. Dist. LEXIS 8475, at *8-9, *9, *10, *11 (M.D. Fla. Jan. 22, 2013)
(adopting a modified version of the Shelton standard, and ordering the deposition of a lawyer on a limited topic by written questions to be pre-approved by the court; "Axiom Inc. urges the Court to adopt and apply the 'flexible test' that has been articulated by the Second Circuit. 'Under the "flexible test," the operative inquiry is "whether the proposed deposition would entail an inappropriate burden or hardship" on the responding party.' . . . Axiom Inc. contends that under the flexible test, 'Axiom Inc. would clearly be entitled to take the deposition of Lee Wm. Atkinson.'" (internal citation omitted); "On the other hand, the Fifth, Sixth, and Tenth Circuits have adopted the test set out by the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). . . . Under the Shelton test, the moving party must show that '(1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and non-privileged, and (3) the information is crucial to the preparation of the case.' Shelton, 805 F.2d at 1327"; "Although the Eleventh Circuit has yet to adopt any test on the issue, courts in this circuit have often applied the Shelton test."; "However, in addition to these Shelton factors, the LaJoie [LaJoie v. Pavcon, Inc., Case No. 97-312-CIV-FTM-25D, 1998 U.S. Dist. LEXIS 23175 (M.D. Fla. June 22, 1998)] court ruled that the information sought must not only be relevant but 'its need must outweigh the dangers of deposing a party's attorney.'" (citation omitted); "Accordingly, although the Court acknowledges that the Eleventh Circuit has not ruled on the issue, the Court determines that Axiom Inc. must satisfy the requirements of the Shelton test, plus the additional factor set out in West Peninsular Title, LaJoie, and Covington [referring to earlier cases], in order to depose HTRD's counsel, Mr. Atkinson.")

Case Date Jurisidction State Cite Checked
2013-01-22 Federal FL B 7/13

Chapter: 58.404

Case Name: Axiom Worldwide, Inc. v. HTRD Group Hong Kong Ltd., Case No. 8:11-cv-1468-T-33TBM, 2013 U.S. Dist. LEXIS 8475 (M.D. Fla. Jan. 22, 2013)
March 6, 2013 (PRIVILEGE POINT)

"Courts Discourage Depositions of an Adversary's Trial Lawyer"

Litigants sometimes seek to depose an adversary's trial lawyer. In some situations, such discovery must be appropriate because the trial lawyer possesses relevant knowledge about some historical event. But given the disruptive and inevitably acrimonious nature of such depositions, every court discourages them.

In Axiom Worldwide, Inc. v. HTRD Group Hong Kong Ltd., Case No. 8:11-cv-1468-T-33TBM, 2013 U.S. Dist. LEXIS 8475 (M.D. Fla. Jan. 22, 2013), plaintiff served defendant's trial lawyer with a deposition notice. The court considered two widely recognized standards for such discovery. The Second Circuit applies what it calls a "'flexible test,'" which examines "'whether the proposed deposition would entail an inappropriate burden or hardship on the responding party.'" Id. At *8 (citation omitted). The court also looked at the much stricter standard adopted by the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). The Shelton standard permits such depositions only if the moving party establishes that the adversary's trial lawyer possesses "crucial" non-privileged information unavailable elsewhere. Id. At 1327. Acknowledging that the Eleventh Circuit has not selected a standard, the Axiom court applied a variation of Shelton, permitting a deposition limited to the defendant's trial lawyer's "non-privileged, personal knowledge" about a specific pertinent topic. Axiom, 2013 U.S. Dist. LEXIS 8475, at *15-16. The court also took a step that other courts have adopted – permitting the plaintiff to depose the defendant's lawyer "only by written questions" that the judge would review and approve beforehand. Id. At *16.

No court holds that trial lawyers are always immune from discovery, but all courts discourage such discovery.

Case Date Jurisidction State Cite Checked
2013-01-22 Federal FL
Comment:

key case


Chapter: 58.404

Case Name: Fields v. City of Chi., Case No. 10 C 1168, 2012 U.S. Dist. LEXIS 181642, at *11 (N.D. Ill. Dec. 26, 2012)
("Fields' proposed course is to take the depositions of Noland [City Attorney] and Majka [City Paralegal]. The deposition by one party of the other side's attorney in the litigation (or, by extension, the attorney's paralegal) is disfavored and should be permitted only if there is no other reasonable means to obtain relevant and significant information that the attorney possesses. . . . Fields is close to that point but is not quite there, at least not yet.")

Case Date Jurisidction State Cite Checked
2012-12-26 Federal IL B 9/13

Chapter: 58.404

Case Name: Maxtena, Inc. v. Marks, 289 F.R.D. 427, 440-41 (D. Md. 2012)
(blocking deposition of lawyer; "Although nothing in the Federal Rules of Civil Procedure prohibits deposing an opposing party's attorney, efforts to do so typically are 'view[ed] skeptically' and 'permitted only when the information sought is not available from another source.'. . . Generally, the party seeking the deposition must 'establish a legitimate basis for requesting the deposition and demonstrate that the deposition will not otherwise prove overly disruptive or burdensome.'. . . Such requirements apply both where a party seeks to depose the opposing party's litigation counsel . . . and where the putative deponent is the non-moving party's general corporate counsel.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal MD B 9/13

Chapter: 58.404

Case Name: Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)
March 6, 2013 (PRIVILEGE POINT)

"Courts Discourage Depositions of an Adversary's Trial Lawyer"

Litigants sometimes seek to depose an adversary's trial lawyer. In some situations, such discovery must be appropriate because the trial lawyer possesses relevant knowledge about some historical event. But given the disruptive and inevitably acrimonious nature of such depositions, every court discourages them.

In Axiom Worldwide, Inc. v. HTRD Group Hong Kong Ltd., Case No. 8:11-cv-1468-T-33TBM, 2013 U.S. Dist. LEXIS 8475 (M.D. Fla. Jan. 22, 2013), plaintiff served defendant's trial lawyer with a deposition notice. The court considered two widely recognized standards for such discovery. The Second Circuit applies what it calls a "'flexible test,'" which examines "'whether the proposed deposition would entail an inappropriate burden or hardship on the responding party.'" Id. At *8 (citation omitted). The court also looked at the much stricter standard adopted by the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). The Shelton standard permits such depositions only if the moving party establishes that the adversary's trial lawyer possesses "crucial" non-privileged information unavailable elsewhere. Id. At 1327. Acknowledging that the Eleventh Circuit has not selected a standard, the Axiom court applied a variation of Shelton, permitting a deposition limited to the defendant's trial lawyer's "non-privileged, personal knowledge" about a specific pertinent topic. Axiom, 2013 U.S. Dist. LEXIS 8475, at *15-16. The court also took a step that other courts have adopted – permitting the plaintiff to depose the defendant's lawyer "only by written questions" that the judge would review and approve beforehand. Id. At *16.

No court holds that trial lawyers are always immune from discovery, but all courts discourage such discovery.

Case Date Jurisidction State Cite Checked
1986-01-01 Federal
Comment:

key case


Chapter: 58.405

Case Name: Diamond Consortium, Inc. v. Manookian, Civ. A. No. 4:16-CV-00094, 2017 U.S. Dist. LEXIS 83252 (E.D. Tex. May 31, 2017)
(allowing deposition of an adverse party's paralegal; "The Federal Rules of Civil Procedure do not specifically prohibit deposing an opposing party's paralegals."; "Here, Plaintiffs allege Defendants created public websites and advertisements accusing Plaintiffs of cheating customers and selling over graded diamonds. Plaintiffs allege Rice and Pepe may have knowledge about the creation of these allegedly negative websites and advertisements. Defendants generally respond that any work Rice and Pepe completed was in anticipation of litigation or at the direction of attorneys. Defendants do not explain how the attorney-client and work-product privilege apply to public websites and advertisements that were not for the purpose of obtaining or rendering legal advice. Defendants thus have not met their burden of showing an applicable privilege for the categories of information Plaintiffs seek from Rice and Pepe.")

Case Date Jurisidction State Cite Checked
2017-05-31 Federal TX

Chapter: 58.405

Case Name: Fountain v. United States Dept. of Agriculture; Karim v. United States, Civ. No. 8:13-CV-255 (NAM/RFT) [Lead Case], Civ. No. 3:14-CV-964 (NAM/RFT) [Related Case], 2014 U.S. Dist. LEXIS 141194 (N.D.N.Y. Sept. 30, 2014)
(analyzing rules for deposing another lawyer; although not reaching a conclusion; "[C]ourts have looked askance at deposing attorneys, viewing them with tremendous disfavor and discouragement. Indeed, it is greatly frowned upon and rarely justified. . . . Yet, there is no categorical bar to deposing attorneys, especially where the attorney is a fact witness or takes part in a significant and relevant way in pre-litigation events.")

Case Date Jurisidction State Cite Checked
2014-09-30 Federal NY

Chapter: 58.405

Case Name: Bank of America, N.A. v. Georgia Farm Bureau Mut. Inc. Co., No. 3:12-CV-155 (CAR), 2014 U.S. Dist. LEXIS 136914, at *7-8 (M.D. Ga. Sept. 29, 2014)
("In counterpoint to the 'rigid Shelton [Shelton v. American Motor Corp., 805 F.2d 1323, 1327 (8th Cir. 1986)] rule,' the Second Circuit looked to the standards of Rule 26 and set out a more 'flexible approach' to evaluating lawyer depositions. . . . The Eleventh Circuit has not adopted either approach, and district courts throughout the Circuit have used both approaches, or a combination thereof, giving this Court no clear guidance on evaluating deposition of opposing counsel. This Court declines to strictly apply either approach, and instead focuses its analysis on weighing and balancing BANA's need for the information sought with GFB's interests in its attorney-client relationship. As explained below, the Court concludes that BANA has established a genuine need and good cause for the requested deposition.")

Case Date Jurisidction State Cite Checked
2014-09-29 Federal GA

Chapter: 58.405

Case Name: Bank of America, N.A. v. Georgia Farm Bureau Mut. Inc. Co., No. 3:12-CV-155 (CAR), 2014 U.S. Dist. LEXIS 136914, at *5 (M.D. Ga. Sept. 29, 2014)
("Depositions of opposing counsel are generally disfavored and permitted 'only in limited circumstances.' On the other hand, a 'protective order which prohibits a deposition is rarely given' and nothing in the federal rules prohibits the deposition of opposing counsel. A lawyer's profession is not a talisman of privilege, automatically granting attorneys immunity from discovery under the federal rules.")

Case Date Jurisidction State Cite Checked
2014-09-29 Federal GA

Chapter: 58.406

Case Name: Price v. Jarett, 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017)
(allowing the deposition of a Union Pacific in-house lawyer who sat on a panel that addressed possible employee terminations; noting that the panel required unanimity, so that the lawyer might have been playing a business role; "From the emails produced by Union Pacific, it appears that Union Pacific does, in fact, have a 'panel,' consisting of individuals who have to approve employee termination requests. At least in Plaintiff's case, the approval process was seemingly accomplished through a series of emails, each with the subject line: 'Your Legal Assistance Request.' Seven of the eight emails produced only deal with the panel's termination approval process and do not appear to directly relate to the rendition of legal advice. Therefore, these documents must be provided to Plaintiff. However, the email dated March 27, 2014 from Winkler to Hughes is clearly related to the solicitation of legal advice, and is protected by the attorney-client privilege."; "The problem in this case is that it remains entirely unclear whether Hughes was acting entirely in a legal capacity while serving on the review panel. Frankly, the documents produced by Union Pacific for in camera review shed very little light on this issue. It is possible that a portion of the information held by Hughes could be subject to the attorney-client privilege. It is also possible that the information obtained from Hughes would be cumulative or could be obtained from other sources. However, Winkler's testimony regarding the need for unanimous consent for termination indicates that Winker may have some, non-cumulative, non-privileged factual information relevant to the case."; ". . . a number of courts have found that Shelton does not apply where the lawyer to be deposed acts as a business advisor to the party, rather than its counsel. . . . based on the limited information before it, the Court is unable to conclude that Hughes was acting solely in a legal capacity in connection with Plaintiff's termination. Given the uncertainty surrounding the 'hat' Hughes was wearing while serving on the panel, the Court finds that an order entirely precluding Hughes's deposition is not warranted in this case.")

Case Date Jurisidction State Cite Checked
2017-04-21 Federal NE

Chapter: 58.406

Case Name: Allen v. TV One, LLC, Civ. A. No. DKC 15-1960, 2016 U.S. Dist. LEXIS 169641 (D. Md. Dec. 8, 2016)
(plaintiff deposed defendant's former chief legal officer, who wore two hats while at the company, and who might have been the decision-maker; "'Defendant applies the stringent three-part test set forth by the United States Court of Appeals for the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). The United States Court of Appeals for the Fourth Circuit has not adopted the Shelton standard, and Shelton is nevertheless inapplicable here. The Eighth Circuit has clarified that Shelton 'was intend[ed] 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 . . . . [T]his Court erected the Shelton test as a barrier to protect trial attorneys from these depositions.' Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730-732 (8th Cir. 2002) (emphasis added) (holding that Shelton test did not apply to deposition of opposing counsel regarding representation of the same client in a previous case). Here, Plaintiff seeks to depose, as a fact witness, Defendant's former in-house counsel, who left Defendant's employ more than a year before Plaintiff filed her EEOC claim or this lawsuit. Ms. Wishart is not opposing counsel in this case, and her deposition could not lead to the disclosure of Defendant's litigation strategy. The Shelton test is inapplicable.'"; "It is undisputed that Ms. Wishart is not Defendant's counsel of record in this litigation and has not been Defendant's in-house counsel at any time during this litigation. Defendant has, in fact, clearly stated that 'Ms. Wishart did not become involved in any matter relating to any timely claims brought by Plaintiff in this case.'. . . There is no concern here that this deposition could reveal litigation strategy or is sought to delay these proceedings, abuse discovery, or harass opposing counsel. Furthermore, the information sought through the fact deposition of this nonparty witness could not be obtained through interrogatories or other discovery requests to Defendant, or through the fact depositions of other nonparty witnesses, as Defendant suggests. . . . Plaintiff seeks to depose Ms. Wishart as a fact witness because she has personal knowledge of specific facts that are relevant to Plaintiff's discrimination claim. See Carr, 272 F.R.D. at 435. Such discovery is plainly relevant and cannot be obtained from other sources."; "Ms. Wishart was employed as Defendant's executive vice president and chief legal officer from January 10, 2005, through February 8, 2013. . . . During that time, she 'managed and oversaw' the legal department and 'provided legal advice,' which 'sometimes involved conducting and overseeing Company investigations.'. . . In addition, Defendant's human resources department reported to Ms. Wishart. . . . Because Ms. Wishart's role involved, by her own description, more than providing legal advice, whether specific communications are privileged will also depend on the purpose and context for which they were made."; "Ms. Wishart's role at TV One and Plaintiff's testimony that she was the decision maker regarding Plaintiff's complaints suggest that her role in any investigation or action involved business advice or business decision-making, not the provision of legal services. In sum, it is possible that some of Ms. Wishart's communications with Defendant's employees regarding Plaintiff's complaints are privileged, but Ms. Wishart's declaration regarding investigations generally and Defendant's assertions are insufficient to show that all discovery sought by Plaintiff is privileged.")

Case Date Jurisidction State Cite Checked
2016-12-08 Federal MD

Chapter: 58.406

Case Name: Allen v. TV One, LLC, Civ. A. No. DKC 15-1960, 2016 U.S. Dist. LEXIS 169641 (D. Md. Dec. 8, 2016)
February 22, 2017 (PRIVILEGE POINT)

"Does the Shelton Standard Apply to In-House Lawyers?"

Nearly every court protects a litigant's lawyer from depositions or other discovery under what is called the Shelton standard ( Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) or under similarly restrictive doctrines. Under the Shelton standard, adversaries seeking to depose litigants' lawyers must show that (1) the information they seek is not available elsewhere; (2) the information is not privileged; and (3) the information is crucial.

Courts disagree about which lawyers deserve protection under this or similar standards. In Allen v. TV One, LLC, Civ. A. No. DKC 15-1960, 2016 U.S. Dist. LEXIS 169641 (D. Md. Dec. 8, 2016), the court noted that the Shelton standard rests on courts' desire to avoid the inevitable ill feelings that would arise when a lawyer deposes the opposing party’s lawyer, and the risk of revealing that lawyer's litigation strategy. The court ultimately held the Shelton test inapplicable -- because the proposed deposition witness was "Defendant's former in-house counsel, who left Defendant's employ more than a year before Plaintiff filed her EEOC claim or this lawsuit." Id. at *5 n.3.

Although the Allen court assessed the other Shelton elements, some courts automatically reject the Shelton doctrine's application to former and even current in-house lawyers.

Case Date Jurisidction State Cite Checked
2016-12-08 Federal MD
Comment:

key case


Chapter: 58.406

Case Name: Textron Financial Corporation v. Gallegos, Case No. 15cv1678-LAB (DHB), 2016 U.S. Dist. LEXIS 103578 (S.D. Cal. Aug. 5, 2016)
("[T]he Shelton test is not necessarily applicable in a situation where the attorney sought to be deposed is not litigation counsel in the pending case."; "Several district courts have adopted this reasoning, and have determined the Shelton test only applies when opposing litigation counsel are being deposed."; "Here, there is no evidence Gaghen was trial or litigation counsel in the underlying case, and she does not represent Gallegos in these postjudgment proceedings. It also does not appear that permitting SPE LO to question Gaghen about facts related to Gallegos' assets and income streams would expose litigation strategy. Therefore, because SPE LO is not seeking to depose adversary counsel, the Shelton test does not apply.")

Case Date Jurisidction State Cite Checked
2016-08-05 Federal CA

Chapter: 58.406

Case Name: Gebremedhin v. American Family Mutual Insurance Company, Civ. A. No. 1:13-cv-02813-CMA-NYW, 2015 U.S. Dist. LEXIS 91948 (D. Colo. July 15, 2015)
("American Family contends that it should not be required to set forth such a showing, because Ms. Norton is not trial counsel for any party still a party to this action. . . . Although some courts have held that the Shelton standards apply only to trial counsel, it is clear that the circumstances of this case continue to present significant issues with respect to privilege and waiver for Ms. Norton and the Turners. Therefore, this court -- like many others within and outside this circuit -- finds that consideration of the Shelton factors is appropriate.")

Case Date Jurisidction State Cite Checked
2015-07-15 Federal CO

Chapter: 58.406

Case Name: ATS Products, Inc. v. Champion Fiberglass, Inc., Case No. 13-cv-02403-SI (DMR), 2015 U.S. Dist. LEXIS 74015 (N.D. Cal. June 8, 2015)
(denying defendant's efforts to depose plaintiff's lawyer, but holding that plaintiff would be allowed to conduct the deposition if the lawyer became a trial witness; "Champion argues that Shelton does not apply to the instant case, and instead urges the court to adopt the ruling in Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 728 (8th Cir. 2002), in which the Eighth Circuit revisited Shelton and held that the Shelton rule should not apply where a party seeks to depose opposing counsel about a prior closed case, rather than the pending case."; "The court applies Pamida to the situation presented in this dispute. The Shelton court applied a heightened test for depositions of opposing counsel on matters relating to the pending case because those depositions disrupt the adversarial system, lower professional standards, burden the legal system with collateral disputes about attorney client and work product objections, and could chill communications between the client and the attorney. . . . These concerns, although still present, are less pronounced when, as here, the subject matter of the deposition of opposing counsel is not his conduct in the pending case but his percipient knowledge of the events surrounding a prior concluded litigation. To permit a fact witness to evade a deposition simply because he acted as an attorney in a prior case would invite parties to retain the same counsel in subsequent cases to avoid revealing information that would otherwise be discoverable. Champion seeks to depose Marc Shea about the settlement negotiations in the Ghiorso case, during which ATS was represented by Marc Shea. Because Champion seeks the deponent's percipient knowledge of events that occurred during a prior concluded case, Pamida applies, which requires the court simply to analyze the question under the ordinary discovery standards set forth in the Federal Rules of Civil Procedure."; "[T]he court finds that Defendant is not entitled to depose ATS's attorney Marc Shea about the Ghiorso case at this time. However, if ATS decides to offer Marc Shea as a witness on this topic, it must promptly notify Champion of its decision and immediately make him available for deposition on the topic.")

Case Date Jurisidction State Cite Checked
2015-06-08 Federal CA

Chapter: 58.406

Case Name: Busey v. Richland School Dist., No. 13-CV-5022-TOR, 2014 U.S. Dist. LEXIS 50579 (E.D. Wash. April 10, 2014)
("Though Shelton's holding applies to 'opposing trial counsel,'. . . district courts in this circuit have applied the standard to depositions of in-house counsel as well.")

Case Date Jurisidction State Cite Checked
2014-04-10 Federal WA

Chapter: 58.406

Case Name: Alomari v. Ohio Dep't of Pub. Safety, Civ. A. No. 2:11-cv-00613, 2013 U.S. Dist. LEXIS 131270, at *14-15 (S.D. Ohio Sept. 13, 2013)
(holding that Shelton applies to in-house lawyers; "[T]he Court concludes that Shelton [Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986)] applies to Plaintiff's request to depose ODPS counsel. First, the attorneys Plaintiff seeks to depose served as in-house counsel in this case. Unlike in Williams [Williams v. Wellston City Sch. Dist., No. 2:09-cv-566, 2010 U.S. Dist. LEXIS 122796 (S.D. Ohio Nov. 2, 2010)], the three attorneys Plaintiff seeks to depose were 'intimately involved in [this] dispute since well before it blossomed into a lawsuit.' . . . Indeed, Plaintiff seeks to question the attorneys concerning events -- and their own conversations between themselves -- directly related and relevant to this case, namely the investigation that resulted in Plaintiff's termination. Furthermore, it is indisputable that the attorneys Plaintiff seeks to depose, all of whom were involved in the initiation of the investigation that led to Plaintiff's termination, 'played an integral role in developing [] litigation strategy' in this case. . . . This is particularly true with regard to Reed-Frient, as she was the attorney upon whom Defendants relied for legal advice when they decided to terminate Plaintiff in light of the results of the investigation. Consequently, deposing the three attorneys, particularly concerning the early stages of this litigation, would pose the exact risk that Shelton is meant to prevent.")

Case Date Jurisidction State Cite Checked
2013-09-13 Federal OH B 4/14

Chapter: 58.406

Case Name: Zimmerman v. Florida, 114 So. 3d 446, 447-48 (Fla. Dist. Ct. App. 2013)
(analyzing privilege issues relating to taped interviews of a witness undertaken by a lawyer for the Treyvon Martin family; "[T]he Shelton [Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986)] test does not apply where, as in the instant case, an attorney [Treyvon Martin family's attorney] has knowledge of facts relevant to the subject matter of the litigation and is merely advising a client with respect to a related matter.")

Case Date Jurisidction State Cite Checked
2013-01-01 State FL B 4/14

Chapter: 58.406

Case Name: Melendrez v. Superior Court, 156 Cal. Rptr. 3d 335, 341, 342 (Cal. Ct. App. 2013)
(holding that if a lawyer verifies a corporation's discovery response, it triggers a limited waiver; "[A]n attorney may verify a response as an officer or agent of a corporate party. (§§ 2030.250, subd. (b), 2033.240, subd. (b).) Doing so, however, will constitute a limited waiver of the attorney-client and work product privileges, 'during any subsequent discovery from that attorney concerning the identity of the sources of the information contained in the response.' (§§ 2030.250, subd. (b), 2033.240, subd. (b).)"; "The reason for this waiver should be obvious. As a general matter, when an individual verifies discovery responses, further discovery can be directed to that individual to determine the sources for the initial responses. Indeed, SECO [Special Electric Co., bankrupt subject of the underlying suit] conceded this is one of the purposes of a verification of a discovery response, and Melendrez pursued this course by following the RFAs with form interrogatory No. 17.1. But if an attorney verifies the initial discovery response without a corresponding limited waiver of the privileges, the attorney can frustrate followup discovery by simply asserting those privileges."; "The applicable statutes narrowly circumscribe the waiver; the privileges are only waived during any subsequent discovery from the attorney concerning the identity of the sources of the information contained in the response. The statutes do not provide for or permit lengthy further discovery from a verifying attorney. Indeed, there is no indication that a deposition of the verifying attorney would ever be necessary in any particular case.")

Case Date Jurisidction State Cite Checked
2013-01-01 State CA B 7/13

Chapter: 58.406

Case Name: Maxtena, Inc. v. Marks, 289 F.R.D. 427, 440-41 (D. Md. 2012)
(blocking deposition of lawyer; "Although nothing in the Federal Rules of Civil Procedure prohibits deposing an opposing party's attorney, efforts to do so typically are 'view[ed] skeptically' and 'permitted only when the information sought is not available from another source.'. . . Generally, the party seeking the deposition must 'establish a legitimate basis for requesting the deposition and demonstrate that the deposition will not otherwise prove overly disruptive or burdensome.'. . . Such requirements apply both where a party seeks to depose the opposing party's litigation counsel . . . and where the putative deponent is the non-moving party's general corporate counsel.")

Case Date Jurisidction State Cite Checked
2012-01-01 Federal MD B 9/13

Chapter: 58.406

Case Name: Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)
February 22, 2017 (PRIVILEGE POINT)

"Does the Shelton Standard Apply to In-House Lawyers?"

Nearly every court protects a litigant's lawyer from depositions or other discovery under what is called the Shelton standard (Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) or under similarly restrictive doctrines. Under the Shelton standard, adversaries seeking to depose litigants' lawyers must show that (1) the information they seek is not available elsewhere; (2) the information is not privileged; and (3) the information is crucial.

Courts disagree about which lawyers deserve protection under this or similar standards. In Allen v. TV One, LLC, Civ. A. No. DKC 15-1960, 2016 U.S. Dist. LEXIS 169641 (D. Md. Dec. 8, 2016), the court noted that the Shelton standard rests on courts' desire to avoid the inevitable ill feelings that would arise when a lawyer deposes the opposing party’s lawyer, and the risk of revealing that lawyer's litigation strategy. The court ultimately held the Shelton test inapplicable -- because the proposed deposition witness was "Defendant's former in-house counsel, who left Defendant's employ more than a year before Plaintiff filed her EEOC claim or this lawsuit." Id. at *5 n.3.

Although the Allen court assessed the other Shelton elements, some courts automatically reject the Shelton doctrine's application to former and even current in-house lawyers.

Case Date Jurisidction State Cite Checked
1986-01-01 Federal
Comment:

key case


Chapter: 58.407

Case Name: Price v. Jarett, 8:15CV200, 2017 U.S. Dist. LEXIS 61066 (D. Neb. Apr. 21, 2017)
(allowing the deposition of a Union Pacific in-house lawyer who sat on a panel that addressed possible employee terminations; noting that the panel required unanimity, so that the lawyer might have been playing a business role; "From the emails produced by Union Pacific, it appears that Union Pacific does, in fact, have a 'panel,' consisting of individuals who have to approve employee termination requests. At least in Plaintiff's case, the approval process was seemingly accomplished through a series of emails, each with the subject line: 'Your Legal Assistance Request.' Seven of the eight emails produced only deal with the panel's termination approval process and do not appear to directly relate to the rendition of legal advice. Therefore, these documents must be provided to Plaintiff. However, the email dated March 27, 2014 from Winkler to Hughes is clearly related to the solicitation of legal advice, and is protected by the attorney-client privilege."; "The problem in this case is that it remains entirely unclear whether Hughes was acting entirely in a legal capacity while serving on the review panel. Frankly, the documents produced by Union Pacific for in camera review shed very little light on this issue. It is possible that a portion of the information held by Hughes could be subject to the attorney-client privilege. It is also possible that the information obtained from Hughes would be cumulative or could be obtained from other sources. However, Winkler's testimony regarding the need for unanimous consent for termination indicates that Winker may have some, non-cumulative, non-privileged factual information relevant to the case."; ". . . a number of courts have found that Shelton does not apply where the lawyer to be deposed acts as a business advisor to the party, rather than its counsel. . . . based on the limited information before it, the Court is unable to conclude that Hughes was acting solely in a legal capacity in connection with Plaintiff's termination. Given the uncertainty surrounding the 'hat' Hughes was wearing while serving on the panel, the Court finds that an order entirely precluding Hughes's deposition is not warranted in this case.")

Case Date Jurisidction State Cite Checked
2017-04-21 Federal NE

Chapter: 58.407

Case Name: Natural Alternatives Int'l, Inc. v. Creative Compounds, Inc., Case No.: 15-cv-02081-JM-AGS, 2016 U.S. Dist. LEXIS 175231 (S.D. Cal. Dec. 16, 2016)
("The taking of attorney depositions in this district is controlled by the so-called Shelton test, which was first set out in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1987). Although the Ninth Circuit has not yet explicitly adopted it, our district has routinely applied the test to situations where, as here, a party seeks to take the deposition of opposing counsel concerning the instant litigation."; "NAI focuses its argument primarily on whether the information it wishes to obtain from Nolte is privileged, but that addresses only one of these three prongs. Setting aside the privilege issues (addressed below) and whether other means exist to glean the information, NAI has not shown how deposing the opposing legal team is crucial to its case. NAI argues that it wants to know the steps Nolte took in investigating and making the legal conclusions and opinions set out in the email. That information would certainly be relevant to some of NAI's claims. But NAI does not explain, and this Court's own research has not disclosed, how that information would be critical to any element of any of its causes of action or would be necessary to clear up any critical factual issues left unresolved by other discovery avenues. Thus, the Court concludes that NAI has not met its burden under Shelton and grants Creative's motion for a protective order as to that issue.")

Case Date Jurisidction State Cite Checked
2016-12-16 Federal CA

Chapter: 58.407

Case Name: Johnson v. Ford Motor Company, Case No. 3:13-cv-06529, 2015 U.S. Dist. LEXIS 90108 (S.D.W. Va. July 8, 2015)
(ordering defendant Ford to produce a 30(b)(6) deponent to testify about Ford's document retention policy; "Ford moves to quash topics 18 and 78, arguing that questions regarding Ford's document retention policies and potential loss or disposal of relevant documents constitute irrelevant 'non-merits' discovery and are improper in the absence of a threshold showing that spoliation or discovery abuse has occurred. Along the same line, Ford contends that topic 79, seeking information regarding Ford's document collection and production in this case, should be quashed because it is irrelevant 'discovery on discovery' and invades attorney work product. The Court DENIES Ford's motion to quash these topics."; "Here, there have been repeated concerns voiced by Plaintiffs regarding the thoroughness of Ford's document search, retrieval, and production. Although Ford deflects these concerns with frequent complaints of overly broad and burdensome requests, it has failed to supply any detailed information to support its position. Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant and responsive materials. At the same time that Ford acknowledges the existence of variations in the search terms and processes used by its custodians, along with limitations in some of the searches, it refuses to expressly state the nature of the variations and limitations, instead asserting work product protection. Ford has cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process. This practice violates 'the principles of an open, transparent discovery process.'"; "Contrary to Ford's contentions, discovery of document retention and disposition policies is not contingent upon a claim of spoliation or proof of discovery abuses, and may be accomplished through a Rule 30(b)(6) witness."; "Ford's assertion that sharing facts about its search terms and the identities of custodians who searched their records will require disclosure of attorney work product is equally unavailing. . . . Undoubtedly, the search terms used by the custodians and the names of the custodians that ran searches can be disclosed without revealing the substance of discussions with counsel. . . . Ford argues that its 30(b)(6) witness on this topic would likely be an attorney; however, that argument contradicts Ford's prior description of its document retrieval process as a 'self-select' method by which the individual employees conducted searches of their own documents using terms of their own choosing. Thus, while Ford correctly notes that the deposition of a party's attorney is generally not permitted, Ford should also understand that it cannot avoid a legitimate area of inquiry simply by selecting an attorney as its corporate designee."; "Accordingly, Ford is ORDERED to produce a Rule 30(b)(6) witness to provide an overview of its claims investigation process, to testify regarding its document retention and destruction policies, and to supply details regarding the document search performed by Ford to date.")

Case Date Jurisidction State Cite Checked
2015-07-08 Federal WV
Comment:

key case


Chapter: 58.407

Case Name: ATS Products, Inc. v. Champion Fiberglass, Inc., Case No. 13-cv-02403-SI (DMR), 2015 U.S. Dist. LEXIS 74015 (N.D. Cal. June 8, 2015)
(denying defendant's efforts to depose plaintiff's lawyer, but holding that plaintiff would be allowed to conduct the deposition if the lawyer became a trial witness; "Champion argues that Shelton does not apply to the instant case, and instead urges the court to adopt the ruling in Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 728 (8th Cir. 2002), in which the Eighth Circuit revisited Shelton and held that the Shelton rule should not apply where a party seeks to depose opposing counsel about a prior closed case, rather than the pending case."; "The court applies Pamida to the situation presented in this dispute. The Shelton court applied a heightened test for depositions of opposing counsel on matters relating to the pending case because those depositions disrupt the adversarial system, lower professional standards, burden the legal system with collateral disputes about attorney client and work product objections, and could chill communications between the client and the attorney. . . . These concerns, although still present, are less pronounced when, as here, the subject matter of the deposition of opposing counsel is not his conduct in the pending case but his percipient knowledge of the events surrounding a prior concluded litigation. To permit a fact witness to evade a deposition simply because he acted as an attorney in a prior case would invite parties to retain the same counsel in subsequent cases to avoid revealing information that would otherwise be discoverable. Champion seeks to depose Marc Shea about the settlement negotiations in the Ghiorso case, during which ATS was represented by Marc Shea. Because Champion seeks the deponent's percipient knowledge of events that occurred during a prior concluded case, Pamida applies, which requires the court simply to analyze the question under the ordinary discovery standards set forth in the Federal Rules of Civil Procedure."; "[T]he court finds that Defendant is not entitled to depose ATS's attorney Marc Shea about the Ghiorso case at this time. However, if ATS decides to offer Marc Shea as a witness on this topic, it must promptly notify Champion of its decision and immediately make him available for deposition on the topic.")

Case Date Jurisidction State Cite Checked
2015-06-08 Federal CA

Chapter: 58.407

Case Name: United States v. Education Management LLC, 2:07-cv-461, 2014 U.S. Dist. LEXIS 48841 (W.D. Pa. April 9, 2014)
(analyzing Rule 30(b)(6) deposition of a government's lawyer; "[T]he Special Master concluded that the proposed 30(b)(6) deposition regarding the United States' interrogatory responses would be an efficient method to adduce relevant evidence, inter alia regarding how the United States identified the 1100 individuals listed in its interrogatory responses and what information those individuals actually possess, and recommended that it proceed."; "The Court is not persuaded by Advanced Power Systems, 1993 U.S. Dist. LEXIS 1185, 1993 WL 30067, because Wolff [Senior enforcement lawyer at the Department of Energy] is not an opposing attorney of record in this litigation. Indeed, the DOE is not a party."; "The Special Master also correctly concluded that the attorney-client privilege and work product doctrines cannot be wielded as a preemptive shield to quash the depositions in advance. . . . such assertions must be made during the deposition on a question-by-question basis. . . . The blanket assertions made by the United States are premature."; "These principles apply with even greater force to the 30(b)(6) depositions, which on their face do not require attorney testimony at all. To the extent that attorney communications or mental impressions might be indirectly disclosed, the United States must make an appropriate objection during the course of the deposition. The mere fact that the United States has provided some discovery responses does not relieve it of its obligation under Rule 30(b)(6) to provide a witness to answer questions about those documents for purposes of clarification and interpretation. . . . Moreover, the underlying facts obtained by the DOE and/or Massachusetts in their underlying investigations may be discoverable.")

Case Date Jurisidction State Cite Checked
2014-04-09 Federal PA

Chapter: 58.407

Case Name: DeWitt v. Sw. Bell Tel. Co., Case No. 12-2605-SAC, 2014 U.S. Dist. LEXIS 22760, at *22-23 (D. Kan. Feb. 24, 2014)
(finding that a plaintiff had not established the Shelton standard and therefore did not depose defendant's lawyer; "As for Ms. DeWitt's arguments about the affirmative defenses, the court lacks much information about the facts forming the basis for these defenses. Southwestern Bell states it plans to rely on . . . its policies and anti-discrimination enforcement efforts. This being the case, it seems unlikely that Mr. Bourgeacq, a general attorney in the labor and human resources department, would be the exclusive source for information relevant to these defenses. Ms. DeWitt has not shown the information she seeks is unavailable from other sources. Additionally, Ms. DeWitt has not addressed the third criterion: that the information is crucial to the preparation of her case. Because she has failed to establish two of the three criteria of the Shelton test [Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cirl 1986)], the court will not compel the deposition of Mr. Bourgeacq. The court declines to consider the second-listed criterion.")

Case Date Jurisidction State Cite Checked
2014-02-24 Federal KS B 7/14

Chapter: 58.407

Case Name: FDIC v. Fid. & Deposit Co., No. 3:11-cv-00019-RLY-WGH, 2013 U.S. Dist. LEXIS 167833, at *7, *9 (S.D. Ind. Nov. 26, 2013)
(finding that an insurance company could not depose a lawyer who had represented a bank for which the FDIC was acting as receiver; noting that the lawyer had represented the bank in several matters, but no longer represented the bank after it was taken over by the FDIC; "Because there appears to be no majority approach in this jurisdiction, the court is not left with a strong conviction that the Magistrate Judge erred in applying the Shelton [Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986)] test. Therefore, the Magistrate Judge's decision to apply Shelton is not contrary to law."; "The court agrees with the Magistrate Judge and finds the information sought can be obtained by deposing the third parties with whom Mr. Rifken [lawyer] conversed. Although an admission by the opposing party's counsel may carry more weight with a jury, the protection of the attorney client relationship requires more than a desire for the information; an actual need must be shown.")

Case Date Jurisidction State Cite Checked
2013-11-26 Federal IN B 5/14

Chapter: 58.407

Case Name: Lee v. Kucker & Bruh, LLP, No. 12 Civ. 4662 (BSJ) (JCF), 2013 U.S. Dist. LEXIS 25712, at *3, *4 (S.D.N.Y. Feb. 25, 2013)
(declining to permit deposition of a lawyer, because the lawyer had no relevant information; "Although depositions of opposing counsel are by no means forbidden, . . . they are disfavored."; "Where the proposed deponent has no first-hand knowledge of any issue in the case, no deposition is justified. . . . This is such a case. The motivation of the plaintiff in bringing suit is irrelevant to an alleged violation by the defendants of the FDCPA [Fair Debt Collection Practices Act].")

Case Date Jurisidction State Cite Checked
2013-02-25 Federal NY B 3/14

Chapter: 58.407

Case Name: Random Ventures, Inc. v. Advanced Armament Corp., No. 12 Civ. 6792 (KBF), 2013 U.S. Dist. LEXIS 20513, at *9 (S.D.N.Y. Feb. 5, 2013)
("Based upon the Court's review of the recording and the role that Rust [defendant's outside lawyer] has been and appears to be playing in this litigation, he has been acting as an attorney giving legal advice to a client. The fact that the legal advice may have related to a termination which plaintiff asserts was unfair and unlawful, does not alter Rust's role from that of lawyer into that of fact witness. It is no doubt the case that lawyers who regularly interact with clients on legal issues which result in litigation have knowledge as to certain events. However, the law of privilege protects those events from disclosure under most circumstances. If, for instance -- and this is not here the case -- defendants asserted a defense based on 'advice of counsel,' the Court would need to consider different issues. On the present record, there is nothing to suggest that Rust was acting in any capacity other than that of legal counsel. As such, there is no basis for his deposition.")

Case Date Jurisidction State Cite Checked
2013-02-05 Federal NY B 2/14

Chapter: 58.408

Case Name: CTB, Inc. v. Hog Slat, Inc., No. 7:14-CV-157-D, 2016 U.S. Dist. LEXIS 39024, at *23 24 (E.D.N.C. Mar. 23, 2016)
("For these reasons, CTB's motion for a protective order is DENIED. The deposition of Marr shall be completed by 4 May 2016. If the parties would like to conduct the deposition at the Terry Sanford Federal Building and Courthouse in Raleigh to facilitate prompt resolution of any disputes that may arise, as discussed at the hearing on the motion, they shall file by 30 March 2016 a joint motion seeking such relief, specifying the date upon which they propose the deposition be held and two alternative dates, and the proposed starting time for each such date. Marr and Clark Hill shall serve on Hog Slat as soon as practicable but in no event later than two weeks before the deposition all documents sought in the subpoenas to them as to which they do not claim any privilege. They shall serve with the documents a privilege log in conformance with Rule 26(b)(5)(A) listing any pre-litigation documents withheld on the basis of privilege or work-product protection, provided that the parties may modify this requirement by written agreement.")

Case Date Jurisidction State Cite Checked
2016-03-23 Federal NC B 8/16

Chapter: 58.408

Case Name: CTB, Inc. v. Hog Slat, Inc., No. 7:14-CV-157-D, 2016 U.S. Dist. LEXIS 39024, at *20 22 (E.D.N.C. Mar. 23, 2016)
("The court finds that Hog Slat appropriately tried to obtain the information first through CTB's Rule 30(b)(6) witness, but that witness just confirmed Hog Slat's position that the ultimate knowledge on this topic rests with Marr as the declarant on the trademark applications. CTB does not suggest any other individual Hog Slat could depose in Marr's stead. While the court has considered the use of a deposition by written questions, it has concluded that that device is not appropriate here because of its relative inflexibility and CTB's failure to provide a Rule 30(b)(6) witness knowledgeable in the area at issue, as required. . . . Thus, Hog Slat has demonstrated a legitimate basis for requesting the deposition of Marr and no other apparent way to obtain the information it seeks.")

Case Date Jurisidction State Cite Checked
2016-03-23 Federal NC B 8/16

Chapter: 58.408

Case Name: Axiom Worldwide, Inc. v. HTRD Grp. Hong Kong Ltd., Case No. 8:11-cv-1468-T-33TBM, 2013 U.S. Dist. LEXIS 8475, at *16 (M.D. Fla. Jan. 22, 2013)
(adopting a modified version of the Shelton standard, and ordering the deposition of a lawyer on a limited topic by written questions to be pre-approved by the court; "[T]he Court directs that Axiom Inc. may depose Mr. Atkinson only by written questions. Furthermore, Axiom Inc. shall submit all such written questions to Judge McCoun beforehand, for review and approval, so that the Court may ensure that the information sought will not improperly invade the realm of counsel's work product or interfere with the attorney-client privilege in order to prevent the deposition from becoming an exercise in futility due to objections.")

Case Date Jurisidction State Cite Checked
2013-01-22 Federal FL B 7/13

Chapter: 58.408

Case Name: Axiom Worldwide, Inc. v. HTRD Grp. Hong Kong Ltd., Case No. 8:11-cv-1468-T-33TBM, 2013 U.S. Dist. LEXIS 8475, at *8-9, *9, *10, *11 (M.D. Fla. Jan. 22, 2013)
(adopting a modified version of the Shelton standard, and ordering the deposition of a lawyer on a limited topic by written questions to be pre-approved by the court; "Axiom Inc. urges the Court to adopt and apply the 'flexible test' that has been articulated by the Second Circuit. 'Under the "flexible test," the operative inquiry is "whether the proposed deposition would entail an inappropriate burden or hardship" on the responding party.' . . . Axiom Inc. contends that under the flexible test, 'Axiom Inc. would clearly be entitled to take the deposition of Lee Wm. Atkinson.'" (internal citation omitted); "On the other hand, the Fifth, Sixth, and Tenth Circuits have adopted the test set out by the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). . . . Under the Shelton test, the moving party must show that '(1) no other means exist to obtain the information than to depose opposing counsel, (2) the information sought is relevant and non-privileged, and (3) the information is crucial to the preparation of the case.' Shelton, 805 F.2d at 1327"; "Although the Eleventh Circuit has yet to adopt any test on the issue, courts in this circuit have often applied the Shelton test."; "However, in addition to these Shelton factors, the LaJoie [LaJoie v. Pavcon, Inc., Case No. 97-312-CIV-FTM-25D, 1998 U.S. Dist. LEXIS 23175 (M.D. Fla. June 22, 1998)] court ruled that the information sought must not only be relevant but 'its need must outweigh the dangers of deposing a party's attorney.'" (citation omitted); "Accordingly, although the Court acknowledges that the Eleventh Circuit has not ruled on the issue, the Court determines that Axiom Inc. must satisfy the requirements of the Shelton test, plus the additional factor set out in West Peninsular Title, LaJoie, and Covington [referring to earlier cases], in order to depose HTRD's counsel, Mr. Atkinson.")

Case Date Jurisidction State Cite Checked
2013-01-22 Federal FL B 7/13

Chapter: 58.408

Case Name: Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253 (S.D. Ohio Jan. 14, 2013)
March 20, 2013 (PRIVILEGE POINT)

"Rare Court Decision Focuses on Document Discovery of a Litigant's Law Firm"

Surprisingly few decisions deal with litigants' document discovery of an adversary's law firm. Perhaps few parties seek such discovery because they fear a retaliatory document request.

In Waite, Schneider, Bayless & Chesley Co. v. Davis, Case No. 1:11-cv-0851, 2013 U.S. Dist. LEXIS 5253 (S.D. Ohio Jan. 14, 2013), plaintiff law firm sued a former client for fees, which triggered a malpractice counterclaim. The law firm issued a document subpoena to the law firm of Baker & Hostetler, which had represented the former client in some pertinent matters. Although not citing any case law or legal principles that prohibit such third-party discovery, the court obviously was not pleased. Acknowledging the former client's description of the subpoena as plaintiff law firm's "disingenuous behavior in seeking documents from a non-party which the [plaintiff law firm] knew to be within [former client's] custody and control," the court explained that "[o]f greater concern to the Court is the [plaintiff law firm's] conduct in issuing a subpoena to Baker & Hostetler for documents available from, and already provided in large part by, [former client]." Id. At *16-17. The court concluded that "[s]uch conduct seems at odds with the spirit of the federal rules relating to discovery," and indicated that it "declines to impose sanctions at this time but cautions counsel that it may well do so in the future." Id. At *17.

Litigants' law firms can take solace in decisions taking this approach.

Case Date Jurisidction State Cite Checked
2013-01-14 Federal OH
Comment:

key case


Chapter: 58.408

Case Name: Zimmerman v. Florida, 114 So. 3d 446, 448 (Fla. Dist. Ct. App. 2013)
(analyzing privilege issues relating to taped interviews of a witness undertaken by a lawyer for the Treyvon Martin family; "[W]e caution that any deposition of Crump [Treyvon Martin family's attorney] is to be limited to inquiry of circumstances surrounding the interview of Witness 8 and the contents of such interview. Defense counsel may not inquire into Crump's mental impressions regarding Witness 8, nor may counsel inquire as to the reasons why Crump conducted the interview in the manner in which he did. Additionally, we believe the work product privilege precludes defense counsel from making inquiry as to the reason(s) Crump attempted to locate Witness 8 and the methods employed to do so.")

Case Date Jurisidction State Cite Checked
2013-01-01 State FL B 4/14

Chapter: 58.501

Case Name: United States SEC v. Commonwealth Advisors, Inc., Civ. A. No. 3:12-00700-JWD-EWD, 2016 U.S. Dist. LEXIS 46438, at *2 n.1 (M.D. La. Apr. 6, 2016)
("Discovery has become the preeminent battleground in modern litigation, perhaps eclipsing the rare trial.")

Case Date Jurisidction State Cite Checked
2016-04-06 Federal LA B 8/16
Comment:

key case


Chapter: 58.501

Case Name: Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014)
November 26, 2014 (PRIVILEGE POINT)

“Courts Address "Discovery about Discovery": Part I”

Plaintiffs sometimes try to generate a litigation "side show" by challenging corporate defendants' steps in preparing their discovery responses. Courts' reactions to such efforts highlight disagreements about the work product doctrine's application in that context.

In Estate of Jaquez v. City of New York, No. 10 Civ. 2881 (KBF), 2014 U.S. Dist. LEXIS 148717 (S.D.N.Y. Oct. 10, 2014), Judge Forrest addressed plaintiff's effort to learn what deposition transcripts a defense witness had reviewed before testifying. The court acknowledged that a lawyer's "general selection of materials to be covered during a preparation session are [sic] usually protected from an omnibus request for disclosure." Id. at *4. However, the court held that the plaintiff could ask a witness whether his or her recollection "was refreshed by a specific document shown during the preparation — and to identify such a document." Id. at *5. The court then added another more subtle principle — holding that a defense lawyer who had "shared the substance" of another witness's testimony with a deponent could not avoid disclosure under this refreshment rule "simply by reading or summarizing it to the witness instead of having the witness read it him or herself." Id. at *8. As the court bluntly put it "in for a penny, in for a pound." Id.

If a lawyer preparing a witness simply discusses historical facts (without attributing them to another deposition witness), it is difficult to imagine how this process would work. Next week's Privilege Point addresses two other decisions issued just a few days later, also focusing on what could be called "discovery about discovery."

Case Date Jurisidction State Cite Checked
2014-10-10 Federal NY
Comment:

key case


Chapter: 58.502

Case Name: AP Atlantic, Inc. v. Crescent Univ. City Venture, LLC, 15 CVS 14745 (Master File), 16 CVS 14844 (Related Case), 2017 NCBC LEXIS 49 (N.C. Super. June 6, 2017)
(holding that the privilege did not protect a joint defense agreement; "Crescent has failed to meet its burden to establish that the common interest doctrine protects discovery of the JDA. Based on the Court's in camera review of the emails constituting the JDA, the Court concludes that the JDA is not a confidential communication between an attorney, his client, or a third-party 'relat[ing] to a matter about which the attorney is being professionally consulted.'"; "Rather, the JDA simply reflects Crescent's agreement with Summit, prior to any demand related to this litigation ever having been made against Summit, 'to exchange information for the purpose of facilitating legal representation of the parties.'. . . The JDA does not itself convey confidential information to facilitate the rendering of legal advice in connection with this or other specific litigation.")

Case Date Jurisidction State Cite Checked
2017-06-06 State NC

Chapter: 58.502

Case Name: Singh v. Shonrock, Case No. 15-9369-JWL-GEB, 2017 U.S. Dist. LEXIS 25549 (D. Kan. Feb. 22, 2017)
(ordering a Rule 30(b)(6) witness to testify about document holds; "Plaintiff asks what ESU did, after it received a retention letter from Plaintiff's former counsel, to preserve documents and ESI. . . . Defendants argue they have produced the single non-privileged email in their possession regarding implementation of the litigation hold, and expressed some concern during the conference regarding potential disclosure of attorney-client privileged information. Although Defendants are correct their communications with their attorneys are privileged, the actions taken by the college after being notified of the litigation hold are not, without some other showing, subject to privilege. Additionally, the production of a single email does not provide information sufficient to respond to Plaintiff's request. Therefore, Defendants' objections to Topic No. 10 are overruled, and defendant ESU must prepare and produce a witness most knowledgeable and prepared to discuss the university's actions to preserve evidence.")

Case Date Jurisidction State Cite Checked
2017-02-22 Federal KS

Chapter: 58.502

Case Name: Storer v. Crown Cork & Seal Co., Civ. A. No. 14-2488, 2017 U.S. Dist. LEXIS 13349 (W.D. La. Jan. 31, 2017)
(ordering defendant Trane to designate a Rule 30(b)(6) about the following matters; "At the September Rule 30(b)(6) deposition, Trane's attorney instructed the corporate representative not to answer the following questions: 'What Mr. Dorman was told on the April 2016 call that led him to believe that "'Mr. Hopkins and other individuals inside of Trane did considerable amount of work to try and bring together the necessary information'"; "'After Mr. Dorman testified that he was given the opportunity to ask Mr. Hopkins questions during the April 2016 call to ensure that preparation for the Rule 30(b)(6) deposition was adequate, thorough, and accurate], what is an example of a question he asked Mr. Hopkins and a satisfactory answer he received . . .'"; "'What investigation was done regarding any topic in the Rule 30(b)(6) notice . . . '"; "'What questions Mr. Dorman asked to ensure that all documents regarding any particular matter in the notice were examined . . . ; and'"; "'Who at Trane conducted the investigation into any particular topic in the notice . . .'"; "Trane agrees that plaintiffs have the right to discover what actions were taken by Hopkins to discharge his task of searching for the requested information. . . . For their part, plaintiffs correctly argue that they were not seeking information about legal advice provided by counsel. . . . Rather, they sought information regarding Trane's efforts to search for responsive records and documents."; "Trane is hereby ORDERED to produce one or more representatives fully prepared to discuss all of the 30(b)(6) deposition matters noticed by plaintiffs, including the efforts made to research those matters.")

Case Date Jurisidction State Cite Checked
2017-01-31 Federal LA
Comment:

key case


Chapter: 58.502

Case Name: Wellin v. Wellin, No. 2:13-cv-1831-DCN, No. 2:13-cv-3595-DCN, No. 2:14-cv-4067-DCN, 2016 U.S. Dist. LEXIS 135604 (D.S.C. Sept. 30, 2016)
("The court also finds that Questions 31 and 32, which seek to determine who asked Plum [child of decedent whose estate was at issue in the litigation] to sign the affidavit and who Plum consulted before signing, seek privileged information to the extent Plum's answers would implicate confidential communications with her attorneys."; "The court finds that Question 6, which asks why Plum sought representation in this action, also seeks privileged information to the extent Plum's answer would necessarily require her to reveal the contents of confidential communications she made to her attorneys in seeking their representation.")

Case Date Jurisidction State Cite Checked
2016-09-30 Federal SC

Chapter: 58.502

Case Name: Loop Ai Labs Inc. v. Gatti, Case No. 15-cv-00798-HSG (DMR), 2016 U.S. Dist. LEXIS 114247 (N.D. Cal. Aug. 25, 2016)
(analyzing discovery about discovery, and concluding that plaintiff's witnesses must answer questions about their document collection; "Healy [Plaintiff's lawyer] also refused to allow Plaintiff's witnesses to answer questions about their document collection and production in this litigation on the basis of attorney-client privilege. For example, following a question about whether he had retrieved Google chat communications with Defendant Anna Gatti for purposes of this litigation, Healy objected that the question called for attorney-client privileged information. Peintner stated 'I won't answer about something my attorney has required me to recollect.'. . . Counsel again asked the question, to which Healy reiterated her objection and instructed the witness not to answer, stating, '[e]verything he's done in this litigation is at the direction of counsel.' This objection, along with counsel's other objections based on attorney-client privilege as to questions about the witnesses' own document collection efforts, was improper. It appears to rest on a misunderstanding of what attorney-client privilege protects, since the questions did not seek the content of attorney-client privileged communications. See, e.g., Peintner Dep. at 185, 186, 187 ('Have you ever seen the document requests that my client served on Loop?'); Ehlen Dep. at 33 ('Have you looked for a copy of documents related to your employment with Loop?'), 34, 102; Calafiore Dep. at 444-46 ('Did you look for documents to give to the company attorney? . . . Did you search your e-mails for documents in this litigation? . . . Did you search the servers for any documents to produce in this litigation?'), 447-48, 527, 534; 30(b)(6) Dep. at 405-06 ('Did you collect the document and give it to your counsel to produce?').")

Case Date Jurisidction State Cite Checked
2016-08-25 Federal CA

Chapter: 58.502

Case Name: GeoMetWatch Corp. v. Hall, Case No. 1:14-cv-60-JNP-PMW, 2016 U.S. Dist. LEXIS 91274, at *5 (D. Utah July 12, 2016)
October 5, 2016 (PRIVILEGE POINT)

"Are Common Interest Agreements Discoverable, and Why Does Anyone Care?"

Courts sometimes wrestle with common interest agreements' discoverability.

In GeoMetWatch Corp. v. Hall, the court noted that "[c]ases that have addressed whether joint-defense agreements are discoverable or protected by the joint-defense privilege run the gamut." Case No. 1:14-cv-60-JNP-PMW, 2016 U.S. Dist. LEXIS 91274, at *5 (D. Utah July 12, 2016). The court cited decisions holding "that joint-defense agreements are indeed protected by the joint-defense privilege," but also noted that "[o]ther courts have found that joint-defense agreements are not protected by that privilege." Id. at *5-6. The court ultimately concluded that "the joint defense agreements are not relevant to the parties' respective claims and/or defenses" in the case – which involved an indemnification dispute. Id. at *7.

Courts addressing the common interest doctrine rarely if ever point to the pertinent common interest agreements' provisions. Instead, courts look at the context, not the agreements. Common interest participants should remember that they cannot automatically contract into privilege protection, and that about half of common interest agreements fail.

Case Date Jurisidction State Cite Checked
2016-07-12 Federal UT B 10/16
Comment:

key case


Chapter: 58.502

Case Name: Guyton v. Exact Softwawre North America, Case No. 2:14-cv-502, 2015 U.S. Dist. LEXIS 170241 (S.D. Ohio Dec. 21, 2015)
(finding that a litigant's search for documents deserved privileged protection; "Here, the record is unclear as to whether the information sought was privileged. That is, if Ms. Pannkuk's [Defendant's human resources manager] answer to the questions posed would have been that counsel asked her to search for, preserve, or review documents, or to interview employees, such communications would be protected from discovery by the attorney-client privilege. If, however, someone other than counsel asked Ms. Pannkuk to search for, preserve, or review documents, or to interview employees, those communications would not be privileged. In the latter instance, it would have been improper to instruct Ms. Pannkuk not to answer.").

Case Date Jurisidction State Cite Checked
2015-12-21 Federal OH

Chapter: 58.502

Case Name: Guyton v. Exact Softwawre North America, Case No. 2:14-cv-502, 2015 U.S. Dist. LEXIS 170241 (S.D. Ohio Dec. 21, 2015)
(finding that a litigant's search for documents deserved privileged protection; "This Court . . . Finds that Ms. Pannkuk's [Defendant's human resources manager] counsel properly objected to the questions and instructed Ms. Pannkuk not to answer. As an initial matter, the questions concerning who provided the information in Ms. Pannkuk's affidavit are improper. In United States v. University Hospital, Inc., 2007 U.S. Dist. LEXIS 41189, 2007 WL 1665748 (S.D. Ohio June 6, 2007)(Black, M.J.), the Court considered whether the plaintiff should be permitted to ask a witness about 'the evolution of his affidavit,' which included 'specific questioning as to: who prepared the affidavit, what the proposed changes were, any communications between [the witness] and whomever helped prepare the affidavit, and the contents of all drafts of the affidavit.' 2007 U.S. Dist. LEXIS 41189, [WL] at *1. . . . Here, the questions about 'the evolution of [the] affidavit' are just the type which the Court found to be improper in University Hospital, Inc., 2007 U.S. Dist. LEXIS 41189, 2007 WL 1665748. This Court agrees with reasoning in University Hospital, and it is unaware of any decision in which the Court determined the discovery of that information to be proper. Thus, Ms. Pannkuk's counsel properly objected and instructed her not to answer the questions on the basis of attorney-client privilege. In addition, the questions about the attorneys' knowledge call for speculation and, to the extent that an answer would reveal communications between Ms. Pannkuk and her attorneys, they seek information protected by the attorney-client privilege. Similarly, the questions directly inquiring about communications between Ms. Pannkuk and her attorneys are clearly subject to protection under the attorney-client privilege.").

Case Date Jurisidction State Cite Checked
2015-12-21 Federal OH

Chapter: 58.502

Case Name: PCS Phosphate Co., Inc. v. American Home Assurance Co., No. 5:14-CV-99-D, 2015 U.S. Dist. LEXIS 165548 (E.D.N.C. Dec. 10, 2015)
("PCS seeks the requested documents to assist in the narrowing and specifYing [sic] future discovery requests and in avoiding or resolving disputes over what information is in American Home's possession, custody or control. . . . Document retention polices are generally discoverable.").

Case Date Jurisidction State Cite Checked
2015-12-10 Federal NC

Chapter: 58.502

Case Name: Banks v. St. Francis Health Center, Inc., Case No. 15-cv-2602-JAR-TJJ, 2015 U.S. Dist. LEXIS 157752 (D. Kansas Nov. 23, 2015)
(denying plaintiff's efforts to obtain defendant's search terms in a discrimination and harassment case; "Plaintiff's motion to compel as to Interrogatory Nos. 16 and 17 is therefore denied, but without prejudice to further motion showing specific instances and examples from which the Court could reasonably conclude that Defendant did not make reasonable and adequate efforts to preserve or collect relevant information and thereby justify discovery concerning Defendant's preservation and collection efforts.").

Case Date Jurisidction State Cite Checked
2015-11-23 Federal KS

Chapter: 58.502

Case Name: Alomari v. Ohio Dept. of Public Safety, No. 14-3922, 2015 U.S. App. LEXIS 16237 (6th Cir. App. Sept. 9, 2015)
(in a discrimination case; holding that the attorney-client privilege protected communications about defendant's response to media inquiries; "The district court did not abuse its discretion by applying Massillon Management to the facts below. Similarly to the in-house attorney in Shelton and Massillon Management, OSPS's three attorneys gathered documents about Plaintiff from Columbus State in order to conduct an administrative investigation, something that could give rise to a legal dispute. As the district court correctly noted: 'Attorney Reed-Frient provided legal advice to ODPS regarding the decision to terminate Plaintiff, which the court found to be sufficient in Massillon Management. Further, the other two attorneys who Plaintiff seeks to depose were involved in acquiring and handing documents related to the investigation that led to Plaintiff's termination, which the court in Shelton found to be sufficient involvement.'"; "This case, like Shelton involved attorneys who obtained documents in relation to potential litigation.")

Case Date Jurisidction State Cite Checked
2015-09-09 Federal OH

Chapter: 58.502

Case Name: GE v. United States, 119 F. Supp. 3d 17, 18, 18-19, 19, 20, 20-21, 21 (D. Conn. 2015)
(holding that GE's lawyers at Davis Polk could review for responsiveness GE-related documents sought by the United States from third parties Westport Insurance Company and Cahill Gordon; "Plaintiff General Electric Company ('GE') and defendant United States are embroiled in a high-stakes dispute involving GE's claim for a tax refund with interest of approximately $660 million. The dispute stems from a series of complex corporate restructuring/sale transactions that occurred more than ten years ago."; "The parties are now entangled in a discovery dispute involving a legal issue that does not appear (so far as the parties' briefings reflect) to have been previously addressed in any published decision -- perhaps surprisingly so, because I would expect the issue to be framed with some frequency in complex litigation. The issue here supposes a lawsuit between Party A and Party B and that Party A issues a subpoena to a non-party seeking documents that may be subject to a claim of privilege by opposing party B. It further supposes the right of Party B to conduct a privilege review of the subpoenaed documents before they are produced by the non-party to Party A to ensure that the document production does not include documents subject to a claim of attorney-client privilege."; "The question, then, is whether Party B (or, more precisely, its counsel) may also -- at the non-party's request -- conduct a responsiveness review of the documents before they are produced to Party A. In short, is it proper for a non-party recipient of a document subpoena from Party A to delegate or outsource a portion of its compliance obligations to the opposing Party B and its counsel in the litigation?"; "Here, the issue arises in the context of the Government's complaint about GE's conduct with respect to two subpoenas served by the Government on two non-parties to this action: Westport Insurance Company ('Westport') and Cahill Gordon & Reindel LLP ('Cahill'). Westport is a former subsidiary of GE and possesses documents relating to a former GE insurance subsidiary of great importance to this litigation. Cahill is a major law firm that served as counsel to GE on a range of transactional matters in 2002 and 2003 that are also important to the tax dispute in this case."; "Although the Government does not contest GE's right to conduct a privilege review, it vehemently objects to GE or its counsel's involvement in deciding what documents are responsive to the subpoenas that it has served on Westport and Cahill."; "The Government has a right to receive documents that are responsive to its subpoenas, not to have a completely neutral party review and decide what documents are responsive."; "Nor am I persuaded by the Government's myopic view of the scope of the ethical rules that otherwise govern Davis Polk's conduct. The ethical obligations of counsel do not run solely to a client. Quite to the contrary, counsel have multiple ethical obligations to third parties and to the Court that foreclose them from lying, from concealing or altering evidence, or from otherwise engaging in conduct inimical to the due administration of justice. I decline to conclude that David Polk attorneys are free from ethical constraints with respect to their review of Westport and Cahill documents or to presume that Davis Polk attorneys will fail to disclose non-privileged, responsive documents in breach of their ethical obligations."; "I reject the Government's argument that it is categorically improper for a party (or its counsel) in a lawsuit to undertake not only a privilege review but also a responsiveness review of documents that have been sought by the opposing party from a non-party to the litigation. My conclusion assumes that the non-party has knowingly delegated responsibility to a party to the litigation to conduct a responsiveness review. And of course it presupposes as always that the non-party recipient of a subpoena -- notwithstanding its administrative delegation of functions to any third party -- remains ultimately answerable to ensure that its obligations to fulfill the requirements of the subpoena are fully and faithfully discharged."

Case Date Jurisidction State Cite Checked
2015-07-22 Federal CT B 5/16

Chapter: 58.502

Case Name: Johnson v. Ford Motor Company, Case No. 3:13-cv-06529, 2015 U.S. Dist. LEXIS 90108 (S.D.W. Va. July 8, 2015)
(ordering defendant Ford to produce a 30(b)(6) deponent to testify about Ford's document retention policy; "Ford moves to quash topics 18 and 78, arguing that questions regarding Ford's document retention policies and potential loss or disposal of relevant documents constitute irrelevant 'non-merits' discovery and are improper in the absence of a threshold showing that spoliation or discovery abuse has occurred. Along the same line, Ford contends that topic 79, seeking information regarding Ford's document collection and production in this case, should be quashed because it is irrelevant 'discovery on discovery' and invades attorney work product. The Court DENIES Ford's motion to quash these topics."; "Here, there have been repeated concerns voiced by Plaintiffs regarding the thoroughness of Ford's document search, retrieval, and production. Although Ford deflects these concerns with frequent complaints of overly broad and burdensome requests, it has failed to supply any detailed information to support its position. Indeed, Ford has resisted sharing any specific facts regarding its collection of relevant and responsive materials. At the same time that Ford acknowledges the existence of variations in the search terms and processes used by its custodians, along with limitations in some of the searches, it refuses to expressly state the nature of the variations and limitations, instead asserting work product protection. Ford has cloaked the circumstances surrounding its document search and retrieval in secrecy, leading to skepticism about the thoroughness and accuracy of that process. This practice violates 'the principles of an open, transparent discovery process.'"; "Contrary to Ford's contentions, discovery of document retention and disposition policies is not contingent upon a claim of spoliation or proof of discovery abuses, and may be accomplished through a Rule 30(b)(6) witness."; "Ford's assertion that sharing facts about its search terms and the identities of custodians who searched their records will require disclosure of attorney work product is equally unavailing. . . . Undoubtedly, the search terms used by the custodians and the names of the custodians that ran searches can be disclosed without revealing the substance of discussions with counsel. . . . Ford argues that its 30(b)(6) witness on this topic would likely be an attorney; however, that argument contradicts Ford's prior description of its document retrieval process as a 'self-select' method by which the individual employees conducted searches of their own documents using terms of their own choosing. Thus, while Ford correctly notes that the deposition of a party's attorney is generally not permitted, Ford should also understand that it cannot avoid a legitimate area of inquiry simply by selecting an attorney as its corporate designee."; "Accordingly, Ford is ORDERED to produce a Rule 30(b)(6) witness to provide an overview of its claims investigation process, to testify regarding its document retention and destruction policies, and to supply details regarding the document search performed by Ford to date.")

Case Date Jurisidction State Cite Checked
2015-07-08 Federal WV
Comment:

key case