(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 |
Jurisdiction |
State |
Cite Checked |
| 2016-12-08 |
Federal |
MD |
|