Table of Contents
I. Application of Discovery Rules
II. Judicial Approaches to Limiting Discovery
A. The Shelton three-prong test
B. Application of the Shelton test to in-house counsel
C. The Flexible Approach
III. Federal and State Court Survey
A. Deposition of Opposing and In-House Counsel by Federal Circuit
B. Deposition of Opposing and In-House Counsel by State
IV. The Role of the In-House Lawyer – Business Hat
Versus Legal Hat
V. Procedures For Handling Deposition Notices or Subpoenas
A. Protective Orders and Motions to Quash
B. Importance of affidavit of in-house counsel supporting the motion to quash
C. Objections at deposition
VI. Practice pointers for in-house counsel
When referring to a party's attempt to depose an opposing lawyer, the United States District Court for the Western District of Missouri stated that a "party shouldn't be able to use a deposition to sucker-punch the other side's quarterback or listen in on the other side's huddle." Cascone v. Niles Home for Children, 897 F. Supp. 1263, 1267 (W.D. Mo. 1995). Just as any football team would seek to protect its quarterback, so does a corporation seek to protect the attorney-client privilege between it and its attorney.
However, "[i]n recent years, the boundaries of discovery have steadily expanded, and it appears that the practice of taking the deposition of opposing counsel has become an increasingly popular vehicle of discovery." Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Although discovery rules continue to broaden, courts generally "view the increased practice of taking opposing counsel's deposition as a negative development in the area of litigation, and one that should be employed only in limited circumstances." Id.
Courts recognize the importance of the attorneyclient relationship and the privileges arising therefrom. As Justice Jackson once stated: "Discovery was hardly intended to enable a learned profession to perform its functions ... on wits borrowed from the adversary." Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, concurring). Likewise, the United States Court of Appeals for the Eighth Circuit has held that:
Undoubtedly, counsel's task in preparing for trial would be much easier if he could dispense with interrogatories, document requests, and depositions of lay persons, and simply depose opposing counsel in an attempt to identify the information that opposing counsel has decided is relevant and important to his legal theories and strategy.
Shelton, 805 F.2d at 1327. To maintain an adversarial system, it is imperative that the attorney-client privilege and work product doctrine be protected. Moreover, although not the focus of this chapter, requiring an attorney to appear implicates numerous ethical obligations upon the in-house attorney which must be considered throughout the discovery process.
This chapter is intended to set forth the applicable laws related to depositions of opposing attorneys and in-house counsel. Additionally, this chapter will show practical procedures that will assist in-house counsel in limiting or altogether prohibiting depositions of inhouse counsel.
I. Application of Discovery Rules
Pursuant to Rule 26 of the Federal Rules of Civil Procedure, "[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action. Fed R. Civ. P. 26(b)(1). Rule 26 explains that "[r]elevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Id. Further, courts have routinely held that Rule 26 is to be liberally construed to permit broad discovery. See, e.g., U.S. v. Leggett & Platt, Inc., 542 F.2d 655, 657 (6th Cir.1976).
Moreover, "[c]ourts do not favor thwarting a deposition." Mike v. Dymon, Inc., 169 F.R.D. 376, 378 (D. Kan. 1996) (citing Leighr v. Beverly Enterprises-Kansas Inc., 164 F.R.D. 550, 552 (D. Kan. 1996)). Barring extraordinary circumstances, courts rarely will grant a protective order which totally prohibits a deposition. Id. (citation omitted); U.S. v. Phillip Morris, 209 F.R.D. 13, 19 (D.D.C. 2002) ("[T] he Federal Rules of Civil Procedure create no special presumptions or exceptions for lawyers, or anyone else—even a sitting President of the United States.") (citing Clinton v. Jones, 520 U.S. 681 (1997)). Despite the generally liberal interpretation of discovery rules, trial courts are also granted broad discretion to limit or prohibit discovery. As the Supreme Court of the United States has stated, because discovery rules should "'be construed to secure the just, speedy, and inexpensive determination of every action'. . . judges should not hesitate to exercise appropriate control over the discovery process." Herbert v. Lando, 441 U.S. 153, 177 (1979). It is in the context of these liberal interpretations of the discovery rules, and in consideration of the intent to protect the attorney-client relationship, that courts have examined whether an opposing attorney should be subject to a deposition.
II. Judicial Approaches to Limiting Discovery
Although the discovery rules do not expressly prohibit the deposition of opposing counsel, courts have turned a keen eye toward such requests. Moreover, due to the increasing popularity of such discovery methods, many jurisdictions have adopted a burdenshifting approach to a party's attempt to depose an opposing attorney. In other jurisdictions, courts have more strictly applied Rule 26 and determined whether an opposing attorney's deposition is appropriate on a case-by-case or question-by-question basis. The distinction between the approaches are discussed in detail below.
A. The Shelton three-prong test
The seminal case establishing a burden-shifting protection in favor of the opposing or in-house counsel is Shelton v. American Motors Corp., 805 F.3d 1323 (8th Cir. 1986). In Shelton, the plaintiffs served a notice to take the deposition of Rita Burns, the defendant's in-house litigation attorney who was assigned to the case. Id. at 1325. The defendant filed a motion for a protective order, which was denied by the trial court. Id. At the deposition, the plaintiff 's lawyer specifically asked Ms. Burns about the existence of documents pertaining to the allegedly defective product. Id. In response, Ms. Burns refused to answer, citing the attorney-client privilege and work-product doctrine. In determining that Ms. Burns improperly refused to answer the deposition questions, the trial court entered a default judgment against the defendant.
On appeal, the Court of Appeals for the Eighth Circuit examined when, and under what circumstances, opposing counsel may be deposed by her adversary. Ultimately, while not holding that trial counsel is absolutely immune from being deposed, the Shelton Court established a three-prong test establishing the circumstances wherein the in-house lawyer may be deposed. Pursuant to the three-prong test, an inhouse lawyer's deposition can only occur when "the party seeking to take the deposition has shown 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." Id. at 1327.
Consequently, despite the liberal discovery rules, the Shelton three-prong test shifts the burden to a party seeking discovery from an in-house attorney to show that the three prongs have been met. Absent a showing of any of the three prongs, a party's attempt to depose an opposing/in-house attorney will be thwarted.
One criticism of the Shelton three-prong test is that the test places an unreasonable burden on the party seeking discovery. The Shelton test requires the party to show that the information sought is relevant, non-privileged, and crucial to the preparation of the case. Without some preliminary discovery, however, the party may not be in the position to know the full extent of the information it is seeking. The purpose of discovery is to allow a party to ascertain the world of information available and relevant to the case. If a party is stifled at the outset of discovery, it can be faced with an insurmountable task of meeting the Shelton test. As a result, courts continue to develop the test and, in some circumstances, have tailored the test to fit the case. In some instances, limited discovery will be permitted before it will be determined whether the deposition of an opposing attorney is necessary or appropriate.
B. Application of the Shelton test to in-house counsel
The holding of Shelton states that it is applicable to "opposing trial counsel." See id. However, Shelton dealt specifically with a party's attempt to obtain discovery from an in-house attorney. Id. Despite Shelton's application to an in-house attorney, many parties seeking discovery assert that in-house counsel are not "opposing trial counsel" and, therefore, are not entitled to the protections provided by Shelton. See, e.g., Continental Cas. Co. v. Multiservice Corp., 2008 WL 73345 (D. Kan. 2008) (holding that record was insufficient to establish that in-house attorney was "opposing trial attorney" for application of Shelton).
For instance, in Desert Orchid Partners, LLC v. Transaction System Architects, Inc., 237 F.R.D. 215 (D. Neb. 2006), a plaintiff sought to depose an opposing party's in-house attorney, asserting that the attorney had factual information related to the negotiation of terms and conditions of an agreement between the parties. Moreover, the plaintiff asserted that the attorney was not trial counsel and, therefore, was not entitled to the protections provided by Shelton. The District Court of Nebraska determined that an inhouse counsel, while not trial counsel, was heavily involved with the defense strategy. According to the Court,
[The in-house attorney] participated in legal defense strategy
discussions and collection of litigation documents. . . [He] was
also involved in the litigation of related lawsuits, including the
preparation of motions to dismiss...[The in-house attorney, by
affidavit] states he has no recollection of having any involvement
in negotiating the terms and conditions of the agreements...
...the court concludes the Shelton test does apply. Here, [the in-house attorney] was never trial counsel, however he was involved with the defense strategy and the litigation of this case and similar actions against the defendants. The plaintiffs have failed to show that [he] has relevant, nonprivileged information. [The in-house attorney] denies he participated in the business transactions described by the plaintiffs and the plaintiffs' evidence does not contradict the denial. Further, the plaintiffs fail to establish either (1) no other means exist to gain the desired evidence or (2) the information is crucial to the preparation of the case. In any event, the defendants have met their burden of showing good cause exists to quash the subpoena and protect [the in-house attorney] from a deposition in this matter on the topics described by the plaintiffs.
Id. at 219–20. Although not "trial counsel" or the "opposing attorney" of record, courts have routinely applied the Shelton three-prong test to attempts to depose in-house counsel. See, e.g., Bybee Farms LLC v. Snake River Sugar Co., 2008 WL 820186, 7 (E.D. Wash. 2008) ("Shelton applies to depositions of inhouse counsel as well as to opposing trial counsel"); Caterpillar Inc. v. Friedemann, 164 F.R.D. 76, 77 (D. Or. 1995) (granting motion to quash subpoena to senior in-house attorney because defendant failed to meet Shelton test); In re Sause Bros. Ocean Towing, 144 F.R.D. 111, 116–17 (D. Or. 1991) (holding that defendant failed to demonstrate good cause to take deposition of Canada's inside counsel (Canadian Department of Justice) where defendant failed to show any elements of Shelton test); Theissen v. General Electric Capital Corp., 267 F.3d 1095, 1112 (10th Cir. 2001) (upholding trial court's decision to refuse to allow deposition of defendant's corporate counsel on grounds that first two requirements of Shelton rule were not shown); see also Willer v. Las Vegas Valley Water Dist., 176 F.3d 486 (9th Cir.1999) (finding that district court properly issued protective order precluding plaintiff from deposing defendant's general counsel because plaintiff failed to meet Shelton test, where party neither attempted to depose other individuals nor utilized other venues of discovery).
Applying limitations on discovery of information from in-house counsel is sensible in light of the fact that in-house counsel are often closely engaged with trial counsel in the representation of the corporation. Moreover, more often than not, in-house counsel will be privy to the types of information that the attorney-client privilege and work product doctrine are intended to protect. Consequently, it is clear that a corporation's in-house attorney will qualify as "opposing counsel" for application of the Shelton test.
C. The Flexible Approach
Despite the inherent risks involved with opposing attorney depositions, some jurisdictions have declined to follow Shelton and have, instead, adopted a "flexible approach," which is intended to determine whether a proposed deposition would impose an inappropriate burden or hardship on the responding party. See, e.g., In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d Cir. 2003). The flexible approach attempts to more closely follow the broad discovery application of Rule 26. Courts applying the flexible approach tend to require that the party opposing the discovery carry the burden of showing that it exceeds the scope of Rule 26. U.S. v. Philip Morris Inc., 209 F.R.D. 13, 19 (D.D.C. 2002). Moreover, courts applying the flexible approach often require that the opposing attorney appear at the deposition and object on a question-by-question basis. Kirtos v. Nationwide Ins. Co., 2008 WL 564875, at *3 (Ohio Ct. App. 2008).
III. Federal and State Court Survey
The varying approaches of each federal and state jurisdiction regarding the deposition of an opposing or in-house attorney follows:
A. Deposition of Opposing and In- House Counsel by Federal Circuit
First Circuit. The United States Court of Appeals for the First Circuit has cited Shelton as authority on depositions of opposing counsel and acknowledged the "limited circumstances under which such depositions are appropriately allowed." See Saldana-Sanchez v. Lopez-Gerena, 256 F.3d 1, 5 n.9 (1st Cir. 2001).
Second Circuit. In In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d Cir. 2003), the United States Court of Appeals for the Second Circuit expressly rejected the wooden adherence to Shelton and held that
the standards set forth in Rule 26 require a flexible approach to lawyer depositions whereby the judicial officer supervising discovery takes into consideration all of the relevant facts and circumstances to determine whether the proposed deposition would entail an inappropriate burden or hardship. Such considerations may 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.
Third Circuit. The United States Court of Appeals for the Third Circuit has not expressly ruled on the standard applied to attempts to depose opposing counsel. However, district courts in the Third Circuit have cited the three-prong test of Shelton with approval. See, e.g., Smith ex rel. Smith v. U.S., 193 F.R.D. 201, 215 (D. Del. 2000) (applying the three-prong test of Shelton); Curiale v. Tiber Holding Corp., 1997 WL 786446, at *1 (E.D. Pa. 1997) (citing a four-prong test that contains all of the Shelton elements: (1) whether the information sought is relevant to a major issue in the case; (2) no other means for obtaining the relevant information exists; (3) the need for the information outweighs the inherent risks of deposing opposition counsel; and (4) the information sought is not privileged") (quoting Advance Power Systems, Inc. v. Hi-Tech Systems, Inc., 1993 WL 30067 (E.D. Pa. 1993)).
Fourth Circuit. Neither the United States Court of Appeals for the Fourth Circuit nor the district courts of the Fourth Circuit have expressly ruled on the applicable guidelines related to the deposition of opposing counsel. However, the United States Bankruptcy Court for the District of Maryland has applied the Shelton three-prong test. In re Fotso, 2006 WL 4482001 (Bkrtcy. D. Md. 2006) (citing 8A Charles Alan Wright, Arthur R. Miller, & Richard L. Marcus, Federal Practice and Procedures §2102 (1994)).
Fifth Circuit. The United States Court of Appeals for the Fifth Circuit has noted the disfavor of opposing attorney depositions and, in dicta, referenced the application of the Shelton three-prong test. See Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir.1999) ("federal courts have disfavored the practice of taking the deposition of a party's attorney; instead, the practice should be employed only in limited circumstances.") (citing Shelton); see also Nguyen v. Excel Corp., 197 F.3d 200, 209 (5th Cir.1999) (affirming trial court's decision to authorize deposition of defense counsel, even assuming the applicability of the Shelton inquiry") (emphasis added).
Sixth Circuit. The United States Court of Appeals for the Sixth Circuit has expressly adopted the Shelton three-prong test. See Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002). More recently, however, district courts within the Sixth Circuit have acknowledged the importance of the opposing attorney qualifying as "trial" or "litigation" counsel. See, e.g., Spine Solutions, Inc. v. Medtronic Sofamor Danek, Inc., 2008 WL 199709, at *3 (W.D. Tenn. 2008) (quoting Ellipsis, Inc. v. Color Works, Inc., 227 F.R.D. 496, 497 (W.D. Tenn. 2005)) ("[T] he heightened standard adopted in Nationwide only applies when 'the attorney to be deposed is either trial/litigation counsel or the subject matter of the deposition may elicit litigation strategy.'").
Seventh Circuit. The United States Court of Appeals for the Seventh Circuit has not expressly ruled on the standard applied to attempts to depose opposing counsel. District courts in the Seventh Circuit have cited the three-prong test of Shelton with approval. See, e.g., Will ex rel General Dynamics Corp. Sav. & Stock Inv. Plan v. General Dynamics Corp., 2007 WL 3145058, at *3 (S.D. Ill. 2007) (applying the Shelton three-prong test); see also SEC v. Buntrock, 217 F.R.D. 441, 445 (N.D. Ill. 2003); Newell v. Wisconsin Teamsters Joint Council No. 39, 2007 WL 2874938, at *7 (E.D. Wis. 2007) ("Although the Seventh Circuit Court of Appeals has yet to weigh in on the issue of when it is appropriate to depose counsel for an opposing party, numerous District Courts within this Circuit have followed the Shelton approach.").
Eighth Circuit. The United States Court of Appeals for the Eighth Circuit authored the seminal case establishing a burden-shifting protection in favor of the opposing/in-house counsel in Shelton v. American Motors Corp., 805 F.3d 1323 (8th Cir. 1986), discussed above.
Ninth Circuit. The United States Court of Appeals for the Ninth Circuit has not expressly ruled on the standard applied to attempts to depose opposing counsel. District courts in the Ninth Circuit, however, have cited the three-prong test of Shelton with approval. See, e.g., Bybee Farms LLC v. Snake River Sugar Co., 2008 WL 820186, at *6 (E.D. Wash. 2008) (applying the three-prong test of Shelton and also holding that Shelton applies to in-house counsel as well as opposing trial counsel); Massachusetts Mut. Life Ins. Co. v. Cerf, 177 F.R.D. 472 (N.D. Cal. 1998) (citing Shelton with approval).
Tenth Circuit. The United States Court of Appeals for the Tenth Circuit has expressly adopted the Shelton three-prong test. Thiessen v. General Electric Capital Corp., 267 F.3d 1095, 1112 (10th Cir. 2001) (applying the Shelton three-prong test); see also Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir. 1995) ("[W] e approve of the criteria set forth in Shelton v. American Motors, supra, but at this time we need only make the more limited holding that ordinarily the trial court at least has the discretion under Rule 26(c) to issue a protective order against the deposition of opposing counsel when any one or more of the three Shelton criteria for deposition listed above are not met.").
Eleventh Circuit. The United States Court of Appeals for the Eleventh Circuit has not expressly ruled on the standard applied to attempts to depose opposing counsel. District courts in the Eleventh Circuit, however, have cited the three-prong test of Shelton with approval. See, e.g., Breckenridge Pharmaceutical, Inc. v. Metabolite Laboratories, Inc., 2007 WL 433084, at *3 (S.D. Fla. 2007) (citing the Shelton threeprong test with approval and holding that "although the Eleventh Circuit has not directly ruled on the issue regarding deposition of counsel in patent cases, other Circuits have set certain standards for evaluating a motion to compel deposition of counsel. One line of cases starts with the Eighth Circuit's decision [in Shelton].").
D.C. Circuit. The United States Court of Appeals for the D.C. Circuit, in a holding similar to the Second Circuit, declined to follow the Shelton three-prong test and, instead, elected to more closely track the requirements of Rule 26 of the Federal Rules of Civil Procedure. U.S. v. Philip Morris Inc., 209 F.R.D. 13, 19 (D.D.C. 2002) (thoroughly discussing the Shelton three-prong test, but ultimately applying the parameters of Rule 26 of the Federal Rules of Civil Procedure).
B. Deposition of Opposing and In- House Counsel by State
Alabama. The Alabama state courts have not expressly adopted a position regarding the depositions of opposing/in-house counsel. In Ex parte International Refining & Mfg. Co., 959 So. 2d 1084, 1090 (Ala. 2006), however, the Supreme Court of Alabama referenced the "selection-and-compilation doctrine" identified in Shelton, but distinguished the holding of Shelton as contrary to Rule 45 of the Alabama Rules of Civil Procedure.
Alaska. The Supreme Court of Alaska has expressly declined to follow the Shelton three-prong test. See Munn v. Bristol Bay Housing Authority, 777 P.2d 188, 196 (Alaska 1989) (expressly declining to follow Shelton and holding "that an attorney is no more entitled to withhold information than any other potential witness, and may be required to testify at a deposition or trial as to material, non-privileged matters.").
Arizona. Although the Arizona courts have not definitively determined the circumstances under which an attorney may be deposed, in Ulibarri v. Superior Court in and for County of Coconino, 909 P.2d 449, 452 (Ariz. Ct. App. 1995), the Court of Appeals of Arizona found that an attorney could be deposed where a party had allegedly placed attorney-client communications at issue. Due to the alleged waiver of the attorney-client privilege, the Ulibarri Court held that:
[Plaintiff] having allegedly threatened [a psychiatrist] with her attorney-client communications, and [Plaintiff] having denied those allegations, it is only fair that [the psychiatrist] be allowed to ask the attorney whether those alleged communications occurred. The privilege may not be used as both a sword and a shield.
Id. at 452. Consequently, while the Arizona standard for attorney depositions is not expressly established, it is clear that, under certain circumstances, the deposition of an opposing attorney is appropriate. Id.; see also State Farm Mut. Auto. Ins. Co. v. Lee, 13 P.3d 1169, 1176 (Ariz. 2000).
Arkansas. In Farm Service Co-op. of Fayetteville v. Cummings, 561 S.W.2d 317, 318 (Ark. 1978), the Supreme Court of Arkansas reviewed a trial court's decision to overrule a motion to quash an attorney's deposition. According to the Farm Service Court,
an attorney is not required to divulge information of a privileged nature, but we do not take it that the court's order authorized, or intended to authorize, unlimited authority to propound any questions, including privileged matters or the attorneys' work product, and have them answered. Of course, this court has no idea what questions will be asked and this would appear to be likewise true of the trial court; there certainly is no way that we can rule on questions that have never been asked, nor can the trial court.
Id. at 318. Accordingly, Arkansas appears to follow the flexible approach to attorney depositions and requires that the attorney appear for the noticed deposition and object on the basis of privilege on a question-byquestion basis.
California. The courts of California have expressly adopted the Shelton three-prong test. See Spectra- Physics, Inc. v. Superior Court, 244 Cal. Rptr. 258, 262 (Ct. App. 1988) (adopting the Shelton three-prong test); Carehouse Convalescent Hosp. v. Superior Court, 50 Cal. Rptr.3d 129, 134 (Ct. App. 2006) (describing the efforts to depose adversary counsel as an "unpalatable procedure which erodes the adversary system and adds to the already burdensome time and costs of the litigation").
Colorado. While not expressly adopting a standard for opposing counsel depositions, the Colorado Court of Appeals, cited Shelton, in dicta, for the "reasonably held position that depositions of opposing counsel are rarely, if ever, appropriate.". Parsons ex rel. Parsons v. Allstate Ins. Co., 165 P.3d 809, 819 (Colo. Ct. App. 2006).
Connecticut. The courts of Connecticut have elected to follow the flexible approach in regard to opposing attorney depositions. OCI Chemical Corp. v. Aon Corp., 2007 WL 3087958, at *2 (Conn. Super. Ct. 2007) (adopting the flexible approach and holding that, "[i]n accordance with the requirements of the flexible approach, this court must make a determination as to whether the proposed depositions would constitute an inappropriate burden or hardship ... consider[ing] the following factors: 1) The defendants' need to depose the plaintiff 's lawyers; 2) The plaintiff 's lawyers role in connection with the matter on which discovery is being sought and in relation to the current action; the risk of encountering privilege and work-product issues; and the extent of discovery already conducted").
Delaware. Delaware has expressly adopted the Shelton three-prong test. See Cole v. Mousavi, 1990 WL 63945, at *2 (Del. Super. 1990). Florida. The Florida Court of Appeals has cited Shelton with approval and held that "[t]aking the deposition of opposing counsel in a pending case is an extraordinary step which will rarely be justified." State v. Donaldson, 763 So. 2d 1252, 1254 (Fla. App. 3 Dist. 2000).
Georgia. Georgia's code provides that "[c]ommunications to any attorney or to his employee to be transmitted to the attorney pending his employment or in anticipation thereof shall never be heard by the court. . . ." Ga. Code Ann. §24-9-24. Section 24-9-25, however, states that:
GA. CODE ANN. §24-9-25 (emphasis added); see also Tenet Healthcare Corporation v. Louisiana Forum Corporation, 538 S.E.2d 441, 444 (Ga. 2000) ("Inasmuch as the exercise of the privilege results in the exclusion of evidence, a narrow construction of the privilege comports with the view that the ascertainment of as many facts as possible leads to the truth, the discovery of which is "the object of all legal investigation."). Accordingly, pursuant to Georgia law, an attorney can be compelled to testify regarding all non-privileged matters within her knowledge. Thus, a party's objections to an attorney's deposition will be determined on a question-by-question basis.
Hawaii. The Hawaii state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Idaho. The Supreme Court of Idaho has expressly adopted the Shelton three-prong test. State v. Wood, 967 P.2d 702, 722 (Idaho 1998) (applying the Shelton three-prong test and finding that the party seeking discovery "failed to establish that no other means existed to obtain the information than to depose opposing counsel").
Illinois. The Illinois Court of Appeals has adopted the Shelton three-prong test. Kilpatrick v. First Church of the Nazarene, 538 N.E.2d 136, 141 (Ill. App. Ct. 1989) (citing Shelton with approval).
Indiana. Indiana follows the flexible approach and holds that objections should be determined on a question-by-question basis. Hayworth v. Schilli Leasing, Inc., 669 N.E.2d 165, 169 (Ind. 1996) ("We first observe that courts disfavor blanket claims of privilege such as that asserted by [appellee]. The party seeking to assert a privilege has the burden to allege and prove the applicability of the privilege 'as to each question asked or document sought.' Claims of privilege 'must be made and sustained on a question-by-question or document-by-document basis.'") (citations omitted); see also Penn Cent. Corp. v. Buchanan, 712 N.E.2d 508, 516 (Ind. Ct. App. 1999) (permitting deposition of class action counsel).
Iowa. In Brandon v. West Bend Mut. Ins. Co., 681 N.W.2d 633, 638 (Iowa 2004), the Supreme Court of Iowa expressly declined to determine "whether any nonprivileged information known by the in-house counsel or the claims adjuster would be discoverable upon a showing of substantial need and inability to obtain the information by other means under Iowa Rule of Civil Procedure 1.503(3), or by any other theory." Accordingly, Iowa state law is still undetermined regarding the deposition of an opposing attorney, although the quoted language would tend to show that a deposition will be allowed if the party seeking discovery can show that the Shelton factors are met.
Kansas. The Kansas state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Kentucky. The Supreme Court of Kentucky has expressly adopted the Shelton three-prong test. McMurry v. Eckert, 833 S.W.2d 828, 830 (Ky. 1992).
Louisiana. Louisiana's rules regarding depositions or opposing attorneys is codified at Louisiana Code of Civil Procedure art. 1452(B) ("[N]o attorney of record...shall be deposed except under extraordinary circumstances and then only by order of the district court after contradictory hearing."). See also Board of Comm'rs of New Orleans Exhibition Authority v. Missouri Pacific R. Co., 647 So. 2d 340, 341 (La. 1994) ("In order to demonstrate extraordinary circumstances under [1452(b)], the movant must first show that no other practicable means are available to obtain the desired information. Accordingly, if there are other persons available who possess the information, they must be deposed first. If not, then other discovery devices, such as written interrogatories, should be employed before allowing deposition of opposing counsel. The movant must then show that the desired information is relevant, and that the need for it substantially outweighs the harms that the deposition may cause.").
Maine. While not adopting an express rule regarding opposing attorney depositions, the Supreme Court of Maine has held that depositions of attorneys, seeking non-privileged information, can be appropriate under certain circumstances. See In re Estate of McCormick, 765 A.2d 552, 562 (Me. 2001). Thus, it appears that Maine will follow the flexible approach.
Maryland. The Maryland state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Massachusetts. The Massachusetts courts have expressly adopted the Shelton three-prong test. See Lyasoff v. Rubin, 2007 WL 4248109, at *1 (Mass. Super 2007).
Michigan. Michigan has not adopted an express rule regarding opposing attorney depositions. In Reed Dairy Farm v. Consumers Power Co., 576 N.W.2d 709, 712 (Mich. Ct. App. 1998), however, the Michigan Court of Appeals found that a paralegal could be deposed regarding non-privileged facts related to the case and compliance with requests for production of documents. Accordingly, there is a strong argument that a similar ruling would be applied to an opposing attorney.
Minnesota. The Minnesota Statutes Annotated state, in pertinent part:
Every person of sufficient understanding, including a party, may testify in any action or proceeding, civil or criminal, in court or before any person who has authority to receive evidence, except as provided in this subdivision: ...
(b) An attorney cannot, without the consent of the attorney's client, be examined as to any communication made by the client to the attorney or the attorney's advice given thereon in the course of professional duty; nor can any employee of the attorney be examined as to the communication or advice, without the client's consent.
MINN. STAT. §595.02. Minnesota law, however, tends to permit the deposition of an attorney for matters that are not privileged. See, e.g., Younggren v. Younggren, 556 N.W.2d 228, 233 (Minn. Ct. App. 1996) ("[A] n attorney's observations of his/her client are not communications."); State v. Jensen, 174 N.W.2d 226, 230 (Minn. 1970).
Mississippi. The Mississippi state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Missouri. While not expressly adopting the Shelton three-prong test, the Missouri Court of Appeals has noted the general disfavor for opposing attorney depositions. State ex rel. Chaney v. Franklin, 941 S.W.2d 790, 794 (Mo. Ct. App. 1997) (finding that "special scrutiny ... should be applied to an attempt to depose attorneys concerning their involvement in cases").
Montana. The courts of Montana have not expressly established a standard for opposing attorney depositions. In Dambrowski v. Champion Intern. Corp., 3 P.3d 617, 624 (Mont. 2000), however, an attorney was sanctioned for failure to appear at deposition despite having filed a motion to quash. Accordingly, it is probable that the flexible approach is applicable in Montana.
Nebraska. The Nebraska state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Nevada.The Nevada state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
New Hampshire. The New Hampshire state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
New Jersey. In Kerr v. Able Sanitary and Environmental Services, Inc., 684 A.2d 961, 967 (N.J. Super. Ct. App. Div. 1996), the Superior Court of New Jersey held that:
the request to depose a party's attorney itself constitutes presumptive "good cause" for a protective order...That presumption, however, may be overcome by the proponent of the deposition demonstrating legitimate discovery needs for the deposition. We are sensitive to the potential negative impact that too liberal a construction of our discovery rules may have on the adversarial process without such a presumption, especially where opposing counsel cannot demonstrate a legitimate need for the deposition. Because of the disruptive nature of attorney depositions, a party seeking to depose opposing counsel must demonstrate that the propriety and need for the deposition outweigh the possible disruptive or burdensome effects that the prospective deposition will have on the underlying litigation. Hence, to overcome the presumptive "good cause" we accord to the opponent of the deposition, the party requesting the deposition must show that the information sought is relevant to the underlying action and is unlikely to be available by other less oppressive means.
In evaluating the propriety and need for the deposition of the opposing attorney, the court should consider the following factors: (1) the relative quality of the information purportedly in the attorney's knowledge, and the extent to which the proponent of the deposition can demonstrate the attorney possesses such information; (2) the availability of the information from other sources that are less intrusive into the adversarial process, i.e., the extent to which all other reasonable alternatives have been pursued to no avail; (3) the extent to which the deposition may invade work product immunity or attorney-client privilege; and (4) the possible harm to the party's representational rights by its attorney if called upon to give deposition testimony, i.e., the extent to which the deposition will affect attorney preparation or participation on behalf of the client. Consideration of these or any other relevant factors, either singly or in combination, will determine in a particular case whether the party seeking the deposition of opposing counsel has overcome the presumptive "good cause" for the protective order. If such showing is not made, a protective order should issue.
(footnotes omitted); see also Horon Holding Corp. v. McKenzie, 775 A.2d 111, 118 (N.J. Super. Ct. App. Div. 2001).
New Mexico. The New Mexico state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
New York. The New York courts have expressly adopted the Shelton three-prong test. See In re Estate of Cavallo, 2008 WL 1902002, at *3 (N.Y. Sur. Ct. 2008) ("[T]he Court notes with approval [the] three-prong test created by the Eighth Circuit Court of Appeals in Shelton, all prongs of which must be satisfied before a party will be permitted to depose opposing counsel.").
North Carolina. The North Carolina state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
North Dakota. The North Dakota state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Ohio. The Ohio Court of Appeals, adopting the flexible approach, has held that an attorney is subject to deposition and that privileged matters should be determined on a question-by-question basis. Kirtos v. Nationwide Ins. Co., 2008 WL 564875, at *3 (Ohio Ct. App. 2008) (stating that "until [the party] takes [the attorney's] deposition and asks her questions that may be protected by the attorney-client privilege or the work-product doctrine, the issue as to whether the information is protected is premature.").
Oklahoma. The Oklahoma state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Oregon. The Oregon state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Pennsylvania. The Pennsylvania state courts have not set forth the standard that applies to depositions of opposing attorneys, but in Cooke v. Outdoor World Corporation, 1995 WL 924499, at *4 (Ct. Com. Pl. Dec. 23, 1995), 29 Pa. D. & C.4th 572, 576 (1995), the court held that "[o]ral depositions of parties' lawyers, we believe, should be ordered only under clear or extreme circumstances which are not present here."
Accordingly, it appears that Pennsylvania law will require some showing, above and beyond the parameters of Rule 26, for the deposition of an attorney to be appropriate.
Rhode Island. Rhode Island has expressly adopted the Shelton three-prong test. Woodland Manor Iii Assoc. v. Keeny, 1995 WL 941473, at *2 (R.I. Super. 1995) (adopting and applying the Shelton three-prong test and holding that although "protective orders totally prohibiting a deposition should rarely be granted, a request to depose a party's attorney constitutes a circumstance justifying departure from the normal rule.").
South Carolina. The South Carolina state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel. South Dakota. The Supreme Court of South Dakota has expressly adopted the Shelton three-prong test. In Rumpza v. Donalar Enterprises, Inc., 581 N.W.2d 517, 525 (S.D. 1998), the Supreme Court of South Dakota held that the South Dakota Codified Laws "mandate disqualification at any time during the proceedings where the attorney testifies and does not come within one of the recognized exceptions of the statute." Accordingly, because disqualification is a "serious step which has great potential for disruption to the client's case and is cause for concern over abuse of the judicial system," it should only occur when the moving party has established all three prongs established in Shelton. Id.
Tennessee. The Tennessee state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Texas. In Borden, Inc. v. Valdez, 773 S.W.2d 718, 720 (Tex. App. 1989), the Texas Court of Appeals, adopting the flexible approach, held that an attorney is not insulated from a deposition. Instead, the attorney must appear for the deposition and object on the basis of privilege on a question by question basis. According to the Borden Court,
[i]n the present case, relators generally seek to protect King from being deposed altogether because his testimony would only relate to matters protected by the attorney-client privilege...The problem, however, is that no questions have been asked and we may only speculate as to the substance of what would be revealed should King be deposed. This, we cannot do. The attorney-client privilege was never intended to foreclose any opportunity to depose an attorney, but rather only precludes those questions which may somehow invade upon the attorney-client confidences. An attorney may not avoid a deposition in its entirety merely because some matters may be privileged, but must object when those inquiries are raised during the deposition.
Borden, 773 S.W.2d at 720 (citations omitted); see also In re Mason & Co. Property Management, 172 S.W.3d 308, 313 (Tex. App. 2005).
Utah. The Utah state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Vermont. While not expressly adopting a standard for opposing attorney depositions, in Skiba v. Whitcomb, 2004 WL 5460793 (Vt. 2004), the court cited Shelton for the proposition that attorney depositions are a "negative development ... that should be employed in only limited circumstances."
Virginia. Virginia has adopted the Shelton threeprong test. McFarland v. McFarland, 1992 WL 884465, at *1 (Va. Cir. Ct. 1992) (adopting the holding of Shelton and finding that a party must establish that "alternate discovery avenues have been exhausted or proven impractical, and that there is a substantial need for the deposition of opposing counsel in th[e] case.").
Washington. The Washington state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
West Virginia. West Viriginia has not expressly adopted Shelton, but in State ex rel. United Hosp. Center, Inc. v. Bedell, 484 S.E.2d 199, 216 (W.Va. 1997), the Supreme Court of West Virginia discussed, in dicta, the three-prong test of Shelton.
Wisconsin. The Wisconsin state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
Wyoming. The Wyoming state courts have not expressly adopted a position regarding the depositions of opposing or in-house counsel.
IV. The Role of the In-House Lawyer—Business Hat Versus Legal Hat
It is not uncommon for an in-house lawyer's role to extend beyond that of simply providing legal advice to the corporation. Rather, in-house lawyers are often given authority that exceeds that generally provided to a lawyer. In fact, in-house lawyers are commonly given dual titles and expected to take an active role in the decision-making of the corporation. When an in-house lawyer engages in dual roles and, in essence, wears both a business hat and legal hat, a gray area arises that potentially exposes the in-house lawyer to more detailed questioning during the deposition.
For instance, in Roeben v. BG Excelsior Ltd. Partnership, 2007 WL 2990427 (E.D. Ark. 2007), the defendant's in-house lawyer, Claude Zobell, appeared at a deposition on behalf of the defendant.. On the record of the deposition, Mr. Zobell stated "I am a lawyer; but I'm not here in that capacity. I'm here as assistant vice president of the [defendant]." Id. at *1. In determining that Mr. Zobell was required to appear for his noticed deposition, the Roeben Court noted that Mr. Zobell's dual capacity was significant. According to the Roeben Court,
The Court has no information regarding the scope of Zobell's duties as an assistant vice president and how those duties differ from his duties as a lawyer. Zobell, himself, distinguishes between his two capacities and expressly stated that he was attending the...deposition not as a lawyer but as an assistant vice president... No privilege would bar [plaintiff] from deposing an assistant vice president. Because Zobell is an assistant vice president, which is a capacity that he distinguishes from his capacity as a lawyer, he can be deposed.
Id. at * 3. See also Evans v. United Services Auto. Ass'n, 541 S.E.2d 782, 791 (N.C. Ct. App. 2001) (stating that "an insurance company and its counsel may not avail themselves of the protection afforded by the attorneyclient privilege if the attorney was not acting as a legal advisor when the communication was made.")
Holding dual roles will increase the likelihood that an in-house attorney will maintain non-privileged information and increase the potential for finding that a deposition of the in-house attorney is appropriate. Consequently, the dual roles of the in-house attorney should be delineated as much as possible to protect the corporation's attorney-client privilege. If possible, a corporation should limit the roles of the in-house attorney, especially once litigation has ensued. Additionally, the in-house attorney should be especially prepared to protect information that has been obtained solely as a result of his or her role as inhouse counsel.
V. Procedures For Handling Deposition Notices Or Subpoenas
Regardless of the jurisdictional rules applicable to opposing attorney depositions, all corporate counsel should be prepared to receive a notice of deposition and subpoena demanding appearance at a deposition. Counsel should therefore be prepared to answer questions without disclosing privileged information, or take quick action to either have the deposition quashed or otherwise limited.
A. Protective Orders and Motions to Quash
As an initial step, the in-house attorney, or her trial counsel, should move the court to quash the notice of deposition or subpoena. Additionally, pursuant to Rule 26(c), a party may seek a protective order from the court prohibiting (or at least limiting) the discovery request. In the event that the Shelton threeprong test is applicable, counsel should first require the plaintiff to meet the burdens required by Shelton. If the flexible approach is applied, the burden will, of course, fall on the party seeking to prohibit the discovery to show that the requested deposition exceeds the scope of Rule 26.
Moreover, in any jurisdiction, there are methods that a corporation can propose to limit the requested discovery. One method of limiting discovery sought by a party is to ask the court to require the party to first submit written discovery requests or deposition by written question to the opposing attorney. See, e.g., Cox v. Administrator U.S. Steel & Carnegie, 17 F.3d 1386, 1423 (11th Cir. 1994). Likewise, discovery may be limited if the party seeking to limit or prohibit discovery can show that there are other available sources of information and that those sources should first be explored before taking the drastic step of deposing an opposing or in-house counsel. Kelling v. Bridgestone/ Firestone, Inc., 153 F.R.D. 170 (D. Kan.1994).
B. Importance of affidavit of inhouse counsel supporting the motion to quash
When moving to quash a subpoena or obtain a protective order, it is imperative that the corporation establish, in the record, the basis for the protective order. In almost every instance, it is appropriate and necessary to have the in-house lawyer, from whom discovery is sought, to execute an affidavit setting forth the "good cause" for a court order prohibiting the discovery. In Continental Cas. Co. v. Multiservice Corp., 2008 WL 73345 (D. Kan. 2008), the defendant in a declaratory action sought to depose the in-house lawyer of the plaintiff. After the plaintiff moved for a protective order prohibiting the deposition, the court held that a protective order is not appropriate when the record fails to include sworn testimony supporting the basis for the award of such an order. Stressing the importance of sworn testimony, the court held:
Continental's motion for protective order contain[ed] several generalized statements regarding [the in-house lawyer's] position at Continental and her role in the underlying lawsuit. Conspicuously, none of the statements [were] supported by an affidavit by [the in-house lawyer] or any other sworn testimony. ...Given the lack of specific, sworn information on [the in-house lawyer's] role, the court cannot determine whether she should even be considered opposing counsel for purposes of the Simmons test.
Id. at *7 (emphasis in original). Accordingly, as a result of the party's failure to submit sworn testimony of the in-house lawyer in the record, the Court found that there was no basis for awarding a protective order prohibiting or limiting the deposition of the lawyer. Id. at *8. The content of an in-house counsel's affidavit should include his or her role as legal counsel, state each of the factors of the work-product doctrine and establish their applicability to the facts of the particular case, state the basis of the attorney-client privilege and establish that the in-house counsel's relationship to the case was for the purpose of providing legal advice. See, e.g., Bybee Farms LLC v. Snake River Sugar Co., 2008 WL 820186, at *7 (E.D. Wash. 2008) (grant ing motion to quash deposition of in-house counsel whose affidavit stated "[m]y interactions with counsel for plaintiffs and my involvement with the relevant claims and issues in this action were for the purpose of seeking, obtaining, or providing legal advice in the litigation and/or for the purpose of reaching a settlement.").
C. Objections at deposition
In the event that the deposition of the in-house attorney is ultimately ordered, it is imperative that the in-house attorney appear for the deposition and be fully prepared for the line of questioning that will follow. Specifically, the in-house attorney should be fully versed in the attorney-client privilege and workproduct doctrine applicable in the jurisdiction. The in-house attorney will be required, in order to protect the applicable privileges, to object on a question- by-question basis. In order to do so effectively, it is advisable for in-house counsel to retain separate, independent counsel to represent them at any deposition. See Todd Presnell, Protecting the Attorney-Client Privilege—Depositions of In-House Counsel, In- House Def. Q. 50, 67 (Winter 2007).
VI. Practice pointers for in-house counsel
As set forth above, depositions of in-house counsel are becoming an ever-increasing method employed by parties engaging in discovery during litigation. In light of the negative implications of such discovery efforts and the "chilling effect" that arises therefrom, in-house counsel, under certain circumstances, will be protected from the such discovery. Obviously, it is important for in-house counsel to be knowledgeable of the laws of the particular jurisdiction and the privileges provided to the corporation. Regardless of the jurisdiction, however, there are several practice tips , set forth below, that will better enable the in-house attorney to avoid or limit her exposure to depositions.
- Avoid signing affidavits, declarations, or verifications of discovery responses if another corporate official could do so—doing so will increase the likelihood of in-house attorneys being deposed.
- If possible, avoid designating in-house counsel as a Rule 30(b)(6) deponent, because a court will likely determine that any privilege will be waived at to those matters about which the inhouse attorney was designated to testify. See, e.g., State ex rel. United Hosp. Center, Inc. v. Bedell, 484 S.E.2d 199, 216 (W.Va. 1997) (stating that "when a corporation, partnership, association or governmental agency designates an attorney to testify on its behalf at a deposition...such corporation, partnership, association or governmental agency waives the attorney-client privilege and work product doctrine with regard to matters, set forth in the notice of deposition, about which the attorney was designated to testify").
- Avoid searching files during the discovery process. An in-house lawyer's search could result in her becoming a fact witness regarding discovery compliance.
- Mark any truly privileged documents prepared by (or for) the in-house lawyer as "PRIVILEGED – Prepared in anticipation of litigation."
- If possible, a corporation should have written job responsibilities for the in-house lawyer and, if the lawyer engages in dual roles, the written job responsibilities should distinguish any business role from the legal counsel role.
- The in-house lawyer should be well-versed in the attorney-client privilege and the work product doctrine laws for all jurisdictions in which the corporation does business.
- In-house counsel should take precautions to separate documents that she may create in the ordinary course of business (which will be discoverable) from those that are created in anticipation of litigation (and therefore protected by the work product doctrine).
- In the ever-growing technological age, the inhouse counsel should take additional precautions to protect any privilege that would apply to e-mails and attachments. Specifically, the inhouse attorney should only copy those persons to whom legal advice is being provided. Likewise, employees of the corporation should be advised that e-mails related to matters in litigation should only be sent to the in-house counsel and appropriate officers and directors.
- E-mails containing privileged information should be separate from any e-mails sent for a business purpose. See, e.g., Isom v. Bank of America, 628 S.E.2d 458, 462 (N.C. Ct. App. 2006) ("The Bank's attorneys appear to have been copied in the exchange merely for informational purposes. A document, which is not privileged in the hands of the client, will not be imbued with the privilege merely because the document was handed over to the attorney.").
- Any motion to quash or for protective order should be supported by the affidavit of the inhouse lawyer. In the affidavit, the in-house lawyer should state his role as legal counsel, state each of the factors of the work-product doctrine and establish their applicability to the facts of the particular case, state the basis of the attorney- client privilege and establish that the inhouse counsel's relationship to the case was for the purpose of providing legal advice. If applicable, distinguish between the lawyer's roles as business advisor and as legal counsel and state that the lawyer was acting in his legal capacity in the communication related to the case. See, e.g., Bybee Farms LLC v. Snake River Sugar Co., 2008 WL 820186, at *7 (E.D. Wash. 2008) (court granted motion to quash deposition of in-house counsel whose affidavit stated: "[m]y interactions with counsel for plaintiffs and my involvement with the relevant claims and issues in this action were for the purpose of seeking, obtaining, or providing legal advice in the litigation and/or for the purpose of reaching a settlement.").
KEVIN C. BALTZ practices in the Nashville office of Miller & Martin PLLC, with a concentration in business litigation and transportation law. Mr. Baltz graduated, cum laude, from The University of Tennessee College of Law where he was a member of the Tennessee Law Review.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.