Depositions of Opposing Counsel: Developing Law — Part 1 | New York Legal Ethics Reporter

Depositions of Opposing Counsel: Developing Law — Part 1

By Roy Simon

[Originally published in NYPRR September 2004]

[Editor’s Note: This a two-part article. Part 2 will appear in NYPRR October 2004.]

If the opposing party wants to take your deposition, may it do so? If your client wants to take the deposition of opposing counsel, may you force opposing counsel to appear? These are two sides to the same coin. This article discusses both sides, with a focus on cases decided in New York’s federal courts, where this issue has been litigated for more than 50 years and continues to arise with accelerating frequency.

Is an Attorney Like Any Other Witness?

The first opinion I could find on this subject — by any court, anywhere — is Jenkins v. Pennsylvania Railroad Co. [9 F.R.D. 297 (E.D.N.Y. 1949, Inch, C.J.)]. This run-of-the-mill diversity case, which arose out of a railroad accident, is now largely forgotten, but it had enormous influence on the early development of the law regarding depositions of opposing counsel. To put the Jenkins case in historical context, the Federal Rules of Civil Procedure had been adopted only 11 years earlier (in 1938), and the landmark case of Hickman v. Taylor [329 U.S. 495 (1947)], which explained the work product doctrine, was only two years old. The Federal Rules of Civil Procedure had revolutionized federal civil litigation by favoring broad pretrial discovery over trial by ambush, and courts were struggling to honor the policy of liberal discovery while also trying to protect work product and privileged information and to set sensible boundaries on relevance.

In Jenkins, attorney Louis Carruthers was representing the Pennsylvania Railroad. The plaintiff served Carruthers with both a notice of deposition and a subpoena duces tecum commanding him to bring to the deposition his “legal file” regarding the accident, statements of the brakemen and crew who had knowledge of the accident, and various medical records of the plaintiff. The defendant tried to quash both the deposition notice and the subpoena. The court’s reaction was mixed.

As to the deposition notice, the court was unsympathetic. “I think it is clear,” Chief Judge Inch said, “that the mere fact that the party to be examined is an attorney for a defendant is not sufficient by itself to give him immunity from being examined, provided the information sought is not privileged and may be helpful in ascertaining or leading to the necessary facts.” Quoting Hickman v. Taylor, the court praised the discovery rules and noted that “civil trials in the federal courts no longer need be carried on in the dark.” Therefore, the discovery rules must be accorded “a broad and liberal treatment.” Based on these policy considerations, the court sustained the notice of deposition.

The subpoena for documents was another story. On the one hand (quoting again from Hickman), “Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had.” On the other hand (still quoting from Hickman), “the general policy against invading the privacy of an attorney’s course of preparation is so well recognized and so essential to an orderly working of our system of legal procedure that a burden rests on the one who would invade that privacy to establish adequate reasons to justify production through a subpoena or court order.” Balancing the policy of liberal discovery against the policy of protecting the “privacy” of an attorney’s work product and the sanctity of the attorney client relationship, the Jenkins court concluded:

For a plaintiff … to possibly thus harass an attorney, and seek to compel him to obtain from his client written documents in its possession…, completely ignores the proper relationship between an attorney and his client, yet, as I have said, if the attorney has in his actual possession any such statement, record or records, and this is properly shown to be a fact, with due regard to his right of privilege, he then would be like any other witness in order to accomplish this purpose of “discovery.” [Emphasis added.]

The plaintiff had not shown that any of the subpoenaed documents were in the “actual possession” of the defendant’s attorney, but the court speculated that perhaps the attorney knew who had the requested documents and information. Thus, even without proof that the attorney possessed any documents, he could be asked to supply the names and other information necessary for plaintiff to obtain the documents. Therefore, the plaintiff could depose Mr. Carruthers. “I do not see how this can be seriously objected to in order to carry out the liberal interpretation of these rules,” the court said “with due regard, of course, to his relationship of attorney and client.” The court said its interpretation of the discovery rules was fair and reasonable because it would prevent the examiner from violating the opposing client’s attorney client privilege but would also give the plaintiff access to witness statements and “similar non-privileged information in the possession of the attorney.” (Perhaps this could be “simply accomplished” by having Mr. Carruthers inform the examining party, by letter or otherwise, where it could get the documents not in his possession.) In any event, the court vacated the subpoena but sustained the notice of deposition.

The court reached a similar result in Goldberg v. Travelers Fire Insurance Co. [11 F.R.D. 566 (W.D.N.Y. 1950)]. Plaintiff had noticed the deposition of defendant’s lawyer. The defendant sought to vacate the notice, but the court rejected the challenge. “The fact that the witness to be examined is one of the attorneys for the defendant,” the court said, citing Jenkins, “does not give him immunity from being examined, provided the information sought is not privileged and that it may be helpful in ascertaining or lead to the necessary facts.” An attorney for a party is “surrounded by a cloak of privilege,” but an opposing lawyer may properly be deposed “with due regard to his relationship of attorney and client.”

Two years later, Judge Edward Weinfeld echoed these views. In Sagorsky v. Malyon [12 F.R.D. 486 (S.D.N.Y. 1952)], plaintiff had noticed the deposition of the defendant’s attorney. Judge Weinfeld ruled that the notice was valid because Rule 30 of the Federal Rules of Civil Procedure permitted the examination of “any person,” and nothing in Hickman v. Taylor prevented one party from taking the deposition of an attorney for the other party. Accordingly, Judge Weinfeld sustained the notice “subject to the right of the attorneys to claim the attorney client privilege where required during the course of the examination.”

One more early New York case is McCall v. Overseas Tankship Corp. [16 F.R.D. 467 (S.D.N.Y. 1954)], which arose out of a plane crash in which all passengers and crew died. The plaintiff moved to compel the attorney for a third-party defendant to appear for a deposition to identify certain documents and to state the names of witnesses not in Civil Aeronautics Board reports. Defendant moved to quash but the court denied the motion. Citing Jenkins, the court said: “That the witness is an attorney and not a party defendant does not relieve him of his duty to testify; nor does the fact that he is the attorney for the third party defendant.” The court therefore ordered the attorney to answer whether he had any statements of witnesses and to “sufficiently identify the documents” in his possession and control.

Landmark Case: Shelton

Little changed until several decades later, when the Eighth Circuit the first U. S. Court of Appeals to consider the issue decided the landmark case of Shelton v. American Motors Corp. [805 F.2d 1323 (8th Cir.1986)]. Coletta Shelton died when her Jeep CJ rolled over. Her parents brought a products-liability action against American Motors Corp. (AMC), the manufacturer. After taking many other depositions, the plaintiffs noticed the deposition of Rita Burns, an attorney in AMC’s Litigation Department who had been assigned to the Shelton case as AMC’s supervising “in-house counsel.” The court denied AMC’s motion to quash, but Burns refused to answer several questions on grounds of privilege and work product. The plaintiffs moved for sanctions, including default judgment, on the basis of Burns’ refusal to answer those questions. The magistrate denied the motion, but ordered AMC to make Burns available to give her deposition before the magistrate. Ms. Burns again refused to respond to certain questions, even after the magistrate had ordered her to answer them. When AMC and Burns refused to budge, the district court granted the plaintiffs’ motion for default judgment on the issue of liability.

The Eighth Circuit reversed. In recent years, the court noted, the boundaries of discovery had steadily expanded, and the Federal Rules of Civil Procedure do not specifically prohibit the taking of opposing counsel’s deposition. Indeed, Rule 30(a) permits a party to take the deposition of “any person.” But the “increasing practice” of taking opposing counsel’s deposition is “a negative development in the area of litigation, and one that should be employed only in limited circumstances.” The court then explained its reasoning:

Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation. It is not hard to imagine additional pretrial delays to resolve work product and attorney client objections, as well as delays to resolve collateral issues raised by the attorney’s testimony. Finally, the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client’s case without fear of being interrogated by his or her opponent. Moreover, the “chilling effect” that such practice will have on the truthful communications from the client to the attorney is obvious.

Nevertheless, the court refused to hold that opposing trial counsel is “absolutely immune” from being deposed. Rather, the court recognized that circumstances may arise in which the court should order the taking of opposing counsel’s deposition. But the court tightly delineated those circumstances to situations in which the party seeking to take the deposition has shown three things:

1. No other means exist to obtain the information than to depose opposing counsel,

2. The information sought is relevant and non-privileged;

3. The information is crucial to the preparation of the case.

These factors have come to be known as “the Shelton rule,” and they have been widely influential.

Second Circuit Finally Speaks

Despite the frequent district court pronouncements on this issue in New York, the Second Circuit did not speak to this issue until it decided Gould Inc. v. Mitsui Min. & Smelting Co., Ltd. [825 F.2d 676 (2d Cir. 1987, Mahoney, J.)]. Gould sued four foreign companies, including two Japanese companies named Miyakoshi and Mitsui, alleging that they had conspired to obtain Gould’s trade secrets from a former Gould employee. At some point, Gould served a notice of deposition and a subpoena duces tecum on the law firm of Wender Murase & White, which was then representing Mitsui and had previously represented Miyakoshi in matters involving Gould. The law firm appeared for a deposition, so the notice of deposition itself was not an issue, but the firm moved to quash the subpoena for documents and the district court granted the motion. On appeal, the Second Circuit vacated and remanded because the district court had not developed an adequate record. The only significant part of the opinion came in a footnote commenting on Shelton:

The Shelton majority makes clear the disfavor in which the tactic of seeking discovery from adversary counsel is generally regarded … and we suspect that this predisposition figured in the decision below. The point is generally well taken, but it is not a talisman for the resolution of all controversies of this nature. … Even the Shelton majority recognized circumstances in which taking the deposition of adversary counsel would be appropriate.

Let us now fast forward to the leading Second Circuit case on the topic, the decision in In re Subpoena Issued to Dennis Friedman [350 F.3d 365 (2d Cir. 2003, Sotomayor, J.)]. The Friedman case concerned the multi-billion dollar merger in 1997 of Hechinger and Builders Square, two home improvement chains. Less than two years later, the merged business went bankrupt. In the bankruptcy proceeding, the court created a Liquidation Trust, which filed an adversary proceeding alleging that Hechinger’s former directors had breached their fiduciary duties by voting in favor of the 1997 merger.

After deposing all of the former Hechinger directors in the adversary proceeding, the Trust sought to depose Dennis Friedman, a partner at Chadbourne & Parke who had represented Hechinger in the 1997 merger transaction. The stated purpose was to seek Friedman’s testimony about “the nature and substance of his advice to the defendants in connection with the Hechinger Builder’s Square merger.” The Trust claimed that Friedman’s deposition was necessary because the directors thus far deposed had either conflicting recollections or no recollection at all about whether Friedman had specifically directed the board to consider the interests of Hechinger’s creditors in evaluating the merits of the proposed merger. Friedman and the Hechinger defendants, predictably, moved to quash the subpoena.

The court conducted a hearing on the motion to quash. Initially, the court instructed plaintiff to show by proposed interrogatories that the circumstances justified the request to depose Friedman and that “the attempted deposition is not an abusive procedure under all the facts and circumstances involved herein, including the identity of the proposed witness, as attorney.” The plaintiff responded by submitting a list of the subjects on which it wished to question Friedman. The district court then quashed the subpoena.

In quashing the deposition subpoena, the district court acknowledged that (a) the proposed deposition was not barred by either the attorney client privilege or the work product doctrine, (b) Friedman’s advice was “both relevant and possibly crucial to the plaintiff’s preparation of its case” and (c) “the only way to find out the attorney’s advice may be to inquire directly of the attorney.” Nevertheless, the district court barred the deposition based on the three-pronged rule set forth in Shelton v. American Motors Corp., supra. Relying on Shelton, the district court ruled that a party seeking to depose opposing counsel “must demonstrate that the [proposed] deposition is the only practical means of obtaining the information” and, therefore, that “[o]ther methods, such as written interrogatories, should [first] be employed.” The district court found that plaintiff’s list of broad subject matter inquiries did not show that an oral deposition was “the only practical means of obtaining the information it sought,” and consequently ordered plaintiff to proceed first by written interrogatories.

The majority in the Second Circuit dismissed the appeal as moot but delivered a long discourse on Shelton. The discourse is all dicta, but dicta from the Second Circuit is worth a lot. The Second Circuit described Shelton in detail, then quoted a later case in which the Eighth Circuit which had decided Shelton had said:

The Shelton test 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. Because this abuse of the discovery process had become an ever increasing practice, this Court erected the Shelton test as a barrier to protect trial attorneys from these depositions. But Shelton was not intended to provide heightened protection to attorneys who represented a client in a completed case and then also happened to represent that same client in a pending case where the information known only by the attorneys regarding the prior concluded case was crucial.

Accordingly, the Eighth Circuit did not require the defendant to satisfy Shelton before deposing the plaintiff’s attorneys regarding information involving the concluded patent infringement litigation.

The Friedman opinion then turned to the Second Circuit’s own views of the Shelton rule:

Although we have cited Shelton for the proposition that depositions of “opposing counsel” are disfavored, we have never adopted the Shelton rule and have stated specifically that the disfavor with which the practice of seeking discovery from adversary counsel is regarded is not a talisman for the resolution of all controversies of this nature. Indeed, only the Sixth Circuit has followed the Eighth in adopting the Shelton rule. Rather, as we implicitly recognized in Gould, 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.

The Second Circuit then listed the following examples of “relevant facts and circumstances”:

• “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.”

The court said that these factors “may, in some circumstances, be especially appropriate to consider in determining whether interrogatories should be used at least initially and sometimes in lieu of a deposition.” But the fact that the proposed deponent is a lawyer “does not automatically insulate him or her from a deposition nor automatically require prior resort to alternative discovery devices” it is merely “a circumstance to be considered.”

Thus, without returning to the relatively primitive approach of the 1940s and 1950s, in which an attorney was basically treated like any other witness, the Second Circuit stopped far short of endorsing the Shelton rule.

In Part 2 (NYPRR Oct. 2004), I will discuss developments since Friedman, including two Southern District cases.

Roy Simon is the Howard Lichtenstein Distinguished Professor of Legal Ethics and Director of the Institute for the Study of Legal Ethics at Hofstra University School of Law. He annually writes Simon’s New York Code of Professional Responsibility Annotated (Thomson West). The 2004 edition is now available.

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Roy Simon