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Deposing Opposing Counsel

Posted by James Juo | May 11, 2022 | 0 Comments

Courts are reluctant to allow a deposition of opposing counsel where such questioning under oath could reveal attorney-client privileged information, attorney work product, or litigation strategy of the lawsuit, even though “the Federal Rules of Civil Procedure do not specifically prohibit the taking of opposing counsel's deposition.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); see also Fed. R. Civ. P. 30(a)(1) (“A party may . . . depose any person”).

The leading case of Shelton has recognized that a court should order the taking of opposing counsel's deposition where “(1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Id., 805 F.3d at 1327.

Courts, however, also have held that the heightened standard of Shelton does not apply where the subject matter of the deposition of opposing counsel was his knowledge of events surrounding a prior matter. See, e.g., Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002); Cascone v. Niles Home for Children, 897 F. Supp. 1263, 1267 (W.D. Mo. 1995) (“where the attorney's conduct occurred before the litigation started and not in anticipation of the litigation, then the opposing party has a right to the attorney's testimony”).

In addition, Shelton may not apply where the attorney is being deposed as a “fact witness.” Oehmke v. Medtronic, Inc., No. CIV. 13-2415 MJD/JSM, 2015 WL 2242041, at *7–*8 (D. Minn. Mar. 26, 2015), aff'd, No. CIV. 13-2415 MJD/JSM, 2015 WL 2242064 (D. Minn. May 12, 2015); United States v. Philip Morris, Inc., 209 F.R.D. 13, 18–19 (D.D.C. 2002); Boston Edison Co. v. United States, 75 Fed. Cl. 557, 563 (Fed. Cl. 2007).

Courts often will allow the deposition of opposing counsel where the opposing party relies on its counsel's testimony as evidence to support its case. Pastrana v. Loc. 9509, Commc'ns Workers of Am., AFL-CIO, No. 06CV1779 W AJB, 2007 WL 2900477, at *3 (S.D. Cal. Sept. 28, 2007) (“Since the Plaintiff intends to rely on the facts set forth in Mr. Keramati's declaration in opposing Defendants' statute of limitations defense, Defendants' are entitled to question Mr. Keramati regarding those facts and his recollection of the telephone conversations at issue.”); see also ATS Prods., Inc. v. Champion Fiberglass, Inc., No. 13-cv-02403, 2015 WL 3561611, at *3 (N.D. Cal. Jun. 8, 2015) (noting that a deposition of opposing counsel would be allowed if the opposing party were to rely on counsel's testimony for evidence). “There can be no plausible privilege claim over what was submitted in a filed declaration.” Afifeh v. Ahmadabadi, No. CV 22-00928-SB-(AFMx), slip op. at 1 (C.D. Cal. May 5, 2022).

Where an attorney acts as his or her own private investigator, and then the attorney submits a substantive declaration to the court describing the facts of that investigation in support of a motion by a party in a lawsuit; a court is likely to find that a deposition of that attorney is justified notwithstanding that attorney's status as counsel for that party. If, on the other hand, an investigator is separately employed by the attorney, and the investigator is the one who submits a declaration to the court about that investigation; then, while the investigator could be deposed, a deposition of that attorney is much less likely to be allowed.

The litigation attorneys at Thomas P. Howard, LLC are experienced in litigating cases nationwide including in Colorado.

About the Author

James Juo

James Juo is an experienced intellectual property attorney. He has successfully litigated various intellectual property disputes involving patents, trademarks, copyrights, and trade secrets. He also has counseled clients on the scope and validity of patent and trademark rights.


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