SO YOU WANT TO DEPOSE OPPOSING COUNSEL?

Prepared for 38th ABA National Conference on Professional Responsibility

May 30-June 2, 2012 held in Boston, Massachusetts

By: Edna Selan Epstein

The Law Offices of Edna Selan Epstein
Chicago, IL 60637

Author: The Attorney-Client Privilege and the Work Product Doctrine, 5th
Edition, ABA 2007 (copyright).

It is beyond dispute that attorneys are not automatically exempt from

being subject to a subpoena to produce documents or to testify solely by
virtue of their license to practice law or by virtue of a blanket assertion of
privilege and work product protection. Probably no case has put that
proposition more uncategorically than:

United Phosphorus, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245,

247 (D. Kan. 1995). The court observed: Fed. R. Civ. P. 26(b)(3)
clearly contemplates discovery from attorneys as well as from the
parties themselves or their agents. When work product is sought under
Rule 26(b)(3), such discovery is limited to circumstances where the
party seeking discovery can establish a substantial need and an
inability to obtain the substantial equivalent by other means. The
burden of establishing the criteria set forth in Rule 26(b)(3) is upon
the party seeking discovery. Neither the criteria for determining the
appropriateness of discovery or the burden of establishing the
existence of the criteria are altered because the documents were
prepared by or in the custody of an attorney. Not only are attorneys
not exempt from this rule, discovery from them is clearly
contemplated. It is inconceivable that had the drafters of the Federal
Rules of Civil Procedure, the Supreme Court or Congress intended to
exempt attorneys from the provisions of Rule 30 or to otherwise limit
discovery from attorneys, they would not have included a provision in
Rule 30 similar to that contained in Rule 26(b)(3). Had the Court or
Congress intended to engraft a preliminary showing when deposition
discovery was sought from attorneys, such an exception would likely
have been found in Rule 30 or otherwise within the Rules of Civil
Procedure. Attorneys with discoverable facts, not protected by

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 attorney-client privilege or work product, are not exempt from being a
source for discovery by virtue of their license to practice law or their
employment by a party to represent them in litigation.

The status of the law in respect to deposing attorneys is fully and

accurately stated in the United Phosphorous opinion. The implication of the
opinion is that there should be virtually no situation in which a notice of
depostion, even for opposing counsel, or a subpoena for a lawyer will
subcumb to a motion to quash on the basis that the testimony would
necessarily invade domains that are either attorney-client or work-product
protected. And that in fact seems to be the trend in the cases.
courts are increasingly reluctant to quash a subpoena for an attorney to
testify, provided the attorney is not litigation counsel in the case where the
testimony is sought, before a proper factual record can be made and
privilege asserted question-by-question rather than globally.
The procedure is that a notice for deposition or a subpoena issues.
The opponent of the notice or subpoena brings a motion to quash.
The court undertakes an inquiry into the proposed scope of the
deposition.
More often than not, no order quashing the deposition will issue. A
protective order outlining the permissible subject scope of the deposition
may issue, based more often than not, on the scope of inquiry that the party
seeking the deposition represented would be the areas of inquiry. The
attorney deponent will be told what is self-evident in privilege law: There is
no blanket objection to protect attorney-client or work-product. Make your
objection question-by-question and document-by-document. Make a record
upon which a court can base its ruling.
Pritchard v. County of Erie, 2006 U.S. Dist. LEXIS 74356 (W.D.N.Y.
2006). The court declined to resolve a privilege dispute prior to a
deposition taking place and a privilege objection being interposed as
to specific questions. The court noted that "normal practice" dictates
that deposition should proceed so that parties may "create a record of
where questionable inquiries, objections, or assertions of privilege
arose and furnish a context for the dispute," thereby enabling court to
resolve the dispute on "concrete record."
Some courts are willing to be on telephonic stand-bye to make on the
spot rulings on privilege objections. Others warn the litigants not to make

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frivolous objections since if there are costs incurred in resuming the
deposition after rulings have been made on the objections, they will be borne
by the party responsible for having required, unnecessarily, the resumption
of the deposition after improper privilege and work product objections have
been judicially ruled on.
But there are still courts that consider the entire process of subpoena
the files and taking the depositions of attorneys too invasive and therefore
the matter best dealt with by quashing the deposition notice or the subpoena.
This option, however, has decidedly become the minority judicial position.
Yet there is no denying the potentially disruptive effect of attorney
subpoenas and depositions. The danger is always that their use is a strategic
one, to drive a wedge between client and counsel and to force a
disqualification of opposing counsel if counsel is transformed from litigation
counsel for a party or even from a reliable counselor into witness either for
or implicitly against their client. So small wonder that courts were leery of
the potential and legal trade associations (i.e. bar associations) as amici were
up in arms when the question of whether counsel could be deposed were first
litigated.
And even if there was not a danger of disruption to the very litigation
at issue, there was always something unseemly when an attorney is required
to testify, on whatever grounds and for whatever reason, against or
seemingly against a client.
What is clear from the case law is that a continuum exists. The closer
the proposed deposition and its subject matter is to being too disruptive of
the adversarial process, the more it is that some protective order, either
quashing the deposition altogether or limiting its scope, will be issued. The
farther the proposed attorney deponent is from the adversarial process in
which the subpoena for documents and the deposition are sought, the less
invasive to the adversarial process the proposed subject matter of the
deposition is the more likely it also is that a court will permit it to take place.
What some have regarded as the touchstone of attorney depositions,
the Shelton case and its tri-factorial test for whether an attorney deposition
should be permitted to go forward, are used far less than at first appeared to
be the case. The Shelton factors are:
1. The information sought is relevant and non-privileged;
2. The information sought is crucial to the preparation of the case;
and

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 3. No less invasive or alternative means exist to get information
relevant and necessary to the preparation of the case.
If strictly applied as a test for whether any deposition of an attorney
may proceed, the Shelton tri-factorial test would operate to preclude most
attorney depositions from going forward.
The Shelton factors are rarely strictly applied. The approach taken is
usually a more holistic one. The result is that a great many attorney
depositions are permitted, with or without a protective order as to scope of
permissible inquiry.
Shelton v. Amer. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986).
The case before the Eight Circuit was whether the trial judge properly
imposed sanctions on in-house counsel for refusing to answer
questions on work product protection grounds as to whether she
possessed documents concerning testing done on the vehicle involved
in a death case. Plaintiff's counsel admitted that the sole purpose in
asking these questions was to determine whether defendant's counsel
had, in fact, truthfully complied with his document requests and
interrogatories and to confirm the information he had already
received.
The Eighth Circuit reversed the imposition of sanctions. And in
passing, formulated what came to be known as the tripartite Shelton
factors test for when opposing counsel (whether litigation or in-house)
could be deposed.
Even as it formulated its tri-factorial test, the court warned, in
language oft forgotten: "We do not hold that opposing counsel is
absolutely immune from being deposed.
Nor did the Eight Circuit hold that the magistrate judge should
not have allowed the deposition to be taken. Rather, it in fact held
only that because responses to the particular questions asked would
provide a roadmap of trial counsel's litigation strategy, the deponents
answers were protected by the work-product doctrine and no sanctions
for a failure to respond should have been imposed.
It is often forgotten that what the Eight Circuit in fact did is no
more and no less than reverse the imposition of sanctions that had
been applied by the trial court when in-house counsel refused to
answer questions going to questions that invaded work product issues
in the litigation at hand.

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 The Eight Circuit itself subsequently made clear that the Shelton
factors were to be applied in the limited circumstances when there was a
genuine possibility of invading the trial strategy of current litigation counsel
by virtue of the deposition of an attorney. Thus the Shelton factors were to
be applied to limit depositions of attorneys in two instances: (1) when the
depositions of trial and/or litigation counsel were sought and (2) when a line
of questioning risked invading and exposing litigation strategy in the
pending case.
Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002)
726, 730-31 (8th Cir. 2002). The Eighth Circuit revisited the Shelton
case holding and explained: We held in Shelton that requiring the
attorney to answer the questions posed to her regarding the existence
of certain documents would require her to reveal her mental selective
process The Shelton test was intended 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. In such
circumstances, the protection Shelton provides to opposing counsel
only applies because opposing counsel is counsel in the instant case
and not because opposing counsel had represented the client [earlier].
(emphasis added)

Obviously, in the Eight Circuit, the district courts and magistrate

courts cite the Shelton factors when depositions of counsel are sought. The
results, however, are quite to the contrary and depositions are usually
allowed.
Hina v. Anchor Glass Container Corp., 2008 U.S. Dist. LEXIS 41577
(S.D. Oh. May 23, 2008). The Shelton factors were discussed but the
deposition of litigation counsel was permitted to proceed as relevant
to the question of whether a test conducted on machinery at issue in
the litigation had been properly conducted.
Only the Sixth Circuit has expressed approval of and adopted the
Shelton factors, but when it did so, at issue was the question of whether

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opposing trial counsel and arbitrators could be deposed on an issue in
dispute. It is not in the least surprising that the Sixth Circuit found that
factual situation to be a reach too far.
Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 2002 U.S.
App. LEXIS 1101 (6th Cir. Jan. 28, 2002). Quoting the Shelton
factors with approval, the Sixth Circuit in fact based its holding on the
observation that the proponent for the deposition had not
demonstrated either its relevance or its necessity and therefore the
district court was not clearly erroneous in refusing to allow the
depositions of arbitrators in a prior proceeding and current litigation
counsel to go forward on the issue of the arbitrators alleged bias to
ward the claimant.
Where the counsel, whose deposition is sought, is not involved in the
very litigation at hand but has knowledge concerning corporate affairs,
nothing precludes such a deposition from going forward, even if the matters
are tangential to the issues sub judice in the case.
U.S.A. v. Philip Morris, Inc. 209 F.R.D. 13, 16, 2002 U.S. Dist.
LEXIS 15787 (D.D.C. Aug. 23, 2002). The court reversed the
magistrate judge who had quashed subpoenas of three in-house
counsel. The court found that the Shelton factors were inapplicable
the depositions sought by the government on multiple grounds. First,
the deponents were employees to whom the company had knowingly
assigned substantial non-legal, non-litigation responsibilities,
including corporate, business, managerial, public relations,
advertising, scientific, as well as research and development
responsibilities. Second, the government was not seeking to depose
the various in-house counsel about the defense or litigation strategies
related to this case. Third, the principal rationale driving the Shelton
decision was not raised by the facts of this case. Fourth, the proposed
deponents were not litigation or trial counsel.
Defendants contend that the three criteria apply to any attempt
to depose an attorney, without regard to the subject matter of the
deposition or the attorney's role in the pending litigation. This is not
only a misinterpretation of the holding in Shelton and the subsequent
case law re-affirming that holding, but is contrary to the language and
philosophy of the Federal Rules of Civil Procedure.

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 It is thus based on proximity and involvement in the adversarial
process that a deposition of an attorney will be quashed or allowed to
proceed.
Subpoena quashed
Courts have found that the critical factor in determining whether the
Shelton test applies is not the status of the lawyer as trial counsel, but the
extent of the lawyer's involvement in the pending litigation.
National Western Life Insur. Co. v. Western Natl Life Insur. Co.,
2010 U.S. Dist. LEXIS 132024 (W.D. Tex. Dec. 13, 2010). The
deposition of outside counsel for 50 years was quashed where Shelton
factors had not been met and there was no showing of the need or
purpose of the deposition.
Lincoln Natl. Life Ins. v. TCF Natl Bank, 2011 U.S. Dist. LEXIS
142371 (N.D. Ill. Dec. 12, 2011). Deposition of in-house, deeply
involved in the preparation of the litigated case, was quashed where
the Shelton factors were not demonstrated and where nothing crucial
to the case that would not be privilege or work product protected was
likely to be known by in-house counsel.
Harris v. Koenig, 2010 U.S. Dist. LEXIS 127057 (D.C. D.C. Dec. 2,
2010). Deposition of opposing counsel quashed where court saw no
possible utility in it that would not invade the work product
protection. And, finally, a court saw fit to require both sides to
respond to a Rule to Show Cause why they should not be sanctioned
under 28 U.S.C. Sec. 1927 for how they conducted themselves in
respect to that motion. Kudos for Judge Facciola!
Gruenbaum v. Werner Enterprises, Inc., 270 F.R.D. 298, 2010 U.S.
Dist. LEXIS 107274, 2010 WL 3942818 (S.D. Ohio October 7, 2010).
Deposition of in-house counsel was quashed based on the Shelton
factors. In-house counsel had been involved in investigating the
litigated car accident and similar ones and was also involved with
formulate trial strategy. Plaintiff wished to depose in-house counsel
on the issues of preventability of the accidents. However, defendants
director of safety had already been deposed on that issue, the driver of
the car and various state troopers.
Newkirk v. ConAgra Foods, Inc., 2010 U.S. Dist. LEXIS 60835 (D.
Neb. May. 27, 2010). The court applied the Shelton criteria to quash a
subpoena to depose an attorney who was neither litigation counsel nor

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 an in-house attorney but who had provided legal advice and conducted
studies on behalf of defendant on the effect of organic compounds on
the health of defendants employees. That issue was the subject
matter in the litigation in which the deposition was sought. In seeking
to obtain the deposition, plaintiffs claimed, but apparently did not
convince the court that they should be allowed to depose Ms. Morar
and McGrath North as fact witnesses, based on their speculation that
counsel's participation in the various studies was more likely for
business or technical purposes, not litigation. In their concluding
paragraphs, the plaintiffs accused ConAgra of engaging in a
fraudulent scheme to investigate its own products' dangerous
propensities and then shroud the investigation and its findings under
the veil of privilege.
Query: Were the Shelton factors properly applied in this
instance where so sweeping a claim was made or should plaintiff have
been permitted to depose non-litigation counsel to demonstrate the
contention that the study had been conducted for business as well as
litigation purposes? To this commentator it is dubious whether the
court correctly foreclosed that opportunity.
But no doubt this is one instance where it would indeed have
been unseemly were counsel obliged to testify against their
employer and were the testimony harmful to the
employer/client/defendant.
Massillon Management, Llc. v. Americold Realty Trust, 2009 U.S.
Dist. LEXIS 22415 at *16-17 (N.D. Oh. Jan. 21, 2009). The district
court reversed the magistrate judge who had entered a ruling that
would have permitted a deposition of defendants in-house counsel to
proceed. The district court discussed at length the manner in which
the magistrate judge had misapplied Shelton by believing,
erroneously, the factors to be limited only to litigation counsel. Here
the in-house counsel was intimately involved with defendants
litigation strategy and thus fell within the application and protection of
the Shelton factors.
Under these specific circumstances, it appears both that Metz
has been intimately involved in this dispute since well before it
blossomed into a lawsuit, and has played an integral role in
developing Defendant's litigation strategy. Both requirements set forth
in Phillip Morris are therefore satisfied. Thus, Plaintiffs' attempt to
take Metz's deposition therefore implicates the Shelton test, whether

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 viewed strictly as a matter of Sixth Circuit law (which, having
adopted Shelton wholesale, clearly applies to an in-house attorney in
Metz's position), or even under the considerably more nuanced
approach articulated in Philip Morris (which requires non-trial counsel
seeking to avoid deposition by invoking Shelton to establish both a
certain level of direct involvement in the litigation and a likelihood
that the deposition topics would reveal the client's litigation strategy.
Murphy v. Adelphia Recovery Trust, 2009 U.S. Dist. LEXIS 1232027
at *13 (N.D. Tex. Nov. 3, 2009). The court rejected the argument that
Shelton factors should only be applied to trial counsel and went on to
quash a subpoena served on non-trial counsel based on them. The
lawyer whose subpoena was quashed represented Bank of America in
the negotiations and drafting for a credit facility, which then became a
tangential subject in the instant litigation. One such proceeding is a
multi-billion dollar lawsuit brought by the Adelphia Recovery Trust,
as successor-in-interest to Adelphia and its Official Committee of
Unsecured Creditors, against more than 40 commercial and
investment banks, including, Bank of America. Although the
subpoened lawyer was not trial counsel, she was part of the litigation
team and participated in strategy discussions, assisted in drafting
pleadings, met with witnesses, and helped collect and review
documents.
In the motion to quash, the subpoened lawyer argued that her
deposition would be cumulative to that of hundreds (!!!) of other
deponents and be based on thousands if not millions of documents
already produced.
Thus although the courts wording may have been based on a
seeming application of the Shelton factors, in fact the court was
persuaded that the deposition attempt was pointless and hence unduly
burdensome for any possible benefit to be derived there from. The
court also noted that when alternative witnesses had been deposed,
counsel had done a bad job, inquiring into privileged communications
which were correctly objected to, rather than the factual
underpinnings known to the deponent. When answers were given to
these without objection, counsel had failed to properly follow up to
obtain the information it belated sought to obtain through the
deposition of the subpoened attorney. If ART now lacks a "viable
alternative" to obtain additional information about the credit
transaction, it is only because counsel squandered the opportunity to

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 obtain that information from BOA employees and other key witnesses
during their depositions. The court will not allow the deposition of
opposing counsel under these circumstances.
Fresenius Medical Care Holdings, Inc. v. Roxane Laboratories, Inc.,
2007 U.S. Dist. LEXIS 12018 at *12-13 (S.D. Oh. Feb. 16, 2007).
The deposition of general counsel of a third party defendant was
sought. The court denied the request, referring to the Shelton factors
and stating the combination of the likelihood that many questions put
to the witness would call for the invocation of the privilege and the
witness's unique relationship with the client, which ought not to be
infringed upon absent some showing of substantial need, justifies
caution in permitting the deposition of opposing counsel to proceed.
The determinant factor was that the information had been obtained
from other deponents with less disruption of a crucial attorney client
relationship. Ultimately and here is the crux of the matter, the court
was not persuaded that anything to which the subpoened general
counsel might testify was relevant to any issue in dispute.
If there is no clear statement of the nature of the non-privileged
testimony sought, the deposition is more likely to be quashed.
Unigene Laboratories, Inc. v. Apotex, Inc., 2007 U.S. Dist. LEXIS
78410 (N.D. Cal. Oct. 10, 2007). Where a total of 8 employees were
listed with knowledge of the facts of a certification letter drafted by
the lawyer and where there was no articulation of what non-privileged
facts were being sought from the attorney that were not known by the
other employees, the court quashed the subpoena.
Desert Orchid Partners, Llc v. Transaction System Architects, Inc.,
237 F.R.D. 215; 2006 U.S. Dist. LEXIS 32217 (D.C. Neb. May 19,
2006). The subpoena to take the deposition of former in-house
counsel was quashed based on the application of Shelton factors. The
subpoena served on former in-house counsel was moot because the
requested documents had already been produced. What stands out in
the opinion is a total lack of any clarity as to what the deposition was
intended to accomplish or why it was necessary. Small wonder that it
was quashed.
Delor v. Intercosmos Media Group, Inc. 2005 U.S. Dist. LEXIS
13410 (E.D. La. June 27, 2005). The court applied the Shelton factors
to quash a deposition of in-house counsel, stating in a formulaic
purported summary of the law on deposing attorneys which is not in

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 fact accurate: The federal courts disfavor depositions of a party's
attorney and allow them only in limited circumstances. Since the
party seeking the deposition had already withdrawn the request, the
opinion and its dicta seem as pointless as it is inaccurate. The ruling
should have been that the issue was moot since the issuer of the
subpoena had withdrawn it. Instead the case hangs out there, cited by
other courts and litigants for a purported precedent for which it does
not in fact stand when examined with any care.
Cardenas v. Prudential Ins. Co. of America, 2003 U.S. Dist. LEXIS
9510 at *4-5 (D. Minn. May 16, 2003). Moreover, plaintiffs have
not demonstrated that deposing Sangillo and Schwimmer --
Prudential's in-house lawyers -- would satisfy the Eighth Circuit's
requirement that deposition of in-house counsel must not disclose
Prudential's litigation strategy. The court cited both Shelton and
Pamida for that proposition but gave no facts as to what the
deposition proponents had or had failed to show.

Subpoena Not Quashed

Vita-Mix Corp. v. Basic Holdings, Inc., 2007 U.S. Dist. LEXIS 59755
(N.D. Ohio August 15, 2007). Since counsel whose deposition was
sought was not litigation counsel, the court held that the Shelton
factors, as promulgated by the Sixth Circuit in Nationwide, supra.,
were inapplicable. Instead the court shifted the burden of proof as to
why the deposition should not proceed upon the party resisting the
deposition and then found that the burden had not been met. The
deposition of patent counsel was thus allowed to proceed. If a
privilege objection to a particular question was appropriate, the
deponent should interpose such an objection to a particular question.
In re Grand Jury Subpoena (Osterhoudt), 722 F.2d 594-95, 1983 U.S.
App. LEXIS 14045 at *10-11 (9th Cir. Dec. 30, 1983). The
government stipulated that counsel need produce only the date,
amount, and form of payment, and that this evidence could be
delivered to the United States Attorney informally without the
necessity for an appearance before the grand jury. The information
required was so distinct from any confidential communication
between appellant and his counsel and so clearly unprotected by the
attorney-client privilege that no reasonably informed client could have
supposed that it would be protected from disclosure. Since the

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 attorney was not required to testify before the grand jury, this possible
source of client concern was also eliminated. Moreover, the
government established by uncontradicted affidavits that the evidence
was sought for a legitimate purpose, that it was relevant to the grand
jury inquiry, and that it was not available from another source, thus
establishing all appellant suggests the government should be required
to show in a preliminary hearing. The hearing suggested by amici
would also have been inappropriate since whether or not there is a
pattern of abuse nationwide, this case was clearly not an example.
The key to the ruling was that what was sought was clearly
discoverable and no testimony was in fact required.
Courts will also assess how relevant the testimony of opposing
counsel might be to any issue in dispute that would not require a constant
invocation of work product. Few courts wish to police such a deposition by
phone availability to rule on each objection when the possible relevance of
the information sought is minimal to nil.
Awgi, Llc v. Duncan & Elbaz, Inc., 2010 U.S. Dist. LEXIS 122043 at
*6-7 (N.D. Cal. Nov. 3, 2010). The deposition of counsel was
permitted in order to determine whether the location of the client was
a matter, which could be encompassed by a claim of privilege where
the affidavits of counsel were considered inadequate. The court also
was of opinion that hiding the location of a client so that he might
avoid service of process was not a legitimate basis on which to
privilege protect the location.
Williams v. Wellston City School Dist., 2010 U.S. Dist. LEXIS
122796 at *15 (S.D. Oh. Nov. 2, 2010). After a very useful survey of
existing case law on when counsel may be deposed, the court declined
to use the Shelton factors, since counsel whose deposition was sought
had never represented a party in the current litigation nor had his law
firm. Counsel had been instrumental in the decision to fire the
plaintiff in his capacity as a teacher for the pornographic use of a
school computer. In so ruling, the court said: The court, extensively
reviewing courts which had and had not applied the Shelton factors in
the context of depositions of attorneys, concluded: that one of the
motivating factors behind Shelton itself, and decisions which have
applied that case to attorneys who are not actively litigating the
current controversy, is the need to protect an opposing party's
litigation strategy. When the attorney whose deposition is requested is
not litigation counsel, is not in-house counsel who is involved to some

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 extent in directing litigation, or is not an attorney who has advised the
client concerning the same or similar litigation or has helped develop
its defense strategy, the reasons for applying Shelton are much less
compelling because there is little or no risk that the attorney's
testimony might reveal any litigation strategy, or that the purpose of
the deposition is to drive a wedge between the opposing party and its
current counsel.
That said, the court further concluded that the burden of
showing why a deposition subpoena on counsel, who was not
litigation counsel, should be quashed lay with the movant. Since the
movant had not met the burden, the court concluded that the
deposition should be allowed to proceed.
When a subpoena is sought of attorneys who are not involved directly
or indirectly with current litigation, then the concerns that gave rise to the
Shelton factors are not applicable and depositions will be far more readily
granted.
Advanced Technology Incubator, Inc. v. Sharp Corp., 263 F.R.D. 395,
399 (W.D. Tex. 2009) 2009 U.S. Dist. LEXIS 109376 at *9-10 (W.D.
Tex. June 10, 2009). The court denied the motion to quash a
subpoena served upon an attorney who was not of record in the
litigation and whose advice may well have been more of a business
than of a legal nature in all events. A blanket assertion of privilege
with the resultant quashing of a subpoena was not the proper way of
adjudicating such issues. Plaintiff's assertion that the entirety of the
deposition would concern privileged matters is the type of blanket
assertion of privilege that is disfavored. Consequently, the motion to
quash must be denied. It is impossible to know whether individual
questions may elicit information that is protected by privilege. As
Plaintiff recently admitted by producing a significant number of
documents, not all information in Fiur's possession is protected by
privilege. Simple possession of a law license does not result in
blanket immunity from a deposition. Therefore, the motion to quash
on this ground is denied. This decision does not, however, prevent
Fiur from asserting the privilege, if applicable, in response to certain
questions during the deposition.
Wright v. Life Investors Ins. Co. of America, 2009 U.S. Dist. LEXIS
116799 at *6-7 (N.D. Miss. Nov. 24, 2009. The court found that
Shelton factors were not controlling since the lawyer whose
deposition was sought had acted primarily in a business capacity. In

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 this case, the plaintiffs seek information regarding the implementation
of the change in claims procedure, including the role of the task force
and the training of employees. According to Edwards's sworn
statement, the purpose of the task force was to "examine the cause of
premium rate increases on the policies." Edwards makes the blanket
assertion that his involvement with the task force was "to provide
legal analysis, legal strategy and litigation-related advice" and that he
realized changes in the claims procedure could result in litigation for
which he sought possible outside legal advice. The court, however,
does not find the blanket assertion of the privilege to be compelling
enough too quash his deposition. (record citations omitted).
Purportedly state law was applied, but then the court reasoned
based entirely on federal law precedent, allowing the deposition to
proceed on a claim of fraud. [C]ounsel must determine whether
assertion of the attorney-client privilege is proper on a question-by-
question basis. Consequently, the court declines to quash the
deposition of Mark Edwards. The defendant remains entitled to
invoke the attorney-client privilege and the work product doctrine in
good faith in accordance with [local rules].
Increasingly, it appears that attorneys are subpoened to testify and
motions to quash the subpoena served upon the attorney on the grounds that
the depositions may invade the privilege are going nowhere. Indeed what
seemed to have a minority position taken on the subject by the Second
Circuit is becoming more prevalent.
In re Friedman, 350 F.3d 65, 71-2, 2003 U.S. App. LEXIS 23749 at
*18-19 (2nd Cir. Nov. 21, 2003)(Sotomayor). The court said: "[W]e
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. Thus the court reversed the lower court,
which had refused to order the deposition of former counsel and
current counsel in another proceeding, but found that since counsel
had voluntarily agreed to submit to the deposition, actually ordering it
to go forward was moot.
And where the attorney sought to be deposed is alleged to have been
engaged in widespread improprieties in other forums, courts are particularly
reluctant to quash the deposition and instead state that it should go forward
and any protections based on privilege or work product protection should be
raised and then properly adjudicated. In a word, the process of

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adjudicating rather than prejudging the existence of the privilege or the
protection should go forward.
In re Application of Chevron Corp., 749 F. SUPP. 2D 141, 168; 2010
U.S. DIST. LEXIS 117679 at *72-73 (S.D.N.Y. NOV. 4, 2010). The
court allowed the deposition of adverse counsel to go forward after an
extensive assessment and a preliminary conclusion that most of
counsels actions outside of the United States did not seem to be the
provision of legal services at all, but political in nature, lobbying,
media and public relations. In this Court's judgment, the need is
extremely great in view of the extraordinary evidence already before
it. To turn a blind eye to evidence suggesting improper influence on
and intimidation of the Ecuadorian courts by both Donziger [the
attorney whose deposition the court refused to quash] and the GOE,
improper manipulation of the criminal process in that country,
knowing submission by the Lago Agrio plaintiffs of at least one
fraudulent report, and improper collusion with Cabrera, the
supposedly neutral court-appointed expert, could defeat the purpose of
Section 1782, deprive the Individual Petitioners of evidence needed
for their defense in a criminal case, and frustrate the BIT arbitration.
Considering all of the facts and circumstances before the Court,
including the need to resolve privilege issues, the fact that Donziger is
a lawyer and that he is allied with Chevron's adversaries in the Lago
Agrio litigation is not sufficient to warrant the quashing of these
subpoenas. The proper course is to allow the process to go forward
and to adjudicate the claims of privilege in due course.
The courts generally state that the privilege protects the content of the
communications not the surrounding facts of the engagement and the
privilege protection accorded to such contents are best protected by adequate
and well considered objections to specific questions.
Allstate Insur. Co. v. Nassiri, 2011 U.S. Dist. LEXIS 27234 at *9 (D.
Nev. Mar. 1, 2011). Deposition of an attorney called to testify as to
client referrals. Proposed topics of inquiry were presented, albeit
without any guarantee that they were all-inclusive. The court
allowed the deposition to proceed. The mere fact that requested
information relates to an attorney-client relationship does not entitle it
to protection under the attorney-client privilege. As the court
pointed out, nothing precluded the deponent to objecting to a specific
question that sought to invade a real privilege.

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 Trans-Industries, Inc., v. Figgie, 2011 U.S. Dist. LEXIS 37911 (N.D.
OH. 2011). Deposition of managing partner of a law firm,
representing the executrice of an estate, was allowed where there was
evidence presented that he participated in discussions whose purpose
was to administer the plan.
Depositions of attorneys have become legion and generally any
motion to quash the taking of the deposition seems to be denied, at times
even without recourse to the Shelton factors. Courts seem to deny the
motion to quash and tell the parties that any privilege claims can be
preserved by objection and will be ruled upon in due course.
Some courts will rule in advance of a deposition on the permissible
scope of inquiry, which in part will depend on whether the attorney will be
called as a witness to prove some issue in dispute.
Nicholson v. Great Lakes Towing Co., 2008 U.S. Dist. LEXIS 57559
at *6-7 (E.D. Mich. July 29, 2008). Accordingly, the deposition of
Mr. Beaton may proceed, as long as Defendants counsel is careful to
limit his questions to the purpose for which Mr. Beaton was retained
and to the general nature of those legal services. To the present point,
Plaintiff Nicholson has not waived the attorney client privilege. In
those instances where the content of the communication would be
disclosed by revealing the purpose, such information is accorded
protection. Yet, if Plaintiff Nicholson intends to call Mr. Beaton at
trial as a witness to refute any fraud or fabrication charges by
Defendant, it will be assumed that Plaintiff has waived the attorney
client privilege and Mr. Beaton can be deposed in full on all subjects
pertaining to accusations of fraud. The parties should once again meet
and confer to discuss the scope and parameters of Mr. Beatons
deposition in light of this Order, and to determine whether Plaintiff
intends to call Mr. Beaton at trial as a witness. In the event Plaintiff
will not be calling Mr. Beaton, Defendant shall provide this Court on
or before August 4, 2008, with the topics and subjects it intends to
depose Mr. Beaton, so that this Court can make a final determination
regarding the parameters of Mr. Beatons deposition.
Depositions can also be taken of opposing counsel to explore whether
waiver has occurred or what information may have been conveyed to third
parties.
Chambers v. School District of Philadelphia Bd of Education, 2007
U.S. Dist. LEXIS 9871 (E.D. Pa. 2007). Counsel could be deposed to

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 determine to which third parties she may have conveyed information,
subject to any privilege objections to be resolved by the court.
Depositions can be taken of counsel and counsel can be compelled to
testify if a prima facie case is made that his services were solicited to
commit a fraud or crime.
United States v. Edison, 2008 U.S. Dist. LEXIS 6825 (N.D. Cal.
2008). Counsel for defendant could be subpoened to testify as to
solicitation to forge documents. He would not be required to testify as
to communications after the clients arrest.
If a deposition of counsel who represented the client in some other
proceeding is requested, it is rare that a motion to quash is successful. The
court allows the deposition to go forward with the caveat that inquiries into
privileged communications are to be avoided.
Nemirofsky v. Seok Ki Kim, 523 F. Supp. 2d 998; 2007 U.S. Dist.
LEXIS 81609 (N.D. Cal. Oct. 23, 2007). Motion to quash deposition
was not granted. The court reviewed 19 separate subject areas and
ruled as to which would be allowed and to what extent. Adoption of
such a procedure may spare much contention and litigation wheel
spinning and unnecessary costs.
M.Y. v. Danly, Inc., 2010 U.S. Dist. LEXIS 118287 (D. Me. Nov. 3,
2010). The permissible areas of deposition of an attorney were
spelled out in a protective order.
Not only is the issue of deposing counsel often subject to an attempted
protective order, it is also sometimes subject to a request that the court
delineate in advance the parameters of what questions will be permissible.
Not surprisingly, courts are justifiably unwilling to give such advisory
opinions. They will however, repeat the elements of the privilege, refer
counsel to applicable cases and warn counsel inclined to interpose overly
broad objections that should motions to compel have to be brought and
should the objections not be sustained, the objecting party will bear the costs
of the motion and the costs of continuing the deposition, including where it
involves travel costs.
Fluid Control Products, Inc. v. Aeromotive, Inc., 2011 U.S. Dist.
LEXIS 283 (E.D. Mo. Jan. 4, 2011). The court refused to provide
what it deemed would be an advisory opinion on the acceptable scope
of questioning of an attorney, yet cognizant of the costs involved in
travelling to another city for that deposition, the court warned that it

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would impose sanctions for unsupportable privilege objects to
questions that would be posed.

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