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Abington Emerson Capital, LLC v. Landash Corp.

United States District Court, S.D. Ohio, Eastern Division

August 12, 2019

LANDASH CORPORATION, et al., Defendants.

          Sarah D. Morrison Judge



         This matter is before the Court on Defendants XPO Logistics, Inc.'s and XPO Global Forwarding, Inc.'s (collectively, “XPO”) Motion for a Protective Order. (Doc. 241). For the reasons that follow, the Motion is GRANTED in part and DENIED in part.

         I. BACKGROUND

         The Court, elsewhere, has provided a detailed review of the allegations in this case. (See, e.g., Docs. 144, 159). Discovery in this matter is ongoing-a process which has required frequent Court intervention. Currently, the parties dispute whether Plaintiff Abington Emerson Capital, LLC (“Abington”) may depose XPO's former in-house counsel, Susan Santo. The parties filed a joint status report on June 21, 2019, discussing this issue, among others. (Doc. 221 at 2-7). Abington believes that it is entitled to depose Ms. Santo because she has relevant, nonprivileged information about the facts of this case. (Id. at 2-6). In the joint status report, Abington emphasized, and the Court paid particular attention to, the fact that XPO produced 221 pages of “highly relevant emails obtained directly from Ms. Santo's XPO email account.” (Id. at 3). XPO, on the other hand, believes that “any information [Ms. Santo] would have would be subject to the attorney-client privilege and/or attorney work product protection.” (Id. at 6).

         The Court held a status conference with the parties on June 27, 2019, and set an expedited briefing schedule for XPO's Motion for a Protective Order. (Doc. 230 at 1-2). The matter is now ripe for resolution. (See Docs. 241, 248, 253).

         II. STANDARD

         To start, lawyers are not immune from deposition. See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). While a party may move, under Rule 26(c)(1) for a protective order limiting or preventing a lawyer's deposition, it is rare for a court to prohibit a deposition in its entirety:

In general, motions for protective orders seeking to prevent the taking of a deposition [are] regarded unfavorably by the courts. Such orders should be rarely granted absent extraordinary circumstances, therefore the moving party bears a heavy burden.

Ogle v. Columbia Gas Transmission, LLC, No. 2:10-CV-1059, 2014 WL 6814145, at *6 (S.D. Ohio Dec. 3, 2014) (quotation marks and citation omitted).

         That being said, the practice of deposing opposing counsel has the potential to disrupt litigation, undermine the attorney-client relationship, and lead to the improper disclosure of the attorney's litigation strategy. See Shelton, 805 F.2d at 1327; see also Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002) (describing Shelton rationale). Therefore, the court may, in some circumstances, shift the burden to the party seeking to depose counsel and require it to show three things: (1) no other means exist to obtain the information; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.” Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002) (citing Shelton, 805 F.2d at 1327 (the “Shelton test”)).

         Relevant here, courts do not automatically apply the Shelton test each time a party seeks to depose a lawyer. To the contrary, “the Federal Rules of Civil Procedure create no special presumptions or exceptions for lawyers, or anyone else[.]” United States v. Philip Morris Inc., 209 F.R.D. 13, 19 (D.D.C. 2002) This is because “the Federal Rules presume openness in discovery[.]” Id. To allow otherwise, “the presumption of discoverability in the Federal Rules would be turned upside down, ” and it would allow a party “to immunize themselves from discovery on key issues, by knowingly and strategically placing persons who happen to be attorneys in positions where they perform critical [functions].” Id.

         So, when a party seeks to depose a lawyer who is not serving as opposing counsel or who is not currently involved in the litigation, the court may decline to apply Shelton. This makes sense when considering two important purposes of the Shelton test: preventing the disruption of the adversarial system through harassment of opposing counsel and reducing the burden and cost of litigation arising from collateral issues of privilege and attorney work product. See Shelton, 805 F.2d at 1327. These concerns are not necessarily present in a case, like this one, where the lawyer to be deposed is not opposing counsel. See, e.g., Ogle, 2014 WL 6814145, at *6 (noting that the “fact alone” that plaintiff sought to depose former in-house counsel was “not determinative of Shelton's applicability”); Devlyne v. Lassen Mun. Util. Dist., No. CIV. S-10-0286 MCE, 2011 WL 4905672, at *2 (E.D. Cal. Oct. 14, 2011) (“Simply being a former general counsel for a party is insufficient to bring one under the protection of the Shelton rule”); Porter v. White, No. 8:04-CV-367-T-17MSS, 2005 WL 8160135, at *2-3 (M.D. Fla. Nov. 14, 2005) (finding that the rationale of Shelton did not apply to former counsel because he was not involved in the current litigation); Hilton Hotels Corp. v. Dunnet, No. 00-2852-GV, 2001 WL 1910057, at *3 (W.D. Tenn. Sept. 5, 2001) (noting that, “[a]s former in house-counsel, the rationale behind the Shelton burden-shifting approach is not necessarily applicable.”); but see S. Film Extruders, Inc. v. Coca-Cola Co., 117 F.R.D. 559, 561 (M.D. N.C. 1987) (finding Shelton applied to deposition of party's former attorney).

         If a court concludes that Shelton does not apply, it simply applies Rule 26(c)(1) of the Federal Rules of Civil Procedure, governing protective orders. Under that Rule, the movant must show good cause, and the court may enter a protective order if the discovery would result in annoyance, embarrassment, oppression, or undue burden. Fed.R.Civ.P. 26(c)(1). See, e.g., Ogle, 2014 WL 6814145 (finding that “there was no basis for applying Shelton” to deposition of former in-house counsel, and therefore “the question then ...

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