United States District Court, S.D. Ohio, Eastern Division
D. Morrison Judge
OPINION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
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
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).
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,
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).
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
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].”
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).
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 ...