by Douglas R. Richmond

Fact witness depositions are a fundamental aspect of civil litigation. But what of the situation where the intended deponent is a lawyer with some relationship to the case?

Assume, for example, that you are defending a sporting goods manufacturer in a patent infringement action in which the plaintiff alleges that football pads sold by your client infringe a patent on football pads the plaintiff holds. Your client is defending in part on the basis that the patent is unenforceable by virtue of the plaintiff’s inequitable conduct before the United States Patent and Trademark Office (PTO). In particular, your client contends that the plaintiff’s litigation counsel, who also prosecuted the patent-in-suit, deliberately failed to disclose prior art references to the PTO with the intent to deceive. You therefore subpoena the plaintiff’s lawyer to appear for a deposition. The plaintiff moves to quash the subpoena, arguing that the deposition would reveal attorney–client privileged information and impose an undue burden. What result?

Alternatively, pretend for a moment that you are defending a liability insurer in an equitable garnishment case in a Missouri court. The case arises out of a consent judgment between the plaintiff and the insured in an underlying tort action. The plaintiff’s lawyer in the equitable garnishment proceeding also represented the plaintiff in the tort action and conceived, negotiated, and prepared the consent judgment. You believe that the consent judgment is unreasonable in amount, as well as collusive and fraudulent, and that it is therefore unenforceable against the insurer. Under Missouri law, you bear the burden of proving these defenses at trial. When other discovery efforts aimed at developing related evidence are unrevealing, you subpoena the plaintiff’s lawyer to sit for a deposition to probe the circumstances surrounding the consent judgment. The plaintiff moves for a protective order preventing the deposition. Again, what result?

Finally, assume you are a member of a team at your law firm defending your client in major employment litigation. You have coordinated the electronic discovery aspects of the case, including crafting the client’s searches for electronically-stored information (ESI), organizing the review of thousands of electronic documents collected for responsiveness, and ensuring that all arguably privileged communications found in the ESI are culled and appropriately logged before any information is produced to the plaintiffs. The plaintiffs’ lawyer believes that your client is wrongfully withholding discoverable information and has, in fact, destroyed responsive documents. Knowing your role in the case, the plaintiffs’ lawyer writes the partner at your firm who is leading the representation to request a date for your deposition. Will the court permit the plaintiffs to depose you?

Rules of civil procedure permit depositions of other lawyers, including depositions of opposing counsel in litigation. In cases where a lawyer’s conduct is the basis of a party’s claim or defense, it is often reasonable to expose the lawyer to examination much as any other fact witness. Lawyers who are fact witnesses to key events are reasonably subject to deposition in many cases. Yet courts generally disfavor depositions of opposing counsel. Depositions of opposing counsel may prolong the litigation and increase its cost, cause delays to resolve work-product immunity and attorney–client privilege objections, distract the lawyer to be deposed from the client’s representation, and discourage parties from communicating openly with their lawyers. Depositions of opposing counsel may be a backdoor method of learning the opponent’s litigation strategy or obtaining otherwise protected information. Deposing other lawyers may be an effective means of harassing them and the parties they represent. When sought for illegitimate or improper purposes, depositions of other lawyers are weapons—not discovery. For example, a deposition may be a litigation tactic intended to disqualify the opposing lawyer as trial counsel under the advocate–witness rule. As one court colorfully summarized many of these worries, “a party shouldn’t be able to use a deposition to sucker-punch the other side’s quarterback or listen in on the other side’s huddle.”

These widespread concerns have had no obvious chilling effect. Attempts to depose opposing counsel are more common than many lawyers might anticipate; there are scores of cases on the subject. And, despite courts’ uneasiness regarding depositions of other lawyers, such discovery is periodically required. Indeed, for all their expressions of concern about potential problems that accompany depositions of opposing counsel and the studied caution with which they approach such requests, courts “countenance depositions of even litigation counsel” in appropriate situations.

This Article explores the ground rules for depositions of other lawyers. It begins in Part II with a discussion of the leading case on the subject, Shelton v. American Motors Corp., and its three-part test for permitting depositions of opposing counsel. Part II also examines related case law and the limits of the Shelton test. Part III discusses the alternative “flexible approach to lawyer depositions” outlined by the Second Circuit in In re Subpoena Issued to Dennis Friedman. Finally, Part IV concentrates on the special need to depose opposing lawyers in patent litigation. Lawyers who prosecute patents-in-suit must often submit to depositions in litigation to enforce those patents in which they are trial counsel.

 

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