United States District Court, E.D. Washington
ORDER GRANTING DEFENDANTS' MOTION FOR A PROTECTIVE ORDER
THOMAS O. RICE, District Judge.
BEFORE THE COURT is Defendants' Motion for a Protective Order (ECF No. 53). This matter was submitted for consideration without oral argument. The Court has reviewed the briefing and the record and files herein, and is fully informed.
This case concerns Defendant Richland School District's termination of Plaintiff James Busey, a superintendent with the district, allegedly for a relationship with another employee. ECF No. 1. Plaintiff sued, seeking damages for violations of his right to a pretermination hearing, for marital status discrimination, and violations of state law, as well as a declaratory judgment. ECF No. 1 at 14-15. In discovery, Plaintiff seeks to depose Galt Pettet, in-house counsel for Richland School District ("RSD"), and Greg Stevens, outside counsel for the district and counsel of record in this matter. ECF No. 53 at 2. In the instant motion, Defendants move the Court for a protective order prohibiting Plaintiff from taking these depositions.
Protective orders are governed by Fed.R.Civ.P. 26(c):
A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending.... The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense...."
A district court "has wide latitude in controlling discovery, and its rulings will not be overturned in absence of a clear abuse of discretion." Lane v. Dep't of Interior, 523 F.3d 1128, 1134 (9th Cir. 2008) (quoting White v. City of San Diego, 605 F.2d 455, 461 (9th Cir. 1979) (internal quotations omitted)).
As a threshold matter, the Court must determine what standard applies to the question of whether an opposing party can depose a party's attorneys. Defendants contend that a party seeking to depose an attorney must meet a three-prong test, applying an Eighth Circuit case, Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Plaintiff states that Defendants have the burden to show that all discovery questions to the attorney witnesses would be protected by the attorney-client privilege. ECF No. 55 at 3. Even if Shelton is the correct law, Plaintiff contends, it applies only to opposing counsel, and therefore does not apply to in-house counsel Mr. Pettet because he does not represent any party in the present litigation. ECF No. 55 at 14. Nor should Shelton apply to outside counsel Mr. Stevens, Plaintiff contends, because even though he has appeared in this matter, he has done nothing of substance in the litigation. Id. at 15.
While no published Ninth Circuit cases address this matter directly, district court cases in this circuit have adopted the Shelton standard for evaluating whether counsel may be deposed. See, e.g., Massachusetts Mutual Life Ins. Co. v. Cerf, 177 F.R.D. 472, 479 (N. D. Cal. 1998) ( Shelton "is generally regarded as the leading case on attorney depositions"); Willer v. Las Vegas Valley Water District, 176 F.3d 486 (9th Cir. 1999) (unpublished table decision) (citing Massachusetts Mutual for the test from Shelton ); Bybee Farms, LLC v. Snake River Sugar Co., 2008 WL 820186 (E. D. Wash. 2008). Fed.R.Civ.P. 30(a) provides that depositions may be taken of "any person." Therefore, there is no express prohibition against the taking of attorney depositions. See Shelton, 805 F.2d at 1327; and American Cas. Co. of Reading, Pennsylvania v. Krieger, 160 F.R.D. 582, 585 (S. D. Cal. 1995). Courts, however, have cautioned that attorney depositions should be allowed only where the discovery sought cannot be obtained from another source. Massachusetts Mut 177 F.R.D. at 479. In Shelton, the Eighth Circuit explained the judicial attitude toward such depositions as follows:
We do not hold that opposing trial counsel is absolutely immune from being deposed. We recognize that circumstances may arise in which the court should order the taking of opposing counsel's deposition. But those circumstances should be limited to where the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel, see, e.g., Fireman's Fund Ins. Co. v. Superior Court, 72 Cal.App.3d 786, 140 Cal.Rptr. 677, 679 (1977); (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.
Shelton, 805 F.2d at 1327 (emphasis added). See also Krieger, 160 F.R.D. at 588 ("There are good reasons to require the party seeking to depose another party's attorney to bear the burden of establishing the propriety and need for the deposition.").
With respect to whether this three-part test applies to the proposed deposition of Mr. Stevens, Plaintiff offers no support for the proposition that opposing counsel must have done something of "substance" to warrant application of Shelton, nor can the Court find any support for this notion. Accordingly, because Plaintiff acknowledges that Stevens has appeared as opposing counsel, ECF No. 55 at 15, the Court will apply the factors to him.
The Court next turns to application of this test to Mr. Pettet, in-house counsel for the Richland School District. Though Shelton 's holding applies to "opposing trial counsel, " 805 F.2d at 1327, district courts in this circuit have applied the standard to depositions of in-house counsel as well. See, e.g., Caterpillar v. Friedemann, 164 F.R.D. 76, 78-79 (D. Oregon 1995) (applying Shelton standard and finding that deposition of senior in-house attorney was not warranted); Bybee Farms, LLC v. Snake River Sugar Co., ...