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Broyles v. Convergent Outsourcing, Inc.

United States District Court, W.D. Washington, Seattle

May 23, 2017

AILENE SABRINA BROYLES, individually and on behalf of all others similarly situated, Plaintiff,


          Honorable Richard A. Jones United States District Judge


         This matter comes before the Court on Defendant Convergent Outsourcing, Inc.'s (“Convergent”) Motion to Quash Deposition Notices and Request for a Protective Order (Dkt. # 17) and Plaintiff Ailene Sabrina Broyles' Motion to Compel Discovery (Dkt. # 20). For the following reasons, the Court GRANTS Convergent's motion and GRANTS in part and DENIES in part Broyles' motion.


         Broyles alleges that Convergent accessed her credit report, despite knowing that her debts had been discharged in bankruptcy. Dkt. # 1 (Complaint). Broyles alleges that, by doing so, Convergent violated the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681b. On May 26, 2016, she filed this action on behalf of herself and a proposed class of similarly situated consumers whose credit reports she alleges that Convergent also wrongfully accessed. Discovery has since commenced.

         On February 20, 2017, Broyles served upon Convergent a deposition notice communicating her intent to depose Convergent's in-house counsel and Convergent's litigation support specialist. Dkt. # 17-4 at 14-17. Convergent moves to quash Broyles' notice of these depositions and requests a protective order precluding the depositions of these individuals. Dkt. # 17. Broyles opposes the motion. Dkt. # 21.

         As a separate matter, Broyles moves to compel discovery from Convergent. Dkt. # 20. She requests that the Court compel Convergent to provide additional information in response to interrogatories, requests for admission (“RFA”), and requests for production (“RFP”). Convergent opposes the motion. Dkt. # 24.


         The Court has broad discretion to control discovery. Avila v. Willits Envtl. Remediation Trust, 633 F.3d 828, 833 (9th Cir. 2011). That discretion is guided by several principles. Most importantly, the scope of discovery is broad. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense . . . .” Fed.R.Civ.P. 26(b)(1). But “the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that . . . the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive . . . .” Fed.R.Civ.P. 26(b)(2)(C). “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . . .” Fed.R.Civ.P. 26(c)(1).


         A. Convergent's Motion to Quash Deposition Notices and Request for Protective Order

         Under Rule 45, the Court must quash a deposition notice that “requires disclosure of privileged or other protected matter, if no exception or waiver applies” or “subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). The “leading case on attorney depositions” is Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). FMC Techs., Inc. v. Edwards, No. C05-946-JCC, 2007 WL 836709, at *3 (W.D. Wash. Mar. 15, 2007) (quoting Mass. Mut. Life Ins. Co. v. Cerf., 177 F.R.D. 472, 479 (N.D. Cal. 1998)); see also Willer v. Las Vegas Valley Water Dist., 176 F.3d 486 (9th Cir. 1999) (unpublished) (applying Shelton test as stated in Mass. Mut. Life Ins., 177 F.R.D. at 479).

         Shelton provides that the party seeking to depose opposing counsel must carry the burden of showing that “(1) no other means exist to obtain the information than to depose opposing counsel; (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 (citation omitted). “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.” Busey v. Richland Sch. Dist., No. 13-CV-5022-TOR, 2014 WL 1404580, at *2 (E.D. Wash. Apr. 10, 2014); see also Bybee Farms LLC v. Snake River Sugar Co., No. CV-06-5007-FVS, 2008 WL 820186, at *7 (E.D. Wash. Mar. 26, 2008) (agreeing with defendants that “Shelton applies to depositions of in-house counsel as well as to opposing trial counsel”); Caterpillar Inc. v. Friedemann, 164 F.R.D. 76, 78 (D. Or. 1995) (applying Shelton test to depositions of in-house counsel).

         i. In-House Counsel

         Broyles contends that deposing Convergent's in-house counsel, Timothy Collins, is necessary because she anticipates that Convergent will raise an “advice of counsel” defense. On this basis, she seeks to explore the “underpinnings of that defense, ” including “advice to his client, ” “legal research, ” and other topics related to his capacity as counsel to Convergent. Broyles also contends that Collins' deposition testimony is crucial in light of Convergent's objections to her 30(b)(6) notice. Lastly, Broyles contends that Collins' understanding of Convergent's debt collection policies is relevant to the issue of class certification.

         These contentions fall short of the showing required under Shelton. As Convergent notes in its response, it has neither pleaded advice of counsel as an affirmative defense nor otherwise put the defense at issue. Broyles' speculation that Convergent may raise the defense is an insufficient basis for permitting Broyles to depose Collins about the advice he has rendered to his client, particularly given the plainly privileged nature of that advice. See Shelton, 805 F.2d at 1327. With respect to Convergent's objections to the 30(b)(6) notice, Broyles fails to explain why these objections mean that no other avenues exist to obtain the information she seeks to elicit from Collins. See Id. Broyles similarly fails to show why Collins is the only source from which she can obtain information relevant to class certification. See Id. Moreover, Collins' knowledge on this topic squarely implicates attorney-client privilege. See Id. Among other things, Broyles seeks to inquire about “his research and investigation of administrative and case law guidance.” Dkt. # 21 at 11. In addition to the above deficiencies, Broyles fails to show why deposing Collins is “crucial” to her case. See Shelton, 805 F.2d at 1327.

         ii. Litigation Support Specialist

         The Court finds that the Shelton test also applies to Convergent's litigation support specialist, Alisia Stephens. Convergent contends, without rebuttal, that Stephens is an agent of its in-house counsel, and thus, that the attorney-client privilege extends to her. That contention is supported by the law. See United States v. Nobles, ...

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