United States District Court, W.D. Washington, Seattle
AILENE SABRINA BROYLES, individually and on behalf of all others similarly situated, Plaintiff,
CONVERGENT OUTSOURCING, INC., Defendant.
Honorable Richard A. Jones United States District Judge
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.
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.
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.
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.
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).
Convergent's Motion to Quash Deposition Notices and
Request for Protective Order
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.
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).
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
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.
Litigation Support Specialist
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.