United States District Court, M.D. Georgia, Athens Division
ORDER ON MOTION FOR PROTECTIVE ORDER AND MOTION FOR PROTECTIVE ORDER OR, IN THE ALTERNATIVE, MOTION TO QUASH
C. ASHLEY ROYAL, Chief District Judge.
This action is before the Court on Defendant Georgia Farm Bureau Mutual Insurance Company's Motion for Protective Order [Doc. 40-1] and Motion to Quash Plaintiff's Subpoena for Documents [Doc-41-1]. For the following reasons, Defendant Georgia Farm Bureau's Motion for Protective Order is GRANTED in part and DENIED in part, and Motion to Quash Plaintiff's Subpoena for Documents is hereby DENIED.
This case arises from the fire damage of Defendant Betty Enslen's home on December 11, 2010. Plaintiff, Bank of America, N.A., ("BANA") is named as the first and second mortgagee under Enslen's homeowner's insurance policy, held by Georgia Farm Bureau ("GFB"). GFB retained Swift, Currie, McGhee & Heirs, LLP ("Swift Currie") attorneys, Mark Dietrichs and Laura Murtha, on February 18, 2001, to assist in an arson investigation and related insurance claims.
BANA brings claims for breach of contract and bad faith against GFB, alleging that GFB's attorneys attempted to expedite payment to BANA outside of the terms of the insurance policy, while also requiring BANA to sign a "factually incorrect" release ("Release"). GFB argues that BANA's bad faith claim is unfounded and that BANA waived its right to recover under the insurance policy to the extent that BANA obtained recovery through its foreclosure on Enslen's property.
This action is currently before the Court on a discovery dispute surrounding BANA's claim of bad faith and Mr. Dietrichs' and Ms. Murtha's alleged involvement surrounding the disputed Release. BANA seeks to depose Ms. Murtha, former counsel for GFB,  and Mr. Dietrichs, current counsel for GFB. GFB filed a Motion for Protective Order and a Motion to Quash Plaintiff's Subpoena contending that the information BANA seeks in deposition is privileged and all other non-privileged information sought has already been disclosed. The Court granted a hearing on the present Motions and ordered BANA to submit a list of intended deposition questions. Thereafter, GFB filed its objections.
In resolving this discovery dispute, the Court has considered the parties' briefs and supporting materials, BANA's submitted questions, GFB's objections, and the parties' oral arguments. BANA argues that GFB's request for a protective order should be denied because it failed to confer in good faith before involving this Court, as required under Federal Rule of Civil Procedure 26. GFB argues that the Court should issue a protective order or quash the subpoena because BANA failed to give proper notice of its subpoena under Federal Rule of Civil Procedure 45(a)(4). The Court finds both arguments fall short of being dispositive in the Court's consideration of the Motions. The Court recognizes that the discovery sought is the deposition of an attorney; therefore, this case calls attention to the discreet and delicate issues of attorney-client privilege, the work product doctrine, and the general needs of thorough discovery. In considering the present Motions, the Court has a duty to balance the interests of the parties.
A. Attorney Depositions
The Federal Rules of Civil Procedure provide that parties may obtain discovery by oral depositions "regarding any matter, not privileged, that is relevant to the claim or defense of any party" and that "relevant information need not be admissible." The district court may limit "the frequency or extent of the use of discovery methods otherwise permitted under [the federal] rules." GFB requests that this Court prohibit the deposition of Mr. Dietrichs and Ms. Murtha. Depositions of opposing counsel are generally disfavored and permitted "only in limited circumstances." On the other hand, a "protective order which prohibits a deposition is rarely given" and nothing in the federal rules prohibits the deposition of opposing counsel. A lawyer's profession is not a talisman of privilege, automatically granting attorneys immunity from discovery under the federal rules.
Circuit courts are divided over the criteria to use in determining whether the deposition of an attorney is warranted. GFB urges this Court to look to the test adopted by the Eighth Circuit in Shelton v. American Motor Corp . There, the court noted that "taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation, ... distracts from the quality of client representation... [and has a] chilling effect... on the truthful communications from the client to the attorney...." Consequently, the Eighth Circuit held that parties seeking to depose "opposing counsel" must show that: "(1) no other means exist to obtain the information sought through the deposition 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. In interpreting Shelton , courts have noted that the Shelton test only applies when "(1) [t]rial or litigation counsel are being deposed, and (2) when such questioning would expose litigation strategy on the pending case."
In counterpoint to the "rigid Shelton rule, " the Second Circuit looked to the standards of Rule 26 and set out a more "flexible approach" to evaluating lawyer depositions. In this approach,
the judicial officer supervising discovery takes into account consideration of all the relevant facts and circumstances to determine whether the proposed deposition would entail an inappropriate burden or hardship. Such considerations may include the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted.... Under this approach, the fact the proposed deponent is a lawyer does not automatically insulate him or her from a deposition nor automatically require prior resort to alternative discovery devices, but it is a circumstance to be considered.
The Eleventh Circuit has not adopted either approach, and district courts throughout the Circuit have used both approaches, or a combination thereof, giving this Court no clear guidance on evaluating deposition of opposing counsel. This Court declines to strictly apply either approach, and instead focuses its analysis on weighing and balancing BANA s need for the information sought with GFB's interests in its attorney-client relationship. As ...