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If it hasn’t happened to you yet, don’t worry; in the fullness of time it will. You, Conan the Litigator, Master of the Deposition, Wielder of the Subpoena, will find yourself hectored by your own weapon. Your unprincipled opponent will serve you with a subpoena to give a deposition in the case in which you have appeared as trial counsel. BEWARE OPPONENTS WHO WILL MAKE YOU A DEPONENT And after your partners have helped scrape you off the ceiling, after you have calmed down sufficiently to recall that English, not expletive, is your native language, you will need to know a few things about resisting — or submitting — to the same procedure you so frequently impose upon others. We are not talking about an attempt to depose you in a case in which you are not involved. We lawyers are no more immune to giving nonprivileged testimony in matters in which we are mere observers than any other class of people. When we are involved in litigation, an attempt to make us witnesses presents obvious problems. There are all sorts of reasons why our litigation opponents may try to take our depositions. Some are legitimate, some are bald tactical ploys and some are sideshows, but all are irritating. But the fact is that the very nature of commercial litigation often creates situations in which the lawyer representing a party actually does have knowledge — discoverable knowledge — of relevant facts. You are trial counsel in a patent infringement action, but you also prosecuted the patent. You represent the defendant in a lease dispute, but you also represented your client in the negotiation of the lease. As part of your pre-filing investigation of an accident, you interviewed three now-deceased witnesses; only you know what they had to say. You get into a dispute over evidence spoliation; the issue is a sideshow — but you may be the only person who can give the factual testimony to resolve the issue. In each case, and in countless similar scenarios, you have relevant — and maybe discoverable — knowledge. What’s the big deal? What’s wrong about just sitting for deposition and getting it over with? Well, there are a couple of things. First, it is disrupting. There is a reason there are so few successful player-coaches — it’s hard to do two things well at the same time. Second, if you give a deposition you might actually say something that leads to trial testimony, and that really is a problem since it raises all sorts of ethical and practical questions on whether you can continue as trial counsel. But most of all, though you may not want to admit it, you ought to be terrified of having to give a deposition because odds are you will be a lousy deponent. We speak from painful experience: Lawyers make the absolute worse deposition witnesses. (One of the nice things about co-authoring this column is that a confession of sins can be at least slightly anonymous. The following actually happened to one of us — but we aren’t going to tell you which one.) During a deposition, with no question pending, lawyer-author A actually blurted out “Look, stop asking me these silly questions. Let me just tell you what really happened.” After a three-minute narration, idiot-lawyer-author A was subjected to three additional hours of examination picking apart every volunteered, ill-considered word of that speech. You are probably smarter than we are. But maybe not. So tread carefully. You might think that you could abort the deposition with an affidavit reciting that you have no knowledge not within the attorney-client privilege — but you would think wrong. The courts recognize that privileges can be waived and that the propriety of questions can seldom be determined until they are addressed in a real-time context. So blanket attempts to quash an attorney’s deposition on the ground that there is no nonprivileged information usually go down in flames. In re County of Orange, 37 F. R. Serv. 3d 1214 (U.S. Br. C. S.D.N.Y. 1997); Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 125 F.R.D. 578 (M.D.N.C.). The privilege issue must be addressed question by question. But there may be other ways to head off the deposition. TWO FUNDAMENTAL, BUT INCONSISTENT, PRINCIPLES When considering whether and to what extent attorneys involved in litigation may be subjected to depositions, there are two fundamental — but totally inconsistent — guiding principles. “Nothing in Federal Rule of Civil Procedure 30(c) exempts a party’s attorney from being subject to a deposition.” Evans v. Atwood, 1999 U.S. Dist. Lexis 17545 (D.D.C. 1999); Dowd v. Calbrese, 101 F.R.D. 427 (D.D.C. 1984). But “as a general matter attorney depositions are disfavored.” Shelton v. American Motors Corp.,805 F.2d 1323 (8th Cir. 1986); United States Fidelity & Guaranty Co. v. Petroleo Brasileiro S.A.,2000 U.S. Dist. Lexis 12669 (S.D.N.Y. 2000). The 8th U.S. Circuit Court of Appeals’ opinion in Sheltonis the leading authority addressing the circumstances under which trial counsel may be deposed. The Sheltoncourt found that the deposition of an opposing counsel should be permitted only if three conditions are met: (1) no other means exist to obtain the sought-after information; (2) the information is both relevant and not privileged; and (3) the information is critical to the discovering party’s trial preparation. That standard — in the hands of a court looking for a reason to quash an attempt to depose counsel — can be a heavy standard to meet. In Simmons Foods Inc. v. Willis, 195 F.R.D. 625 (D. Kan. 2000), Brock Snyder had represented Simmons, a secured party, in bankruptcy proceedings involving a debtor in possession, who was represented by Jeffery Willis. Simmons agreed to accept a plan of reorganization based at least in part on what Mr. Willis told Mr. Snyder — and Mr. Snyder passed on to Simmons — about the collectibility of certain assets. When it turned out that the assets were not as robust as Simmons had anticipated, Mr. Snyder brought a fraud action on behalf of Simmons against Mr. Willis. Not surprisingly, Mr. Willis deposed Simmons to find out what Mr. Snyder had passed on. But Simmons invoked the attorney-client privilege and refused to answer, so Mr. Willis tried to depose Mr. Snyder, who moved for a protective order. (Okay, got that? Sorry this is complicated, but we just read the cases; we don’t write them.) Mr. Willis asserted that he had met the three Sheltontests to obtain Mr. Snyder’s testimony: it was not possible to get the information from another source because the only other party to the communication — Simmons — had refused to testify; the information was not privileged because, Mr. Willis argued, there was a waiver; and the information was critical to pretrial preparation. The court pretty much agreed. Simmons had refused to answer; the court agreed that there was a waiver of the attorney-client privilege; and the information was critical. But Mr. Snyder still did not have to submit to a deposition because the information he had was obtainable from another source. The court found that the proper remedy was to move to compel answers from the client, not to proceed with the deposition of the attorney. In deciding whether attorneys must submit to discovery, the courts make an important — and understandable — distinction between players and kibitzers. Most courts assume that attempts to depose trial counsel are consciously designed or unconsciously bound to disrupt trial preparation out of all proportion to the need to discover facts. But the same considerations are not present for nontrial counsel, such as in-house counsel who are assisting with the litigation. THE EVANSCOURT WEIGHS IN ON SHELTON In Evans v. Atwood, 1999 U.S. Dist. Lexis 17545 (D.D.C. 1999), the court acknowledged the Shelton standards and “the courts’ reluctance to allow parties to depose opposing counsel.” But the Evanscourt found that those concerns are not “substantially implicated” if the counsel to be deposed is not active trial counsel. We would have liked to have been flies on the wall for this one. A week before the discovery cutoff in what we can only presume was contentious litigation, the plaintiff served a subpoena for the deposition of the defendant’s in-house counsel, Walter Hanley, who had been assisting with the litigation and who had attended most of the earlier depositions. The following day, the plaintiff countered by serving a subpoena on the defendant’s lead trial counsel, Wayne Whelan. Cross-motions to quash were filed. The magistrate judge found that there was an important distinction between in-house counsel who had not filed an appearance — despite the fact that in-house counsel was clearly involved in the litigation — and outside counsel. Different strokes for different folks? You bet. The only standard for the nontrial counsel, Mr. Hanley, was whether he had discoverable knowledge, but “Mr. Whelan, as opposing counsel — rather than in-house counsel — is protected from deposition absent the meeting of strident standards.” The Davis Co. Inc. v. Emerald Casino Inc., 2000 U.S. Dist. Lexis 7867 (N.D. Ill. 2000). Now, that’s what the court held. But because of defects in the subpoena issued to Mr. Hanley, the court ordered that neither deposition go forward. The cynical reader could conclude that despite the articulation of different rules, the result some courts will stretch for is the same under either rule: Formal appearance or not, lawyers involved in trial preparation shouldn’t have to give depositions. At least if gamesmanship is afoot. THE HAZARDS OF PLAYING A ROLE IN THE UNDERLYING FACTS But other courts have not been so quick to find ways or use the Sheltonfactors to shield attorneys from discovery. In Amicus Communications v. Hewlett Packard Co., 1999 U.S. Dist. Lexis 20901 (D.D.C. 1999), the court refused to enter a blanket protective order to head off the deposition of lead trial counsel, saying, “When a party employs a counsel to represent it in a case where an attorney has played a role in the underlying facts, both the attorney and the party have every reason to expect that the attorney’s deposition may be requested.” In ordering that the deposition go forward, the court observed that Sheltonarose in the context of an attempt to depose a lawyer who had no factual, prelitigation knowledge relevant to the pending action. The issue, then, is whether prelitigation knowledge makes trial counsel fair game. And the answer is that it probably does. Our focus is on discovery, but there are both practical and ethical rules you must assess before you accept litigation representation. If you played a prelitigation role in the facts, you should — you must — consider and fully vet the possibility that you will be the subject of discovery and maybe even trial testimony. Okay, let’s review. The fact that you are an attorney may let you sit in those slightly more comfortable seats in front of the bar when you come to court, but it does not necessarily mean that you are exempt from the discovery you so willingly wage on ordinary citizens. If you are counsel of record in a case, and if you have no prelitigation knowledge of the case, you can be reasonably assured that the courts will have some sympathy and will make your opponent meet a heavy burden before you are deposed. But you have no immunity. And if you are not counsel of record, or if you have prelitigation factual knowledge relevant to the litigation, you are far less likely to convince the court that you should not have to submit to a deposition. Part of your early litigation strategy should be to consider the likelihood that you may become a discovery witness. You should look for ways to avoid that possibility by ensuring that your opponent has alternate sources for the same information that you might possess. But you should not be surprised — and above all else, you should not let your client be surprised — by the fact that you may end up having to give testimony. Messrs. Solovy and Byman are fellows of the American College of Trial Lawyers and partners at Chicago’s Jenner & Block. They can be reached at: [email protected]and [email protected].

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