By: David M. Garten, Esq.

ARTICLE: Deposing Opposing Counsel

In recent years, the boundaries of discovery have steadily expanded, and the practice of taking the deposition of opposing counsel has become an increasingly popular vehicle of discovery. However, in Florida, taking the deposition of opposing counsel in a pending case is an extraordinary step which is rarely justified. Courts regard opposing counsel’s depositions unfavorably because they interfere with the attorney’s case preparation and risk disqualification of counsel who may be called as a witness.

In light of these concerns, a party seeking to take the deposition of opposing counsel must prove its necessity by showing that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.”  Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986). The Shelton test shifts the burden of proof to the party seeking to depose opposing counsel. See Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 263 F.R.D. 1 (D.D.C. 2009).  The Shelton test has been adopted in Florida by both the 3d and 5th DCA. See State v. Donaldson, 763 So. 2d 1252 (Fla. 3d DCA 2000), Zimmerman v. State, 114 So. 3d 446 (Fla. 5th DCA 2013), and Eller-I.T.O. Stevedoring Co., L.L.C. v. Pandolfo, 167 So. 3d 495 (Fla. 3d DCA 2015).

Although it is clear that the Shelton test applies to trial counsel, it is not clear whether the Shelton test applies to non-trial counsel, i.e., outside counsel who assists in developing strategy, probate or trust administration counsel, or in-house counsel. For example, in Zimmerman, the court allowed the deposition of an attorney who conducted a telephone interview of a key witness in a criminal case. In this high profile case, Zimmerman was charged with second degree murder for fatally shooting Trayvon Martin. During interviews with police, Zimmerman asserted that he shot Martin in self-defense. Crump, an attorney retained by Martin’s family, conducted a telephone interview of a potentially crucial witness who allegedly was on the phone with Martin moments before his death. Crump made a recording of the interview, but the recording was incomplete and of very poor quality. The trial court denied Zimmerman’s request to depose Crump. In its order, the trial court found that Crump was “an opposing counsel” and that Zimmerman failed to meet the Shelton test.  The appellate court reversed. The court reasoned, in part, that the fact that Crump represents Martin’s family does not make him “an opposing counsel” and Crump acknowledged in his affidavit that he was not acting as litigation counsel for either the defendant or the state.  The court, citing Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002), held that the Shelton test applies to limit deposition questions of attorneys in only two instances: (1) when trial and/or litigation counsel are being deposed, and (2) when such questioning would expose litigation strategy in the pending case. See also United States v. Philip Morris, Inc., 209 F.R.D. 13, 17 (D.D.C. 2002) (concluding that the Shelton test did not apply when the proposed deponent attorneys were not litigation or trial counsel, the deponent attorneys were assigned non-litigation responsibilities, and the proposed deposition would not cover litigation strategies related to the case).

In contrast with Zimmerman, the court in Pandolfo quashed the order compelling the deposition of an attorney who was not counsel of record, but was directly involved in the litigation having both directed and overseen various aspects of the investigation as well as having prepared and received documentation including attorney-client privileged communications and work product documents related to the investigation. The court cited to the following cases in support of its ruling: Boughton v. Cotter Corp., 65 F.3d 823, 828-31 (10th Cir. 1995) (precluding the deposition of outside counsel because of the extent of that attorney’s role in representing the party); Nat’l W. Life Ins. Co. v. W. Nat’l Life Ins. Co., No. A-09-CA-711, 2010 U.S. Dist. LEXIS 132024, 2010 WL 5174366, at *3 (W.D. Tex. Dec. 13, 2010) (“[T]he critical factor in determining whether the Shelton test applies is not the status of the lawyer as ‘trial counsel,’ but the extent of the lawyer’s involvement in the pending litigation.” (quoting Murphy v. Adelphia Recovery Trust, No. 3-09-MC-105-B, 2009 U.S. Dist. LEXIS 122027, 2009 WL 4755368, at *3 (N.D. Tex. Nov. 3, 2009))); Massillon Mgmt., LLC v. Americold Realty Trust, No. 5:08-CV-799, 2009 U.S. Dist. LEXIS 22415, 2009 WL 614831, at *3-6 (N.D. Ohio Jan. 21, 2009) (holding that in-house counsel who was working with outside counsel to assist in developing strategy, taking discovery, and assisting in defending an action was not subject to being deposed because the criteria set forth in Shelton had not been satisfied) (citing Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F. 3d 621, 628 (6th Cir. 2002) as having adopted Shelton)).  See also Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995) (precluding the deposition of outside counsel because of the extent of that attorney’s role in representing the party).

Irrespective of whether the Shelton test applies, the attorney-client privilege [§§90.502 and 90.5021, F.S.] and work product privilege [Fla.R.Civ.P. 1.280(b)(3)] still apply.