United States District Court, N.D. Illinois
January 22, 2004.
GREGORY STALLING, Special Administrator of the Estates of BECKY STALLING AND RYAN STALLING Plaintiff,
UNION PACIFIC RAILROAD COMPANY, a Corporation, and NATIONAL RAILROAD PASSENGER CORPORATION d/b/a AMTRAK Defendants
The opinion of the court was delivered by: NAN NOLAN, Magistrate Judge
MEMORANDUM OPINION AND ORDER
Defendant Union Pacific Railroad Company ("UP") moves for the entry
of a protective order quashing the notice of deposition of Gayla
Fletcher, the UP's Vice President of Claims and Risk Management. For the
reasons set forth below, the Court grants the motion.
This case arises out of a train-auto collision in Dwight, Illinois on
January 14, 2001 which resulted in the death of Plaintiff Gregory
Stalling's ("Stalling") wife and daughter. Stalling alleges that UP was
negligent and willful and wanton in failing to provide adequate warning
devices at the Livingston Road crossing where the collision occurred.
Stalling now seeks to depose a member of the UP's Law Department, the
UP's Vice President of Claims and Risk Management, Gayla Fletcher
("Fletcher"). UP opposes the taking of Fletcher's deposition on grounds
of irrelevance and privilege.
Fletcher is in-house counsel for UP and not counsel of record in this
case. As UP's Vice President of Claims and Risk Management, Fletcher
oversees the various claims departments around
the country and the claims personnel within those departments.
While she oversees those persons within the UP law and claims departments
that investigate grade crossing accidents, Fletcher does not travel to
the location of the accidents and does not perform any personal
investigation into the facts of the accidents or causes. With respect to
the accident at issue in this case, Fletcher has no personal knowledge
regarding the facts of the accident, other than information she may have
learned through claims representatives or lawyers within the UP or
through outside counsel. Fletcher also has no personal knowledge
regarding the installation of warning signs at the crossing at issue here
before or after this accident.
The federal rules permit "discovery regarding any matter, not
privileged, that is relevant to the claim or defense of any party. . . .
Relevant information need not be admissible at trial if the discovery
appears reasonably calculated to lead to the discovery of admissible
evidence." Fed.R.Civ.P. 26(b)(1). "The Federal Rules of Civil
Procedure do not create a blanket immunity that exempts attorneys from
ever being deposed." Prevue Pet Products, Inc. v. Avian Adventures,
Inc., 200 F.R.D. 413, 418 (N.D. Ill. 2001); see also Fed.R.Civ.P.
30(a)(1) (stating "A party may take the deposition of any person,
including a party, by deposition upon oral examination. . . .").
Rule 26(c) provides, however, that a court may make "any order which justice
requires to protect a party or person from annoyance, embarrassment,
oppression, or undue burden or expense, including . . . that the
disclosure or discovery not be had." A court can also limit discovery if
it determines that the discovery is unreasonably cumulative or
duplicative or obtainable from another source that is more convenient,
less burdensome, or less expensive. Fed.R.Civ.P. 26(b)(2); see also
Patterson v. Avery Dennison Corp., 281 F.3d 676, 681 (7th Cir. 2002)
(stating trial courts "have broad discretion in matters relating
In support of its motion, UP cites the rule of Shelton v. American
Motors Corp., 805 F.2d 1323 (8th Cir. 1987). The Shelton
court held that depositions of opposing counsel "should be limited to
where the party seeking to take the deposition has shown 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."
Id. at 1327. With respect to the first Shelton
If there are other available sources, the party
seeking discovery should explore them first. If
there are other persons available who have the
information, they should be deposed first. Also,
other methods, such as written interrogatories,
requests for production, or requests for
admission, which do not involve the same dangers
as an oral deposition of opposing counsel, should
Kelling v. Bridgestone/Firestone, Inc., 153 F.R.D. 170, 171
(D. Kan. 1994). A trial court has the discretion under Rule 26(c) "to
issue a protective order against the deposition of opposing counsel when
any one or more of the three Shelton criteria for deposition
listed above are not met." Boughton v. Cotter Corp.,
65 F.3d 823, 830 (10th Cir. 1995). Numerous federal courts in this
district have followed the Shelton approach, and this Court
will consider the Shelton factors in determining whether to bar
Fletcher's deposition. Prevue Pet Products. 2000 F.R.D. at 413
(N.D. Ill.2001); Hernandez v. Longini, 1997 WL 754041 (N.D.
Ill. Nov. 13, 1997); M & R Amusements Corp. v. Blair.
142 F.R.D. 304 (N.D. Ill. 1992); Harriston v. Chicago Tribune Co.,
134 F.R.D. 232 (N.D. Ill. 1990); Joslyn Corp. v. RTE Corp.,
1988 WL 102104 (N.D. Ill. Sept. 18, 1988). The deposition of an attorney
is "a highly unusual occurrence," Anderson y. Hale.
198 F.R.D. 493, 495 (N.D. Ill. Dec. 20, 2000) (Moran, J.), and Stalling
has not shown that he is entitled to depose UP's in-house counsel.
Without citation to any authority, Stalling opposes UP's motion to
quash the notice of deposition of Fletcher, Stalling's submission gave
three areas of inquiry for which Fletcher's deposition is sought: 1) to
further explore "UP's knowledge of, ignorance regarding, and stubborn
refusal to recognize its duty of care to provide safe railroad
crossings;" 2) to explore and prove Stalling's theory that "UP has made a
financial decision to ignore the adequacy of crossing protection devices
at its crossings and simply pay claimants injured or killed in
highway-crossing collisions;" and 3) to investigate inconsistencies
between UP's Claims Operations Manual and UP's Grade Crossing Resource
Manual. Pi's Resp., pp. 3-4. Stalling has failed to demonstrate that this
information cannot be obtained from other sources.
Turning to the first Shelton factor, Stalling states only
that "the information sought by Plaintiff in this case cannot be obtained
by any other person [or] source in light of Gayla Fletcher's position as
VP of Claims at UP . . . Acting in her representative capacity on
behalf of UP, she has intimate knowledge of UP's claims department
policies with regard to grade crossing protection and knowledge and
recognition of common law duties of care." Pl's Resp., pp. 7-8.
Stalling's argument that no other means exists to obtain the information
he seeks is unconvincing.
Stalling's Response admits that Fletcher is not the exclusive source of
information for the first area of inquiry sought by Stalling. Stalling
states that the deposition testimony of Clifford Shoemaker in other
similar grade crossing cases and the UP Claims Manual "evidence UP's
knowledge of, ignorance regarding, and stubborn refusal to recognize its
duty of care to provide safe railroad crossings." Pl's Resp., p. 3.
Stalling concedes that he seeks Fletcher's testimony merely to "explore
further" these issues. The information Stalling seeks is available in
materials already produced, i.e. Shoemaker's deposition testimony and the
UP Claims Manual.
Stalling also argues that he is entitled to depose Fletcher to explore
and prove his theory that UP has made a financial decision to ignore the
adequacy of crossing protection devices. Stalling again concedes that a
deposition of Fletcher is not the only means to obtain the information he
seeks. Stalling states that financial documents produced by Fletcher in
previous depositions in other cases provide annual settlement amounts
paid by UP for grade crossing collision cases. Stalling believes these
financial documents support his theory that UP made a financial decision
to ignore grade crossing safety. Stalling does not state what, if any,
additional information he needs from Fletcher to prove his cost-benefit
theory and whether there are other available sources for any such
additional information. Stalling has not even attempted to show that
Fletcher is the exclusive source of this type of financial information,
and it is reasonable to assume that further information regarding
settlement amounts paid by UP can be obtained from individuals other than
Stalling further states that he seeks to depose Fletcher regarding
inconsistencies between the UP Grade Crossing Resource Manual (in which
UP allegedly denies a "duty to provide safe crossings claiming this duty
rests entirely with local municipalities and state agencies") and the UP
Claims Operations Manual (in which UP allegedly "recognizes that it may
have a duty to upgrade crossing protection devices at crossings it owns
to make safe for motorists"). Pl.'s Resp., p. 4. Stalling has not shown
that information concerning this alleged inconsistency could not be
obtained from other sources.
Stalling has completely failed to demonstrate that no other means exist
to obtain the information he seeks than to depose Fletcher. Because
Stalling has failed to satisfy the first Shelton factor, the
Court need not address the remaining two factors. Epling v. UCB
Films. Inc., 204 F.R.D. 691, 695 (D. Kan. 2001).
Finally, Stalling makes much of the fact that Fletcher has been deposed
in two other grade crossing collision cases. Stalling has attached to his
Response a 279 page deposition of Fletcher taken in a case pending in the
District Court of Harris County, Texas. The fact that Fletcher has been
deposed in two other cases does not aid Stalling's attempt to depose
Fletcher here because Stalling does not provide any specific information
about the claims and defenses in those other cases, whether the
information provided in those depositions was available from other
sources, and whether UP opposed Fletcher's deposition in those matters.
Stalling cites extensively from Fletcher's deposition testimony in the
Texas case to show that Fletcher has relevant and nonprivileged
information regarding UP's duty to provide safe crossings. Pl's Resp. pp.
5-7. Stalling's heavy reliance on Fletcher's prior testimony undermines
his claim that a further deposition of Fletcher is crucial to the
preparation of his case here. Stalling already has substantial testimony
from Fletcher which he believes is relevant, and Stalling has made no
attempt to show that an additional deposition of Fletcher would not be
duplicative of testimony already available to Stalling.
For the reasons explained above, the Motion of Union Pacific for
Protective Order As to the Deposition of Gayla Fletcher is granted.
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