The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
Named plaintiff Irene Chapman alleges that defendants Worldwide
Asset Management, L.L.C. and Worldwide Asset Purchasing, L.L.C.
are debt collectors as that term is used in the Fair Debt
Collection Practices Act ("FDCPA"), 15 U.S.C. § 1692 et seq.
She contends that privacy notices sent with attempts to collect a
debt were in violation of the FDCPA because the notices set forth
a policy of disclosures to third parties that is inconsistent
with provisions of the FDCPA. Defendants' Rule 12(b)(6) motion to
dismiss the Complaint was previously denied. See Chapman v.
Worldwide Asset Management, L.L.C., 2005 WL 818880 (N.D. Ill.
April 6, 2005). Named plaintiff's motion for class certification
is presently being briefed. Defendants seek to depose one of plaintiff's attorneys, Daniel
Edelman. Defendants contend such information is pertinent to the
class certification issues of whether named plaintiff and her
counsel will fairly and adequately represent and protect the
interests of the putative class. See Fed.R.Civ.P. 23(a)(4),
23(g)(1). Plaintiff contends defendants have adequate information
without deposing Edelman and that the deposition is instead
harassment of class counsel and an attempt by defendants' counsel
to impress current and potential clients by engaging in a highly
combative style of litigation in defense of FDCPA actions.
Plaintiff also contends that defendants are precluded from
contending class counsel is inadequate because defendants'
counsel has implicitly admitted the qualifications of class
counsel in other FDCPA litigation in which plaintiff's and
defendants' counsel have been involved.
It is unnecessary to determine whether entering into a
settlement agreement in a class action is an admission by the
attorney for a settling defendant that the attorney for the class
is adequate as required by Rule 23. Defendants were not parties
to the prior litigation involving the two attorneys. Absent
additional reasons for placing them in privity with the other
clients, defendants are not estopped based on litigation
positions taken by their attorney on behalf of other clients.
See Barrow v. Falck, 11 F.3d 729, 731 (7th Cir. 1993);
Metro Industries, Inc. v. Sammi Corp., 82 F.3d 839, 848 (9th Cir.),
cert. denied, 519 U.S. 868 (1996); Freeman v. Lester Coggins
Trucking, Inc., 771 F.2d 860, 865 (5th Cir. 1985); Holland v.
Fahnestock & Co., 2003 WL 21697880 *5 (S.D.N.Y. July 21, 2003);
American Special Risk Insurance Co. v. City of Centerline, 2002
WL 1480821 *7 (E.D. Mich. June 24, 2002). Compare Tice v.
American Airlines, Inc., 162 F.3d 966 (7th Cir. 1998), cert.
denied, 527 U.S. 1036 (1999); Conte v. Justice, 996 F.2d 1398,
1402-03 (2d Cir. 1993); Petit v. City of Chicago, 1999 WL 66539
*5 (N.D. Ill. Feb. 8, 1999); Meador v. Oryx Energy Co.,
87 F. Supp. 2d 658, 665 (E.D. Tex. 2000). Also, that an attorney was
adequate at a prior period of time and in another case would not
conclusively resolve the issue of whether he is presently
qualified in a different case. Cf. Barrow, 11 F.3d at 731.
Moreover, regardless of the present or prior litigation positions
of the parties, this court has an independent duty to determine
the adequacy of class representation. See Szabo v. Bridgeport
Machines, Inc., 249 F.3d 672, 677 (7th Cir.), cert. denied,
534 U.S. 951 (2001); In re General Motors Corp. Engine
Interchange Litigation, 594 F.2d 1106, 1134 (7th Cir.), cert.
denied, 444 U.S. 870 (1979); Abrams v. Van Kampen Funds, Inc.,
2002 WL 1989401 *2 (N.D. Ill. Aug. 27, 2002). Prior litigation
positions taken by any of the parties in this case will not preclude an independent and appropriate examination of the
adequacy of class representation.
Defendants contend*fn1 they are entitled to further
inquiry regarding the competency of class counsel because class
counsel (or other members of class counsel's firm) has been
criticized or sanctioned in some class action cases. Defendants
cite a case where counsel was sanctioned under
28 U.S.C. § 1927,*fn2 a case where the magistrate judge recommended
imposing § 1927 sanctions,*fn3 and a case that was dismissed
without prejudice because apparently duplicative of another
pending putative class action and § 1927 sanctions were
thereafter imposed.*fn4 Defendants apparently would question
Edelman about these cases and any other cases in which he or a
member of his firm was criticized or sanctioned, or in which
class certification was denied.
Defendants do not show a particularized need to depose Edelman.
To the extent there are a substantial number of cases involving
Edelman's firm in which class certification was denied or sanctions imposed, a Westlaw search will disclose many of
them.*fn5 Additionally, responses to two interrogatories
that defendants have propounded will provide a list of additional
cases. Defendants have provided a copy of the responses to those
interrogatories in which plaintiff interposed objections. This
issue is not before the court because defendants have not brought
a motion to compel and there is no indication that the attempts
at resolution required by Local Rule 37.2 have yet taken place.
It is noted, though, that today's opinion essentially rejects the
objection based on the prior settlements. Also, there appears to
be no basis for raising an attorney-client privilege or
work-product objection to disclosing rulings in prior cases. The
parties should attempt to resolve any remaining dispute regarding
Deposing an attorney involved in litigating the case before the
court is generally disfavored. In re Subpoena Issued to
Friedman, 350 F.3d 65, 71 (2d Cir. 2003); Cook Inc. v. C.R.
Bard, Inc., 2003 WL 23009047 *2 (S.D. Ind. Sept. 18, 2003).
There is, however, no absolute ban on deposing litigating
counsel. Friedman, 350 F.3d at 71; Cook, 2003 WL 23009047 at
*2. In determining whether to permit the deposition of a
litigating attorney, all relevant facts and circumstances should
be considered in determining whether such a deposition represents an
undue burden. Friedman, 350 F.3d at 72.
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. These factors may, in
some circumstances, be especially appropriate to
consider in determining whether interrogatories
should be used at least initially and sometimes in
lieu of a deposition. Under this approach, the fact
that 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
Id. See also aaiPharma, Inc. v. Kremers Urban Development
Co., 361 F. Supp. 2d 770, 774-75 (N.D. Ill. 2005); qad. inc v.
ALN Associates, Inc., 132 F.R.D. 492, 495 (N.D. Ill. 1990)
(quoting Marco Island Partners v. Oak Development Corp.,
117 F.R.D. 418, 419-20 (N.D. Ill. 1987)).
Here, there does not appear to be a particular need to depose
Edelman. Opinions and other public documents from prior cases
should be more than sufficient to suit defendants' purpose.
Defendants' own independent research and plaintiff's answers to
interrogatories should be more than sufficient for defendants'
purposes. Any deposition of Edelman is more likely to be
harassment or an attempt to obtain insights into counsel's
litigation strategy than a genuine search for ...