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Taylor Machine Works, Inc. v. Pioneer Distribution Inc.

June 19, 2006


The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge


Now before the court is the motion by Caterpillar to quash (#1) the deposition of Christopher Dekker. As further explained below, the motion is granted.


Currently pending in the Northern District of Mississippi is a case captioned Taylor Machine Works v. Pioneer Distribution, No. 04CV142-D-D. In connection with that litigation, Taylor Machine Works has subpoenaed Christopher Dekker for deposition. Mr. Dekker is a Senior Litigation Attorney in the Legal Services Division of Caterpillar Inc.

J. Garner Scott owned 100% of the stock in a company called Pioneer Machinery, Inc. Following negotiations for the sale of that stock between Scott and a number of Caterpillar executives, a stock purchase agreement was executed; the sale was consummated in January 2001. Thereafter, Caterpillar sold most of its interest in Pioneer to some of its dealers in 2002.

In mid 2003, Caterpillar learned that Scott might have defrauded Caterpillar with respect to that sale. Caterpillar's Legal Services Division, and Mr. Dekker in particular, became involved in potential - and later actual - litigation*fn1 against Scott and Pioneer. Dekker was responsible for initiating and managing the Caterpillar case from mid-2003 until the present date. He was not personally involved in any of the underlying events that formed the basis for that litigation. Dekker was involved in negotiating with some of those dealers in an effort to minimize Caterpillar's potential liability for the acts of Garner.


The Federal Rules of Civil Procedure do not exempt attorneys from being deposed. Rule 30 broadly states that "[a] party may take the testimony of any person, ..., by deposition." Fed.R.Civ.P. 30(a)(1). Thus, "an attorney may be deposed, even if he or she represents a party to the litigation in issue." Hunt Intl Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D.Ill.1983); see also, Cooper v. Welch Foods, Inc., 105 F.R.D.4 (W.D.N.Y.1984); Evans v. Atwood, 1999 WL 1032811, at *4-5 (D.D.C.1999).

The Federal Rules of Civil Procedure, however, specifically vest this Court with discretion to limit the "frequency and extent" of discovery methods, where "the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive." Fed.R.Civ.P. 26(b)(2). Moreover, the Rules authorize this Court to bar certain discovery, or to regulate the method by which it is obtained, where "justice requires [it] to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." Fed.R.Civ.P. 26(c)(1), (3). Finally, protections available under attorney-client privilege or work product privilege, Fed.R.Civ.P. 26(b)(5), are not destroyed simply by virtue of deposing an attorney. See, In re Penn Central Commercial Paper Litigation, 61 F.R.D. 453 (S.D.N.Y. 1973).

Cases discussing depositions of trial counsel generally acknowledge that deposition of opposing counsel "provides a unique opportunity for harassment; it disrupts the opposing attorney's preparation for trial, and could ultimately lead to disqualification of opposing counsel if the attorney is called as a trial witness." Marco Island Partners v. Oak Development Corp., 117 F.R.D. 418, 420 (N.D.Ill.1987). See also, Prevue Pet Products v. Avian Adventures, 200 F.R.D. 413, 418 (N.D.Ill.2001). For this reason, courts historically have looked with disfavor on attempts to oppose opposing counsel, based on the belief that such depositions are "disruptive of the adversarial process and harmful to the standards of the legal profession and entail a high risk of implicating opinion work product." Caterpillar Inc. v. Friedemann, 164 F.R.D. 76, 78 (D.Or. 1995).

As a sister Court has previously commented, there are two approaches to resolving disputes about deposing attorneys. Advance Systems v. APV Baker PMC, Inc., 124 F.R.D. 200, 201 (E.D.Wis. 1989). One approach requires the attorney to attend the deposition and raise particular objections in response to specific questions. See Hunt Internat'l Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D.Ill 1983); Scovill Mfg. Co. v. Sunbeam Corp., 61 F.R.D. 598, 603 (D.Del. 1973).

The other approach was articulated by the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.1986). The test stated in that case limited depositions of opposing counsel "to where the party seeking to take the depositions has shown 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." Id. at 1327.

Shelton is the case most frequently cited by other courts confronted with the question of whether to allow the deposition of a party's attorney. See, e.g., Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir. 1995)(adopting Shelton); Thiessen v. G.E.Capital Corp., 267 F.3d 1095 (10th Cir. 2001)(applying Shelton, affirming trial court's granting of motion to quash, because there were other avenues available to obtain the information); Harriston v. Chicago Tribune Co., 134 F.R.D. 232, 233 (N.D.Ill. 1990) Advance Systems, 124 F.R.D. at 201.

The circumstances in which to apply the test articulated in Shelton, however, were significantly limited by a later Eighth Circuit case, Pamida v. E.S.Originals, Inc., 281 F.3d 726 (8th Cir. 2002). In that case, a retailer was sued for patent infringement. After that case was concluded by settlement, the retailer sued the manufacturer for indemnification. The same attorneys represented the retailer in both the patent dispute and the indemnification dispute. The attorneys were subpoenaed for deposition about issues in the indemnification case that arose out of the concluded, ...

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