Armada (Singapore) Pte Ltd. v. Amcol International Corp.

160 F. Supp. 3d 1069, 2016 U.S. Dist. LEXIS 18677, 2016 WL 612852
District Court, N.D. Illinois·Decided February 16, 2016·No. No. 13 C 3455·Published·Cited by 7 cases

Opinion

MEMORANDUM OPINION AND ORDER

Jeffrey Cole, UNITED STATES MAGISTRATE JUDGE

The Amcol defendants have moved to quash a subpoena for the deposition of James Ashley, who was formerly general counsel for defendant, Amcol International Corporation. He is currently a partner at the law firm, Locke Lord LLP. The Amcol defendants bristle at the suggestion that an attorney be deposed. But, the one and a half million lawyers in this country are not automatically exempt from deposition. Boston Edison Co. v. United States, 75 Fed.Cl. 557, 562-563 (Fed.Cl.2007); Continental Cas. Co. v. Multiservice Corp., 2008 WL 73345, *6 (D.Kan.2008); United States v. Philip Morris, Inc., 209 F.R.D. 13, 16 (D.D.C.2002). Like other citizens, they are subject to the long recognized obligation of all citizens to give evidence — an obligation expressed in the “fundamental maxim that the public.. .has a right to every man’s evidence,” and that “any exemptions which may exist are distinctly exceptional, being so many derogations from a positive general rule.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 131 S.Ct. 2313, 2332, 180 L.Ed.2d 187 (2011). Even the President of the United States is not immune from deposition. Clinton v. Jones, 520 U.S. 681, 704-05, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997).

Beyond that, the Amcol defendants assert that the information sought from Mr. Ashley is either privileged or redundant of information the plaintiff has already garnered from other sources. The short answer is that one cannot be sure of whether a particular question calls for privileged information until the questions are asked. And, unsupported statements in briefs that purport to resolve this or any other issue do not count. See, e.g., INS v. Phinpathya, 464 U.S. 183, 188-89 n. 6, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984); IFC Credit Corp. v. Aliano Brothers General Contractors, Inc., 437 F.3d 606, 610-611 (7th Cir.2006). Cf. In re Payne, 431 F.3d 1055, 1060 (7th Cir.2005) (Posner, J.)(unsubstantiated assertion at oral argument given no weight).

Questions of privilege must be assessed on a question by question basis and [1071] cannot be resolved fungibly even before the deposition begins. Nor ought it be a valid objection to an otherwise permissible notice of deposition to say that the party seeking the deposition has or can get the same information elsewhere. Witnesses are not fungible, and thus the quality of the evidence each may provide can only be determined in retrospect. Answers given by lawyers during any given deposition are often extraordinarily revealing and significantly assist in the search for truth. See, e.g., Tellabs v. Fujitsu, 283 F.R.D. 374, 378-379 (N.D.Ill.2012); Tellabs Operations, Inc. v. Fujitsu Ltd., 882 F.Supp.2d 1053, 1056 et seq. (N.D.Ill.2012).

Even if that were not the ease, the Amcol defendants’ motion to quash is unconvincing. The motion relies exclusive on a line of cases descending from a 30-year-old Eighth Circuit case, Shelton v. American Motors Corporation, 805 F.2d 1323 (8th Cir.1986). The various hurdles set up by Shelton for a party to clear in order to depose opposing counsel, are inapplicable here, because Mr. Ashley is not opposing counsel. The Eighth Circuit has said as much and has limited Shelton to depositions of opposing counsel. Thus, Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729-30 (8th Cir.2002) explained that Shelton “was intended to guard against the ’harassing practice of deposing opposing counsel.. .that does nothing for the administration of justice but rather prolongs and increases the costs of litigation, demeans the profession, and constitutes an abuse of the discovery process.” See also In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71 (2nd Cir.2003).

Hence, and as the plaintiffs argue, the better, more incisive, and more accurate reading of Shelton is the one espoused by Judge Aspen in Hunt Int’l Resources Corp. v. Einstein, 98 F.R.D. 689, 691 (N.D.Ill.1983) — the view the Seventh Circuit explicitly approved in N.L.R.B. v. Modern Drop Forge Co., 108 F.3d 1379 (7th Cir.1997). In Hunt Int’l, Judge Aspen explained:

[Cjompletely preventing the taking of a deposition on either of the above grounds would tend to limit or fix the scope of the examination before it began and would usurp the court’s role in deciding whether certain questions seek privileged information. The more appropriate method is to allow the deposition to be taken and permit the attorney to claim privilege in the face of certain questions, if necessary.

98 F.R.D. at 691 (emphasis supplied).

On appeal, the Seventh Circuit pointed out that the district court was aware that the procedure it proposed could be problematic, but that a prior restraint of the deposition raised “even more troublesome issues.” 108 F.3d 1379, 1997 WL 120572 at *2. The Court agreed with the district court that permitting a prior restraint of the deposition would require two assumptions: (1) that everything to which the proposed deponent would testify would be subject to the attorney-client privilege and (2) that the deponent would, in some instances, fail to adequately assert the privilege in the deposition. Id. The district court concluded that there was no factual basis in the record to warrant those assumptions and therefore denied the motion to quash the deposition subpoena and ordered the parties to proceed to deposition.

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Armada (Singapore) Pte Ltd. v. Amcol International Corp., 160 F. Supp. 3d 1069, 2016 U.S. Dist. LEXIS 18677, 2016 WL 612852 (N.D. Ill. 2016).

160 F. Supp. 3d 1069 (Armada (Singapore) Pte Ltd. v. Amcol International Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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