Iovino v. AmTrust Financial Services, Inc.

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 CARMEN IOVINO., 6 Case No. 2:22-cv-01974-APG-NJK Plaintiff(s), 7 Order v. 8 [Docket No. 129] AM TRUST FINANCIAL SERVICES, INC., 9 ET AL, 10 Defendant(s). 11 Pending before the Court is Plaintiff’s motion for protective order to preclude the 12 deposition of Plaintiff’s counsel. Docket No. 129. Defendant filed a response in opposition. 13 Docket No. 136. Plaintiff filed a reply. Docket No. 139. The motion is properly resolved without 14 a hearing. See Local Rule 78-1. 15 I. STANDARDS 16 If a party seeks relevant information that is proportional to the needs of the case, the rules 17 provide that a party may depose “any person.” Fed. R. Civ. P. 30(a)(1). The governing rules 18 articulate no prohibition against deposing opposing counsel. Massachusetts Mut. Life Ins. Co. v. 19 Cerf, 177 F.R.D. 472, 478 (N.D. Cal. 1998). Nonetheless, the United States Supreme Court has 20 “alluded to a presumption that trial counsel should not be forced to testify because doing so 21 compromises the standards of the legal profession.” Nocal, Inc. v. Sabercat Ventures, Inc., No. C 22 04–0240 PJH (JL), 2004 WL 3174427, at *2 (N.D. Cal. Nov. 15, 2004) (discussing Hickman v. 23 Taylor, 329 U.S. 495, 513 (1947)). 24 The Eighth Circuit provides the leading case on evaluating the propriety of deposing 25 opposing counsel. In Shelton v. American Motors Corp., the Eighth Circuit recognized that 26 allowing the deposition of opposing counsel “not only disrupts the adversarial system and lowers 27 the standards of the profession, but it also adds to the already burdensome time and costs of 28 litigation.” 805 F.2d 1323, 1327 (8th Cir.1986). Attempting to take the deposition of opposing 1 counsel causes pretrial delays to resolve work-product and attorney-client objections and collateral 2 issues raised by the attorney’s testimony. Id. The practice also “detracts from the quality of client 3 representation” and has a “chilling effect” on attorney-client representations. Id. For these 4 reasons, depositions of opposing counsel should proceed in limited circumstances when: (1) no 5 other means exist to obtain the information sought; (2) the information is both relevant and non- 6 privileged; and (3) the information is crucial to the preparation of the case. Id. 7 Although the Ninth Circuit has not ruled on the issue, other circuits have adopted the 8 Shelton test. Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002); 9 Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1112 & n.15 (10th Cir. 2001); see also Nguyen 10 v. Excel Corp., 197 F.3d 200, 209 (5th Cir. 1999) (assuming the applicability of the Shelton test 11 and applying it).1 Judges within this District, including the undersigned, routinely follow the 12 Eighth Circuit’s approach enunciated in Shelton in addressing attempts to obtain deposition 13 testimony from opposing counsel. See Hanover Ins. Co. v. Terra S. Corp., No. 2:18-cv-00675- 14 KJD-EJY, 2019 WL 5963986, at *3 (D. Nev. Nov. 12, 2019) (collecting cases); see also, e.g., 15 Couturier v. Am. Invsco Corp., No. 2:12-cv-01104-APG-NJK, 2013 WL 4499008, at *3-4 (D. 16 Nev. Aug. 20, 2013). Although not unanimous, applying Shelton in this context is the majority 17 approach within the Ninth Circuit. See SBP LLLP v. Hoffman Constr. Co. of Am., No. 1:19-cv- 18 00266-DCN, 2021 WL 3131310, at *4 (D. Id. July 23, 2021); see also Littlefield v. Nutribullet, 19 LLC, No. CV 16-6894 MWF (SSx), 2017 WL 10438897, at *4 (C.D. Cal. Nov. 7, 2017) (collecting 20 cases). The Court will continue to follow the majority approach and will apply Shelton to 21 Defendants’ request to depose opposing counsel. 22 Hence, the request to depose opposing counsel will be subject to the following standards, 23 succinctly stated. Depositions of opposing counsel are disfavored and should only be permitted in 24

25 1 The Second Circuit has expressed a preference for a “more flexible approach to attorney depositions,” though it did not “rule definitively on the matter” because that appeal was moot. In 26 re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 67 (2d Cir. 2003); see also id. at 72 n.4 (explaining that the decision was dicta given mootness of the appeal). While there is some daylight 27 between Shelton and the approach suggested in Friedman, both create a presumption against depositions of opposing counsel and are only “slightly different.” Monster Energy Co. v. Vital 28 Pharm., Inc., No. 5:18-cv-01882-JGB (SHKx), 2020 WL 2405295, at *8 (C.D. Cal. Mar. 10, 2020). 1 limited circumstances. See Johnson v. Couturier, 261 F.R.D. 188, 193 (E.D. Cal. 2009); see also 2 Harter v. CPS Sec. (USA), Inc., No. 2:12-cv-00084-MMD-PAL, 2013 WL 129418, at *8 (D. Nev. 3 Jan. 9, 2013). The party seeking to depose opposing counsel must show that: (1) no other means 4 exist to obtain the information, (2) the information sought is relevant and nonprivileged, and (3) 5 the information is crucial to the preparation of the case. Shelton, 805 F.2d at 1327. In this context, 6 the burden shifts to the party seeking to depose an attorney to demonstrate that such deposition is 7 warranted. American Cas. Co. of Reading, Pa. v. Krieger, 160 F.R.D. 582, 588 (S.D. Cal. 1995); 8 see also Fernandez v. Penske Truck Leasing Co., No. 2:12-cv-00295-JCM-GWF, 2013 WL 9 438669, at *2 (D. Nev. Feb. 1, 2013). This is a “difficult burden” to meet. Ditech Fin. LLC v. 10 SFR Invs. Pool 1, LLC, No. 2:15-cv-00476-JCM-VCF, 2016 WL 4370034, at *2 (D. Nev. Aug. 11 15, 2016). 12 II. ANALYSIS 13 As explained above, the party seeking to depose opposing counsel must show that: (1) no 14 other means exist to obtain the information, (2) the information sought is relevant and 15 nonprivileged, and (3) the information is crucial to the preparation of the case. Shelton, 805 F.2d 16 at 1327. Because Defendants fail to satisfy the first and third requirements, the discovery will not 17 be permitted. 18 A. No Other Means Exist to Obtain the Information 19 Defendants argue that Attorney Simon was Plaintiff’s “sole point of contact for years 20 during the claim investigation” and by “[Attorney] Simon’s own doing, there are no alternative 21 means” by which Defendants can secure the information. Docket No. 136 at 9. The Court 22 disagrees. Defendants overlook an obvious alternative source for this information: Defendants 23 themselves, as they submit they are seeking Attorney Simon’s communications with Defendants. 24 Id. at 8. Defendants provide no meaningful explanation why this information could not be obtained 25 from their own representatives, or from the other various insurers and claim handlers, rather than 26 seeking it from opposing counsel. When a party fails to explain why it cannot seek information 27 from a source other than the opposing party's counsel, the request to depose such counsel is clearly 28 not favored. Ditech Fin. LLC, 2016 WL 4370034 at *2. 1 Hence, Defendants fail to establish the first requirement. 2 B. Relevant and Nonprivileged Nature of the Information 3 The discovery at issue consists of a proposed deposition to obtain testimony from Attorney 4 Simon regarding his pre-suit involvement in Plaintiff’s claim and his communications with 5 Defendants. Docket No. 136 at 8. As a threshold matter, the Court agrees with Defendants that 6 this discovery is relevant. See, e.g., Docket No. 136 at 9-11. The discovery seeks information 7 regarding Attorney Simon’s acts and communications on behalf of Plaintiff with multiple claim 8 handlers, insurers and attorneys which form part of the basis of Defendants’ affirmative defenses. 9 Docket No. 126 at 9. The standard for discovery “relevance” remains broad in nature, V5 10 Technologies, 334 F.R.D. at 309, and is met here.2 11 Plaintiff does not address whether the information sought is privileged. Rather, Plaintiff 12 asserts that all non-privileged communications have already been produced. Docket No. 129 at 5. 13 Plaintiff briefly submits that “Defendants seek Mr. Simon’s mental impressions or opinions, which 14 is privileged.” Id. at 8. The Court need not get into the weeds on whether some aspects of the 15 deposition might veer into privileged areas, however. 16 C. The Information is Crucial to the Preparation of the Case 17 In addition to failing to show that no other means exist to obtain this information, 18 Defendants have failed to demonstrate that the information is “crucial” to the preparation of the 19 case. Their argument as to the “crucial” nature of the discovery is barebones. See Docket No. 136 20 at 11. Defendants have effectively collapsed the analysis of whether the discovery is “crucial” 21 with the distinct question of whether the discovery is “relevant,” but these terms are not 22 synonymous. Ditech, 2016 WL 4370034, at *3. For discovery of opposing counsel to be 23 warranted, the information “must have greater importance to the action than merely being 24 relevant.” Id.; see also FMC Techs., Inc. v. Edwards, No. C05-946C, 2007 WL 836709, at *5 25 (W.D. Wash. Mar. 15, 2007) (explaining that “helpful” deposition testimony is not “crucial”). 26 Information would be crucial if it is “necessary for the survival of a claim or defense.” Hanover 27

28 2 Plaintiff agrees that some of the information sought is relevant. See Docket No. 129 at 7. 1} Jnsurance, 2019 WL 5963986, at *8 (citing Mid-Century Ins. Co. v. Wells, No. 2:12-cv-02041- GMN-VCF, 2013 WL 12321555, at *3 (D. Nev. June 17, 2013)). 3 Defendants state in conclusory fashion that Attorney Simon’s testimony is “critical to Defendants’ defense.” Docket No. 136 at 11. Why that is so is not meaningfully explained. The 5] primary gist of Defendants’ argument is that Attorney Simon can offer unique testimony given his 6] role as Plaintiff's primary point of contact with Defendants for much of the claim handling process, 7| and that Attorney Simon’s communications are probative of Defendants’ affirmative defense of 8|| breach of covenant of good faith. See Docket No. 136 at 9. The Court is not persuaded that this 9] is solid ground on which to find the information is crucial. 10 For these reasons, Defendants fail to establish the third requirement. 1] V. CONCLUSION 12 Defendants have failed to sustain their heavy burden of showing that the deposition they 13]| seek from opposing counsel is warranted. Defendants have not shown that the information cannot 14] be obtained from another source or that it is crucial to the preparation of the case. “Either ground” 15|| provides a basis to prohibit this discovery. SBP, 2021 WL 3131310 at *4. Accordingly, Plaintiff's 16] motion for protective order is GRANTED. Docket No. 129. . 17 IT IS SO ORDERED. LY / DY foe 18 Dated: September 9, 2024 oS on 19 \ Nancy J. Koppe 20 United States Magistrate Judge 21 22 23 24 25 26 27 28