IN THE SUPREME COURT OF IOWA
No. 23–1115
Submitted April 10, 2024—Filed May 17, 2024
JEFFREY PETERZALEK and MOLLY WEBER,
Plaintiffs,
vs.
IOWA DISTRICT COURT FOR POLK COUNTY,
Defendant.
Certiorari to the Iowa District Court for Polk County, Robert Hanson,
Judge.
Two attorneys seek certiorari review of an order declining to quash
subpoenas for the attorneys’ depositions. WRIT SUSTAINED IN PART AND
ANNULLED IN PART. May, J., delivered the opinion of the court in which all justices joined.
Brenna Bird, Attorney General; Eric H. Wessan, Solicitor General; Patrick
C. Valencia, Deputy Solicitor General; Alexa Den Herder (argued), Assistant Solicitor General; and Lindsey L. Browning, Assistant Attorney General, for
plaintiffs.
Amy Beck (argued) of Fiedler Law Firm, P.L.C., Johnston, and Kellie L.
Paschke of Skinner & Paschke, PLLC, West Des Moines, for defendant. 2
MAY, Justice. This case is about depositions of attorneys. We consider whether parties
to civil disputes may depose attorneys who have provided legal services to an
opposing party. We conclude that those depositions should not be wholly
prohibited. But we adopt the Eighth Circuit’s Shelton test, which greatly limits
the circumstances in which opposing counsel may be deposed. Shelton v. Am.
Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). We also address other
protective measures that may be appropriate when attorney depositions are
sought.
I. Background.
This appellate case arises from a discovery dispute in a pending district
court case. The plaintiff in the district court case is Charis Paulson. The
defendants are Paulson’s employers, the State of Iowa and the Iowa Department
of Public Safety (DPS).
Paulson began working for DPS in 1994. She began her work as a special
agent. Over the years, Paulson was promoted several times. By 2012, she was
the first woman to hold the position of a director at DPS.
Still, Paulson alleges that she has been treated less favorably than her male counterparts. In March 2021, Paulson filed a civil rights complaint with the
Iowa Civil Rights Commission (ICRC). In September, the ICRC issued a
right-to-sue letter to Paulson. In December, Paulson commenced suit in the
district court. As mentioned, Paulson named the State of Iowa and DPS as
defendants. Paulson’s petition alleged that the defendants subjected her to
gender-motivated discrimination and retaliation.
In early 2023, Paulson subpoenaed two attorneys for deposition. The
subpoenaed attorneys were Molly Weber and Jeffrey Peterzalek. Weber had previously served as an assistant attorney general, although by the time the 3
subpoenas were served, she had moved on to other employment. Peterzalek
continued to serve as an assistant attorney general, as he does today.
Both Weber and Peterzalek have represented DPS in different capacities.
Weber has represented DPS in its current dispute with Paulson. More
particularly, Weber assisted DPS with its response to Paulson’s civil rights
complaint before the ICRC.
Peterzalek has not represented DPS in its dispute with Paulson. But
Peterzalek has represented DPS and its leaders in a variety of other matters over
the course of almost twenty years. For instance, since 2013, Peterzalek has
represented Paulson, who is a defendant in an employment-related suit brought
by a former DPS employee, Larry Hedlund. The Hedlund litigation is currently
proceeding as a separate district court case.
Weber and Peterzalek moved to quash Paulson’s deposition subpoenas.
Alternatively, Weber and Peterzalek requested entry of “an appropriately
restrictive protective order pursuant to Iowa Rule of Civil Procedure 1.504(1)(a)”
to govern their depositions. In support of their motion, Weber and Peterzalek
argued that allowing Paulson to depose them could lead to the disclosure of
privileged information as well as violations of their ethical duty to maintain client confidences.
The district court declined to quash the subpoenas. But the court ordered
that “the depositions of Peterzalek and Weber shall be sealed in a manner
compliant” with a previously-entered confidentiality order. The court did not
order any other limits on the depositions.
Weber and Peterzalek filed a petition for writ of certiorari with our court.
We granted the writ and retained the case. Our certiorari review is for correction
of errors at law. State Pub. Def. v. Iowa Dist. Ct., 747 N.W.2d 218, 220 (Iowa 2008). 4
II. Issues Presented.
In their briefs before this court, Weber and Peterzalek raise four issues.
They argue that:
1. We should adopt the Shelton test, which narrowly limits the
circumstances in which opposing counsel may be deposed.
2. We should conclude that Weber cannot be deposed.
3. We should conclude that Peterzalek cannot be deposed.
4. Alternatively, if we permit deposition of either attorney, we should
impose substantial limitations.
We will discuss these issues in turn. Before proceeding to these briefed
issues, however, we address two other matters.
A. Weber and Peterzalek. First, on our own motion, we note the following
concerning Weber and Peterzalek. As mentioned, Weber no longer works for the
attorney general’s office. In 2021, Weber joined the judicial branch as Legal
Counsel to State Court Administration. She continues to serve in that role. But
Weber has taken no part in our court’s consideration of this case.
Peterzalek continues to serve as an assistant attorney general. In his role
as assistant attorney general, Peterzalek has provided legal services to the judicial branch and its employees. But Peterzalek has taken no part in our
court’s consideration of this case.
B. Paulson’s motion. Next, we address a motion that Paulson filed with this
court shortly before oral argument. Attached to the motion were two recent filings
from the Hedlund litigation, which is now pending in the district court. The
filings were marked as “Exhibit 1” and “Exhibit 2.” The motion asked leave for
Paulson to “supplement the appendix” by “adding Exhibits 1 and 2.”
We deny Paulson’s motion. Generally speaking, our review is limited to the record made in “the district court case from which the appeal is taken.” Iowa R. 5
App. P. 6.801. This rule applies equally to certiorari proceedings like this one.
See, e.g., Pederson v. Meyer, No. 13–1600, 2014 WL 3930462, at *1 n.3 (Iowa Ct.
App. Aug. 13, 2014) (per curiam) (applying rule 6.801 in a certiorari proceeding).
And while the rule has some exceptions, see Iowa R. App. P. 6.801(d)–(e), none
of those exceptions apply here. So our review is limited to the record made in
Paulson’s case against DPS. That record does not include the Hedlund filings
that were attached to Paulson’s motion. Because those filings are not part of the
record here, we should not consider them here, and they should not be added to
the appendix. See In re M.M., 483 N.W.2d 812, 815 (Iowa 1992) (“We limit our
review to the record made [below].”); In re Marriage of Keith, 513 N.W.2d 769,
771 (Iowa Ct. App. 1994) (“We are limited to the record before us and any matters
outside the record on appeal are disregarded.”); see also State v. Washington,
832 N.W.2d 650, 655–56 (Iowa 2013) (“However, ‘[t]he general rule is that it is
not proper for the court to consider or take judicial notice of the records of the
same court in a different proceeding without an agreement of the parties.’ ”
(alteration in original) (quoting Leuchtenmacher v. Farm Bureau Mut. Ins.,
460 N.W.2d 858, 861 (Iowa 1990))); State v. Wooten, No. 20–0716, 2021 WL
810930, at *1 (Iowa Ct. App. Mar. 3, 2021) (noting that it “is inappropriate” to include documents outside of the record in the appendix).
With those issues resolved, we turn to the questions raised in the briefs.
III. Analysis.
A. The Shelton Test. As noted, Weber and Peterzalek ask us to adopt the
Shelton test, 805 F.2d at 1327. We begin our analysis of this request with a
review of the Shelton case itself.
1. Shelton. Shelton v. American Motors Corporation arose from a vehicular
accident. Id. at 1324. A woman was killed when her vehicle overturned. Id. The woman’s parents sued the vehicle’s manufacturer. Id. During discovery, the 6
plaintiffs sought to depose one of the manufacturer’s attorneys. Id. at 1325. The
attorney was “employed by” the manufacturer “in its Litigation Department,” and
she “was assigned specifically to” the parents’ case as the manufacturer’s
“supervising ‘in-house counsel.’ ” Id. The manufacturer moved to quash the
deposition, but a magistrate judge denied the motion. Id. The plaintiffs then
deposed the attorney. Id. During the deposition, the attorney refused to answer
questions about the existence of certain documents (which, if existed, should
have been produced in written discovery). Id. The attorney based her refusals on
the work-product doctrine and the attorney–client privilege. Id. Motion practice
followed. Id. The attorney was deposed again. Id. This time, a magistrate judge
presided over the deposition. Id. Again, the attorney was asked about the
existence or nonexistence of certain documents. Id. Again, the attorney declined
to answer. Id. The attorney’s “typical response” was, “Any information I have
concerning documents which might possibly be responsive to your question, I’ve
acquired solely through my capacity as an attorney for [the manufacturer] in my
efforts to find information which would assist me in defending the [manufacturer]
in litigation, and therefore, I decline to [answer].” Id. The manufacturer’s trial
counsel supplemented the attorney’s responses by raising objections under the work-product doctrine and attorney–client privilege. Id. at 1325–26. The
magistrate judge overruled the objections and directed the attorney to answer
the questions. Id. at 1326. Even so, the manufacturer directed the attorney not
to answer. Id. More motion practice followed. Id. Ultimately, the district court
concluded that no privilege justified the attorney’s repeated refusals to answer.
Id. And so the court entered a substantial discovery sanction against the
manufacturer—namely, a default judgment on the issue of liability. Id. The
manufacturer sought an interlocutory appeal. Id. 7
The United States Court of Appeals for the Eighth Circuit heard the
manufacturer’s appeal. Id. The court’s analysis focused largely on the question
of when it is appropriate for parties to depose opposing counsel. Id. The court
discussed several concerns about this “increasingly popular” discovery practice.
Id. at 1327. We repeat those concerns verbatim:
In recent years, the boundaries of discovery have steadily expanded, and it appears that the practice of taking the deposition of opposing counsel has become an increasingly popular vehicle of discovery. To be sure, the Federal Rules of Civil Procedure do not specifically prohibit the taking of opposing counsel’s deposition. See Fed. R. Civ. P. 30(a) (a party may take the deposition of “any person”). We view the increasing practice of taking opposing counsel’s deposition as a negative development in the area of litigation, and one that should be employed only in limited circumstances.
Undoubtedly, counsel’s task in preparing for trial would be much easier if he could dispense with interrogatories, document requests, and depositions of lay persons, and simply depose opposing counsel in an attempt to identify the information that opposing counsel has decided is relevant and important to his legal theories and strategy. The practice of forcing trial counsel to testify as a witness, however, has long been discouraged, see Hickman v. Taylor, 329 U.S. 495, 513, 67 S. Ct. 385, 394, 91 L. Ed. 451 (1947) (it causes “the standards of the profession [to] suffer”), and recognized as disrupting the adversarial nature of our judicial system, see id. at 516, 67 S. Ct. at 396 (Jackson, J., concurring) (“Discovery was hardly intended to enable a learned profession to perform its functions . . . on wits borrowed from the adversary.”). Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation. It is not hard to imagine additional pretrial delays to resolve work-product and attorney–client objections, as well as delays to resolve collateral issues raised by the attorney’s testimony. Finally, the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client’s case without fear of being interrogated by his or her opponent. Moreover, the “chilling effect” that such practice will have on the truthful communications from the client to the attorney is obvious.
Id. (footnote omitted) (alteration and omission in original). 8
Despite these concerns, the Shelton court declined to hold that opposing
counsel is “absolutely immune from being deposed.” Id. Rather, the court
“recognize[d] that circumstances may arise in which the court should order the
taking of opposing counsel’s deposition.” Id. “But those circumstances should be
limited,” the court held, “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. (citation omitted).
Applying this test to the record before it, the Shelton court concluded that
“those limited circumstances” were not present. Id. For one thing, the plaintiffs
were seeking information about what documents were in the manufacturer’s
possession. That information could be obtained by other means, such as
depositions of the manufacturer’s employees “who were not attorneys in its
Litigation Department.” Id. Also, if the manufacturer’s attorney were forced to
answer the plaintiffs’ inquiries, the work-product doctrine would certainly be
implicated. Id. at 1329. The court observed that:
In cases that involve reams of documents and extensive document discovery, the selection and compilation of documents is often more crucial than legal research. We believe [the attorney’s] selective review of [the manufacturer’s] numerous documents was based upon her professional judgment of the issues and defenses involved in this case. This mental selective process reflects [the attorney’s] legal theories and thought processes, which are protected as work product. Moreover, in these circumstances we believe that any recollection [the attorney] may have of the existence of documents in [the manufacturer’s] possession likely would be limited to those documents she has selected as important to her legal theories concerning this case. Thus, contrary to the plaintiffs’ argument, the questions asked require more than merely acknowledging the existence of certain documents. If [the attorney] were compelled to acknowledge whether specifically described documents exist, she necessarily would reveal her mental selective process. [The attorney’s] acknowledgment would indicate to her opponent that she had reviewed the document and that, since it was 9
important enough to remember, she may be relying on it in preparing her client’s case.
Id. (citations omitted).
“Consequently,” the court held that when “the deponent is opposing
counsel [who] has engaged in a process of selecting and compiling documents in
preparation for litigation, the mere acknowledgment of the existence of those
documents would reveal counsel’s mental impressions, which are protected as
work product.” Id. So the court held that the district court had erred by
concluding “that the information sought by the plaintiffs was not protected as
work product.” Id. And so the court reversed the imposition of discovery
sanctions. Id. at 1329–30.
2. Shelton’s three-prong test. We turn now to the central question before
us: Should we adopt the Shelton court’s three-prong test? We answer that
question in the affirmative. Like the Shelton court, we believe that the “harassing
practice of deposing opposing counsel (unless that counsel’s testimony is crucial
and unique) appears to be an adversary trial tactic 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.” Id.
at 1330. We believe that Shelton’s three-prong test appropriately addresses these concerns. See State v. Leedom, 938 N.W.2d 177, 194–95 (Iowa 2020) (citing
Shelton with approval); cf. Fenceroy v. Gelita USA, Inc., 908 N.W.2d 235, 249–50
(Iowa 2018) (Waterman, J., dissenting with Mansfield and Zager, JJ., joining)
(advocating for adoption of Shelton). Accordingly, we now join the many
jurisdictions that have adopted Shelton’s three-prong test. E.g., Nationwide Mut.
Ins. v. Home Ins., 278 F.3d 621, 628–29 (6th Cir. 2002) (requiring Shelton’s
three-prong test); Thiessen v. Gen. Elec. Cap. Corp., 267 F.3d 1095, 1112 (10th Cir. 2001) (“[T]he parties and the court agreed [the issue] was controlled by the 10
rule announced in [Shelton].”); De Alba v. Velocity Invs., LLC,
No. 21-CV-547-AJB-WVG, 2022 WL 3327382, at *4 (S.D. Cal. Aug. 10, 2022)
(“Shelton is the seminal case on the depositions of attorneys and sets forth a
three-part framework to guide courts’ analyses, which district courts within the
Ninth Circuit have adopted.”); Brown v. Saint-Gobain Performance Plastics Corp.,
No. 16-cv-242-JL, 2021 WL 6428171, at *1 (D.N.H. Dec. 7, 2021) (calling the
Shelton test “requisite,” and granting a protective order); Ex parte Indus. Dev. Bd.
of Montgomery, 42 So. 3d 699, 712 (Ala. 2010) (“In the unique context of a party’s
attempt to prevent the deposition of its counsel, the Shelton factors are a
practical means of implementing the requirements of Rule 26(b)(1) and
evaluating whether there is good cause for the issuance of a protective order
under Rule 26(c).”); Iacono v. Santa Elena Holdings, LLC, 271 So. 3d 28, 30 (Fla.
Dist. Ct. App. 2018) (“Where the deposition of opposing counsel is at issue, the
party seeking such a deposition has the burden of meeting the three-factor test
outlined in [Shelton].”); Airy’s, Inc. v. Hill, 193 N.E.3d 107, 111 (Ill. App. Ct. 2021)
(adopting the Shelton test); McMurry v. Eckert, 833 S.W.2d 828, 830 (Ky. 1992)
(“In our view, [Shelton and Hickman, 329 U.S. at 512–13,] address this issue
appropriately and provide the proper standard.”); Club Vista Fin. Servs. v. Eighth Judicial Dist. Ct., 276 P.3d 246, 247 (Nev. 2012) (en banc) (adopting “the
framework espoused” in Shelton); Desmond v. Gains, 183 N.E.3d 1229, 1243–44
(Ohio Ct. App. 2022) (adopting the Shelton test); c.f. Nguyen v. Excel Corp.,
197 F.3d 200, 208–09 (5th Cir. 1999) (deciding—regardless of whether it applied
Shelton or not—the district court did not abuse its discretion by allowing the
plaintiffs to depose defense counsel); McDill v. Bd. of Pardons & Paroles,
No. 2:18-cv-597-MHT-SMD, 2021 WL 6883424, at *3 (M.D. Ala. June 24, 2021)
(“Without clear direction from the Eleventh Circuit otherwise, the undersigned will apply the Shelton test . . . .”); Duke Energy Carolinas, LLC v. NTE Caroinas II, 11
LLC, No. 3:19-CV-00515-KDB-DSC, 2021 WL 5826786, at *2 (W.D.N.C. Dec. 8,
2021) (“While Shelton has not been adopted by the Fourth Circuit, it has been
applied by District Courts in the circuit, including in this Court.”); OCI Chem.
Corp. v. Aon Corp., No. CV054003935S, 2007 WL 3087958, at *1 (Conn. Super.
Ct. Oct. 3, 2007) (“While Shelton is not binding on this court[,] it is persuasive in
providing guidance.” (citation omitted)); Blue Ridge Pediatric & Adolescent Med.,
Inc. v. First Colony Healthcare, LLC, No. 11 CVS 127, 2012 WL 3249553, at *11
(N.C. Super. Aug. 9, 2012) (“While not binding on this Court, Shelton and its
progeny offer guidance to the Court in deciding this motion.”). Contra, e.g., In re
Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71–72 (2d Cir. 2003)
(rejecting the Shelton approach); Munn v. Bristol Bay Hous. Auth., 777 P.2d 188,
196 (Alaska 1989) (same); Liberty Petroleum Realty, LLC v. Gulf Oil, L.P.,
164 A.D.3d 401, 404 (N.Y. App. Div. 2018) (same).
B. Molly Weber. With the Shelton test in hand, we now turn to the facts
before us. The first question is whether Shelton applies to Molly Weber. Paulson
notes that although Weber represented DPS in its response to Paulson’s
administrative claim, Weber does not currently represent DPS in Paulson’s
pending district court case. And so, Paulson argues, Shelton shouldn’t apply to Weber.
We reach a different conclusion. We agree with Paulson that Shelton’s
stringent test was primarily intended to “protect against the ills of deposing
opposing counsel in a pending case which could potentially lead to the disclosure
of the attorney’s litigation strategy.” Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d
726, 730 (8th Cir. 2002). And so we agree that, generally speaking, Shelton does
not apply to attorneys who have represented a client only “in a completed case.”
Id. But we do not believe that this limitation applies to Weber. Weber assisted DPS in responding to the administrative complaint through which Paulson 12
raised the same allegations that are still being litigated in the district court. We
do not view that administrative process as a separate completed case. Rather, it
was the first phase of the ongoing litigation between Paulson and DPS. See Iowa
Code § 216.16 (2023) (requiring exhaustion of administrative remedies prior to
commencement of a district court action). And so we view Weber as opposing
counsel for purposes of Paulson’s ongoing civil rights dispute with DPS.
Therefore, the Shelton test applies to Weber.
This is not the end of the analysis, though. As explained, the Shelton court
did not adopt a categorical ban on depositions of opposing counsel. 805 F.2d at
1327. Rather, Shelton held that opposing counsel could not be deposed unless
“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. (citation omitted).
Paulson claims that these requirements are met. Paulson claims that
Weber is an important witness because—when DPS responded to Paulson’s
administrative complaint—DPS (“through Weber”) took “unusual” and improper
steps, such as obtaining a confidential investigative report from DAS and then filing an “ex-parte motion to conceal and limit access” to the investigative report.
Paulson claims that these “unusual” steps amounted to acts of discrimination
and retaliation by DPS. Paulson believes Weber should be deposed about how
these steps occurred, including how Weber obtained the report and why Weber
tried to limit access to the report. Paulson also believes Weber should be deposed
about whether “other civil rights complaints were treated similarly” by DPS. In
Paulson’s view, these kinds of inquiries are appropriate under Shelton.
We disagree. As explained, Shelton’s second prong prohibits the deposition of opposing counsel when “the information sought” is privileged. Id. at 1327. And 13
here, Paulson wants to depose Weber about Weber’s collection of particular
documents—as well as Weber’s filing of a particular motion—all as part of
Weber’s defense of DPS. These inquiries would be quite similar to those that the
Shelton court found unacceptable. 805 F.2d at 1329. As in Shelton, Weber could
not answer Paulson’s questions without revealing the mental processes that
Weber employed when defending her client. Id. As in Shelton, Paulson’s inquiries
would tread heavily on the work-product doctrine. Id.
Also, Shelton’s first prong prohibits the deposition of opposing counsel
unless “no other means exist” to obtain the information sought. Id. at 1327. But
Paulson has not shown that “no other means exist” to obtain information about
how DPS handles civil rights complaints, including Paulson’s own complaint. Id.
Rather, it appears that those topics could be adequately explored through
interrogatories or depositions of other witnesses.
So we conclude that the Shelton test precludes Weber’s deposition.
Paulson’s subpoena to Weber should be quashed.
C. Jeffrey Peterzalek.
1. The Shelton test. With Weber’s situation now resolved, we turn to
Peterzalek. We first consider whether the Shelton three-prong test applies to Peterzalek. We conclude it does not.
As explained, the Shelton test applies only to opposing counsel in an
ongoing dispute. See Pamida, 281 F.3d at 730. But Peterzalek has not
represented DPS in its ongoing civil rights dispute with Paulson. Indeed, as
Paulson emphasizes, Peterzalek has been counsel for Paulson in another matter.
So the attorney general’s office has appropriately “walled” Peterzalek “off” from
any involvement in Paulson’s dispute with DPS. As to Paulson, then, Peterzalek
is not “opposing counsel.” And so the Shelton test does not apply to Peterzalek. 14
2. Other limits on attorney depositions. Although we conclude that the
Shelton test does not apply to Peterzalek, this does not end the analysis. Even
when the Shelton test does not apply, it may still be appropriate to prohibit or at
least limit depositions of attorneys. When evaluating these issues, courts should
look to three sources of authority and guidance.
First, Iowa Rule of Civil Procedure 1.504 affords the district court “broad
discretion to craft” appropriate protective orders. Sioux Pharm, Inc. v. Eagle
Lab’ys, Inc., 865 N.W.2d 528, 537 (Iowa 2015). Rule 1.504(1) provides that
“[u]pon motion by a party or by the person from whom discovery is sought or by
any person who may be affected thereby, and for good cause shown,” the court
is authorized to “make any order which justice requires to protect a party or
person from annoyance, embarrassment, oppression, or undue burden or
expense.” Iowa R. Civ. P. 1.504(1). Rule 1.504(1) goes on to provide a
nonexclusive list of options for protective orders, including:
• An order that certain discovery “not be had.”
• An order that “the discovery may be had only by a method of
discovery other than that selected by the party seeking discovery.”
• An order “[t]hat certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.”
Id.
Second, when a party invokes the subpoena power to compel an attorney’s
deposition, the protections of rules 1.1701 and 1.1702 also apply. See also Iowa
Rs. Civ. P. 1.1701, 1.1702 (providing protections to subpoena recipients). See
generally In re Dethmers Mfg. Co., 985 N.W.2d 806 (Iowa 2023) (discussing these
rules). Those protections are heightened when subpoenas are directed to
nonparties. See In re Dethmers Mfg. Co., 985 N.W.2d at 815 (emphasizing “the need to protect nonparties”). 15
Finally, even when the Shelton three-prong test does not apply, the
concerns raised in Shelton may still be relevant when deciding what protections
are appropriate. In many cases, an attorney’s relevant knowledge will consist
largely of information that falls within the work-product doctrine, the
attorney–client privilege, or both. And so, a deposition of the attorney will likely
involve numerous “work-product and attorney–client objections.” Shelton,
805 F.2d at 1327. Working through those objections will “add[] to the already
burdensome time and costs of litigation.” Id. Plus, because depositions are
essentially real-time interrogations, privileged information is sometimes
inadvertently disclosed despite the most attentive efforts to raise timely
objections. Concerns like these impose substantial burdens on attorneys and
their clients. Those burdens should be mitigated to the degree practicable. Like
the Shelton court, we think that attorneys should generally “be free to devote
[their] time and efforts to” serving their clients “without fear of being
interrogated” by their clients’ adversaries. Id. Likewise, we think clients should
generally feel free to have “truthful communications” with their attorneys without
worrying that their secrets may be disclosed through the deposition process. Id.
We believe, therefore, that even when the Shelton three-prong test does not apply, special considerations are still appropriate when determining whether an
attorney should be deposed and, if so, what the scope of the deposition should
be. Courts should consider whether the information sought could be obtained
through other means, such as depositions of nonattorneys, requests for
production of documents, or interrogatories. Cf. Brandon v. W. Bend Mut. Ins.,
681 N.W.2d 633, 642 (Iowa 2004) (attorney–client privilege was not waived
through attorney’s verification of interrogatory answers). And when an attorney’s
deposition is allowed, it may be appropriate to limit the deposition’s scope to 16
topics on which the attorney can provide relevant testimony without raising
significant concerns about the disclosure of privileged information.
With all of this said, we add two caveats. First, there are some
circumstances in which the concerns just discussed are far less relevant. In
Squealer Feeds v. Pickering, for example, we found that a workers’ compensation
carrier had waived the attorney–client privilege by designating its attorney as an
expert. 530 N.W.2d 678, 689 (Iowa 1995) (en banc), overruled on other grounds
by Wells Dairy, Inc. v. Am. Indus. Refrigeration, Inc., 690 N.W.2d 38 (Iowa 2004).
Likewise, when a client sues their attorney in a malpractice case, the client
waives privilege as to the subject matter of the suit. Cf. State v. Tate, 710 N.W.2d
237, 241 n.2 (Iowa 2006) (noting that concerns about the attorney–client
privilege “disappear[] during postconviction relief proceedings”). In these and
similar circumstances, privilege concerns will tend to be far less relevant, and
the need for protective measures will be much reduced, if not eliminated. See
Pamida, 281 F.3d at 732 (holding that the plaintiff impliedly waived the work-
product protection by bringing an indemnification suit to recover its attorney
fees).
Also, although we have said much about the role of courts, nothing we have said is meant to diminish the importance of counsel. Counsel has the
primary responsibility for managing discovery, including privilege issues. See
1 Steven S. Gensler & Lumen N. Mulligan, Federal Rules of Civil Procedure, Rules
and Commentary, Rule 26, at 798 (2024) [hereinafter Rules and Commentary]
(“The design of the Federal Rules places discovery in the hands of the parties, at
least until it becomes necessary for the judge to become involved.”). It is counsel’s
role to identify and raise privilege concerns in the first instance. It is also
counsel’s role to work with opposing counsel in good-faith efforts to reach mutually agreeable resolutions of privilege concerns. See Iowa Rs. Civ. P. 17
1.507(1) (requiring the parties to confer regarding discovery), 1.507(2) (requiring
good-faith efforts to agree to a proposed discovery plan), 1.507(3)(d) (requiring
the parties to address privilege issues in the proposed discovery plan), 1.507(3)(e)
(requiring the parties to propose limitations on discovery), 1.507(3)(f) (requiring
the parties to propose any “orders that the court should issue under rule 1.504”).
Of course, this does not mean that opponents will always agree about discovery
issues. There will still be times when “it becomes necessary for the judge to
become involved.” Rules and Commentary, Rule 26, at 798. Even so, counsel
must make good-faith efforts to minimize the court’s role in discovery. Iowa R.
Civ. P. 1.501(3) (“Discovery must be conducted in good faith . . . .”). This is
reflected in our requirement that “[a]ny discovery motion presented to the court
must include a certification that the movant has in good faith personally spoken
with or attempted to speak with other affected parties in an effort to resolve the
dispute without court action.” Id. (“The certification must identify the date and
time of any conference or attempts to confer.”); accord id. rs. 1.504(3) (imposing
similar requirements regarding motions for protective orders), 1.517(5) (imposing
similar requirements for any motion “relating to depositions, discovery, or
discovery sanctions”). 3. Resolution as to Peterzalek. With these principles in mind, we now apply
them to Peterzalek. Based on the record before us, we agree with Paulson that
Peterzalek should be subject to deposition as to at least some matters. The record
shows that Peterzalek likely has nonprivileged information that is directly
relevant to Paulson’s employment claims. The record shows that Paulson and
Peterzalek worked together on a broad range of matters over a period of almost
two decades. For instance, Paulson and Peterzalek worked together on training
for DPS personnel concerning harassment and discrimination. Based on these and other experiences, Peterzalek has gained knowledge about Paulson’s 18
education, experience, intelligence, capacity for strategic planning, leadership
skills, personality, and work ethic. On at least one occasion, Peterzalek has
expressed positive views about Paulson’s qualifications by writing a letter of
recommendation on Paulson’s behalf. Topics like these would be fair game for a
deposition of Peterzalek.
What we cannot say, though, are the appropriate boundaries for
Peterzalek’s deposition. For instance, Paulson claims that Peterzalek has
substantial information about other legal actions or complaints that have been
brought by other DPS employees against DPS. But we cannot pass on whether
Peterzalek should be deposed about those claims. The record does not show
whether the information sought by Paulson could or should be obtained by other
means, such as an interrogatory answer or deposition of DPS officials. Nor can
we determine what privilege concerns would be implicated by deposing
Peterzalek about these matters. So we leave these questions open. The
parties—through counsel—should attempt to resolve these questions in the first
instance. No dispute should be brought to the district court unless and until
counsel have made appropriate good-faith efforts to discuss the matter and
resolve it “without court action.” Id. r. 1.501(3). Before concluding, we mention one last issue that is raised in Paulson’s
brief. As noted, Peterzalek has represented Paulson in the Hedlund matter since
2013. That representation has prevented Peterzalek from representing DPS in
any matter that is adverse to Paulson. From this, Paulson infers that Peterzalek
could not “possess any privileged information related to this case or Paulson’s
allegations.” We disagree. As just explained, it is Paulson’s position that legal
actions brought by other DPS employees may be relevant to Paulson’s case.
Indeed, Paulson wants to depose Peterzalek about those other legal actions. It seems quite possible, though, that Peterzalek could have privileged information 19
about those legal actions. Indeed, if Peterzalek represented DPS with regard to
those other actions, much of his information about those actions may be
protected by the work-product doctrine, the attorney–client privilege, or both. As
explained, though, the current record does not allow us to answer those
questions. We leave them for resolution by counsel or, if necessary, the district
court.
IV. Disposition.
We affirm the district court’s refusal to quash the subpoena for
Peterzalek’s deposition. We reverse the district court’s refusal to quash the
subpoena for Weber’s deposition. We remand for further proceedings consistent
with this opinion, including the entry of an order quashing the subpoena for
Weber’s deposition.
WRIT SUSTAINED IN PART AND ANNULLED IN PART.