Deposing Opposing Counsel

The Iowa Supreme Court articulated the test to be applied when a party in civil litigation seeks to depose opposing counsel

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.

The case involves a civil right complaint against the plaintiff’s former employer

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 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.

The district court declined to quash the subpoenas.

Here the court adopted the Shelton test

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).

Weber

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.

Peterzaek

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 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.”

(Mike Frisch)