Oppose Not Depose

The West Virginia Supreme Court of Appeals granted a writ of prohibition to prevent the deposition of an attorney in a litigated matter

At plaintiffs deposition

In an attempt to obtain additional information about the factual basis for the plaintiff’s second amended complaint, over the course of two full days, the defendants took the plaintiff’s deposition and asked her questions regarding the basis of her factual allegations. On numerous occasions, in response to that questioning, the plaintiff, indicated that she relied upon her lawyer for the drafting of the second amended complaint and for the information relevant to specific questions relating to the factual basis for her claims.

Defendants then sought to depose counsel which the circuit court had committed “clear error” in permitting 

we agree with the plaintiff that the circuit court committed a clear error of law in ordering the deposition to go forward. Our analysis explaining our conclusion begins with a discussion of Rules of Civil Procedure, notably this Court’s recent adoption of substantive and substantial revisions to those Rules. After providing this background, we analyze the law on this issue as it has developed, including in the federal courts, and conclude that the circuit court erred.

Analysis

Our Rules allow for liberal discovery. “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party. . . .” W. Va. R. Civ. P., Rule 26(b)(1) (eff. Jan 1, 2025). Further, the West Virginia Rules of Civil Procedure do not bar the deposition of opposing counsel: “[a] party may, by oral questions, depose any person, including a party, without leave of the court. . . .” W. Va. R. Civ. P., Rule 30(a)(1) (eff. Jan. 1, 2025) (emphasis added). Still, this Court and other courts have recognized that opposing counsel depositions should not be routinely employed given the potential for breach of the attorney-client privilege or the work product doctrine. See State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 333 n.21, 484 S.E.2d 199, 216 n.21 (1997) (taking of an opposing counsel’s deposition will necessarily devolve into controversies over the attorney-client privilege and work product doctrine). Beyond attorney-client privilege and work product doctrine concerns, we are also concerned with the potential for creating a “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.” Shelton at 1330. This Court, however, has not yet had occasion to adopt any standard to balance the interests of liberal discovery with protection of those privileges and prevention of abusive discovery practices in a scenario where one party seeks to depose opposing counsel regarding matters involving the underlying and pending litigation

Reasoning here

We agree with the discovery commissioner’s analysis under Shelton, for two reasons. First, the information in this case could plainly be obtained from other sources. In addition to the specific persons who have yet to be deposed, as noted by the discovery commissioner, supra, we identified in footnote ten, supra, a litany of sources of information we gleaned from our review of the plaintiff’s deposition. Additionally, as also noted above, the plaintiff conceded at oral argument that it could supplement its responses with references to the specific documents that formed the basis of the allegations in its second amended complaint. Plainly, the information sought from the plaintiff’s counsel’s deposition can be obtained from other sources. As the Eastern District of Pennsylvania stated:

In sum, despite at least five different, less-intrusive options, defendants have refused to accept anything less than [opposing counsel’s] deposition. The record, however, reveals that [opposing counsel’s] deposition would be duplicative, not only of the significant amount of testimony on the subject that defendants’ already have, but also of the additional evidence it can otherwise obtain. To require plaintiffs’ trial counsel of record to appear for a deposition and face imminent disqualification from this case, despite defendants’ minimal need for the information he could provide, would not only disrupt the course of this litigation, but would contravene the very discovery principles underlying the Federal Rules of Civil Procedure.

Peerless Heater Co. v. Mestek, Inc., No. CIV. A. 98-6532, 2000 WL 151281, at *8 (E.D. Pa. Feb. 7, 2000).

Second, the circuit court’s order on its face would require counsel to delve into issues of attorney-client privilege and the work product doctrine. In fact, the discovery commissioner specifically found that the propounding defendants’ deposition request actually sought information subject to the attorney-client privilege. Despite this, the circuit court allowed the “[p]laintiff’s counsel . . . to be deposed, only as to the facts communicated to him by the Plaintiff or third parties, which he used in preparation of the Complaint, Amended Complaint, and second Amended Complaint.” (Emphasis added). However, any discussions plaintiff’s counsel had with his client regarding the formulation of the second amended complaint are presumptively protected by the attorney-client privilege. Thus, the circuit court’s order necessarily invades the province of the attorney-client privilege and the work product doctrine by seeking communications between counsel and the plaintiff and by delving into his mental impressions which he necessarily “used in the preparation” of the various complaints.

As a California court aptly stated, “[t]he adversarial system of justice presumes that the attorneys for each side oppose one another, not depose one another.” Carehouse Convalescent Hosp. v. Superior Ct., 50 Cal. Rptr. 3d 129, 130 (2006). “Or, as another federal judge put it: ‘[A] party shouldn’t be able to use a deposition to sucker-punch the other side’s quarterback or listen in on the other side’s huddle.’” Id. at 133 (quoting Cascone v. Niles Home for Children 897 F. Supp. 1263, 1267 (W.D. Mo. 1995)

(Mike Frisch)