The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. Magistrate Judge United States District Court
Order Granting Motion to Compel; Denying Motion for Protective Order [Doc. Nos. 42 and 44]
Defendants' have filed a motion to compel the deposition of Plaintiff's counsel, Ray Keramati. Plaintiff has filed a motion for protective order or in the alternative requests that the Court withhold a ruling on Defendants' motion until after Plaintiff has had an opportunity to perform further discovery. Defendants' have filed a reply. Based upon the parties moving papers and for the reasons set forth herein, the Court hereby GRANTS Defendants' motion to compel the deposition of Mr. Keramati and DENIES Plaintiff's motion for protective order and request that the Court withhold a ruling.
The Plaintiff is a former employee of Defendant, Pacific Bell Telephone Company f/k/a/ SBC Communications Inc. D/b/a AT&T ("AT&T"). Defendant, Communication Workers of America AFLCIO ("CWA"), is a party to a collective bargaining agreement with Defendant AT&T, and Plaintiff was covered by this agreement as an employee of AT&T. The collective bargaining agreement contained a grievance procedure for employees, where the Local Chapter of the Union, Local 9509, handled employee grievances arising under the agreement through the first three steps of the grievance procedure, which terminated in arbitration. Under the agreement, if a Local Chapter of the Union was unable to settle the grievance and determined that the grievance had sufficient merit to proceed to arbitration, then the Local Chapter would refer the grievance to CWA, who would then decide whether or not to arbitrate the grievance.
In the instant case, Plaintiff's grievance arises out of his termination in February of 2005 by Defendant AT&T, after AT&T became aware of Plaintiff's prior conviction for sexual misconduct. Local 9509 handled Plaintiff's grievance through the first three steps of the process, however, chose not to appeal Plaintiff's grievance to arbitration. The parties dispute when either the CWA or Local 9509 notified Plaintiff or his attorney, Mr. Keramati, that the Union was not going to pursue his grievance further. Defendant CWA states that Laura Reynolds, an International Representative employed by CWA, will testify that she had several conversations with Plaintiff and Plaintiff's counsel, Mr. Keramati in February of 2006 during which she informed them that Local 9509 had decided in June of 2005 not to pursue the grievance further. See Reynolds Decl. ¶ 6. The date of notification is significant because if Plaintiff knew by February 28, 2006, that the Union was not going to pursue his grievance further, then his lawsuit, which was filed on September 1, 2006, would be untimely under the six month statute of limitations applicable to duty of fair representation claims. 29 U.S.C. § 160 (b).
Mr. Keramati, the Plaintiff and Ms. Reynolds were the only parties to the telephone conversations, and the Plaintiff stated during his deposition that he could not recall anything about them. As a result, Defendants' have filed the instant motion seeking to depose Mr. Keramati, because he is Plaintiff's only witness to the telephone conversations other than Ms. Reynolds. Mr. Keramati has filed a declaration in support of his contention that he was not notified of the Union's decision not to pursue Plaintiff's grievance until March 2, 2006.
Defendants' contend that Mr. Keramati is a critical fact witness with respect to all the Defendants' statute of limitation defenses to Plaintiff's breach of duty of fair representation/breach of collective bargaining agreement causes of action. Defendants' allege that Mr. Keramati participated in a telephone call(s) in February of 2006 during which a union representative, Laura Reynolds, advised both Plaintiff and Plaintiff's counsel that the Plaintiff's grievance was not going to proceed to arbitration. Defendants' argue that because these conversations establish the requisite notice to start the six month statute of limitations running, questioning Mr. Keramati regarding his conversations is crucial to their statute of limitations defenses, since the Plaintiff has indicated an intent to submit Mr. Keramati's declaration in support of his contention that he did not receive notice until March 2, 2006. Plaintiff opposes Defendants' motion to compel Mr. Keramati's deposition and seeks a protective order on two grounds, first that Defendants have not satisfied the factors set forth in Shelton to warrant taking opposing counsel's deposition, and second that the information sought by Defendants is privileged, protected by both the attorney-client privilege and work product protections. Shelton v. America Motors ., 805 F.2d 1323 (8th Cir.1986).
I. Deposing Opposing Litigation Counsel
Neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence prohibit taking the deposition of an opposing party's attorney. Shelton v. America Motors Corp., 805 F.2d at1327 (8th Cir.1986); Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J.1990). In fact, Rule 30(a) of the Federal Rules of Civil Procedure permits a party to take the testimony of " any person " by deposition, without leave of court. The Rule sets forth certain exceptions to this provision, none of which exempt a party's attorney from being subject to deposition. See, NFA Corp. v. Riverview Narrow Fabric, Inc., 117 F.R.D. 83, 84 (D.N.C.1987).
However, courts have held that because of the negative impact that deposing a party's attorney can have on the litigation process, the taking of opposing counsel's deposition should be permitted only in limited circumstances, and that the party seeking to depose another party's attorney must demonstrate the propriety and the need for the deposition.*fn1 Shelton v. American Motors Corp., 805 F.2d 1323, is "generally regarded as the leading case on attorney depositions."*fn2 Under Shelton, opposing counsel's deposition may be taken if the party seeking the deposition has demonstrated that (1) "no other means exist to obtain the information than to depose opposing counsel," (2) "the information sought is relevant and non-privileged," and (3) "the information is crucial to the preparation of the case." 805 F.2d at 1327.
Plaintiff contends that Defendants have not satisfied the factors set forth in Shelton to warrant taking Mr. Keramati's deposition. Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Based upon the information provided in the parties' moving papers as set forth above, it is clear that Defendants' have satisfied the relevancy prong of the second requirement, as well as the third requirement of the Shelton test that the information be crucial to the preparation of the case. Mr. Keramati conversations with Ms. Reynolds are crucial to Defendants statute of limitations defenses. As such, the Court need only address whether alternative means exist for Defendants to obtain the information and whether any portion of the information sought would be privileged.
Defendants' contend that no other means exist to obtain information regarding Plaintiff's or his attorney's recollection of the February conversations between Mr. Keramati, Plaintiff and Ms. Reynolds because the Plaintiff cannot recall having the conversations. As such, Mr. Keramati is Plaintiff's only witness as to when notice was given and Ms. Reynolds is Defendants' only witness. Defendants' contend that they should be permitted to test the veracity of the statements set forth in Mr. Keramati's declaration, which Plaintiff intends to rely on in opposing Defendants' statute of limitations defense.
Plaintiff argues that the information sought is available through other means, namely documents and testimony of other witnesses. However, the Court is not moved by Plaintiff's argument because he fails to identify any witnesses aside from Mr. Keramati and Ms. Reynolds, who appear to have conflicting recollections of the February 2006 telephone conversations. This is also the case with the documentary evidence cited by Plaintiff, as all such documents were authored by either Mr. Keramati or Ms. Reynolds.*fn3 Since the Plaintiff intends to rely on the facts set forth in Mr. Keramati's declaration in opposing Defendants' ...