The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
Before the Court is defendant Lassen Municipal Utility District's ("LMUD") motion for a protective order regarding the deposition of LMUD's former General Counsel, Jamie Jones. After reviewing the papers and hearing oral argument, the court now issues the following order.
Plaintiffs Connie Devlyne ("Devlyne"), Paul Glau ("Glau"), and Krsto Knezevich ("Knezevich") filed this action on February 3, 2010, and the operative second amended complaint was filed August 26, 2010. The discovery cut-off date is November 4, 2011.
Devlyne has been employed by LMUD since 1975.*fn1 She alleges that she has been subject to a hostile work environment throughout her career because of her gender. Devlyne claims that although she repeatedly reported the misconduct to LMUD management, they failed to take adequate action. Instead, her manager allegedly attempted to intimidate her into not filing a complaint. After she made a written complaint alleging a sexually hostile work environment in February 2008, LMUD hired an investigator, Richard Anderson, who ultimately concluded that Devlyne's complaints were without merit. However, Devlyne contends that the investigator conducted only the most cursory investigation. Devlyne states that LMUD later retaliated against her for her complaints by diminishing her work conditions and relocating her to a less safe work area.
Glau worked for LMUD since 1991, but retired effective December 31, 2009. He alleges that his retirement was the result of the hostile work environment he experienced in retaliation for his having supported and participated in Devlyne's sexual harassment complaint, as well as his own good faith conduct in notifying the proper regulatory authorities about hazardous substances at a storage site. Glau claims that former General Manager Ray Luhring informed Glau that if he did not agree to retire at the end of 2009, Glau would be fired.
Knezevich commenced his employment at LMUD in 1997. Knezevich claims that he is currently physically disabled because of the effects of LMUD's conduct in unfavorably altering his job responsibilities on account of his having supported and participated in Devlyne's sexual harassment complaint, as well as his association with Glau, and his own good faith conduct in making complaints about hazardous substances.
On August 23, 2011, plaintiffs issued and served a subpoena for the deposition of LMUD's former General Counsel, Jamie Jones ("Jones"). Plaintiffs seek Jones's testimony regarding several matters including, but not limited to: (1) meetings to discuss the departure of former LMUD General Manager Frank Cady; (2) discussions between Jones and the investigator hired to investigate Devlyne's harassment complaint; (3) missing complaint documents Cady allegedly received from Devlyne; and (4) conversations between Jones and Glau. The parties have agreed to a continued deposition date of October 19, 2011 in light of this motion.
The Federal Rules of Civil Procedure provide that a court may make any order limiting discovery which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Fed. R. Civ. P. 26(c)(1). To obtain a protective order, the party resisting discovery or seeking limitations must, under Rule 26(c), show good cause for its issuance. "For good cause to exist, the party seeking protection bears the burden of showing specific prejudice or harm will result if no protective order is granted." Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002). "Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not satisfy the Rule 26(c) test." Beckman v. Indus., Inc. v. Int'l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
As an initial matter, LMUD claims that a protective order is warranted under Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). Under Shelton, the party seeking to depose the opposing party's counsel has the burden to show three elements:
(1) [n]o other means exist to obtain the information than to depose opposing counsel [citation omitted]; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.
Id. at 1327. However, the Shelton criteria apply only when trial and/or litigation counsel are being deposed and the questioning would expose litigation strategy in the pending case. U.S. v. Philip Morris Inc., 209 F.R.D. 13, 17 (D.D.C. 2002); Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002) (stating that the Shelton test "was 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.") Here, LMUD has established no factual foundation to demonstrate that Jones is or was trial/litigation counsel for LMUD. Likewise, no foundation exists that Jones was so intimately involved with the litigation that taking her deposition would be akin to deposing one's litigation counsel. Simply being a former general counsel for a party is insufficient to bring one under the protection of the Shelton rule. Moreover, Jones is alleged to be a percipient witness to facts relevant to plaintiff's claims -- facts which are outside the litigation proceedings. Accordingly, plaintiffs are not required to satisfy the three Shelton criteria before deposing Jones.
Turning to the substantive matters on which Jones's testimony is sought, LMUD argues that good cause for a protective order exists primarily based on the risk that the attorney-client privilege would be invaded in the course of the deposition. "The attorney-client privilege protects confidential communications between attorneys and clients, which are made for the purpose of giving legal advice." U.S. v. Richey, 632 F.3d 559, 566 (9th Cir. 2011) (internal citations omitted). "Issues concerning application of the attorney-client privilege in the adjudication of federal law are governed by federal common law." U.S. v. Ruehle, 583 F.3d 600, 608 (9th Cir. 2009). "Under federal law, the attorney-client privilege is strictly construed." Id. at 609. The Ninth Circuit has set forth the elements of the attorney-client privilege: (1) where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his instance permanently protected (7) from disclosure by himself or by the legal adviser, (8) unless the protection be waived. Richey, 632 F.3d at 566. "The party asserting the attorney-client privilege has the burden of establishing the ...