United States District Court, S.D. California
ORDER DENYING DEFENDANT’S MOTION FOR PROTECTIVE
ORDER RE JENNIFER GAGHEN [ECF NO. 66]
H. BARTICK United States Magistrate Judge
17, 2016, Judgment Debtor, Michael S. Gallegos
(“Gallegos”) filed a motion for protective order
regarding the deposition of Jennifer Gaghen. (ECF No. 66.) On
July 5, 2016, Judgment Creditor, SPE LO Holdings (“SPE
LO”), assignee of Textron Financial Corporation
(“Textron”), filed an opposition. (ECF No. 78.)
Gallegos did not file a reply. Having considered the
parties’ submissions, the Court hereby DENIES
Gallegos’ motion as set forth below.
November 30, 2010, Textron obtained a judgment against
Gallegos in the amount of $21, 921, 165.45 in the United
States District Court for the District of Rhode Island. (ECF
No. 1.) On April 11, 2011, Textron registered the judgment in
this Court. (Id.) Thereafter, Textron was only able
to collect $10, 484.99 on the judgment. (ECF No. 56.)
2, 2016, SPE LO served a deposition subpoena on Jennifer L.
Gaghen (“Gaghen”). (ECF No. 66-2 at 5-8.) For the
last 15 years Gaghen has been Gallegos’ personal
attorney and the corporate counsel for a number of
Gallegos-related entities. (ECF No. 66-3 at ¶ 2.) SPE LO
seeks to depose Gaghen on several topics, including the legal
entities Gallegos created and his relationship with each one,
facts about the sale of Pacific Pearl Hotels
(“PPH”) for $100 in March 2015, and the identity
of other assets or income streams owned by Gallegos. (ECF No.
76 at 5.)
17, 2016, Gallegos filed the instant Motion for Protective
Order requesting the Court prohibit the deposition of Gaghen
from going forward. (ECF No. 66.) Gallegos argues SPE LO has
not demonstrated the propriety or need for Gaghen’s
deposition, and that the information SPE LO seeks is
protected by the attorney-client privilege or work product
2, 2016, the Court temporarily stayed the deposition of
Gaghen pending resolution of this motion. (ECF No. 77.)
Federal Rules of Civil Procedure authorize the court, upon a
showing of good cause, to issue a protective order to protect
a party or person from annoyance, embarrassment, oppression,
or undue burden or expense. Fed.R.Civ.P. 26(c)(1). The party
seeking a protective order bears the burden of establishing
good cause. Rivera v. NIBCO, Inc., 384 F.3d 822, 827
(9th Cir. 2004). “‘Good cause’ is
established where it is specifically demonstrated that
disclosure will cause a ‘specific prejudice or
harm.’” Id. (citing Phillips ex rel.
Estates of Byrd v. Gen. Motors Corp., 307 F.3d 1206,
1211 (9th Cir. 2002)). “Broad allegations of harm,
unsubstantiated by specific examples or articulated
reasoning, do not satisfy the Rule 26(c) test.”
Id. (citing Phillips, 307 F.3d at 1211-12).
the Federal Rules of Civil Procedure, nor the Federal Rules
of Evidence prohibit the taking of attorney depositions. In
fact, Federal Rule of Civil Procedure 30(a) provides that a
party may depose “any person.” Fed.R.Civ.P.
30(a). However, courts have recognized that depositions of an
opposing party’s trial counsel can have a negative
impact on the litigation process, and are therefore
discouraged as a means of discovery. Shelton v. Am.
Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1987).
Shelton v. American Motor Corp., the Eighth Circuit
set out a three-part test for determining when it is
appropriate to depose opposing counsel. Shelton, 805
F.2d at 1327. The Ninth Circuit has not addressed whether
Shelton provides the proper framework for
determining when an attorney deposition is proper. However,
Shelton is generally considered the leading
authority, and has been adopted in this district. See Am.
Cas. Co. of Reading, Pa. v. Krieger, 160 F.R.D. 582,
585-89 (S.D. Cal. 1995).
Shelton, the Court explained that permitting
depositions 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.” Shelton, 805 F.2d at
1327. The Shelton Court also noted that allowing
such depositions could permit opposing counsel to glean
privileged information about the opponent’s litigation
strategy. Id. Yet, Shelton recognized that
under certain circumstances, the taking of opposing
counsel’s deposition would be warranted. Id.
Therefore, Shelton held the party seeking to take
the deposition of opposing counsel must show 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. See also
Krieger, 160 F.R.D. at 588 (stating there are
circumstances “under which the deposition of a
party’s attorney will be both necessary and
appropriate, for example, where the attorney is a fact
witness, such as an ‘actor or a viewer’”).
the Shelton test is not necessarily applicable in a
situation where the attorney sought to be deposed is not
litigation counsel in the pending case. In Pamida, Inc.
v. E.S. Originals, Inc., 281 F.3d 726 (2002), the Eighth
The Shelton test was intend[ed] 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. Because this abuse of
the discovery process had become an ever increasing practice,
this Court erected the Shelton test as a barrier to
protect trial attorneys from these depositions. But
Shelton was not intended to provide heightened
protection to attorneys who represented a client in a
completed case and then also happened to represent that same
client in a pending case where the information known only by
the attorneys regarding the prior concluded case was crucial.
In such circumstances, the protection Shelton