PBCBA BAR BULLETINS pbcba_bulletin_feb 2018 | Page 16

PROBATE Corner
Law Related Education

PROBATE Corner

Deposing Opposing Counsel

DAVID M . GARTEN
In recent years , the boundaries of discovery have steadily expanded , and the practice of taking the deposition of opposing counsel has become an increasingly popular vehicle of discovery . However , in Florida , taking the deposition of opposing counsel in a pending case is an extraordinary step which is rarely justified . Courts regard opposing counsel ’ s depositions unfavorably because they interfere with the attorney ’ s case preparation and risk disqualification of counsel who may be called as a witness .
In light of these concerns , a party seeking to take the deposition of opposing counsel must prove its necessity by showing 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 .” Shelton v . American Motors Corp ., 805 F . 2d 1323 ( 8th Cir . 1986 ). The Shelton test shifts the burden of proof to the party seeking to depose opposing counsel . See Guantanamera Cigar Co . v . Corporacion Habanos , S . A ., 263 F . R . D . 1 ( D . D . C . 2009 ). The Shelton test has been adopted in Florida by both the 3d and 5th DCA . See State v . Donaldson , 763 So . 2d 1252 ( Fla . 3d DCA 2000 ), Zimmerman v . State , 114 So . 3d 446 ( Fla . 5th DCA 2013 ), and Eller- I . T . O . Stevedoring Co ., L . L . C . v . Pandolfo , 167 So . 3d 495 ( Fla . 3d DCA 2015 ).
Although it is clear that the Shelton test applies to trial counsel , it is not clear whether the Shelton test applies to nontrial counsel , i . e ., outside counsel who assists in developing strategy , probate or trust administration counsel , or in-house counsel . For example , in Zimmerman , the court allowed the deposition of an attorney who conducted a telephone interview of a key witness in a criminal case . In this high profile case , Zimmerman was charged with second degree murder for fatally shooting Trayvon Martin . During interviews with police , Zimmerman asserted that he shot Martin in self-defense . Crump , an attorney retained by Martin ’ s family , conducted a telephone interview of a potentially crucial witness who allegedly was on the phone with Martin moments before his death . Crump made a recording of the interview , but the recording was incomplete and of very poor quality . The trial court denied Zimmerman ’ s request to depose Crump . In its order , the trial court found that Crump was “ an opposing counsel ” and that Zimmerman failed to meet the Shelton test . The appellate court reversed . The court reasoned , in part , that the fact that Crump represents Martin ’ s family does not make him “ an opposing counsel ” and Crump acknowledged in his affidavit that he was not acting as litigation counsel for either the defendant or the state . The court , citing Pamida , Inc . v . E . S . Originals , Inc ., 281 F . 3d 726 ( 8th Cir . 2002 ), held that the Shelton test applies to limit deposition questions of attorneys in only two instances : ( 1 ) when trial and / or litigation counsel are being deposed , and ( 2 ) when such questioning would expose litigation strategy in the pending case . See also United States v . Philip Morris , Inc ., 209 F . R . D . 13 , 17 ( D . D . C . 2002 ) ( concluding that the Shelton test did not apply when the proposed deponent attorneys were not litigation or trial counsel , the deponent attorneys were assigned nonlitigation responsibilities , and the proposed deposition would not cover litigation strategies related to the case ). In contrast with Zimmerman , the court in Pandolfo quashed the order compelling the deposition of an attorney who was not counsel of record , but was directly involved in the litigation having both directed and overseen various aspects of the investigation as well as having prepared and received documentation including attorney-client privileged communications and work product documents related to the investigation . The court cited to the following cases in support of its ruling : Boughton v . Cotter Corp ., 65 F . 3d 823 , 828-31 ( 10th Cir . 1995 ) ( precluding the deposition of outside counsel because of the extent of that attorney ’ s role in representing the party ); Nat ’ l W . Life Ins . Co . v . W . Nat ’ l Life Ins . Co ., No . A-09-CA-711 , 2010 U . S . Dist . LEXIS 132024 , 2010 WL 5174366 , at * 3 ( W . D . Tex . Dec . 13 , 2010 ) (“[ T ] he critical factor in determining whether the Shelton test applies is not the status of the lawyer as ‘ trial counsel ,’ but the extent of the lawyer ’ s involvement in the pending litigation .” ( quoting Murphy v . Adelphia Recovery Trust , No . 3-09-MC- 105-B , 2009 U . S . Dist . LEXIS 122027 , 2009 WL 4755368 , at * 3 ( N . D . Tex . Nov . 3 , 2009 ))); Massillon Mgmt ., LLC v . Americold Realty
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Trust , No . 5:08-CV-799 , 2009 U . S . Dist . LEXIS 22415 , 2009 WL 614831 , at * 3-6 ( N . D . Ohio Jan . 21 , 2009 ) ( holding that in-house counsel who was working with outside counsel to assist in developing strategy , taking discovery , and assisting in defending an action was not subject to being deposed because the criteria set forth in Shelton had not been satisfied ) ( citing Nationwide Mut . Ins . Co . v . Home Ins . Co ., 278 F . 3d 621 , 628 ( 6th Cir . 2002 ) as having adopted Shelton )). See also Boughton v . Cotter Corp ., 65 F . 3d 823 ( 10th Cir . 1995 ) ( precluding the deposition of outside counsel because of the extent of that attorney ’ s role in representing the party ).
Irrespective of whether the Shelton test applies , the attorney-client privilege [§§ 90.502 and 90.5021 , F . S .] and work product privilege [ Fla . R . Civ . P . 1.280 ( b )( 3 )] still apply .

Law Related Education

Assistant State Attorney Ori Feistmann Silver recently presented a fascinating seminar about the Fourth Amendment to seniors at the Lantana Library . The seminar covered Florida v . Jardines , a police dog drug-sniffing case that was appealed up to the U . S . Supreme Court . Ori and the group had a spirited discussion about the case , Supreme Court search-and-seizure precedent , and the principles behind the Fourth Amendment . If you are interested in giving similar civics presentations to community groups , or if your group would like to host a speaker , please contact the Bar ’ s Law Related Education Committee @ kwan @ beasleylaw . net