The USDC for the Southern District of California denied a corporation’s protective-order motion and allowed a limited deposition of the company’s in-house litigation counsel. In doing so, the court rejected a blanket privilege claim because the in-house lawyer also carried a “Vice President” title and verified the company’s interrogatory responses. Stevens v. CoreLogic, Inc., 2015 WL 8492501 (S.D. Cal. Dec. 10, 2015). You may read the decision here.
In a putative class action asserting intellectual-property claims against CoreLogic, Inc., the plaintiff sought to depose Rouz Tabaddor, a senior in-house litigation counsel at CoreLogic, in his “personal capacity.” CoreLogic sought a protective order, arguing that the plaintiff should not take Tabaddor’s deposition because he obtained knowledge about the case “exclusively through privileged communications.”
LinkedIn Profile and Verification of Interrogatory Responses
Plaintiff’s counsel reviewed Mr. Tabaddor’s LinkedIn profile and learned that his CoreLogic title was “VP and Chief Intellectual Property and Licensing Counsel.” According to LinkedIn, Tabaddor’s duties included managing CoreLogic’s IP litigation but also assisting with “IP due diligence” and “generating over $25M of revenue via IP licensing/sales.” You may review the LinkedIn profile here.
Plaintiff’s counsel therefore argued that at least some of Mr. Tabaddor’s knowledge is business-related and non-privileged. And counsel noted that Tabaddor verified some of CoreLogic’s interrogatory responses but that CoreLogic also provided several unverified interrogatory responses.
Court Applies Shelton Standard
The court recognized that, while neither the FRCP nor the FRE prohibit attorney depositions, courts regularly discourage them. The court noted that the 9th Circuit has not issued a published decision governing depositions of opposing counsel, and therefore relied on the 8th Circuit’s widely cited decision in Shelton v. Am. Motors Corp., 805 F.2d 1323 (CTA8 1986) for its ruling.
The Shelton case teaches us that a party may depose an opposing party’s lawyer only when it can show:
(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.
For a deeper look into the standards courts apply in attorney-deposition situations, see my article Protecting the Attorney–Client Privilege—Depositions of In-House Counsel, available here.
The court held that the plaintiff satisfied the Shelton factors and allowed a limited deposition of Tabaddor. The court rejected some of the privilege claims because Tabaddor verified one set of CoreLogic’s interrogatory responses while other responses remained unverified. The court allowed plaintiff to inquire into the grounds behind his verification of one but not the others, noting:
Rule 33’s requirement that answers be verified would be meaningless if corporations were permitted to have in-house counsel swear to their accuracy and then invoke the attorney–client privilege to avoid backing up their signature.
And Mr. Tabaddor’s title provided no privilege help. The court noted that he served not only as CoreLogic’s counsel, “but also as its Vice President,” and held that the attorney–client privilege necessarily could not cover all of his verifications and communications.
To be sure, the court limited Tabaddor’s deposition to his verification and non-verification of interrogatory responses and his communications regarding certain take-down notices. The take-away, though, is that the court rejected the attorney–client privilege in large part because the in-house lawyer—who also carried a business title—signed the company’s discovery responses.
For other cases permitting in-house counsel depositions, see my earlier post on a court allowing the deposition of an Apple, Inc. in-house lawyer, another post discussing a court’s permitting an in-house lawyer’s deposition because he authored a contract-termination letter, and my article Tips for Preventing or Limiting In-House Counsel Depositions.