Court Blocks Deposition of In-House Litigation Support Specialist

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In: 9th Circuit, Attorney-Client Privilege, In-House Counsel, Waiver, Washington, Washington Western District
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In a FCRA putative class action, a Washington federal court quashed a deposition notice for a defendant–company’s litigation support specialist based in the legal department. The court treated her as the General Counsel’s agent for privilege purposes, and used the Shelton doctrine to preclude her deposition testimony.  Broyles v. Convergent Outsourcing, Inc., 2017 WL 2256773 (W.D. Wash. May 23, 2017).  You may read the decision here.

What is a Litigation Support Specialist?

I suppose the duties of a Litigation Support Specialist vary from company to company, but likely include general paralegal duties and/or e-discovery duties. In Broyles, Alisia Stephens worked as a Litigation Support Specialist for Convergent Outsourcing, a collection agency, under the direction of Convergent’s General Counsel.  Her duties included reviewing complaints, investigating the complaint’s allegations, and engaging in settlement-related communications with plaintiffs’ counsel before retaining outside counsel.

After Plaintiff Broyles filed her complaint, Stephens communicated with Broyles’ counsel regarding a potential settlement.  She also submitted a sworn declaration discussing Broyles’ prior bankruptcy filings and stating, simply, that Convergent’s collection inquiries “were permissible under the FCRA.”  Ok, if you say so.

The Deposition

Plaintiff Broyles sent Convergent a deposition notice seeking Stephens’ testimony.  As for the privilege issues, Broyles claimed that Stephens waived the privilege by discussing settlement with her lawyer and by submitting an affidavit denying her factual allegations.

Shelton Doctrine

Convergent moved to quash and for a protective order, arguing that the privilege covers Stephens because she works under the General Counsel as an in-house Litigation Support Specialist.  Convergent cited the Shelton doctrine, which requires the party seeking an attorney’s deposition to show the following:

  • No other means exist to obtain the information;
  • The information sought is relevant and nonprivileged; and
  • The information is crucial to the preparation of the case.

For more detail about the Shelton doctrine and its use to preclude lawyer depositions, see this post, this post, and this article.

Deposition Quashed

Here, the court found that the privilege applies to the Litigation Support Specialist because she is the General Counsel’s agent.  Broyles could not prove that the information she sought was either nonprivileged or unobtainable elsewhere.

The court seriously questioned whether a Litigation Support Specialist trying to settle a claim constitutes privilege waiver, but in any event “waiver alone is not sufficient for Broyles to carry her burden under the Shelton test.”