Vice President & General Counsel Avoids Deposition under Apex Doctrine

Citing inherent disclosure of privileged information, in-house lawyers routinely fight adversaries’ attempts to depose them.  And most lead apexwith the Shelton doctrine, which permits opposing lawyers’ depositions in limited circumstances—where the information sought is relevant, non-privileged, crucial to the case, and unavailable from other sources.

But the USDC for the SD of Florida added a different basis—that a company’s VP & General Counsel is a “high-ranking corporate officer” further protected from a deposition under the Apex doctrine.  Tillman v. Advanced Public Safety, Inc., 2017 WL 679980 (S.D. Fla. Feb. 16, 2017).  You may read the decision here. More…

Verifying Interrogatory Responses—and LinkedIn Profile—Results in Deposition of In-House Litigation Counsel

The USDC for the Southern District of California denied a corporation’s protective-order motion and allowed a limited deposition of the cdepositionompany’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.

Background

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.

Ruling

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.

Court Permits In-House Lawyer Deposition—But With Instructions to Preserve the Privilege 1

Lawyers are increasingly seeking depositions of companies’ in-house lawyers, and this phenomenon likely corresponds with in-house counsel increasingly assuming business-related roles or tasks within the company.  In Sand Storage, LLC v. Trican Well Serv., L.P., 2015 WL 1527608 (S.D. Tex. Apr. 2, 2015), the Depositioncourt ordered an in-house lawyer’s deposition—albeit with privilege protections—and provided a good overview of the law on this subject.  You may read the decision here.

Background

Sand Storage and Trican entered into a sand-storage contract.  Trican later sent Sand Storage formal notice of its failure to perform its contractual obligations.  Trican’s in-house lawyer signed the letter, a copy of which you may read here.

Sand Storage sought the in-house lawyer’s deposition, arguing that it is entitled to discover the bases for the alleged failed performance from the person who authored the letter identifying the performance issues, regardless whether he is a lawyer.

Lawyer’s Affidavit

Trican’s in-house lawyer filed an affidavit, available here, stating that he did not make the decision to terminate the contract.  Although he consulted with a Trican businessperson “for the purpose of facilitating the rendition of professional legal services” regarding the Sand Storage agreement, he did not expressly identify the decision-maker.

And after this consultation, he determined that Trican needed to notify Sand Storage of the deficiencies and then drafted the notice letter.  He disavowed any personal knowledge of the statements in the notice letter.

Deposition Ordered

The court noted that depositions of opposing counsel are “disfavored” and that it should permit these depositions in “limited circumstances.”  Relying upon Nguyen v. Excel Corp., 197 F3d 200 (CTA5 1999) and Shelton v. American Motors Corp., 805 F2d 1323 (CTA8 1986), the court required Sand Storage to prove these three factors in order to depose Trican’s in-house lawyer:

  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.

Based on the facts before it, the court found that the source of the notice letter’s statements regarding Sand Storage’s alleged non-performance was crucial and relevant to the case, and that Sand Storage had no other means to determine Trican’s decision-maker without deposing the in-house lawyer.  The court therefore allowed the in-house lawyer’s deposition.

Privilege Protections

The court, however, implemented privilege-protection measures.  Although ruling that the source of information contained in the notice letter and Trican’s decision-maker were facts and not privileged, it also ruled that Sand Storage’s counsel could not inquire into communications between Trican’s in-house lawyer and Trican employees, which are privileged.

The court therefore limited the deposition’s scope to factual matters underlying the notice letter and instructed Sand Storage’s counsel to “not intentionally solicit information that is privileged.”  And the court ruled that the in-house lawyer’s deposition did not constitute waiver of the privilege on any other matter.

PoP Analysis

One wonders whether this issue ever arises if Trican’s in-house lawyer had not authored the letter and simply provided legal advice to Trican businesspersons regarding the contractual issues.  If a Trican businessperson signed and sent the letter, then the in-house lawyer’s deposition likely never becomes an issue.

Even so, Trican successfully limited the deposition’s scope and preserved its privilege, a navigation that provides guidance for other in-house lawyers faced with this issue.  And for a detailed review of the legal issues surrounding in-house lawyers’ depositions, see my article titled Protecting the Attorney-Client Privilege–Depositions of In-House Counsel, available here.  You may also find my post, Tips for Preventing or Limiting In-House Counsel Depositions, helpful.