883 F.2d 431 (5th Cir. 1989), 88-3631, Conkling v. Turner

Docket Nº:88-3631.
Citation:883 F.2d 431
Party Name:Richard L. CONKLING, Plaintiff-Appellant, Cross-Appellee. v. Bert S. TURNER, Nichols Construction Corp., David R. Carpenter, et al., Defendants-Appellees, Cross-Appellants.
Case Date:September 20, 1989
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 431

883 F.2d 431 (5th Cir. 1989)

Richard L. CONKLING, Plaintiff-Appellant, Cross-Appellee.

v.

Bert S. TURNER, Nichols Construction Corp., David R.

Carpenter, et al., Defendants-Appellees, Cross-Appellants.

No. 88-3631.

United States Court of Appeals, Fifth Circuit

September 20, 1989

Page 432

Donald L. Beckner, William G. Bennett, Baton Rouge, La., for plaintiff-appellant, cross-appellee & intervenor, Carmen L. St. Clair, et al.

Harry J. Philips, Jr., Tom F. Phillips, Fredrick R. Tulley, Baton Rouge, La., for defendants-appellees, cross-appellants.

Appeals from the United States District Court for the Middle District of Louisiana.

Before POLITZ and JOLLY, Circuit Judges, and HUNTER, [*] District Judge.

POLITZ, Circuit Judge:

In this case we examine the parameters within which a party may depose the attorney for the opposing party. The defendants sought to depose the plaintiff's present and former attorneys of record, contending that the depositions were essential to defendants' plea of prescription. The district court directed the attorneys to submit to limited questioning, specifying the questions which could be posed. The plaintiff appeals, contending that the court's order permits intrusion into protected attorney work product. Defendants cross-appeal, contending that the trial court unreasonably restricted the scope of their requested discovery. For the reasons assigned we affirm.

Background

On November 11, 1985 Richard L. Conkling filed suit under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. Sec. 1961 et seq., against Bert S. Turner and several corporations, alleging that he was the victim of a scheme to defraud. Conkling is a former executive officer of Nichols Construction Company, one of the defendant corporations. Conkling claims that on June 28, 1963 he was fraudulently induced by Turner's false assertion that he (Turner) owned 100% of Nichols to relinquish an 8.69565% stock ownership interest in the corporation. Conkling maintains that the defendants furthered their scheme to defraud by numerous acts of mail and securities fraud.

Originally represented by Robert J. Collins, Conkling is currently represented by Donald L. Beckner. Beckner also represents Carmen L. St. Clair in a related suit against the defendants. St. Clair is a former executive officer of Nichols, a party to the 1963 agreement, and an intervenor in this appeal.

The facts relevant to the instant appeal were set in motion on September 19, 1986 when Conkling attested to the following statement in an affidavit:

On November 20, 1984, I retained the law firm of Donald L. Beckner, Counselors and Attorneys at Law. A copy of the retainer agreement is attached hereto as Exhibit "Conkling 4-7." Subsequently, I detailed to Mr. Beckner the facts and documents surrounding my acquisition of Nichols stock in 1962, and the June 28, 1963 "Agreement." During one of these discussions Mr. Beckner informed me that it was his opinion that the statement in the June 28, 1963 "agreement" that Turner owned 100% of the stock of Nichols

Page 433

was false. No one had informed me of the falsity of this statement prior to this discussion. I did not know that Turner's statement was false until I was so informed.

Conkling's affidavit was filed in response to the defendants' summary judgment contention that Conkling's claims were prescribed because Conkling had full knowledge of all facts underlying the alleged scheme in 1963. 1 The district court denied that motion for summary judgment.

On June 10, 1987 the defendants propounded requests for admission of facts and posed interrogatories, seeking to obtain Conkling's admission that Beckner relied solely upon facts supplied by Conkling for the advice about the false statement. The interrogatories stated that if Conkling refused to admit such he should identify all facts and all documents on which his attorney relied which were not previously known by Conkling. The defendants also sought to compel the production of documents and to depose Conkling's attorneys. On October 20, 1987 the district court sustained Conkling's objection to the requested admissions and to the deposition of his attorneys, but ordered Conkling to respond to the interrogatories. Conkling's answers to the interrogatories referred the defendants to deposition testimony provided by Turner in May 1985 as well as all documents produced by the defendants in the St. Clair litigation.

Not satisfied with this response the defendants served another set of interrogatories asking for a specification of all facts and documents reflecting the time Conkling became aware of the defendants' alleged fraudulent conduct. Before Conkling responded to the second set of interrogatories the defendants renewed their motion to compel deposition testimony from Beckner and Collins. The district court ordered the defendants to submit a list of proposed questions that would be asked of the attorneys. The 33 questions submitted are set forth in the Addendum attached hereto.

After reviewing the questions the district court ordered the attorneys to answer questions 1, 2, 3, 4, 14, 15, 19, 20, 21, 22, 30, and 31. The court stated that in responding to these questions the attorneys did not have to provide any legal theories, mental impressions, or trial strategy developed in the case.

Analysis

  1. Jurisdiction

    The defendants' jurisdictional challenge falters despite the general rubric that an order compelling testimony is not a final decision within the meaning of 28 U.S.C. Sec. 1291. Typically, in order to obtain interlocutory review of a discovery order, the person wishing to resist must refuse to comply and then appeal the court's contempt citation. See United States v...

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