Stamenkovic v. Eaglebank, Case No. 2014 CA 006393 B

• Decision Date: 20 March 2015
• Docket Number: Case No. 2014 CA 006393 B
• Parties: SASHA STAMENKOVIC, Plaintiff, v. EAGLEBANK, Defendant.
• Court: D.C. Superior Court

SASHA STAMENKOVIC, Plaintiff, v. EAGLEBANK, Defendant.

Case No. 2014 CA 006393 B

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA CIVIL DIVISION

March 20, 2015

ORDER

Before the Court is Plaintiff's Emergency Motion to Quash the deposition of Plaintiff's trial counsel Michael Hoare (filed on March 4, 2015). The deposition was postponed by Court Order dated March 6, 2015, pending the parties' briefs on the relevant tripartite test for allowing the deposition of opposing counsel articulated by the Eighth Circuit in Shelton v. Am. Motors Corp., 805 F2d 1323, 1327 (8th Cir. 1986). Plaintiff filed its brief on March 13, 2015, Defendant responded on March 16, 2015, and Plaintiff replied on March 18, 2015.

The above-captioned case involves a lien priority dispute in which the parties seek declaratory judgment.¹ Pursuant to the Shelton test, the Court finds that Defendant has shown that the three Shelton factors are met, and Defendant may take the testimony of Michael Hoare pursuant to Rule 26(b)(1), Rule 30(a)(1), and Rule 45(b)(1)(to compel the witnesses attendance by use of subpoena). To prevent any dispute on the "reasonable notice" requirement under Rule 30(b)(1) the Court states that 10 days, or a mutually agreed upon date is sufficient. Even though Plaintiff has not demonstrated that the subpoena should be modified or quashed, the Court suasponte modifies the subpoena to the extent that the testimony of Mr. Hoare and documents sought are not privileged.

Legal Standard

While the boundaries of discovery have expanded to include an increasingly popular vehicle of discovery: taking the deposition of opposing counsel, the practice of forcing trial counsel to testify as a witness has long been, and remains to be, highly discouraged. See e.g., Hickman v. Taylor, 329 U.S. 495, 513 (1947) (stating that forcing opposing counsel to testify "would make the attorney much less an officer of the court and more an ordinary witness [and] the standards of the profession would thereby suffer"). "[A] motion to depose an opponent's attorney is viewed with a jaundiced eye and is infrequently proper." Sterne Kessler Goldstein & Fox, PLLC v. Eastman Kodak Co., 276 F.R.D. 376, 382 (D.D.C. 2011) (internal citations omitted). Thus, the Eighth Circuit in Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986), articulated a stringent tripartite test for allowing the deposition of opposing counsel. Under the Shelton test, the deposition of opposing counsel is permitted only if: (1) no other means exist to obtain the information other 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. Id. Courts in the District of Columbia have applied the tripartite test to bar requests to depose opposing counsel.² See e.g., Sterne Kessler Goldstein & Fox, PLLC v. Eastman Kodak Co., 276 F.R.D. 376, 379 (D.D.C. 2011); Corp'n v. Am. Auto. Centennial Comm'n, 1999 U.S. Dist. LEXIS 1072, 3-4 (D.D.C. 1999). The burden is on the party who seeks to depose opposing counsel to show that the three Shelton factors are met. Coleman v. District of Columbia, 284 F.R.D. 16, 18 (D.D.C. 2012). The party seeking relief from subpoena compliance bears theburden of demonstrating that a subpoena should be modified or quashed. See e.g., Under v. Dep't of Defense, 133 F.3d 17, 24 (D.D.C. 1998); In re Micron Tech. Inc. Sec. Litig., 264 F.R.D. 7, 9 (D.D.C. 2010). In Eastman Kodak Co., the Court of Appeals for the District of Columbia found that Defendant's subpoena should be quashed because the party seeking to depose opposing counsel had not met its burden under Shelton and the discovery sought could be obtained from other more appropriate sources, and any benefit from deposing the petitioner was outweighed by the burdens it will impose under Rule 26(b) Eastman Kodak Co., 276 F.R.D. 376, 379 (D.D.C. 2011).³

Furthermore, the D.C. Rules of Civil Procedure do not expressly prohibit deposition of opposing counsel. See D.C. Super. Ct. Civ. R. 30(a) (stating that a party may take the deposition of "any person, including a party" and that the attendance may be compelled by subpoena under Rule 45). In fact, the Court has a general preference for a broad scope of discovery. North Carolina Right to Life, Inc. v. Leake, 231 F.R.D 49, 51 (D.D.C. 2005) (internal citations omitted). Under Rule 30(d)(1), a party can object during a deposition and not answer when necessary to preserve a privilege and to enforce a limitation directed by the Court. Under D.C. Superior Court Rule 26, the Court must limit the scope of discovery if (i) the discovery sought is unreasonably cumulative or duplicative, or obtainable from a less expensive or more convenient source; (ii) the party seeking the discovery has had ample opportunity to obtain the soughtinformation by earlier discovery; or (iii) the burden or expense of the discovery outweighs its benefit. Rule 45 requires the Court to quash a subpoena when it would require disclosure of privileged or other protected matters, or would subject a person to an undue burden.

Discussion

The Court finds that the Shelton test, which applies to circumstances in which the proposed deponent is serving as the opposing party's trial counsel, applies to the instant situation because Mr. Hoare is Plaintiff's litigation counsel in the above-captioned matter and was counsel in the related case, Sasha Stamenkovic v. Campbell-Crane & Associates, Inc. and Jeanne M. Campbell, 2005 CA 003597 B. See 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 non-litigation responsibilities, and the proposed deposition would not cover litigation strategies related to the case).

Under the Shelton test, Defendant bears the burden of persuading the Court that the deposition of Plaintiff's current trial counsel is permitted because (1) the information sought is not available from any other source; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to Defendant's defense. Shelton, 805 F.2d 1323, 1327.

In support of deposing Mr. Hoare, Defendant states that "Michael Hoare, as a fact witness, separate and apart from his role as Plaintiff's counsel, is the only person with answers to [the two pivotal questions], and his answers are not protected by either the attorney-client privilege or the work product doctrine." Def's Shelton Brief Opp'n 1. Defendant submits:

A pivotal issue [] is whether Plaintiff or Hoare provided the specific notice to EagleBank that was required pursuant to the Deed of Trust and D.C. Code 42-2303(a)(2) (the "DC Code") in an attempt to try and make Plaintiff's lien superior to EagleBanks. Hoare, who is both a beneficiary and counsel in this case and the Siamenkovic v. Campbell case,certainly has actual knowledge of the steps taken, or not taken, to provide the specific and required notice to EagleBank. Additionally, Hoare is the only person who attempted to correct the copious recording errors related to the Stamenkovic judgments. Details relating to the recording errors are pivotal to EagleBank's defense because, as recorded, EagleBank has a superior lien again the real property at issue in this case.

Defendant further states that the Defendant is not seeking any communication with his client or other privileged communication. Def's Shelton Brief Opp'n 5. Plaintiff argues that the information is available from other sources, namely that the recording errors are public record at the Recorder of Deeds. However, Defendant is seeking the conversation that Mr. Hoare had with the recorder of deeds to ascertain whether Mr. Hoare had actual knowledge that his recording did not effectively attach Ms. Campbell's real property. This information is relevant and crucial to the defense and Plaintiff's position that his judgments were first in time, first in right (Count I). Upon review of the information sought, the Court finds that Defendants are not seeking privileged materials intended to be protected by Shelton such as matter relevant to counsel's litigation strategy. See e.g., Padima, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002) (stating that "the Shelton test was intended to protect against the ills of deposing opposing counsel in a pending case which could potentially lead to the disclosure of the attorney's litigation strategy"). Thus the Court is persuaded that the information sought does not appear to be available from any other source, is relevant to the underlying merits of this declaratory judgment case, is crucial to the defense, and is non-privileged.

Moreover, Plaintiff has not met its burden of demonstrating that the subpoena should be modified or quashed due to privilege, and perhaps potential disqualification of Mr. Hoare as an attorney in this matter. While Plaintiff argues that the subpoena and documents sought were nottimely served,⁴ the Court finds that Mr. Hoare has been given notice, and any benefit from deposing Mr. Hoare is not outweighed by the burdens it will impose under Rule 26(b)(1) and Rule 45(c). Thus, the discovery request shall be permitted nunc pro tunc as timely. Thus Plaintiff's motion to quash under Superior Court Civil Rule 45(c)(3) is denied.

Wherefore, it is on this 20^th day of March 2015, hereby

ORDERED, that Plaintiff's Motion to Quash is DENIED, and Defendant may depose Plaintiff's counsel Mr. Michael Hoare only to the extent that the deposition is limited to relevant and non-privileged information that does not reveal counsel's mental process, litigation strategy and work product in this case. Plaintiff's counsel is permitted to object to the extent that the testimony solicited is privileged or violates Rule 26, Rule 30, or any other applicable law. Plaintiff's counsel is not required to produce any...