United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief U.S. District Court Judge.
before the Court is Defendant's Motion for Protective
Order (Dkt. 26). The Motion is fully briefed and the Court
finds the matter appropriate for decision without oral
argument. For the reasons stated below, the Court will grant
James Cryer filed this action after being terminated as an
Idaho Department of Labor (“IDOL”) employee for
sending anonymous emails outlining alleged violations of
state law by individuals as the IDOL. Compl. at 2,
Dkt. 1. Mr. Cryer claims that his termination constituted
retaliation for engaging in constitutionally protected speech
as a private citizen, and in whistleblower activities
protected under Idaho Code § 6-2104(1)-(3). Id.
at 12-14. He further claims that IDOL violated his Fourth
Amendment rights in the course of investigating the emails by
subpoenaing his cell phone records without probable cause.
Id. at 14-15.
Cryer took the depositions of Defendants Engstrom, Kalm, and
Edmonds in October 2017. Def.'s Aff. Dkt. 26-2.
Mr. Cryer subsequently noticed and requested the depositions
of eight additional individuals, including Deputy Attorney
General Edith Pacillo. Def.'s Br. Dkt. 26-1.
Defendants objected to the deposition of Ms. Pacillo, who
serves as in-house counsel to IDOL in matters related to this
case. Id. Defendants filed this motion after
attempts by the parties to resolve this issue proved
unsuccessful. Defendants seek an order prohibiting Plaintiff
from deposing Ms. Pacillo, on the grounds that he has failed
to establish that the deposition of opposing counsel is
of facts possessed by an attorney is proper where the facts
are relevant, non-privileged, and essential to preparation of
one's case. Hickman v. Taylor, 329 U.S. 495,
511, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Citing
Hickman, the Eighth Circuit Court of Appeals held
that where a party seeks to depose opposing counsel, it must
prove that the information sought (1) cannot be obtained by
other means; (2) is relevant and is not protected by
privilege or the work-product doctrine; and (3) is crucial to
preparation of its case. Shelton v. Am. Motors
Corp., 805 F.2d 1323, 1327-28 (8th Cir.1986).
Ninth Circuit has not addressed the specific issue of
attorney depositions. District courts in the Ninth Circuit,
however, have agreed that “attorney depositions should
be allowed only where the discovery sought cannot be obtained
from another source, ” and noted that Shelton
is “regarded as the leading case on attorney
depositions.” See e.g., Massachusetts Mut. Life
Ins. Co. v. Cerf, 177 F.R.D. 472, 479 (N.D.Cal.1998).
Id. As such, courts in this District have relied on
the Shelton factors when parties seek to depose
either trial counsel or in-house counsel. See Melaleuca,
Inc. v. Bartholomew, No. 4:12-cv-00216-BLW, 2012 WL
3544738 (D.Idaho August 16, 2012) (applying Shelton
where a party sought to depose opposing trial counsel.);
Asarco LLC v. Union Pacific Railroad Company,
Asarco LLC v. Union Pac. R.R. Co., No.
2:12-cv-00283-EJL-REB, 2016 WL 1755241, at *5 (D.Idaho May 2,
2016) (applying the Shelton where a party sought
depose the opposing party's in-house counsel).
Cryer does not contest that Ms. Pacillo serves as in-house
counsel for IDOL. See Pl.'s Br. at 1-2, Dkt. 38.
Nor does he contest that depositions of opposing counsel are
generally allowed only under limited circumstances.
Id. Thus, at issue here is whether Mr. Cryer has
established that the factors identified in Shelton
and adopted in this District have been met, such that this
case falls within those limited circumstances. He has not
done so, and the Court will therefore grant Defendants'
order to prove that the proposed deposition is warranted, Mr.
Cryer must establish that Ms. Pacillo is in possession of
relevant, non-privileged facts or information, which are
crucial to the preparation of his case, and which he cannot
obtain through other means. See Shelton, 805 F.2d at
1327-28. Mr. Cryer does not articulate what facts or
information he seeks to obtain by deposing Ms. Pacillo. Nor
does he point to any documents for which Ms. Pacillo would be
the sole repository. He indicates only that he seeks to
inquire about information related to “communication and
advice from counsel” related to the investigation and
his termination. Pl.'s Br. at 4, Dkt. 38.
Cryer has not identified any such information that would be
known only to Ms. Pacillo, and not to the Defendants with
whom she communicated or provided advice. Further, he makes
no argument for the relevance of the information he seeks,
nor does he explain how it is crucial to the preparation of
his case. Indeed, Mr. Cryer does not address the test laid
out in Shelton, at any point in his brief. Because
Mr. Cryer has failed to establish that this case presents
those limited circumstances where the deposition of opposing
counsel is appropriate, the Court will grant Defendants'
motion. See Shelton, 805 F.2d at 1327 (finding that
the limited circumstances under which a deposition of
opposing counsel is appropriate do not exist where “the
information sought can be, and in some instances has been,
obtained by means other than deposing in-house counsel. . .
Cryer argues that Ms. Pacillo must sit for a deposition
because Defendants either have asserted or intend to assert
an advice-of-counsel defense. When a defendant asserts an
advice-of-counsel defense, he waives attorney-client
privilege “with respect to all documents and
communications touching upon [the conduct] for which [he]
sought counsel's advice.” In re Fresh and
Process Potatoes Antitrust Litigation, No.
4:10-MD-2186-BLW-CWD, 2014 WL 1413676 at *6 (D. Idaho April
11, 2014) aff'd, No. 4:10-MD-2186-BLW, 2014 WL
1847433 (D. Idaho May 8, 2014). But, asserting an
advice-of-counsel defense does not automatically subject
counsel for the defendant to deposition. Cf. Ngyuen v.
Excel Corp., 197 F.3d 200, 209 (5th Cir. 1999) (allowing
plaintiffs to depose opposing counsel regarding
communications for which attorney-client privilege had been
waived after determining that plaintiffs had established the
Shelton factors). While asserting the defense could
render information sought during such a deposition
non-privileged, the question of privilege is only one factor
courts must consider in determining whether the deposition of
opposing counsel is ...