Discovery on wits "borrowed from the adversary": deposition of the trial attorney.

• Author: Pope, Daniel J.

Discovery was hardly intended to enable a learned profession to perform its functions either without wits or on wits borrowed from the adversary.

--Justice Jackson, Hickman v. Taylor, 329 U.S. 495, 510 (1947) (concurring).

YOU ARE the client's trial counsel in a complex, commercial litigation. Discovery has commenced, and various interrogatories, document production requests, discovery responses and notices of depositions have been heaped in large piles on your desk. At the end of a harrowing day during which you spent most of your time conferring with your client and responding to or preparing discovery, you finally leave the office. As you walk from the building, someone comes up to you, hands you some papers and says, "You've just been served." You open the papers and take a look. Sure enough, it is a subpoena in your name, and you see you have been subpoenaed to appear for a deposition in the very case on which you have spent all day working. What should you do?

This awkward situation presents the trial counsel with the difficult task of balancing the obligations arising from the attorney's role as an officer of the court and the civil justice system and the obligations arising from the attorney's role as a loyal advocate of the client. In the April 1997 issue of Defense Counsel Journal (page 295), we discussed ethical considerations for in-house corporate counsel subpoenaed for deposition. This article will address circumstances under which trial counsel may be deposed, compare ethical considerations versus procedural rules, and provide suggestions for tactics to avoid depositions or limit the substance of unavoidable deposition testimony to protect your client's interests.

WHEN TRIAL COUNSEL CAN BE DEPOSED

As unusual as it may seem, the practice of deposing opposing trial counsel is not an uncommon method of discovery. Parties may decide to notice up the deposition of the opposing party's trial attorney for a variety of reasons. For example, the deposing party may be trying to (a) ascertain the existence of certain documents; (b) prove a claim or defense raised by a party; (c) obtain the facts of events to which the attorney may be a witness; (d) certify that the party performed a particular act required by statute; (e) lay the foundation for certain documents; (f) ascertain whether the attorney assisted the party in the commission of a crime; or (g) ascertain whether the attorney violated any ethical rules during the course of litigation or committed any other act which would subject him or her to disqualification.

Some reasons for deposing the opponent's attorney also may reflect bad faith intentions, such as to harass, probe privileged areas, prolong litigation, or increase costs to bully the opposing party into settlement. Whatever the reason, this situation presents a dilemma for the attorney-deponent.

Unfortunately, the Federal Rules of Civil Procedure avail no immediate refuge. They neither expressly nor impliedly prohibit depositions of opposing counsel. Nor do they contain any special section or procedure for obtaining discovery from attorneys. Rule 26(b)(1) permits discovery "regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." Rule 30(a)(1) broadly states without restrictions that a "party may take the testimony of any person, including a party, by deposition upon oral examination." (Emphasis added.)

Moreover, the rules specifically provide that a party also may obtain documents from opposing counsel. According to Rule 26(b)(3), under certain circumstances, a party may obtain "discovery of documents and tangible things ... prepared in anticipation of litigation or for trial by or for another party or by or for that other party's representative (including the other party's attorney, consultant, surety, indemnitor, insurer or agent)." (Emphasis added.)

The party wishing to depose the opposing party's trial attorney therefore must follow the same procedural rules as with any non-party witness. Because the trial attorney is technically a non-party, the party noticing up the deposition of the trial attorney is required to serve a Rule 45 subpoena on the trial attorney for deposition or production of documents.(1) The attorney-witness, however, is not treated like just another third-party witness.

An objection to a subpoena by an attorney-witness may carry much more punch than a typical third-party witness who bears little or no close relationship to the parties. The law jealously protects the attorney-client relationship and confidences pertinent to this relationship because a potentially intrusive deposition of trial attorneys could jeopardize the client's security and ability to be candid in communications and disrupt the intended structure of a fair, adversarial process. In preparing clients' cases, trial attorneys acquire an abundance of confidential client information, become privy to clients' goals, expectations and strategies, develop a bird's-eye perspective of clients' cases, and formulate their own legal strategies and theories for successfully carrying out clients' wishes. To answer even seemingly mundane questions may cause trial attorneys to rely on confidential information acquired from clients or may impliedly hint at clients' trial strategy by the way they answers questions.

As a result, on the objection of the party whose attorney was served with a subpoena, the court will permit such a deposition only on a showing of certain circumstances. As noted by the Eighth Circuit in Shelton v. American Motors Corp., the "practice of forcing trial counsel to testify as a witness has long been discouraged."(2)

The Eighth Circuit succinctly outlined the cacophony of difficulties created by permitting attorney depositions:

Taking the deposition of opposing counsel not only disrupts the adversarial system and lowers the standards of the profession, but it also adds to the already burdensome time and costs of litigation. It is not hard to imagine additional pretrial delays to resolve work-product and attorney-client objections, as well as delays to resolve collateral issues raised by the attorney's testimony. Finally, the practice of deposing opposing counsel detracts from the quality of client representation. Counsel should be free to devote his or her time and efforts to preparing the client's case without fear of being interrogated by his or her opponent. Moreover, the "chilling effect" that such practice will have on the truthful communications from the client to the attorney is obvious.(3) The Eighth Circuit expressed disdain by concluding that the "harassing practice of deposing opposing counsel (unless that counsel's testimony is crucial and unique) appears to be an adversary trial...