Opinion
Cause No. 1:01-CV-336
March 6, 2003
MEMORANDUM OF DECISION AND ORDER
I. Introduction
This matter is before the Court on the motion to quash and for a protective order filed by defendant, General Electric Company ("GE"), on December 30, 2002. On January 13, 2003, the pro se plaintiff Andrew Picco ("Picco") filed a response, and GE replied on January 27, 2003. However, Picco subsequently requested that he be allowed to file a sur-response, which the Court granted. Picco then filed two sur-responses, styled a "Preliminary Sur-Response" and a "Sur-Response" on February 3 and 14, 2003, respectively. GE filed a sur-reply on February 28, 2003. For the following reasons, GE's motion to quash and for a protective order will be GRANTED.
II. The Factual and Procedural Background
Nearly ten years ago, Picco sued GE in this Court for allegedly terminating him in violation of the Americans with Disabilities Act. See generally Andy Picco v. General Electric Co., 1:93-CV-113. However, on the eve of trial, that case settled. Apparently as part of the settlement agreement, GE rehired Picco, subject to an agreement to arbitrate any subsequent employment disputes. (See Docket No. 1, Ex. A.)
However, things did not stay quiet for long because in 1997 GE terminated Picco again, prompting Picco to submit his new claims against GE to arbitration with the American Arbitration Association ("AAA"). (Id.) At the arbitration, Picco was represented by his attorney Joseph Golden ("Golden"), and GE was represented by attorney Kathleen M. Anderson ("Anderson"), who also represents GE in this case. When the arbitrator ruled against Picco, he filed this suit for judicial review in state court, ostensibly against the AAA, the arbitrator Charles S. Fischbach ("Fischbach"), and GE, and the case was subsequently removed to this Court. The AAA and Fischbach have since been dismissed, leaving GE as the sole defendant. (Docket No. 34.)
The instant dispute-one in a line of discovery disputes in this case-centers on Picco's December 20, 2002, deposition subpoena to Anderson. GE contends that because there are other means by which Picco can obtain the information he seeks and because Anderson's information is privileged, the subpoena should be quashed, and a protective order entered, preventing any future deposition of Anderson. Picco argues that Anderson's deposition is necessary to find out whether Fischbach's decision is supported by the record, what money was discussed during settlement discussions allegedly conducted by Fischbach in which Anderson participated, and whether she made a statement of surprise that GE won the arbitration.
III. Discussion
The Federal Rules of Civil Procedure do not provide blanket immunity to prevent opposing counsel from being deposed. See Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1987); Prevue Pet Products, Inc. v. Avian Adventures, Inc., 200 F.R.D. 413 (N.D. Ill. 2001); Hunt International Resources Corp. v. Einstein, 98 F.R.D. 689, 990-91 (N.D.Ill. 1983). Indeed, Rule 30 broadly allows "[a] party [to] take the testimony of any person . . . by deposition." Fed.R.Civ.P. 30(a)(1) (emphasis added). Thus, "an attorney may be deposed, even if he or she represents a party to the litigation in issue." Hunt, 98 F.R.D at 690. However, courts frequently view motions to depose opposing counsel with a "jaundiced eye," M R Amusements Corp. v. Blair, 142 F.R.D. 304, 305 (N.D.Ill. 1992), because such a deposition "provides a unique opportunity for harassment; it disrupts the opposing attorney's preparation for trial, and could ultimately lead to disqualification of opposing counsel if the attorney is called as a trial witness." Prevue, 200 F.R.D. at 418 (quoting Marco Island Partners v. Oak Development Corp., 117 F.R.D. 418, 420 (N.D.Ill. 1987)). Indeed, these considerations, led the Eighth Circuit in Shelton to state that depositions of opposing counsel should be limited to where the party seeking to take the depositions has shown that
(1) no other means exist to obtain information than to depose opposing counsel . . .;
(2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case.
Shelton, 805 F.2d at 1327.
Although the Shelton line of reasoning has been followed by a number of courts both within the Seventh Circuit and without, see, e.g., Simmons Foods, Inc. v. Willis, 191 F.R.D. 625, 630 (D.Kan. 2000); Hernandez v. Longing, 1997 WL 754041, *5 (N.D.Ill. Nov. 13, 1997); Rainbow Investors Group, Inc. v. Fuji Tricolor Missouri, Inc., 168 F.R.D. 34, 36 (W.D.La. 1996); M R Amusements, 142 F.R.D. at 305; Harriston v. Chicago Tribune Co., 134 F.R.D. 232, 233 (N.D.Ill. 1990); Advance Systems, Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D. 200 (E.D.Wis. 1989); Joslyn Corp. v. RTE Corp., 1988 WL 102104 (N.D.Ill. Sept. 18, 1988), another line of cases, following Hunt, hold that
completely preventing the taking of a deposition [because of the possibility of the assertion of the attorney-client or work-product privilege] would tend to limit or fix the scope of the examination before it began and would usurp the court's role in deciding whether certain questions seek privileged information. The more appropriate method is to allow the deposition to be taken and permit the attorney to claim privilege in the face of certain questions, if necessary.
Hunt, 98 F.R.D. at 691; see, e.g., Pendleton v. LaSalle Nat. Bank, N.A., 2001 WL 138882, *1 (N.D.Ill. Feb. 16, 2001); Caponigro v. Navistar Intern. Transp. Corp., 1994 WL 233772, *2 (N.D.Ill. May 18, 1994); Sears v. Kaufmann, 1993 WL 413952, *2 (N.D.Ill. Oct. 15, 1993); Kirkland v. Local 32B/32J, Intern. Service Workers Union, 1991 WL 79485, *1 (S.D.N.Y. May 3, 1991); qad.inc v. ALN Associates, Inc., 132 F.R.D. 492, 495 (N.D.Ill. 1990). Nevertheless, the Hunt line of cases also recognizes that a court may properly bar a deposition of counsel if "it is really true that [the] information [sought] may be derived from a source other than the lawyer[.]" Prevue, 200 F.R.D. at 418 (quoting qad.inc, 132 F.R.D. at 495); see also Marco Island Partners, 117 F.R.D. at 419-20; Fed.R.Civ.P. 26(b)(1) (a court may, in its discretion, limit discovery if it is "unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive.")
Although we do not cite it as authority, we note one unpublished Seventh Circuit decision has followed Hunt, albeit on slightly different facts. See N.L.R.B. v. Modern Drop Forge Co., 108 F.3d 1379, 1997 WL 120572, *2 (7th Cir. March 14, 1997).
In this case, the Court does not need to decide whether to follow the Shelton or Hunt line of cases, because even under the more liberal approach, Picco is not entitled to depose Anderson. Indeed, Picco apparently wants to depose Anderson so he can determine "whether [the] particular conclusions of the Arbitrator are supported [by] the record," (Pl.'s Resp. Br. at 4), but Anderson cannot add anything to the analysis, or, stated another way, Picco needs to do his own analysis of Fischbach's decision, it is not opposing counsel's job to lead him through it via deposition responses. Prevue, 200 F.R.D. at 418 (court may bar deposition of counsel if information is available from other sources).
Further, Picco apparently wants to depose Anderson about settlement discussions conducted during the arbitration between Anderson, Fischbach and Golden. However, this information can just as easily be obtained from Golden, or at least Picco makes no showing otherwise. See id.
Picco offers the fleeting suggestion that he cannot have Golden testify about these settlement discussions because of attorney client-privilege. However, these so-called settlement discussions were not privileged because the alleged presence of Anderson and Fischbach destroyed any confidentiality. See United States v. White, 950 F.2d 426, 430 (7th Cir. 1991) (setting forth requirements for attorney-client privilege); Eagle Compressors, Inc. v. HEC Liquidating Corp., 206 F.R.D. 474, 477 (N.D.Ill. 2002).
Finally, Picco apparently wants to depose Anderson because he heard a rumor that she said something to the effect that "[she] was surprised and shocked that GE won [at the arbitration] and that something must have happened." (Pl.'s Sur-Response at 6) (emphasis omitted). However, in Anderson's affidavit, attached to GE's sur-reply, Anderson flatly denies making the statement. (Anderson's Aff. ¶ 2.) Furthermore, even if Anderson made the statement, we fail to see how it is relevant, even in a discovery sense, because it does not go to show, directly or even tangentially, anything about Fischbach's alleged bias, misconduct or fraud, absent the wildest form of speculation.
Accordingly, because the information Picco seeks by deposing Anderson is easily available from other sources, or is irrelevant, GE's motion to quash and for a protective order will be granted.
CONCLUSION
For the foregoing reasons, GE's motion to quash is hereby GRANTED and the deposition subpoena served on Kathleen Anderson is quashed. The motion for a protective order is similarly GRANTED, and Picco is directed not to attempt to take any future deposition of Anderson.
SO ORDERED.