Summary
requesting party must show that "no other means for obtaining the relevant information exists. . . . The rule requires exhaustion of all other reasonable alternatives before a party should seek to depose his opponent's attorney"; denying motion to compel deposition of opposing counsel for failure to do so
Summary of this case from Cnty. of San Mateo v. CSL Ltd. (In re Plasma-Derivative Protein Therapies Antitrust Litig. )Opinion
In suit under insurance policy, insurer moved to depose attorney for insured as to whether insurer's agent had waived time limitation for reporting claims under policy. The District Court, Norgle, J., held that insurer was not entitled to depose insured's attorney due to insurer's failure to show that there was no other means available to it to obtain information it sought.
Motion denied.
Nicholas Frank Esposito, Terence Michael Heuel, Mark A. Schramm, Esposito, Heuel & Schramm, Chicago, Ill., for plaintiff.
Daniel J. Leahy, Leahy, Eisenberg & Fraenkel, Chicago, Ill., for defendant.
ORDER
NORGLE, District Judge.
Before the court is the motion of Malcom Walter Blair (" defendant" ) to depose Nicholas Esposito, attorney for the plaintiff, M & R Amusements Corporation (" M & R" ) pursuant to Federal Rule of Civil Procedure 26(a), (b). For the reasons set forth below, the court denies the motion.
Defendant does not specify the rule under which he makes his motion. However, the substance of the motion falls within the purview of Rule 26 and thus the court will construe the motion as made under that rule.
FACTS
The amended complaint reveals that M & R owned and operated Evanston Theaters. M & R obtained coverage from Lloyd's of London against " losses caused by the actual destruction, disappearance or wrongful abstraction of Money and Securities within or from the [Evanston Theaters]...." Two one-year policies were issued to run consecutively through October 11, 1987. The first, Policy Number C85104700, covered the period from October 11, 1985 through October 11, 1986. The second, Policy Number C62690600, covered the period from October 11, 1986 through October 11, 1987.
On October 15, 1986, M & R allegedly notified a Lloyd's agent that M & R sustained a loss covered by one of the policies. Subsequently, M & R discovered another loss it incurred during the period covered by one of the policies. Lloyd's has not paid M & R for either loss. In December 1987, M & R filed suit against " LLOYDS' UNDERWRITERS, Signatory to Cover Note Number C85104700 Issued by Gibbs, Hartley, Cooper, Limited, London, England." The complaint sought coverage of the two losses. On August 10, 1990, M & R filed an amended complaint naming as defendant " MALCOM WALTER BLAIR, Underwriter at Lloyd's of London." The caption made no reference to any Policy Number.
On October 11, 1991, defendant filed a motion for summary judgment. That motion argued that the claims exceeded the two-year time limit for a cause of action under the second of the two policies (Policy Number C62690600). According to defendant, Lloyd's was not told of a claim under that policy within two years of the loss as the policy required. M & R filed a response on November 12 asserting that the registered agent for Lloyd's in Chicago, John G. Smith, waived the objection for Lloyd's in a conversation between Messrs. Smith and Esposito.
The relevant text of the response explains:
That reference prompted defendant to move to take the deposition of M & R's attorney, Nicholas Esposito. The motion also sought production of any notes Mr. Esposito had of the conversations between Misters Smith and Esposito. M & R objected claiming that defendant failed to prove a need for the documents and deposition because he had not sought to question Mr. Smith. Defendant responded, maintaining a need for the documents and deposition testimony and agreeing to produce Mr. Smith for a deposition.
DISCUSSION
Deposing an opponent's attorney is a drastic measure. It not only creates a side-show and diverts attention from the merits of the case, its use also has a strong potential for abuse. Thus, a motion to depose an opponent's attorney is viewed with a jaundiced eye and is infrequently proper. Hay & Forage Indus. v. Ford New Holland, Inc., 132 F.R.D. 687, 689 (D.Kan.1990). In some very rare cases, however, deposing the attorney for an opposing party might be permitted. See, e.g., Cooper v. Welch Foods, Inc., 105 F.R.D. 4, 6 (W.D.N.Y.1984); Hunt International Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D.Ill.1983); Brown v. Hart Schaffner & Marx, 96 F.R.D. 64, 67 (N.D.Ill.1982).
A review of the cases discussing this topic reveals that courts generally employ four criteria to determine whether to allow the deposition: 1) whether the information sought is relevant to a major issue in the case ( MacKnight v. Leonard Morse Hosp., 828 F.2d 48, 51 (1st Cir.1987)); 2) no other means for obtaining the relevant information exists ( Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986); N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 86 (M.D.N.C.1987)); 3) the need for the information outweighs the inherent risks of deposing opposition counsel ( Johnston Development Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J.1990)); and 4) the information sought is not privileged ( West Peninsular Title Co. v. Palm Beach County, 132 F.R.D. 301, 302-02 (S.D.Fla.1990)).
Defendant concentrates his efforts on the first factor. He claims that the two-year time limitation on suits is crucial to his case. Both losses, according to defendant, occurred during the tenure of the second of the two one-year contracts. This same contract was not specifically named in the original complaint. Therefore, defendant argues, if he can show that Lloyd's-representative Smith never gave any indication that Smith was waiving the time limitation, M & R's suit is finished.
Even assuming defendant is correct that the information sought is relevant to a major issue of the case, defendant has failed to demonstrate how any of the other factors are fulfilled. Most significantly, defendant has not shown that there are no other means available to obtain the information he needs. There were two parties to the conversation at issue here. Defendant admits that he has not questioned Lloyd's counsel Mr. Smith. The rule requires exhaustion of all other reasonable alternatives before a party should seek to depose his opponent's attorney. Thus, it would be improper for the court to allow defendant to depose Mr. Esposito. Accord Shelton, 805 F.2d at 1327 (denying motion to depose counsel).
Defendant's suggestion that it would make Mr. Smith available for deposition shows a fundamental misconception of the rule. It is the responsibility of the movant to demonstrate that he has exhausted all other reasonable means of obtaining the information. Southern Film Extruders, Inc. v. Coca-Cola Co., 117 F.R.D. 559, 561 (M.D.N.C.1987). Until defendant shows that all other reasonable alternatives have been pursued to no avail, he will not be able to depose his opponent's attorney. See Case Comment, Suppose You Want to Depose Opposing Counsel: Shelton v. American Motors Corp., 73 Minn.L.Rev. 1116 (April 1, 1989).
CONCLUSION
Defendant's motion to depose Nicholas Esposito is denied.
IT IS SO ORDERED.
Plaintiff filed suit naming Lloyd's of London as defendant signatory to cover note C85104700. Immediately prior thereto, plaintiff's counsel spoke with John G. Smith, Esquire of the Chicago law firm of Lord, Bissel & Brook, Lloyd's registered agent in Illinois[. A]t that time Esposito asked for clarification as to the manner in which plaintiff should name defendant under the two policies. Mr. Smith told plaintiff's counsel to name Lloyd's of London and to sue using the policy number of the first policy since both were Lloyd's policies. Smith stated [that] plaintiff's counsel would later be advised of the name of the exact underwriter(s) and that there was no need to sue under both policies.... After suit was filed, plaintiff's counsel was advised to name Malcom Blair as defendant instead of Lloyd's.Pla.Mem. In Opp. to Def.Mot. for Summ.J. at 1-2. Mr. Esposito provides an affidavit to that effect as well.