This analysis by Greene Espel attorney Caitlinrose Fisher first appeared on Law.com on February 25, 2020.

On Dec. 27, 2019, the Eighth Circuit affirmed a district court’s denial of a party’s request to depose opposing counsel in a pending case. The Eighth Circuit reaffirmed the standard it set forth in Shelton v. American Motors, 805 F.2d 1323 (8th Cir. 1986), and clarified that under the Shelton test, a party may depose opposing counsel only if the information sought is: (1) not available through other means; (2) relevant and nonprivileged; and (3) crucial to the preparation of the case.

A recurring issue in civil litigation is whether and under what circumstances opposing counsel may be subject to deposition discovery in an ongoing case. That issue was at the forefront of a recent appeal before the Eighth Circuit, in Smith-Bunge v. Wisconsin Central, Ltd., 946 F.3d 420 (8th Cir. 2019).

Plaintiff-appellant Todd Smith-Bunge worked for defendant-appellee Wisconsin Central, Ltd., a rail carrier, as a welder. Smith-Bunge v. Wisconsin Central, Ltd., No. 15-cv-4383 (RHK/LIB), 2017 WL 3834734, at *1 (D. Minn. Aug. 31, 2017). His job responsibilities included driving a welding track. In 2013, Wisconsin Central suspended Smith-Bunge without pay, and he successfully sued the company for unlawful retaliation. Smith-Bunge v. Wisconsin Central, Ltd., 60 F. Supp. 3d 1034 (D. Minn. 2014). Thereafter, Smith-Bunge accidentally drove his truck into a train’s path. Smith Bunge asserted that his brakes had malfunctioned, but an expert hired by Wisconsin Central concluded that Smith-Bunge was the sole cause of the crash. Wisconsin Central fired Smith-Bunge, and Smith-Bunge once again sued Wisconsin Central for retaliation, basing his claim on his 2013 lawsuit, the 2014 faulty-brakes report, and a 2014 injury report.

During discovery, Smith-Bunge sought to depose Wisconsin Central’s counsel, Constance Valkan, about her conversations with other Wisconsin Central employees and whether Smith-Bunge’s employment record caused his termination. The district court granted Wisconsin Central’s motion for a protective order for Valkan, and eventually granted summary judgment in favor of Wisconsin Central. Smith-Bunge appealed, challenging both district court decisions.

At issue on appeal was which decision controls the propriety of deposing opposing counsel in an ongoing case—Pamida or Shelton. In Shelton v. American Motors, the Eighth Circuit reversed a default judgment that had been entered as a sanction for the party’s in-house counsel’s refusal to answer deposition questions. 805 F.2d 1323, 1324 (8th Cir. 1986). The Eighth Circuit limited the circumstances in which opposing counsel can be deposed. Id. at 1327. Smith-Bunge asserted that the applicable standard was found in Pamida, Inc. v. E.S. Originals, 281 F.3d 726 (8th Cir. 2002)—not Shelton. In Pamida—in which the Eighth Circuit affirmed a district court’s partial denial of an order protecting opposing counsel from being deposed—the Eighth Circuit clarified that the Shelton test does not apply to the extent that a party seeks to depose opposing counsel concerning a “concluded … action.” 281 F.3d at 730. But, in affirming the partial denial of the protective order, the Eighth Circuit also observed that the party sought to depose opposing counsel to discover “relevant information uniquely known by Pamida’s attorneys about prior terminated litigation, the substance of which [was] central to the pending case.” Id. at 731.

In Smith-Bunge, the Eighth Circuit rejected Smith-Bunge’s argument that Pamida governed, and instead reaffirmed the applicability of the standard for deposing opposing counsel set forth in Shelton. Writing for the panel, Judge Duane Benton clarified that under the Shelton test, “[a] party may depose an opposing counsel for information related to pending case if the information sought is: (1) not available through other means; (2) relevant and nonprivileged; and (3) crucial to the preparation of the case.” Smith-Bunge, 946 F.3d at 423. The Eighth Circuit concluded that Smith-Bunge’s case was more like that of Shelton than Pamida. In Pamida, the information sought was not only “peculiarly within counsel’s knowledge,” but also there had been a waiver of the privilege. Neither of those circumstances was true in Smith-Bunge’s case.

The Eighth Circuit then held that Smith-Bunge was unable to satisfy the first and second Shelton factors. As to the first Shelton factor, the Eighth Circuit reasoned that Smith-Bunge could depose the employees to whom Valkan spoke. Although Smith-Bunge asserted that these employees had “selective amnesia” during their depositions, the Eighth Circuit explained that “a party cannot depose opposing counsel to explore suspicions about opposing witnesses.” Id. As in Shelton, the information sought from opposing counsel could be obtained from an employee of the defendant, rather than the defendant’s attorney. Shelton, 805 F.2d at 1327. As to the second Shelton factor, the court concluded that the information Smith-Bunge sought was protected by the attorney-client privilege. Smith-Bunge had asserted that Valkan’s communications were not protected by the attorney-client privilege because she was acting merely as a business advisor, conduit for the client’s funds, or scrivener. But Valkan swore that all her “communications with Wisconsin Central’s manager ha[d] been strictly in [her] capacity as counsel for Wisconsin Central and for the purpose of providing legal advice,” and the court concluded that Smith-Bunge had failed to “provide facts that counter[ed] this testimony.” Smith-Bunge, 956 F.3d at 923.

Smith-Bunge’s appeal raised two other issues, both of which the panel resolved in Wisconsin Central’s favor. The Eighth Circuit affirmed the district court’s order granting summary judgment to Wisconsin Central, agreeing with the district court that Smith-Bunge had not made a prima facie case of retaliation under the Federal Railroad Safety Act. The court also affirmed the district court’s order denying Smith-Bunge’s motion to compel the production of investigative papers and draft reports prepared by Michael W. Rogers, the expert hired by Wisconsin Central to investigate Smith-Bunge’s vehicle following the crash. The Eighth Circuit agreed with the district court that Rogers was acting as an expert witness, not a fact witness, because he acquired the information about the crash and Smith-Bunge’s truck “in preparation for trial.” Id. at 422. Wisconsin Central placed a litigation hold the day after Smith-Bunge’s accident, and retained Rogers to provide “litigation support” one month later. The investigative papers were accordingly protected as expert material under Federal Rule of Civil Procedure 26(b)(4).

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