*1 On May 19, 2021, plaintiff and defendants Olympusat, Inc., Ocean Communications, Inc., Ocean New Media, LLC, Olympusat Holdings, Inc., and Tom Mohler, (“defendants”) filed a Joint Discovery Stipulation (“Joint Stipulation” or “JS”) that addresses plaintiff's Motion for a protective order that prohibits the depositions of plaintiff's attorneys and two Information Technology (“IT”) consultants who copied and deleted plaintiff's work laptop while this litigation was pending. (ECF Nos. 148, 150). On May 26, 2021, plaintiff and defendants filed supplemental briefs. (ECF Nos. 151, 153).

By way of background, in mid-August 2019, around one month after plaintiff filed this lawsuit in July 2019, she brought her work laptop to the office of one of the law firms that represents her in this case, Hadsell Stormer Renick & Dai LLP, where two IT consultants copied and wiped the laptop's hard drive. (ECF No. 150 at 24, 33-34, 45). Plaintiff surrendered the laptop to defendants in October 2019 after her employment terminated. Defendants later had a forensic expert examine the device, who determined that a system reset and other activity –– such as file path alterations, renaming of folders, and the execution of “QuickClean” software –– were implemented on August 14 and 15, 2019, and that “thousands of files and other bytes of data” were deleted. (Id. at 40-41, 45). Based on the foregoing, defendants accuse plaintiff and her lawyers of “selectively tampering with and altering evidence” contained in the laptop. (Id. at 15).

On April 19, 2021, defendants served deposition notices to the following individuals to question them about the laptop deletion: plaintiff's attorneys, Dan Stormer and Barbara Hadsell; and IT consultants John Treanor, the owner of Satellyte Technology LLC, and Samuel Sherwood, an employee of Satellyte Technology LLC. (ECF No. 150 at 15-16).

Defendants have filed numerous discovery motions concerning the laptop. In a motion to compel filed on April 21, 2021, defendant Olympusat, Inc., sought, inter alia, an order compelling plaintiff to produce the backup copy. On May 13, 2021, the Court granted the request in part, ordering that plaintiff provide the backup copy to a neutral forensics expert, who would then perform a limited examination to determine whether the backup contains any additional data or information that plaintiff had not already produced or listed in a privilege log. The Court's May 13, 2021, Order is currently stayed while defendant seeks review of the ruling under Federal Rule of Civil Procedure 72. (See ECF Nos. 140, 145-47, 154).

In the instant Motion, plaintiff seeks a protective order to prohibit defendants from deposing her attorneys and the IT consultants, whom plaintiff describes as third-party agents that perform the law firms' IT functions, including managing the firm's servers, implementing software, and providing technical support. Plaintiff represents that the IT consultants have assisted her attorneys with various aspects of this case, and have attended meetings with her and her counsel. (ECF No. 153 at 4). In support of the Motion, plaintiff argues that depositions of opposing counsel are disfavored and improper, and that defendants have failed to meet the requirements to depose counsel under the test set forth in Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986). (ECF No. 150 at 22-23, 30). In Shelton, the Eighth Circuit determined that depositions of opposing counsel are permitted if the noticing party shows that “(1) no other means exist to obtain the 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.” 805 F.2d at 1327. Because any questions defendants have concerning the reasons why certain actions were taken with respect to the laptop would infringe on privileged attorney-client communications and attorney work product, plaintiff argues that alternative discovery tools, such as interrogatories, should instead be used to obtain factual information about the laptop deletion. (ECF No. 150 at 24). Plaintiff further asserts that defendants' inquiry regarding the laptop has nothing to do with the claims and counterclaims at issue in this litigation, and that in any event, she has already turned over 65,000 pages of documents from the laptop and logged every document that was withheld from production. Thus, the information sought in the depositions is irrelevant and not crucial to defendants' case. (Id. at 26-29).

*2 Defendants counter by arguing they are entitled to question the individuals involved in the laptop deletion through depositions, as interrogatories are no “substitute for the spontaneity and unmediated nature of depositions, or for the opportunity for cross-examination that exists in a deposition.” (ECF No. 150 at 46). In particular, defendants urge the Court to deny plaintiff's request for a protective order with respect to the two IT consultants, Mr. Treanor and Mr. Sherwood, as plaintiff has not cited any authority for blocking the depositions of non-attorney witnesses. As such, defendants should be permitted to ask the IT consultants “simple, factual, step-by-step questions about what they did to the laptop, and what they did with the documents and ESI that resided on the laptop before they began their work.” (Id. at 47-48). With respect to the Shelton test, defendants assert that this standard is met, as the attorneys and IT consultants are the only witnesses who can testify to the laptop wiping. Moreover, the factual information sought in the depositions is relevant to the issue of evidence spoliation, is not privileged, and is crucial to defendants' preparation of a possible motion seeking sanctions against plaintiff and her counsel for destroying evidence. (Id. at 56-57).

Defendants additionally argue that, because the Ninth Circuit has never held that the Shelton test is the framework for considering attorney depositions, the more flexible standard proposed by the Second Circuit in In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 72 (2d Cir. 2003) (“Friedman”), should be considered as well. With the Friedman test, a court takes into consideration “all of the relevant facts and circumstances to determine whether the proposed deposition would entail an inappropriate burden or hardship,” including “the need to depose the lawyer, the lawyer's role in connection with the matter on which discovery is sought and in relation to the pending litigation, the risk of encountering privilege and work-product issues, and the extent of discovery already conducted.” Friedman, 350 F.3d at 72. “Under this approach, the fact that the proposed deponent is a lawyer does not automatically insulate him or her from a deposition nor automatically require prior resort to alternative discovery devices, but it is a circumstance to be considered.” Id. Defendants contend the depositions are warranted under the Friedman standard, as defendants have a “substantial need” to depose plaintiff's lawyers regarding what was done to the laptop and the evidence that it formerly contained, as the lawyers were active participants and fact witnesses. (ECF No. 150 at 50). Defendants also clarify that they seek to elicit factual details about what steps were taken with respect to the laptop deletion, and will not pose questions that intrude on confidential communications between counsel and plaintiff, or on counsel's mental processes and strategies. (Id. at 51).

Legal Standard

Rule 26 of the Federal Rules of Civil Procedure provides that a party may obtain discovery “regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Factors to consider include “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. Discovery need not be admissible in evidence to be discoverable. Id. However, a court “must limit the frequency or extent of discovery otherwise allowed by [the Federal] rules” if “(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).” Fed. R. Civ. P. 26(b)(2)(C).

Relevance is broadly construed “to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on,” any party's claim or defense. See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978) (citing Hickman v. Taylor, 329 U.S. 495, 501, 67 S. Ct. 385, 91 L. Ed. 451 (1947)); Kennicott v. Sandia Corp., 327 F.R.D. 454, 469 (D. N.M. 2018) (definition of relevance set forth in Oppenheimer Fund still applies after 2015 amendment to Rule 26).

*3 Rule 26(c)(1) states in pertinent part that a court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including ... (A) forbidding the disclosure or discovery; (B) specifying terms, including time and place ..., for the disclosure or discovery; (C) prescribing a discovery method other than the one selected by the party seeking discovery; [or] (D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters[.]”

Discussion

The Court first addresses the depositions of John Treanor and Sam Sherwood, the IT consultants who copied and wiped the laptop in August 2019. After carefully considering the parties' arguments, the Court finds no good cause for a protective order prohibiting these particular depositions from going forward. Alternatively, whether the Shelton or Friedman standard applies when considering the depositions of a law firm's IT consultants, the depositions would be permitted under the circumstances here. As stated in the Joint Stipulation, defendants intend to ask Mr. Treanor and Mr. Sherwood “simple, factual, step-by-step questions about what they did to the laptop, and what they did with the documents and ESI that resided on the laptop before they began their work.” (ECF No. 150 at 47-48). Defendants represent they will not inquire about any communications involving plaintiff's counsel, or the reasons why certain steps were taken, which could infringe upon plaintiff's counsel's mental processes and strategies. Accordingly, the information sought in the IT consultants' depositions is not privileged or protected attorney work product. Moreover, plaintiff fails to show that interrogatories would be an adequate substitute for the depositions, given that the proposed testimony would involve descriptions of technological procedures, and may require follow up questions seeking clarification and/or further explanation. The Court notes that in the May 13, 2021, Order compelling production of the backup copy (which is currently stayed), plaintiff was ordered to provide defendants, inter alia, “a declaration(s), signed under penalty of perjury by the individual(s) who backed up and then wiped the laptop, that sets forth a detailed explanation describing the backup procedure and the wiping method that were implemented.” (ECF No. 145). This prior directive further reflects that defendants are entitled to discover facts concerning the data wiping from the IT consultants who performed the laptop deletion. Additionally, the proposed deposition testimony may reveal information relevant to defendants' allegations of spoliation, i.e., that the wiping of the laptop resulted in the permanent deletion of relevant data. For these reasons, the Motion seeking a protective order prohibiting the depositions of Mr. Treanor and Mr. Sherwood is denied, subject to the following limitations: the deposition questions to the IT consultants may only seek facts regarding the methods and procedures they implemented, and the actions they took, when copying and wiping the laptop. Defendants may not ask the IT consultants any questions that involve communications with plaintiff's counsel, or that seek information concerning plaintiff's counsel's thought processes or strategies.

The Court now turns to the depositions of plaintiff's attorneys. Under either the Shelton or Friedman test, it is undisputed that depositions of opposing counsel are disfavored. See Friends of Riverside Airport, LLC v. Dep't of the Army, 2021 WL 401209, at *4 (C.D. Cal. Jan. 14, 2021). Here, whether the Shelton or Friedman standard is applied, defendants have failed to show that the attorney depositions are warranted in this case. As set forth supra, defendants will be permitted to depose the IT consultants about the procedures and methods they implemented when copying and wiping the laptop. In light of the IT consultants' first-hand knowledge regarding the technological procedures and methods that were utilized, it is reasonable to conclude that plaintiff's attorneys, if questioned, could offer little to no additional facts regarding the steps taken to execute the data deletion. Given these circumstances, defendants have not shown that the depositions of plaintiff's attorneys are needed. In other words, the information defendants seek about the laptop deletion can be obtained through different means, i.e., the depositions of the IT consultants. Moreover, to the extent questions to the attorneys may reference communications with the IT consultants and/or plaintiff, or would seek information concerning legal strategies with respect to the laptop, the attorney depositions would inquire into matters protected by the attorney-client privilege and work product doctrine. Accordingly, plaintiff's Motion seeking a protective order to prohibit the depositions of plaintiff's attorneys is granted.

Conclusion

*4 The Motion seeking a protective order to prohibit depositions (ECF No. 148) is denied with respect to the depositions of the IT consultants, Mr. Treanor and Mr. Sherwood, subject to the limitations set forth above, and granted with respect to the depositions of plaintiff's attorneys.

It is so ordered.