I. INTRODUCTION

*1 On July 19, 2002, Special Master Levie issued Report and Recommendation #69 (“R&R #69”), recommending that the Court deny the United States’ Motion for a Protective Order Quashing Joint Defendants’[1] 30(b)(6) Deposition Notice. The Notice seeks a witness who will testify regarding the Government's allegations that Joint Defendants transmitted information by mail or use of wire transmission in furtherance of their scheme to defraud. The Government objected to R&R #69.

Upon consideration of R&R #69, the Objection filed by the Government, Joint Defendants’ Opposition, the applicable case law, and the entire record herein, the Court concludes that the Government's Objection is sustained.

II. ANALYSIS

A. Shelton v. American Motors Applies

It is undisputed that the only persons currently possessing the knowledge called for by the Joint Defendants’ Notice are trial attorneys handling this case for the Government.[2] In Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), the Eighth Circuit addressed the practice of deposing trial counsel, which has “long been discouraged” because, among other reasons, it could be used to “enable a learned profession to perform its functions ... on wits borrowed from the adversary.” Id. at 1327(quoting Hickman v. Taylor, 329 U.S. 495, 516 (1947) (Jackson, J., concurring)). Such depositions tend to disrupt the adversarial system and lower the standards of the profession. Id. They also inevitably raise work product and attorney-client privilege objections; the resolution of these objections adds to the time and expense of litigation. For all these reasons, Shelton created a set of prerequisites that must be met before a deposition of opposing trial counsel will be permitted.

Of course, the concerns animating Shelton’s restrictions are not implicated in every deposition of an opposing attorney. For example, in Order #22 0 the Court ordered that the Government could proceed with its depositions of three in-house counsel to R.J. Reynolds Tobacco Company (“Reynolds”). In that situation Shelton’s requirements did not apply because Reynolds’ attorneys were fact witnesses, not trial counsel, and because the Government only sought “information about non-privileged, pre-litigation factual matters, and not about Defendants’ litigation strategy.” United States V. Philip Morris, 209 F.R.D. 13, 19 (D.D.C. 2002). In this instance, unlike the situation in Order #220, the Government's attorney-deponent(s) would be asked about knowledge acquired in preparing for this very case, and there would inevitably be substantial work-product and attorney-client privilege issues.

B. Shelton’s Requirements Are Not Met.

*2 Shelton imposes three requirements that a proposed deposition of opposing trial counsel must meet. Such a deposition will only be permitted when: “(1) no other means exists 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 (citations omitted). Here, assuming, arguendo, that the information sought by the Joint Defendants is crucial to preparation of their case, the other two requirements are not met and a protective order is therefore appropriate.

First, other means do exist to obtain the information, namely use of contention interrogatories. Joint Defendants state that they have already attempted to serve such interrogatories but that the Government's answers were inadequate.[3] However, the Joint Defendants never filed a motion to compel more complete answers and they do not explain why such interrogatories would not be adequate if answered completely.

Joint Defendants have already successfully moved to compel answers to contention interrogatories directed at a different issue. In R&R #24 the Special Master recommended that the Court grant Defendants’ motion to compel the Government's answers to certain interrogatories; the R&R was adopted over the Government's objection on November 16, 2001.

The Joint Defendants can bring a motion to compel with respect to those interrogatories relating to the subject matter of the proposed 30(b)(6) deposition just as they did for the interrogatories at issue in R&R #24. More than a year ago the Special Master observed that, because the case was well into the discovery phase and on a concentrated schedule, contention interrogatories were justified. He noted the interrogatories would help focus and narrow issues, permitting more directed discovery in the time remaining. R&R #24 at 6.

Second, the requirement that the information sought be both relevant and non-privileged is not satisfied. The information is relevant, of course. Yet, much of it may be protected by the work product privilege. The Special Master fully recognized this when he suggested that the issue might be so pervasive that counsel might desire his presence at the deposition, should it go forward, because the deposition would likely generate “more objections on the grounds of privilege and/or work product protection than other depositions have.” R&R #6 9 at 9 n.3.

The mere fact that a proposed deposition involves work product privilege issues is not ordinarily sufficient to bar a deposition altogether. But when, as here, there are other means of obtaining the information which do not raise the same privilege problems, the fact that the deponent would be trial counsel weighs heavily in the balance of considerations.

For these reasons, other courts have found that depositions which implicate work product privilege concerns are not worth the costs they impose on the parties and the court, especially if there are alternatives available. In SmithKline Beecham Corp. v. Apotex, Inc., 2000 WL 116082 (N.D. Ill. Jan. 24, 2000) the court denied defendants’ motion to compel SmithKline to comply with a 30(b)(6) request for a witness to testify regarding its responses to interrogatories and requests for production because this area of inquiry would necessarily implicate the work product and attorney-client privileges. By propounding standard interrogatories, defendants “could obtain the same information with infinitely less intrusion upon privilege concerns, in a more workable form, and from the individuals who have actual knowledge of the matters at issue.” 2000 WL 116082 at *9.

*3 In N.F.A. Corp. v. Riverview Narrow Fabrics Inc., 117 F.R.D. 83 (M.D.N.C. 1987) the defendant sought to depose the plaintiff's attorney. Citing Shelton, the court concluded that the plaintiff was entitled to a protective order because depositions of opposing counsel tend to “merely embroil[ ] the parties and the court in controversies over the attorney-client privilege and [the work product privilege].” 117 F.R.D. at 85. The party seeking an attorney deposition must show that it is the only practical means to obtain the information sought. Id.

Similarly, in SEC v. Morelli, 143 F.R.D. 42 (S.D.N.Y. 1992) the defendant noticed a 30(b)(6) deposition requesting that the SEC designate someone to testify regarding, among other things, facts underlying the agency's allegations of insider trading. Because the attempted deposition would have been of a trial attorney, and because contention interrogatories represented a viable alternative, the court issued a protective order.

While it is true that interrogatories had not yet been used in SmithKline and Morelli, they remain an available alternative in this case because the Joint Defendants can still file a motion to compel more complete answers.

C. Designating a Non-Attorney Would Impose an Extraordinary Burden

The Special Master does not recommend that the Joint Defendants be permitted to depose a Government trial attorney. Instead, he observes that “[a]s long as the witness is adequately prepared, the deponent need not be a member of the trial team.” R&R #69 at 9. In theory it is true that the Government could designate a non-attorney witness because the 30(b)(6) Notice does not specifically request an attorney. But, as noted above, the Government insists – and Joint Defendants do not deny – that the only persons who currently possess the relevant knowledge are the trial attorneys handling this litigation.

Other courts have perceived 30(b)(6) notices as attempts to depose trial attorneys. In SEC v. Rosenfeld, 1997 WL 576021 (S.D.N.Y. Sept. 16, 1997) the defendant in an SEC enforcement action noticed a 30(b)(6) deposition requiring the SEC to designate a witness on eleven categories of information. The defendant argued that, because the SEC could designate whomever it chose, its argument that the notice would require a deposition of a member of its legal staff was just an improper attempt to inject a privilege issue into a discovery question.

In language that is directly applicable to the present situation, the court concluded that this argument “disingenuously avoid[ed]” the reality of the situation. Id. at *2. Because the investigations preceding SEC enforcement actions are conducted by the SEC's legal staff, “a Rule 30(b)(6) deposition of an SEC official with knowledge of the extent of that investigative effort, amounts to the equivalent of an attempt to depose the attorney for the other side.” Id. The court quashed the notice, finding good cause for a protective order, based largely on work product privilege concerns.

In EEOC V. HBE, 157 F.R.D. 465 (E.D. Mo. 1994) defendant HBE served a 30(b)(6) notice directing the EEOC to designate for a deposition someone having knowledge of the allegations in the complaint. Like the United States in this case, the EEOC contended that the only people with the requested knowledge were attorneys. The court granted a protective order, concluding that the defendant had not met Shelton’s three requirements.

The alternative suggested by the Special Master is for the Government to designate one or more non-attorneys. If a non-attorney is designated, trial attorneys will have to prepare that witness (or witnesses) by essentially transmitting all the sought-for information to them. The Court agrees with the Government that such preparation would impose an extraordinary burden on the Government, especially in light of the more efficient alternative that is available.

*4 Given the fact that Fed. R. Civ. P. 30(b)(6) imposes a duty to prepare the designated deponent(s) not just on “matters known by the deponent, but also on subjects that the entity should reasonably know,” the Court concludes that requiring the Government to designate a non-attorney in this situation would impose an excessive burden. “[T]he recipient of a Rule 30(b)(6) request is not required to have its counsel muster all of its factual evidence to prepare a witness to be able to testify regarding a defense or claim.” SmithKline 2000 WL 116082 at *8,9 (citations omitted).

The Special Master rejected the Joint Defendants’ argument that the deposition would not impose an undue burden because the Government was already, in essence, prepared.

would not have to gather its factual proof to prepare a witness for a deposition on a given defense or counterclaim).

The Special Master rejected the Joint Defendants’ argument that the deposition would not impose an undue burden because the Government was already, in essence, prepared.

R&R #69 at 6.

Even more preparation would be required if trial attorneys had to transmit these facts to non-attorney deponents. This preparation is not justified in light of the alternative available.

III. CONCLUSION

For the foregoing reasons, the United States’ objection is sustained. Because the deposition sought by Joint Defendants would require the Government to either designate one or more trial attorneys or to assume an extraordinary and undue burden in preparing a non-attorney, the Government's motion to quash Joint Defendants’ 30(b)(6) deposition notice is granted.

An ORDER will issue with this opinion.

Date Nov. 14, 2002