Opinion
C.A. KC-2013-1059
07-14-2015
CRANSTON POLICE RETIREES ACTION COMMITTEE v. CITY OF CRANSTON, ET AL.
For Plaintiff: Patrick J. Sullivan, Esq. Marisa A. Desautel, Esq. For Defendant: William M. Dolan, Esq.
Kent County Superior Court Taft-Carter, J.
For Plaintiff: Patrick J. Sullivan, Esq. Marisa A. Desautel, Esq.
For Defendant: William M. Dolan, Esq.
DECISION
TAFT-CARTER, J.
Before the Court is the Plaintiff's, the Cranston Police Retirees Action Committee, Motion to Quash a Notice of Deposition of an attorney of record or, in the alternative, for a Protective Order, and the Defendant's objection.
I
Facts and Travel
The instant Motion arises out of litigation brought by the Plaintiff, the Cranston Police Retirees Action Committee (the Committee), against the Defendant, the City of Cranston (the City), alleging that the City has breached certain contracts which the City negotiated with the City's Police Union, Local 301 of the International Brotherhood of Police Officers (the Union).
Over the course of discovery, the City took the deposition of Glenn Gilkenson, the Committee's Super. R. Civ. P. 30(b)(6) witness. During that deposition, Mr. Gilkenson was questioned concerning the factual bases for allegations made in the Complaint. Specifically, the deponent was questioned about the contracts which were negotiated between the City and the Union. Mr. Gilkenson testified that the factual assertions made in the Complaint were based on the investigation done by the Committee's attorney, Patrick J. Sullivan. He stated that Mr. Sullivan, as the attorney of record, was in charge of filing the Complaint. Mr. Gilkenson also stated that his belief was that the benefits set forth in the contracts were lifetime benefits and that this understanding was based on representations made to him by members of the Union, including its former president, Mr. Sullivan.
Super. R. Civ. P. 30(b)(6) permits an organization to designate one or more persons to testify on its behalf on all matters known or reasonably available to the organization.
Immediately after this deposition, the City filed a Notice of Deposition seeking to depose Mr. Sullivan in his capacity as the former president of the Union. As president of the Union, Mr. Sullivan was involved in the contract negotiations between the Union and the City. In fact, Mr. Sullivan signed the contracts that are at issue in this case.
The Committee objected to the Notice of Deposition and, after the parties failed to resolve the dispute, filed the instant Motion to quash the notice of deposition pursuant to Rule 45 of the R.I. Superior Court Rules of Civil Procedure. The Committee argues that the Notice of Deposition is an unjustifiable attempt to obtain Mr. Sullivan's work product and attorney-client communications as an attorney of record in the case. In addition, the Committee argues that Attorney Sullivan should not be deposed "merely because he signed the complaint." The City, in contrast, argues that it has taken depositions of other members of the Committee and of the Committee itself through the Super. R. Civ. P. 30(b)(6) deposition and that the depositions establish that Mr. Sullivan was the individual responsible for negotiating key documents on behalf of the Union members and that he was the source for many of the factual allegations made in the Complaint. As such, the City contends that Mr. Sullivan is a material fact witness to this litigation and that the Committee may not immunize him from discovery by retaining him as an attorney of record in this case.
The Court heard oral argument on June 23, 2015 and now issues its Decision.
II
Standard of Review
Rule 26(b)(1) of the Superior Court Rules of Civil Procedure discusses the scope of examination of a deposition. It provides, in pertinent part, that "[p]arties may obtain discovery [through any listed discovery methods, including depositions] regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the [examining] party . . . or to the claim or defense of any other party . . ." Rule 45 of the Superior Court Rules of Civil Procedure provides the standard of review for a motion to quash. It states, in pertinent part:
"On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
(i) Fails to allow reasonable time for compliance;
(ii) Requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iii) Subjects a person to undue burden." Super. R. Civ. P.45(c)(3)(A).Super. R. Civ. P. 26(c) governs the issuance of protective orders and provides that, on a motion by a party "accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, " a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense . . ."
III
Discussion
Although the Superior Court Rules of Civil Procedure do not explicitly prohibit the deposition of the opposing party's attorney, it is a practice that is generally frowned upon. See Emhart Indus. Inc. v. New England Container Co., 2013 WL 6001076 at *2 (D.R.I. 2013) (describing the practice of deposing opposing counsel as "a negative development in the area of litigation, and one that should be employed only in limited circumstances"); U.S. v. Yonkers Bd. of Educ., 946 F.2d 180, 185 (2d Cir. 1991) (stating that "depositions of opposing counsel are disfavored").
At least one court has held that because taking the deposition of opposing counsel is not expressly prohibited, the party seeking the protective order to preclude the deposition of its counsel bears the burden under Fed.R.Civ.P. 26(c) of demonstrating good cause to preclude or limit the testimony. See Johnston Dev. Grp. Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 352 (D.N.J. 1990) (citing Cipollone v. Liggett Grp., Inc., 785 F.2d 1108, 1121 (3d Cir. 1986)). However, the majority rule adopted by other courts appears to be that because of the great potential harms stemming from taking the deposition of opposing counsel, it is a practice that should be permitted only in limited circumstances, and that the party seeking to depose another party's attorney must demonstrate the propriety and the need for the deposition. See Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); Boughton v. Cotter Corp., 65 F.3d 823, 829-30 (10th Cir. 1995); Am. Cas. Co. of Reading, Pa. v. Krieger, 160 F.R.D. 582, 585 (S.D. Cal. 1995); Harriston v. Chicago Tribune Co, 134 F.R.D. 232, 233 (N.D. Ill. 1990). In so doing, many courts have adopted a three-prong test introduced by the U.S. Court of Appeals for the Eighth Circuit in Shelton, which provides that the deposition of opposing counsel is limited to situations where "the party seeking to take the deposition has shown 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." Shelton, 805 F.2d at 1327; see also Dunkin' Donuts, Inc. v. Mandorico, Inc., 181 F.R.D. 208, 210 (D. Puerto Rico, 1998); U.S. v. All Funds on Deposit in Any Accounts Maintained at Merrill Lynch, Pierce, Fenner & Smith, 801 F.Supp. 984, 996 (E.D.N.Y. 1992).
Our Rhode Island Supreme Court has stated that "where the federal rule and our state rule of procedure are substantially similar, we will look to the federal courts for guidance or interpretation of our own rule." Crowe Countryside Realty Assocs., Co. v. Novare Eng'rs, Inc., 891 A.2d 838, 840 (R.I. 2006). Because the applicable provisions of Rules 26 and 45 of the Rhode Island Rules of Civil Procedure are substantially similar to their counterparts in the Federal Rules of Civil Procedure, this Court will look to federal court decisions for guidance.
The First Circuit Court of Appeals has recently adopted a somewhat modified version of the Shelton test in considering a motion to quash the deposition of opposing counsel. Trial courts are directed to consider the following factors: "whether (i) the subpoena was issued primarily for purposes of harassment, (ii) there are other viable means to obtain the same evidence, and (iii) to what extent the information sought is relevant, nonprivileged, and crucial to the moving party's case." Bogosian v. Woloohojian Realty Corp., 323 F.3d 55, 66 (1st Cir. 2003).
In addition, although as a general rule protective orders prohibiting a deposition are rarely granted, a request to take a deposition of an opposing party's attorney is considered to be a circumstance that justifies the granting of a protective order. See N.F.A. Corp. v. Riverview Narrow Fabrics, Inc., 117 F.R.D. 83, 84-85 (M.D. N.C. 1987). Accordingly, "[t]he mere request to depose an opposing counsel constitutes 'good cause' for obtaining a protective order, 'unless the party seeking the deposition can show both the propriety and need for the deposition.'" Dunkin' Donuts, Inc., 181 F.R.D. at 210 (quoting Niagara Mohawk Power Corp. v. Stone & Webster Eng'g Corp., 125 F.R.D. 578, 594 (N.D.N.Y. 1989)).
Here, the City has made the requisite showing of a factual basis to justify permitting the deposition of Mr. Sullivan. It is undisputed that Mr. Sullivan, prior to being engaged as counsel, was a former member and president of the Union. As president, he negotiated the contracts on behalf of the Union. His signature appears on the contract.
Nothing in this record indicates that the City seeks to depose Mr. Sullivan for purposes of harassment. The Committee does not raise this argument in its Motion.
The information sought by the City concerns knowledge of facts relating to this lawsuit that Mr. Sullivan gathered while president of the Union. It appears that the information sought by the City is not available by any other means. The Super. R. Civ. P. 30(b)(6) designee was clearly unable to answer what appear to be relevant questions. The deponent indicated that Mr. Sullivan has the knowledge and would be able to answer the questions. The City has made attempts to obtain the information through its depositions of Mr. Gilkenson as the Super. R. Civ. P. 30(b)(6) witness for the Committee, and the City has stated that it has also deposed other members of the Committee. The deposition of Mr. Gilkenson, which has been reviewed by the Court, demonstrates that the City's questions regarding the factual bases for the information in the Complaint were not adequately answered by Mr. Gilkenson, who, in fact, specifically asserted that Mr. Sullivan, as the then-president of the Union and as Plaintiff's counsel, was the person who could answer the City's questions.
The Committee's contention that it has not been shown that Mr. Sullivan does not have unique knowledge that is not possessed by other members of the Committee is without merit. Mr. Sullivan, as the president of the Union at the time the contracts at issue were negotiated, not only signed the contracts on behalf of the Union but was also present at the negotiations leading up to the contract. In that capacity, according to the testimony of Mr. Gilkenson, Mr. Sullivan made representations to the other members of the Union concerning the meaning of the contracts. Although it is acknowledged that other board members of the Union were also present for the negotiation, Mr. Sullivan was the Union president. The Court is satisfied that a union president cannot be considered to be a fungible witness with other board members of the Union when it comes to the negotiation process leading up to a contract. The Court notes that while other Union board members may have been present at some or all of the negotiation sessions, the contracts at issue were signed solely by Mr. Sullivan on behalf of the Union and not by any other board members.
In addition, the City has met its burden of showing that the information sought is not only relevant but also potentially crucial to the preparation of the case. The contracts which Mr. Sullivan signed are at the very heart of this litigation, making a thorough understanding of the negotiation process by which the contract was reached, and any unwritten understandings which may have formed part of the contract, central to the case.
The Committee argues that the City's attempt to depose Mr. Sullivan is an unjustified attempt to delve into the mental impressions and work product of an attorney of record. This argument has no merit. The work product doctrine does not apply if the attorney was not acting as such. Cf. Texaco P.R. v. Dep't of Consumer Affairs, 60 F.3d 867, 884 (1st Cir. 1995) ("The attorney-client privilege attaches only when the attorney acts in that capacity."). Accordingly, to the extent that the City's deposition of Mr. Sullivan will concern matters which occurred when Mr. Sullivan was the president of the Union, the work product doctrine does not apply.Moreover, the application of the work product doctrine "depends upon the existence of a real, rather than speculative, concern that the thought processes of [defendant's] counsel in relation to pending or anticipated litigation would be exposed." Gould Inc. v. Mitsui Mining & Smelting Co., 825 F.2d 676, 680 (2d Cir. 1987); see also In re San Juan Dupont Plaza Hotel Fire Litig., 859 F.2d 1007, 1015 (1st Cir. 1988) ("[N]ot every item which may reveal some inkling of a lawyer's mental impressions, conclusions, opinions, or legal theories is protected as opinion work product."). The Court is mindful of the Committee's concerns that the City's deposition questions for Mr. Sullivan may stray into matters which would be protected under the work product doctrine. However, absent some specific indication that all the City's questions would be protected, this Court cannot find that the work product doctrine or the attorney-client privilege justifies granting a protective order and prohibiting the deposition of Mr. Sullivan. The Committee has the right to object to those questions that delve into the protected areas.
The specific issue of the application of the work product doctrine to a deposition of an attorney is one that has not been addressed by the First Circuit. See Carey v. Textron, Inc. (E-Z-Go Textron), 224 F.R.D. 530, 531 (D.Mass. 2004) (noting that "[t]he application of the work-product doctrine to a deposition of an attorney is an issue of first impression in the First Circuit, " but that it was unnecessary to address the issue in that case).
"While the attorney-client privilege shields communications between attorney and client (and in some cases third parties), the work product doctrine protects an attorney's written materials and 'mental impressions.'" Vicor Corp. v. Vigilant Ins. Co., 674 F.3d 1, 17 (1st Cir. 2012).
The work product doctrine protects from discovery "most written materials obtained or prepared with an eye toward litigation." Crowe Countryside Realty Assocs., Co., 891 A.2d at 841 (internal citations omitted). "However, not all materials prepared by an attorney constitute protected work product." Id. at 841-42.
The instant situation is distinguishable from the other cases involving a request to depose opposing counsel in that Mr. Sullivan's involvement in this litigation is not limited solely to his role as the Committee's attorney. Mr. Sullivan, as a member and former president of the Union, signed the contracts at issue in this case. Consequently, his knowledge and understanding of this case is not solely related to his role as the Committee's attorney. The mere fact that Mr. Sullivan has also been retained as the Committee's attorney in the instant litigation may not serve as an automatic shield to prevent the City from deposing Mr. Sullivan at all. In so holding, the Court is mindful that our Rules of Civil Procedure are liberal and "are designed to promote broad discovery among parties during the pretrial phase of litigation." Henderson v. Newport Cnty. Reg'l Young Men's Christian Ass'n, 966 A.2d 1242, 1246 (R.I. 2009).
The City has shown that deposing Mr. Sullivan is both proper and necessary because other viable means to obtain the same information are not available, and the information sought is relevant and potentially crucial to the litigation. Accordingly, the City may depose Mr. Sullivan regarding his knowledge of the facts and circumstances of the litigation as they would be known to him in his capacity as the former president of the Union. The Court notes that to the extent the City's questions during the deposition may involve the work product of Mr. Sullivan in his capacity as the Committee's attorney, the questions may not be permissible and the Court reserves the right to limit the deposition accordingly if any concerns are raised during the deposition that are unresolvable by the parties.
IV Conclusion
For the foregoing reasons, the Plaintiff's Motion to quash the notice of deposition or, in the alternative, for a protective order with regard to Mr. Sullivan's testimony, is denied.
Counsel shall submit the appropriate order for entry.