The USDC for the Southern District of California denied a corporations protective-order motion and allowed a limited deposition ofthe companys in-house litigation counsel. In doing so, the court rejected a blanket privilege claim because the in-house lawyer also carried a Vice President title and verified the companys interrogatory responses. Stevens v. CoreLogic, Inc., 2015 WL 8492501 (S.D. Cal.Dec. 10, 2015). You may read the decision here.
In a putative class action asserting intellectual-property claims against CoreLogic, Inc., the plaintiff sought to depose Rouz Tabaddor, a senior in-house litigation counsel at CoreLogic, in his personal capacity. CoreLogic sought a protective order, arguing that the plaintiff should not take Tabaddors deposition because he obtained knowledge about the case exclusively through privileged communications.
LinkedIn Profile and Verification of Interrogatory Responses
Plaintiffs counsel reviewed Mr. Tabaddors LinkedIn profile and learned that his CoreLogic title was VP and Chief Intellectual Property and Licensing Counsel. According to LinkedIn, Tabaddors duties included managing CoreLogics IP litigation but also assisting with IP due diligence and generating over $25M of revenue via IP licensing/sales. You may review the LinkedIn profile here.
Plaintiffs counsel therefore argued that at least some of Mr. Tabaddors knowledge is business-related and non-privileged. And counsel noted that Tabaddor verified some of CoreLogics interrogatory responses but that CoreLogic also provided several unverified interrogatory responses.
Court Applies Shelton Standard
The court recognized that, while neither the FRCP nor the FRE prohibit attorney depositions, courts regularly discourage them. The court noted that the 9th Circuit has not issued a published decision governing depositions of opposing counsel, and therefore relied on the 8th Circuits widely cited decision in Shelton v. Am. Motors Corp., 805 F.2d 1323 (CTA8 1986) for its ruling.
The Shelton case teaches us that a party may depose an opposing partys lawyer only when it can show:
(1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and non-privileged; and (3) the information is crucial to the preparation of the case.
For a deeper look into the standards courts apply in attorney-deposition situations, see my article Protecting the AttorneyClient PrivilegeDepositions of In-House Counsel, available here.
The court held that the plaintiff satisfied the Shelton factors and allowed a limited deposition of Tabaddor. The court rejected some of the privilege claims because Tabaddor verified one set of CoreLogics interrogatory responses while other responses remained unverified. The court allowed plaintiff to inquire into the grounds behind his verification of one but not the others, noting:
Rule 33s requirement that answers be verified would be meaningless if corporations were permitted to have in-house counsel swear to their accuracy and then invoke the attorneyclient privilege to avoid backing up their signature.
And Mr. Tabaddors title provided no privilege help. The court noted that he served not only as CoreLogics counsel, but also as its Vice President, and held that the attorneyclient privilege necessarily could not cover all of his verifications and communications.
To be sure, the court limited Tabaddors deposition to his verification and non-verification of interrogatory responses and his communications regarding certain take-down notices. The take-away, though, is that the court rejected the attorneyclient privilege in large part because the in-house lawyerwho also carried a business titlesigned the companys discovery responses.
For other cases permitting in-house counsel depositions, see my earlier post on a court allowing the deposition of an Apple, Inc. in-house lawyer, another post discussing a courts permitting an in-house lawyers deposition because he authored a contract-termination letter, and my article Tips for Preventing or Limiting In-House Counsel Depositions.