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Shelton v. American Motors Corp.

United States Court of Appeals for the Eighth Circuit · Civil Procedure

Civil ProcedureDiscoveryWork ProductDepositions of Opposing CounselSanctionsRule 30Rule 37Rule 26(b)(3)

Facts

In a product liability action arising from a fatal Jeep CJ-5 rollover, discovery was marked by repeated disputes. Plaintiffs deposed AMC's in-house litigation counsel, Rita Burns, and asked whether certain categories of documents existed in AMC's possession. Burns refused to answer, asserting work-product and attorney-client protections, and explained that any knowledge she had about such documents came from her investigation, selection, and review of materials in preparing AMC's defense. After the magistrate and district court ordered responses and AMC stood on its objections, the district court entered default judgment on liability as a sanction.

Issue

When a party deposes opposing counsel who has reviewed and selected documents from voluminous corporate files in preparing for litigation, does counsel's acknowledgment of the existence of specific documents constitute protected work product? Relatedly, was default judgment a proper sanction for refusing to answer those questions?

Rule

Deposing opposing counsel should be permitted only in limited circumstances where the party seeking the deposition shows that (1) no other means exist to obtain the information, (2) the information sought is relevant and nonprivileged, and (3) the information is crucial to preparation of the case. Where the deponent is opposing counsel and counsel has selectively compiled documents from voluminous files in preparation for litigation, counsel's acknowledgment of the existence of those documents may reveal counsel's mental impressions and is protected as opinion work product.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In a products case in St. Louis, Maya Torres sues Riverbend Equipment Co. over an allegedly defective ladder. During discovery, Maya notices the deposition of Riverbend’s trial counsel, Aaron Pike, to ask whether Riverbend possesses internal incident summaries about prior ladder collapses, even though Riverbend has already offered two safety managers and a records custodian for deposition on that subject.

If Riverbend moves for a protective order, how should the court most likely rule?

Explanation. The majority held that deposing opposing counsel should occur only in limited circumstances, including when no other means exist to obtain the information, the information is relevant and nonprivileged, and it is crucial to case preparation. Here, nonlawyer corporate witnesses are available on the same subject, so the first requirement is not satisfied. The rule does not make counsel absolutely immune, but it strongly disfavors counsel depositions when ordinary discovery devices remain available. (Derived from Shelton v. American Motors Corp. (n.d.).)