Courts exercise their discretion broadly in granting protective orders to prevent one side from deposing the other side’s lawyer. Some courts acknowledge that they shift “the burden to the proponent of the deposition to demonstrate the propriety and need for the deposition” where the situation involves a request to depose opposing counsel. Kerr v. Able Sanitary and Kerr Environmental Services, Inc., 1996 .J. Super. LEXIS 416, at *11 (Nov. 15, 1996). There is a general consensus that depositions of opposing counsel may be taken only when the following criteria are satisfied: (1) less intrusive means do not exist for obtaining the information; (2) the information is relevant and nonprivileged; and (3) the information is necessary for the other side’s preparation of its case.
For example, in Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir. 1995), the appellate court upheld a protective order barring the deposition of defense counsel as to statements he had made before regulatory agencies on behalf of his client, particularly as counsel for plaintiff had not even questioned other likely witnesses on subject matter at issue. Similarly, in Dunkin’ Donuts, Inc. v. Mandorico, Inc., 1998 U.S. Dist. LEXIS 11397, at *11 (D.P.R. June 12, 1998), the court granted a protective order because the party seeking the deposition of opposing counsel failed to show that the deposition would provide the only means for obtaining the crucial information. The court in Frazier v. SEPTA, 161 F.R.D. 309, 312 (E.D. Pa. 1995) (Joyner, J.), considered not only the nature of the information possessed by opposing counsel and the availability of that information from others, but also harm to the opposing party’s representational rights, in granting a protective order.
In fact, harm to representational rights is often the overriding consideration. Many courts have observed that the practice of taking the deposition of the opposing side’s lawyer creates extraneous pressure on the lawyer that detracts from the quality of representation. It “disrupts the adversarial system, and lowers the standards of the profession,” as well as adding pretrial delay while issues of privilege, work product, and other collateral matters are resolved. Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986); see also Antonious v. Spalding & Evenflo Cos., Inc., 1998 U.S. Dist. LEXIS 10728, at *7 (D. Md. May 7, 1998) (court must weigh need for deposition against harm to representation and disruption of litigation); Johnston Dev. Group, Inc. v. Carpenters Local Union No. 1578, 130 F.R.D. 348, 353 (D. .J. 1990) (deposition will “deflect the attorney’s effort in case preparation on behalf of the client and inject an unproductive dynamic into the litigation”). The mere fact that the proposed deponent is counsel for the opposing party, however, does not offer blanket protection from a deposition, particularly if the opposing lawyer was involved in the underlying facts prior to the litigation. Antonious, supra., 1998 U.S. Dist. LEXIS 10728, at *6.
In one hotly disputed case, the judge denied defendant’s request to take plaintiff’s counsel’s oral deposition, but did permit a deposition on written questions under Rule 31 of the Federal Rules of Civil Procedure. Mongoven Conroy v. Thall, No. 95-CV-5698 (E.D. Pa. Oct. 3, 1996) (denying oral deposition because of “hand-to-hand combat involved in a deposition” and waste of time due to anticipated repeated assertions of attorney-client privilege and work product protection).
As a practical matter, why notice the deposition of opposing counsel? It should be confined to those instances in which opposing counsel truly has necessary first-hand knowledge. Otherwise, it invites a return notice and an escalation of hostilities because it is viewed by the other side as an aggressive gambit employed for strategic leverage, not as a fair effort to obtain needed discovery.
There might be good cause to take opposing counsel’s deposition. For example, she might have worked at the client company at an earlier time and might have been intimately involved in the facts of the matter at issue in the litigation. Indeed, others at the corporation might no longer be available, and she might have the sole knowledge on certain subjects. Or suppose opposing counsel negotiated the letter of intent that his client is now seeking to enforce through litigation, and there is a sharp dispute as to its meaning. You might have no choice but to take her deposition. (Note that you cannot rely on opposing counsel’s being disqualified from testifying at trial under Rule 3.7(a) of the Pennsylvania Rules of Professional Conduct, which provides that “A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness —” because Rule 3.7(b) further provides that: “[a] lawyer may act as an advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness —.” Accordingly, another lawyer from the firm may actually try the case and put your opposing counsel on the stand as a witness, consistent with the rule.
Without a link between opposing counsel and the facts of the case or some other compelling circumstance, you should resist the temptation to put the name of one of your colleagues at the bar on a deposition notice.
Depositions of Arbitrators
The losing party at an arbitration may seek to depose the arbitrator to support its contention that the arbitration award should be vacated or modified. If the basis for attacking the arbitration award is impropriety or bias, the majority rule is that depositions will be permitted only when the party seeking the deposition can point to clear, independent evidence of such misconduct or prejudice. See Lyeth v. Chrysler Corp., 929 F.2d 891, 899 (2d Cir. 1991); Corsini v. Prudential Secs., Inc., 1995 WL 663174 (S.D. Cal. Sept. 28, 1995). If the arbitration award is attacked on the ground of ambiguity, courts often resort to the doctrine of functus officio (literally, a task completed) to prevent the arbitrator from modifying his award. Teamsters Local 312 v. Matlack, Inc., 118 F.3d 985 (3d Cir. 1997); Colonial Penn Ins. Co. v. Omaha Indem. Co., 943 F.2d 327 (3d Cir. 1991); Jackson v. Government Employees Ins. Co., 417 Pa. Super. 543, 612 A.2d 1071 (1992). The theory is that the arbitrator’s authority ends upon issuance of his award, after which he may not revise, re-examine or supplement it. The Court of Appeals for the Third Circuit has explained, “The policy underlying this general rule is an ‘unwillingness to permit one who is not a judicial officer and who acts informally and sporadically, to re-examine a final decision which he has already rendered, because of the potential evil of outside communication and unilateral influence which might affect a new conclusion.’” Colonial Penn, 943 F.2d at 331-332. If the functus officio doctrine applies, then it is difficult to see how testimony from the arbitrator, at deposition or otherwise, would be relevant. But there are three recognized exceptions to the functus officio rule:
(a) where there is a mistake apparent on the face of the award;
(b) where the award does not adjudicate an issue which has been submitted so that the arbitrator has not yet exhausted his function; and
(c) “‘where the award, although seemingly complete, leaves doubt whether the submission has been fully executed, [in which event] an ambiguity arises which the arbitrator is entitled to clarify.’”
Matlack,118 F.3d at 991-92. As the Matlack case shows, the key to coming within the third exception is to demonstrate some fundamental procedural irregularity in the arbitration proceeding. 118 F.3d at 994.
If the case falls within one of these exceptions, then the functus officio doctrine will not operate to bar the arbitrator’s testimony (though there would appear no need for it as to the first two).
Of course, if the arbitration is subject to a particular statute, then careful attention must be paid to the language of the statute, which may create exceptions different from those of the judicially created functus officio doctrine. See Colonial Penn, supra, where the Court described the exceptions under the Federal Arbitration Act, 9 U.S.C. § 10, as “to some extent analogous to the exceptions to the functus officio doctrine.” 943 F.2d at 333.
In courts that have a compulsory judicial arbitration procedure (usually, before panels of lawyers), typically a dissatisfied party is entitled to a trial de novo in the trial court, in which event the arbitration is usually treated as a nullity and the award may not be considered by the trial judge or the jury. See, e.g., Rule 53.2.7B of the Local Rules of the United States District Court for the Eastern District of Pennsylvania. (“[T]he action shall be placed on the trial calendar of the Court and treated for all purposes as if it had not been referred to arbitration.”); Pa. R. Civ. P. 1311(a) (“The trial shall be de novo.”). That being the case, it is difficult to see why the testimony of the arbitrators would be relevant, except perhaps to impeach a witness by calling the arbitrators to testify that the witness’s testimony at the arbitration was different from that given at deposition or at trial. (Often there is no transcript of the arbitration hearing.) Such testimony by the arbitrators may or may not be admissible, depending upon what the governing rule or arbitration agreement provides. Thus, Rule 53.2.7C of the Local Rules of the United States District Court for the Eastern District of Pennsylvania provides that the Court shall not admit evidence of what occurred at the arbitration “unless the evidence would otherwise be admissible in the Court under the Federal Rules of Evidence.” Such testimony by the arbitrators of a prior inconsistent statement by the witness would be admissible. Fed. R. Evid. 801(d)(1). On the other hand, Rule 1311(b) of the Pennsylvania Rules of Civil Procedure says unequivocally that, “An arbitrator may not be called to testify as to what transpired before the arbitrator.”
As noted above, if the arbitration took place pursuant to an agreement for arbitration, one must look to what that agreement provides. But even if the parties have agreed that the arbitrator may not be called to testify in any subsequent proceeding, that would not bar a non-party from calling the arbitrator to testify in some related litigation if the arbitrator had relevant testimony to give.
In the real world, arbitrators are rarely called to testify about what a witness said at the arbitration, perhaps because of doubt that the arbitrator will recall with clarity what a given witness said at a hearing months earlier.
Depositions of Judges
The United States Supreme Court has observed that questioning a judge or an administrator who is occupying a position functionally equivalent to a judge about the process by which a decision had been reached would undermine the judicial or administrative process. United States v. Morgan, 313 U.S. 409, 422 (1941) (proceeding before U.S. Secretary of Agriculture to set rates for stockyard services “has a quality resembling that of a judicial proceeding” and thus Secretary should not have been called to testify regarding his deliberations). The main impact of the Court’s decision has been to create a concept known as “the deliberative process privilege,” which underlies a group of decisions that address when and whether decision makers may be deposed or have their records subpoenaed. See NLRB v. Sears Roebuck & Co., 421 U.S. 132 (1975); Redland Soccer Club, Inc. v. Department of the Army, 55 F.3d 827 (3d Cir. 1995); In re Grand Jury, 821 F.2d 946 (3d Cir. 1987), cert. denied sub. nom., Colafella v. United States, 484 U.S. 1025 (1988).
A number of jurisdictions have precluded discovery of judicial and quasi-judicial officials, or prohibited their testifying at trial. E.g., Grant v. Shalala, 989 F.2d 1332, 1344-45 (3d Cir. 1993) (prohibiting discovery of decision-making process of ALJ accused of bias because “[i]t has long been recognized that attempts to probe the thought and decision making processes of judges and administrators are generally improper”). But see United States v. Moore, 1993 U.S. Dist. LEXIS 20757 (D. Neb. 1993) (judge deposed to determine whether his failure to sign a wiretap order that statutorily required his signature for validity could be cured by evidence that he intended to sign the order). Others permit the trial testimony or deposition where the information being sought is purely factual and wholly unrelated to the judge’s mental processes in reaching the decision in question. See Standard Packaging Corp. v. Curwood, Inc., 365 F. Supp. 134, 135 ( .D. Ill. 1973) (“The essential line of demarcation appearing from the cases is that judicial and quasi-judicial officers may be compelled to testify only as to the relevant matters of fact that do not probe into or compromise the mental processes employed in formulating the judgment in question.”). For example, depositions of patent examiners have been permitted, but their mental processes regarding their decisions on patent applications have been off limits to questioning. E.g., Monsanto Co. v. Dawson Chemical Co., 176 U.S. P.Q. 349 (E.D. Va. 1972); Shaffer Tool Works v. Joy Mfg. Co., 167 U.S. P.Q. 170, 171 (S.D. Tex. 1970); In re Mayewsky, 162 U.S. P.Q. 86, 89 (E.D. Va. 1969).
There is another impediment to compulsory discovery from a presiding judge. Rule 605 of the Federal Rules of Evidence prohibits a presiding judge from testifying in that trial as a witness. The word “trial” in Rule 605 has been defined as broad enough to encompass any evidentiary hearing conducted within the framework of a case. Cheeves v. Southern Clays, Inc., 797 F. Supp. 1570, 1582 (M.D. Ga. 1992) (granting motion to quash deposition subpoena of presiding judge based in part on Fed. R. Evid. 605). The Cheeves court also addressed the policy consideration against compulsory discovery from a presiding judge, stating that it is “not only unseemly, it is calculated to give rise at the least to a resulting appearance of bias against the aggressor litigant,” and noting the practical problems: “Who rules on objections? Who compels an answer.” Id. at 1582-83.
Discovery may be had from a judge, however, where there is an intelligible distinction between official judicial acts or duties and the administrative, legislative or executive functions that judges may on occasion be assigned to perform. For example, in Denton v. Twyford, 142 F.R.D. 140, 143 (S.D. Ohio 1992), depositions of judges were allowed in a wrongful termination suit where the judges were involved in allegedly terminating plaintiff’s employment, even where the question whether the judges would ultimately be entitled to qualified immunity was unresolved. However, the Pennsylvania Supreme Court has been much stricter in prohibiting depositions of judges. In Commonwealth v. Vartan, 733 A.2d 1258 (Pa. 1999), the Court held that the deposition of former Chief Justice Nix could not be taken even with respect to a courthouse lease agreement.
In summary, before you send out notices for lawyers, arbitrators or judges, give it careful consideration.
This article was adapted from The Deposition Handbook, Fourth Edition, by Dennis R. Suplee and Diana S.Donaldson, published by Aspen Law and Business.
