United States District Court, S.D. Indiana, Indianapolis Division
Defendants’ Motion for Protective Order Barring the Deposition of Brian Vandenberg [doc. 228]
Denise K. LaRue United States Magistrate Judge
Plaintiffs served Defendants with a copy of a subpoena for Brian Vandenberg to appear for an oral deposition on June 10, 2015. [Doc. 228-1.] Mr. Vandenberg was formerly Executive Vice President and General Counsel for defendant Origin Healthcare Solutions, L.L.C. (“O.H.S.”) and no longer works for the company. Declaration of Brian Vandenberg (May 28, 2015) (“2015 Declaration”) [doc. 228-2] ¶ 1; Declaration of Brian Vandenberg (August 28, 2014) (”2014 Declaration”) [doc. 232-1] ¶ 1. Defendants now move for a protective order suppressing the deposition on the ground that Plaintiffs cannot satisfy the enhanced criteria for deposing an opposing party’s attorney that were established by the United States Court of Appeals for the Eighth Circuit in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986): “(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.”
Defendants submitted Mr. Vandenberg’s 2015 Declaration in which he states that he served as O.H.S.’s Executive Vice President and General Counsel from January 2011 to December 2014 and that, in that position, he “acted as legal advisor to personnel and staff” and “did not provide business or financial advice to personnel and staff.” 2015 Declaration ¶¶ 1-4. In his 2014 Declaration, Mr. Vandenberg stated that he was “tasked with overseeing the management of Defendants’ defense in this action.” 2014 Declaration ¶ 2. Defendants argue that Plaintiffs fail the three-part Shelton test for deposing Mr. Vandenberg because (1) information that he possesses can be obtained by other means, specifically the depositions of other current and former employees of O.H.S. that Plaintiffs have taken or will take; (2) any information received by Mr. Vandenberg during his tenure with O.H.S. was acquired in his capacity as General Counsel and, thus, protected by the attorney-client privilege; and (3) Plaintiffs have not shown that the information possessed by Mr. Vandenberg is crucial to their case. (Motion for Protective Order Barring the Deposition of Brian Vandenberg [doc. 228] (“Motion”) at 2-3.)
In their response, Plaintiffs contend that Mr. Vandenberg “had substantial non-legal, and non-litigation involvement irrespective of his assertion of never providing business advice”; that he “is unique given his substantial involvement in non-legal matters with Defendant entities including the corporate sale of Defendant entities”; that his testimony is “crucial”; and that there is no practical way to obtain the same breadth of information that Mr. Vandenberg has. (Plaintiffs’ Response to Defendants’ Motion for Protective Order Barring the Deposition of Brian Vandenberg [doc. 232] (“Response”) at 3-4.)
Plaintiffs do not provide the bases for these assertions. The only apparent indication is that they rely on Mr. Vandenberg’s 2014 Declaration, which Defendants originally submitted in support of their resistance to Plaintiffs’ alter-ego discovery. In that declaration, Mr. Vandenberg stated that he was “familiar with the operations” of Defendants and briefly described their corporate structures and how “various common functions are centralized for the benefit of the group” ― e.g., marketing and finance/accounting functions ― while still adhering to corporate formalities. Plaintiffs argue that, by this declaration, Mr. Vandenberg “has already testified as a witness about information that is crucial to this case and the fact that he was heavily involved in a corporate capacity regarding marketing, finance, and the SSIMED Manager or SSIMED Emerge Application”, (Response at 4), and that this previous testimony “appears inconsistent with the evidence produced in this case thus far”, (Response at 3). Plaintiffs argue that, therefore, they are entitled to challenge the 2014 Declaration, (id. at 4 n. 2), but they state that they do not intend to seek Mr. Vandenberg’s testimony about information that he was provided in order to obtain his legal advice, (id. at 3). Plaintiffs do not specify what “evidence produced in this case so far” is inconsistent with which parts of Mr. Vandenberg’s 2014 Declaration, or why it is inconsistent.
If Shelton’s test governed, and Defendants’ interpretation of its scope were correct, then their argument might carry the day. But Shelton does not, and should not, govern and, even on its own terms, is likely inapplicable to the current circumstances. Defendants provide no support for their assertion that the Eighth Circuit’s three-prong Shelton test has been “adopted by the Seventh Circuit”, (Defendants’ Reply in Support of Motion for Protective Order Barring the Deposition of Brian Vandenberg [doc. 235] (”Reply”) at 2), and the Court has not found any Seventh Circuit opinion discussing, let alone adopting, Shelton’s test. While Defendants are correct in their assertion that “[c]ourts in this Circuit” have applied Shelton’s criteria for attorney depositions, (Response at 2); see, e.g., F.D.I.C. v. Fidelity and Deposit Co. of Maryland, No. 3:11-cv-19-RLY-WGH, Entry on Motion for Protective Order, 2013 WL 2421776 (S.D. Ind., June 3, 2013), objections overruled, 2013 WL 6181127 (S.D. Ind., Nov. 26, 2013), there is a more persuasive line of decisions in this district rejecting Shelton’s special test for attorney depositions, Phillips v. Indianapolis Life Ins. Co., No. 1:06-cv-1544-WTL-JMS, Order, 2009 WL 1564384 (S.D. Ind. 2009); Cook, Inc. v. C R Bard, Inc., No. IP 00-1791-C-B/S, Entry on Objections to Magistrate Judge’s Denial of Motion for Protective Order, 2003 WL 23009047 (S.D. Ind. 2003); Kaiser v. Mutual Life Ins. Co. of New York, 161 F.R.D. 378 (S.D. Ind. 1994).
The Court will follow this authority, rather than Shelton, and apply no special threshold criteria for Mr. Vandenberg’s deposition. The Court also notes that Shelton’s criteria are, most likely, inapplicable because Mr. Vandenberg is not Defendants’ current litigation or trial counsel. See Pamida, Inc. v. E. S. Originals, Inc., 281 F.3d 726, 730 (8th Cir. 2002); Cook, 2003 WL 23009047, *1.
Alternatively considering the protections afforded under Fed.R.Civ.P. 26(b)(2)(C), Defendants have not shown that the probability that all the information sought from Mr. Vandenberg will be privileged is so high that the deposition clearly will be a waste of time and resources. Mr. Vandenberg’s 2014 Declaration addresses facts regarding the structure, centralized functions, and internal operations of Defendants that could be relevant to Plaintiffs’ alter-ego and other allegations. Plaintiffs are entitled, at least, to explore the matters addressed in this declaration. Defendants’ assertion that the attorney-client privilege precludes the disclosure of any and all information that Mr. Vandenberg acquired during his employment with O.H.S. because he received it in his capacity as General Counsel, (Motion at 3), is simply not credible.
As this Court has ruled in Phillips, Cook, and Kaiser, Mr. Vandenberg must invoke any privileges or immunities to specific questions at his deposition. If he so invokes, he must answer reasonable circumstantial questions relevant to the application of the privilege or immunity, in order to permit meaningful review in the event that any of the invocations is submitted to the Court. The Court notes that Mr. Vandenberg will be deposed as only a fact witness; Defendants already have designated representatives for Plaintiffs’ Rule 30(b)(6) depositions of them.
The Court repeats the warning that was issued in Cook:
While the Court generally will not prohibit such depositions preemptively ― absent, as the magistrate judge held, some showing that the impetus behind the deposition request is harassment ― the Court will be vigilant in utilizing all available sanctions provisions if, in retrospect, it is apparent that the deponent had so little relevant, non-privileged information that the deposition was no more than a waste of everyone’s time.
Cook, 2003 WL 23009047, *2. Plaintiffs should be well-confident in the usefulness of taking Mr. Vandenberg’s deposition before convening it and they should take appropriate steps to minimize the time and resources expended should their confidence prove unfounded during the deposition.
Plaintiffs argued that Defendants failed to engage in a good-faith attempt to resolve the dispute, as mandated by S.D. Ind. L.R. 37-1(a), and it is apparent that Defendants failed, in their motion, to “include 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”, as required by Fed.R.Civ.P. 26(c)(1). Whether a good faith effort was attempted is also relevant to the award of costs and fees under Fed.R.Civ.P. 37(a)(5), which is applied to motions for protective orders, Fed.R.Civ.P. 26(c)(3). Plaintiffs concede that, at the end of an unrelated telephone conference on the day before Defendants filed their motion, Defendants asked Plaintiffs to withdraw the subpoena for Mr. Vandenberg’s deposition because he is Defendants’ former counsel and that they attempted to engage in a discussion about the matter. (Response at 2.) According to Plaintiffs’ counsel, he told Defendants’ counsel that he refused to discuss the matter because was unavailable, at that time, to meaningfully engage in a separate meet and confer conference. Id. Later that same day, at 4:46 p.m., Defendants’ counsel sent an email to Plaintiffs’ counsel summarizing their conversations during the conference and included therein a section addressing Mr. Vandenberg’s deposition. [Doc. 228-3.] In it, Defendants’ counsel advised Plaintiffs’ counsel that Defendants intended to move for a protective order, asked ...