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Bell v. Taylor

United States District Court, S.D. Indiana, Indianapolis Division

August 26, 2016

RICHARD N. BELL, Plaintiff,
v.
CAMERON TAYLOR, TAYLOR COMPUTER SOLUTIONS, INSURANCE CONCEPTS, FRED O'BRIEN, and SHANNA CHEATAM, Defendants.

          ORDER ON MOTION TO QUASH

          TANYA WALTON PRATT, JUDGE

         This matter is before the Court on Defendants Cameron Taylor, Taylor Computer Solutions, Insurance Concepts, Fred O'Brien, and Shanna Cheatam's (collectively “Taylor Defendants”) Motion to Quash Deposition of Counsel (Filing No. 175). After the Court entered Final Judgment in favor of Taylor Defendants, Taylor Defendants promptly filed their Bill of Costs and Motion for Attorney Fees as the prevailing party in a copyright infringement action pursuant to 17 U.S.C. § 505 on December 16, 2015. The following day, Plaintiff Richard N. Bell (“Bell”) emailed Taylor Defendants' counsel, John Nelson (“Nelson”), asking for dates of when he could be deposed. Nine days later, Taylor Defendants filed their Motion to Quash on December 26, 2015, asking the Court to prohibit Bell from taking the deposition of Taylor Defendants' counsel and to quash the related document request. For the following reasons, the Court GRANTS Taylor Defendants' Motion to Quash.

         The Court begins by noting that “[u]nder Rule 26(b)(2) of the Federal Rules of Civil Procedure, the court has the power and duty to look more closely at [] discovery requests, ” and is granted broad discretion in imposing restrictions on the scope and extent of discovery. Perry v. Best Lock Corp., 1999 U.S. Dist. LEXIS 23601, at *5 (S.D. Ind. Jan. 21, 1999).

         The Federal Rules of Civil Procedure provide that “[o]n timely motion, the court for the district where compliance is required must quash or modify a subpoena that: . . . (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.” Fed.R.Civ.P. 45(d)(3)(A). The Rules also allow the Court to limit discovery:

On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:
(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;
(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or
(iii) the proposed discovery is outside the scope permitted by Rule 26(b)(1).

F.R.C.P. 26(b)(2)(C). Rule 26(b)(1) considers whether the burden or expense of the proposed discovery outweighs its likely benefit. “The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” F.R.C.P. 26(c)(1).

         In connection with the deposition notice and subpoena, Bell requested the following documents from Taylor Defendants' counsel: (1) All documents related to any matter you intend to testify in this cause; (2) All time records, time sheets and expense reports concerning this litigation, including the Cause No. 1:11-cv-766 and 1:13-cv-798; (3) Any and all documents regarding any disciplinary action taken against you by any court or disciplinary agency; (4) All Documents obtained from U.S. Copyright Office including but not limited to invoices; (5) Payments by your clients; billings to other clients showing your hourly rates during the last year; (6) All Court filings where you requested payment of fees during the last 5 years; (7) Any and all documents regarding your suspension from the practice of law that occurred during the pendency of this litigation; and (8) All agreements with the Defendants in this cause. (Filing No. 176-1 at 1- 2.)

         Bell asserts that this information, and the information he hopes to obtain through deposing Nelson, is necessary to his ability to respond to the pending Bill of Costs and Motion for Attorney Fees. In responding to the Motion to Quash, Bell asserts that there is no other way for him to obtain the information he seeks because the Taylor Defendants themselves will not have information concerning Nelson's hours and billing rates; Nelson is the only person with knowledge of the information sought.

         In opposing the Motion to Quash, Bell argues that the case was on appeal to the Seventh Circuit, so the Court should wait to rule on the Motion to Quash, pending a decision from the Seventh Circuit. This argument is now moot because the Seventh Circuit has issued its opinion and mandate, wherein the Court's decision was affirmed in all respects. Next, Bell briefly provides factual distinctions between this case and three of the cases cited by Taylor Defendants in their Motion to Quash. Then Bell spends considerable time arguing against the underlying Bill of Costs and Motion for Attorney Fees. He attacks the number of hours worked by Nelson in this case. He attacks the sufficiency of time records that have been produced by Taylor Defendants. And he attacks in general the awarding of attorney fees altogether. Finally, Bell devotes a significant portion of his response brief discussing mental health issues, alcoholism and its effect on memory, and the attorney discipline history of Nelson. He argues that these issues undermine the reliability of Nelson's non-contemporaneous time sheets, which again, pertains to the underlying Bill of Costs and Motion for Attorney Fees.

         In their Motion to Quash, Taylor Defendants ask the Court to prohibit Bell from taking the deposition of Taylor Defendants' counsel and to quash the related document request. They explain that it is only in extraordinary circumstances that parties are permitted to depose opposing counsel and only where the information sought is relevant and non-privileged and crucial to preparation of the case. Furthermore, if the information is available through other means, those other means should be utilized.

         While Taylor Defendants acknowledge that there is no absolute bar to deposing opposing litigation counsel, they also note the strong potential for abuse by deposing opposing counsel. They explain that courts have recognized the potential for abuse in deposing opposing litigation counsel by inviting “delay, disruption of the case, harassment and unnecessary distractions into collateral matters.” Simmons Foods, Inc. v. Willis, 2000 U.S. Dist. LEXIS 6467, at *7 (D. Kan. 2000). In United States Liab. Ins. Co. v. Goldin Metals, Inc., 2012 U.S. Dist. LEXIS 4881 (S.D.Miss. Jan. 17, 2012), the court quashed the deposition of opposing litigation counsel, stating that “[a]s a general matter, depositions of opposing counsel are disfavored and should be permitted only in limited or unusual circumstances.” Id.; see also M & R Amusements Corp. v. Blair, 1992 U.S. Dist. LEXIS ...


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