Massillon mgmt., llc v. americ[1]
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Massillon mgmt., llc v. americ[1] Massillon mgmt., llc v. americ[1] Document Transcript

  • User Name: Walt Metz Date and Time: 08/06/2013 3:13 PM EDT Job Number: 4113706 Document(1) 1. Massillon Mgmt., LLC v. Americold Realty Trust, 2009 U.S. Dist. LEXIS 22415 Client/matter: msc | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2013 LexisNexis. Walt Metz
  • Positive As of: August 6, 2013 3:13 PM EDT Massillon Mgmt., LLC v. Americold Realty Trust United States District Court for the Northern District of Ohio, Eastern Division January 21, 2009, Decided Case No. 5:08CV0799 Reporter: 2009 U.S. Dist. LEXIS 22415; 2009 WL 614831 MASSILLON MANAGEMENT, LLC, Plaintiffs, v. AMERICOLD REALTY TRUST, Defendants. Core Terms deposition, in-house, magistrate judge, trial counsel, depose, district court, opposing counsel, clearly erroneous, pending case Case Summary Procedural Posture Plaintiffs, property owners and operators, sued defendant tenant alleging multiple claims in connection with a com- mercial property lease. Plaintiffs sought to depose the ten- ant’s in-house counsel. A magistrate judge granted plain- tiff’s request. The tenant filed objections. Overview The in-house counsel worked for the tenant and was re- sponsible for planning and directing all aspects of the tenant’s legal affairs, overseeing all of its litigation and provided legal advice to the tenant’s various depart- ments. Plaintiffs sought to depose the in-house counsel on it pre-litigation, non-privileged matters. The district court found that the magistrate erred when it failed to apply the test set forth in Shelton v. Am. Motors Corp. It appeared both that the tenant’s in-house counsel had been intimately involved in this dispute since well be- fore it blossomed into a lawsuit, and had played an inte- gral role in developing the tenant’s litigation strategy. Thus, plaintiffs’ attempt to take the counsel’s deposition implicated the Shelton test. Plaintiffs failed to satisfy the three-part test in order to obtain the deposition in this case because the information they sought was available from third parties. Outcome The tenant’s objection to the order of the magistrate judge that permitted plaintiffs to depose its in-house attor- ney was sustained, and the magistrate’s order was re- versed. LexisNexis® Headnotes Civil Procedure > ... > Methods of Discovery > Depositions > Oral Depositions Legal Ethics > Professional Conduct > Opposing Counsel & Par- ties HN1 Pursuant to the standard announced in Shelton v. Am. Motors Corp., the deposition of opposing counsel may be ordered where the party seeking the deposition es- tablishes that (1) no other means exist to obtain the in- formation; (2) the information sought is relevant and non- privileged; and (3) the information is crucial to the preparation of the case. Civil Procedure > Judicial Officers > Magistrates > Pretrial Refer- rals HN2 A district court reviews nondispositive orders of a magistrate judge under a ″clearly erroneous or contrary to law″ standard. Fed. R. Civ. P. 72(a); 28 U.S.C.S. § 636(b)(1)(A). A decision is ″clearly erroneous″ when al- though there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. If there are two permissible views of the evidence, a magis- trate judge’s choice between them cannot be ″clearly er- roneous.″ Civil Procedure > ... > Methods of Discovery > Depositions > Oral Depositions Legal Ethics > Professional Conduct > Opposing Counsel & Par- ties HN3 Depositions of ″opposing counsel″ should be permit- ted only in limited circumstances. Deposing opposing counsel has long been discouraged, disrupts the adver- sarial nature of our judicial system, lowers the standards of the profession, and also adds to the already burden- some time and costs of litigation. Civil Procedure > ... > Methods of Discovery > Depositions > Oral Depositions Legal Ethics > Professional Conduct > Opposing Counsel & Par- ties HN5 The United States Court of Appeals for the Sixth Cir- cuit has followed the United States Court of Appeals Walt Metz
  • for the Eighth Circuit in adopting the Shelton v. Am. Mo- tors Corp., rule. Civil Procedure > ... > Methods of Discovery > Depositions > Oral Depositions Legal Ethics > Professional Conduct > Opposing Counsel & Par- ties HN4 Under the law as it exists in the Sixth Circuit, there is no basis for disregarding the Shelton v. Am. Mo- tors Corp., test when determining whether the deposi- tion of an in-house attorney may be taken. Civil Procedure > ... > Methods of Discovery > Depositions > Oral Depositions Legal Ethics > Professional Conduct > Opposing Counsel & Par- ties HN6 The United States District Court for the Northern District of Ohio, Eastern Division , does not hold that the Shelton v. Am. Motors Corp., rule applies in all situa- tions where a party seeks to depose an attorney. Rather, the Court concludes that the test may apply to in-house counsel and is not limited exclusively to trial or litiga- tion counsel. Counsel: [*1] For Massillon Management, LLC, as Au- thorized Agent for other Prophecy Massillon LLC, Plain- tiff, Counter-Defendant: Ann-Marie Ahern, Charles P. Royer, LEAD ATTORNEYS, McCarthy, Lebit, Crystal & Liffman, Cleveland, OH. For Prophecy Massillon LLC, Plaintiff: Charles P. Royer, McCarthy, Lebit, Crystal & Liffman, Cleveland, OH. For Americold Realty Trust, Defendant: Michael John King, William M. Mattes, LEAD ATTORNEYS, Dins- more & Shohl - Columbus, Columbus, OH. For Americold Realty Trust, Counter-Claimant: William M. Mattes, LEAD ATTORNEY, Dinsmore & Shohl - Co- lumbus, Columbus, OH. Judges: HONORABLE SARA LIOI, UNITED STATES DISTRICT JUDGE. Opinion by: SARA LIOI Opinion MEMORANDUM OPINION AND ORDER This matter is before the Court on an objection (Doc. No. 40) by the defendant Americold Realty Trust (″Ameri- cold″ or ″Defendant″) to the order (Doc. No. 37) is- sued by Magistrate Judge George Limbert granting the re- quest by the plaintiffs Massillon Management, LLC and Prophecy Massillon LLC (″Plaintiffs″) to take the de- position of Defendant’s in-house counsel Walter R. Metz, Jr. concerning pre-litigation, non-privileged mat- ters. Plaintiffs responded to the objection. (Doc. No. 40.) Thereafter, Defendant supplemented its objection [*2] with a declaration from Walter Metz (Doc. No. 47), to which Plaintiffs filed a separate response. (Doc. No. 50.) The issue is now ripe for resolution. I. Factual and Procedural Background This case involves a dispute between parties to a commer- cial property lease. Plaintiffs own and operate the prop- erty. Defendant is the tenant. Attorney Walter Metz is em- ployed by Defendant as in-house counsel and has been so employed at all times relevant to this action. Plaintiff indicated their intention to take Metz’s deposition as to pre-litigation, non-privileged matters, Defendant ob- jected, and the Court referred the matter to Magistrate Judge George Limbert for resolution. (Doc. No. 31.) On December 12, 2008, Magistrate Judge Limbert is- sued an order overruling Defendant’s objections and al- lowing Plaintiffs to take Metz’s deposition, with the sub- ject matter of the deposition limited to pre-litigation, non -privileged matters. Defendant now objects to the Magistrate Judge’s order, ar- guing that the Magistrate Judge incorrectly held that the standard for obtaining the deposition of opposing counsel announced by the Eighth Circuit in Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986), and ad- opted [*3] by the Sixth Circuit in Nationwide Mut. Ins. Co. v. Home Ins. Co., 278 F.3d 621, 628 (6th Cir. 2002), applies only to trial or litigation counsel. Defen- dant argues that the heightened Shelton standard 1 also ap- plies to in-house counsel such as Metz, and therefore Plaintiffs should be barred from taking his deposition be- cause they otherwise failed to satisfy the standard. Plain- tiffs filed a memorandum in response to Defendant’s objection, arguing that the Magistrate correctly applied the applicable law. Accordingly, Plaintiffs contend, Defen- dant’s objection is without merit and should be over- ruled. II. Law & Analysis HN2 The district court reviews nondispositive orders of a magistrate judge under a ″clearly erroneous or con- trary to law″ standard. Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A). A decision ″is ’clearly erroneous’ when al- though there [*4] is evidence to support it, the review- ing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.″ 1 HN1 Pursuant to the standard announced in Shelton, the deposition of opposing counsel may be ordered where the party seeking the deposition establishes 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 the preparation of the case. 805 F.2d at 1327. Page 2 of 6 2009 U.S. Dist. LEXIS 22415, *22415 Walt Metz View slide
  • United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 92 L. Ed. 746 (1948). If there are two per- missible views of the evidence, a magistrate judge’s choice between them cannot be ″clearly erroneous.″ An- derson v. City of Bessemer, 470 U.S. 564, 573, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985). In this case, the Magistrate Judge directly addressed De- fendant’s contention that the Shelton standard applied to Plaintiffs’ request to depose Defendant’s in-house at- torney Metz. The Magistrate Judge concluded that ″the courts in this Circuit have applied the Shelton/ Nationwide [standard] to only the depositions of trial counsel.″ (Doc. No. 37 at 4, citing Vita-Mix Corp. v. Ba- sic Holdings, Inc., No. 1:06 CV 2622, 2007 U.S. Dist. LEXIS 59755, 2007 WL 2344750, at *3 (N.D. Ohio Aug. 15, 2007), and cases cited therein). Consequently, the Magistrate Judge found that the standard did not apply to Metz, who is an in-house attorney and does not serve as trial or litigation counsel for Defendant in this case. Defendant now argues that Magistrate Judge Limbert’s de- cision was contrary to law because, counter to his con- clusion, the Shelton [*5] standard indeed covers in- house attorneys such as Metz. In support of this contention, Defendant cites Fresenius Med. Care Hold- ings, Inc. v. Roxane Labs., Inc., No. 2:05-cv-0889, 2007 U.S. Dist. LEXIS 12018, 2007 WL 543929 (S.D. Ohio Feb. 16, 2007). Defendant correctly notes that the court in Fresenius applied Shelton in a situation involving in- house counsel. However, the court in Fresenius simply as- sumed that Shelton applied; the party seeking discovery apparently did not argue otherwise. Consequently, the case does not directly address scope of Shelton’s application and, therefore, does not resolve the dispute at issue here. Nevertheless, Defendant’s position finds strong support in the Shelton case itself, which involved a party seek- ing to depose its adversary’s in-house counsel. In Shel- ton, a product liability action against a vehicle manufac- turer, a dispute arose when an in-house attorney in the defendant’s litigation department 2 refused during her de- position to confirm or deny the existence of certain docu- ments in the client’s files. 805 F.2d at 1324-26. Based upon this refusal, the district court eventually granted a de- fault judgment in favor of the plaintiffs as to liability. Id. at 1325-26. The Eighth [*6] Circuit reversed the dis- trict court, concluding that HN3 depositions of ″oppos- ing counsel″ should be permitted ″only in limited circum- stances.″ Id. at 1327. In setting forth the test for determining whether to permit a party to take opposing counsel’s deposition, the court in Shelton explained sev- eral motivations underlying the analysis. The court noted that deposing opposing counsel ″has long been dis- couraged,″ ″disrupt[s] the adversarial nature of our judi- cial system,″ [. . .] ″lowers the standards of the profes- sion,″ [… and] ″also adds to the already burdensome time and costs of litigation.″ Id. (citing Hickman v. Taylor, 329 U.S. 495, 513, 517, 67 S. Ct. 385, 91 L. Ed. 451 (1947)). The court explained further that the practice of deposing opposing counsel de- tracts from the quality of client representa- tion. Counsel should be free to devote his or her time and efforts to preparing the cli- ent’s case without fear of being interrogated by his or her opponent. Moreover, the ″chilling effect″ that such practice will have on the truthful communications from the cli- ent to the attorney is obvious. Id. In declining to apply Shelton in this case, the Magistrate Judge relied exclusively on the Vita-Mix decision which, in turn, relied largely on the district court deci- sion in Ellipsis, Inc. v. Color Works, Inc., 227 F.R.D. 496, 497 (W.D. Tenn. 2005). The court in Ellipsis concluded that ″the Shelton test applies to limit depositions of attor- neys in only two instances: (1) when trial or litigation counsel are being deposed and (2) when such question- ing would expose litigation strategy in the pending case.″ Id. The court in Vita-Mix appears to have misread this statement from the Ellipsis decision as a conjunctive, rather than disjunctive, explanation of Shelton’s applica- bility. The analysis in Vita-Mix is limited to two sen- tences: While the Nationwide court did not under- take to define ’opposing counsel,’ the Nation- wide test has thus far been applied by the courts of the Sixth Circuit exclusively to de- positions of litigation counsel. [footnote omitted]. Accordingly, the Court agrees with defendant and the Ellipsis court and finds that Nationwide is appropriately [*8] lim- ited to instances in which a party seeks to de- pose opposing counsel. 2007 U.S. Dist. LEXIS 59755, 2007 WL 2344750, at *3. The court in Vita-Mix clearly viewed the ques- tion of whether or not the attorney served as trial counsel in the case as a threshold requirement for applying the Shelton test. Here, relying strictly upon Vita-Mix, the Magistrate Judge answered the same question in the negative and, finding it dis- positive of the issue, refused to apply the Shelton test. This interpretation misconstrues the Ellipsis decision, completely ignoring the second category 2 According to the opinion, the attorney involved was employed by the defendant ″as an attorney in its Litigation Department, [*7] and she was assigned specifically to the case at bar as [the defendant]’s supervising ’in-house counsel.’″ Shelton, 805 F.2d at 1325. Page 3 of 6 2009 U.S. Dist. LEXIS 22415, *4 Walt Metz View slide
  • of situations in which the test applies, i.e., where the questioning would expose litigation strategy in the pending case. With the exception of Ellipsis, none of the other cases cited by the court in Vita-Mix actually addressed the ap- plication of Shelton to in-house counsel. Rather, those decisions merely support Plaintiff’s position -- and the Magistrate Judge’s ruling -- by implication, in much the same way that the Fresenius decision supports Defen- dant’s position. That is, the cases cited in Vita-Mix nearly all happened to involve trial or litigation counsel and, consequently, the courts applied the Shelton test in a straightforward manner. See [*9] Chesher v. Allen, 122 F. App’x 184 (6th Cir. 2005); Invesco Institutional (N.A.), Inc. v. Paas, 244 F.R.D. 374, 392-93 (W.D. Ky. 2007); Static Control Components, Inc. v. Lexmark Int’l, Inc., No. 04-84-GFVT, 2007 U.S. Dist. LEXIS 22128, 2007 WL 926985, at *5 (E.D. Ky. Mar. 26, 2007); El Bannan v. Yonts, No. 5:06-cv-173-R, 2007 U.S. Dist. LEXIS 34870, 2007 WL 1428653 (W.D. Ky. May 11, 2007); Iron Workers Local No. 25 Pension Fund v. Watson Wy- att & Co., No. 04-40243, 2006 U.S. Dist. LEXIS 24833, 2006 WL 1156723, at *1 (E.D. Mich. May 1, 2006); Kammeyer v. City of Sharonville, Ohio, No. 1:01- CV-00649, 2006 U.S. Dist. LEXIS 24058, 2006 WL 1133241, at *7-8 (S.D. Ohio Apr. 27, 2006); Nisus Corp. v. Perma-Chink Sys., Inc., No. 3:03-CV-120, 2004 U.S. Dist. LEXIS 29387 (E.D. Tenn. Sept. 17, 2004), Ross v. City of Memphis, 224 F.R.D. 411, 415 (W.D. Tenn. 2004), rev’d on other grounds, 423 F.3d 596 (2005). None of the cases explored the limits of Shelton’s appli- cation and, therefore, they provide little guidance on the issue before the Court. 3 Under the circumstances, the implication raised by such cases in favor of limiting Shelton to cases involving trial counsel is comparatively weak, and certainly no more forceful than the opposite implication created by the Fre- senius decision. 4 Given that the Shelton case itself -- the nascence of this entire line of authority -- developed and applied the heightened standard to a deposition of an opponent’s in-house attorney, it could not be clearer that the standard was intended to apply to in-house attor- neys engaged by the opposing party with involvement in the matter being litigated. The Sixth Circuit undoubt- edly was aware of this when it adopted the Shelton analysis in Nationwide (since Shelton’s own facts in- volved an in-house attorney), and never once has it so much as hinted that the test applies exclusively to trial counsel. As [*12] explained, the majority of the cases cited in the Magistrate Judge’s order do not directly address the scope of Shelton’s application, and none expressly articu- lates any compelling rationale for limiting its applica- tion to litigation counsel. Both the Magistrate Judge’s or- der and Plaintiffs’ memorandum in opposition to Defendant’s objection stress the importance of the Ellip- sis decision which, by espousing a two-category frame- work for applying Shelton, suggested it was appropriate to focus (at least in part) 5 on whether or not the attorney was employed by the party resisting the deposition as trial counsel. However, the focus on the attorney’s status as trial counsel appears, at least in terms of Sixth Circuit au- thority, to be a completely artificial construct, and is not controlling. The court in Ellipsis based its decision upon two cases: Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (2002) and United States v. Philip Morris Inc., 209 F.R.D. 13, 17 (D.D.C. 2002). Pamida is instructive since it in- volved the Eight Circuit clarifying the breadth of its holding [*13] in Shelton, but it does not support the con- clusion that the Shelton is limited to situations involv- ing trial counsel. In Pamida, the Eighth Circuit ex- plained that ″Shelton was not intended to provide heightened protection to attorneys who represented a cli- 3 Indeed, in only two of the cases was the attorney deposition allowed to go forward over the deponent’s objection. Both are completely consistent with Shelton. Nisus was a patent infringement case where the defendant asserted as defenses fraud and ineq- uitable conduct [*10] during the prosecution of the patent. The district court allowed the defendant to depose the plaintiffs’ at- torneys who had participated in the prosecution of the patent and possessed ″unique knowledge of the facts related to the allega- tions of fraud and inequitable conduct[,]″ finding that ″the prosecuting attorney’s mental impressions are crucial to any claim of inequitable conduct in a patent infringement action.″ 2004 U.S. Dist. LEXIS 29387, at *9 (citations omitted). In El Bannan, the district court distinguished Shelton and allowed an attorney deposition to go forward because the attorney whose deposition testimony the plaintiff sought had failed to prove the existence of an attorney-client relationship and the court was unable to determine whether he had acted as the defendant’s counsel in the case. 2007 U.S. Dist. LEXIS 34870, [WL] at *6. Fur- thermore, the attorney at issue was also the defendant’s father and, therefore, the court concluded that he was likely to possess knowledge of facts outside the scope of legal representation relevant to the case. Id. El Bannan is thus both consistent with a straight- forward application of Shelton and readily distinguishable from the instant case because, here, Metz’s attorney-client [*11] rela- tionship with Defendant is not in dispute. 4 In addition to Fresenius, at least one other district court decision within this circuit applied Shelton where a party sought to de- pose an attorney that was not litigation counsel (the attorney is described as the plaintiffs’ ″ERISA counsel″). Pipefitters Local No. 636 Pension Fund v. Towers, Perrin, Forster & Crosby, Inc., No. 05-CV-74326, 2007 U.S. Dist. LEXIS 91491, at *8 (E.D. Mich. Dec. 13, 2007). 5 As explained above, by relying upon Vita-Mix, the Magistrate Judge failed to address the second of these two categories. Page 4 of 6 2009 U.S. Dist. LEXIS 22415, *8 Walt Metz
  • ent in a completed case and then also happened to repre- sent that same client in a pending case where the infor- mation known only by the attorneys regarding the prior concluded case was crucial.″ 281 F.3d at 730. This rep- resents the full extent of the limitation of the Shelton test set forth in Pamida. Indeed, the court in Pamida specifi- cally distinguished Shelton based upon these facts, con- cluding that ″the concerns raised in Shelton regarding abuse of the discovery process and adding time and ex- pense to litigation are not implicated in this case where [the defendant] seeks relevant information uniquely known by Pamida’s attorneys about prior terminated liti- gation, the substance of which is central to the pending case.″ 281 F.3d at 731. The Pamida case simply did not limit the Shelton test to instances involving trial coun- sel, and any such reading of the opinion is overbroad. 6 In contrast, the Philip Morris decision, while slightly more supportive of Plaintiffs’ position than Pamida, is far less persuasive because it was authored by a district court in a circuit that (unlike the Sixth Circuit) has never ad- opted Shelton. 7 HN4 Under the law as it exists in this cir- cuit, there is no basis, under the facts presented, for dis- regarding the Shelton test when determining whether the deposition of an in-house attorney may be taken. 8 In any event, even if the Court followed the analysis set forth in the Philip Morris decision (which formed the basis for the two-category framework employed by the court in Ellipsis), the same result would obtain. In Philip Morris, the district court concluded that the Shelton cri- teria ″only apply to depositions of trial counsel--or counsel directly representing the party in the pending liti- gation--and then only if the deposition would reveal liti- gation strategy in the pending case.″ 209 F.R.D. at 17 (emphasis added). Thus, the court in Philip Morris ex- pressly made allowance for applying Shelton in situa- tions not involving trial counsel, i.e., where the attor- ney involved directly represented the party in the pending litigation. Here, Metz serves as Americold’s General Counsel and bears responsibility for planning and directing all [*16] aspects of the company’s legal affairs, overseeing all of its litigation, and providing legal advice to the company’s various departments. (Declaration of Walter Metz, Doc. No. 47-2, P 2.) Metz was involved with the lease at the center of this lawsuit from the beginning, ne- gotiating and drafting some of its terms, and advising Americold representatives on legal issues relating to the lease. (Id. P 3.) As Defendant’s in-house counsel, Metz was told by an attorney for Plaintiffs early on in this dispute that litigation would ensue if the matter could not be resolved. (Id. P 5.) From that point forward, Metz has acted as Americold’s attorney and legal coun- selor. (Id. P 6.) Since the lawsuit was filed, Metz has ″worked with outside counsel to develop a litigation strategy, attended depositions, assisted in the preparation of witnesses, overseen the litigation efforts, and been ac- tively involved in the defense of this lawsuit.″ (Id. P 7.) Under these specific circumstances, it appears both that Metz has been intimately involved in this dispute since well before it blossomed into a lawsuit, and has played an integral role in developing Defendant’s litiga- tion strategy. Both requirements set [*17] forth in Philip Morris are therefore satisfied. Thus, Plaintiffs’ at- tempt to take Metz’s deposition therefore implicates the Shelton test, whether viewed strictly as a matter of Sixth Circuit law (which, having adopted Shelton whole- sale, clearly applies to an in-house attorney in Metz’s po- sition), or even under the considerably more nuanced ap- proach articulated in Philip Morris (which requires non -trial counsel seeking to avoid deposition by invoking Shelton to establish both a certain level of direct involve- ment in the litigation and a likelihood that the deposi- tion topics would reveal the client’s litigation strategy). In light of the foregoing discussion, this Court disagrees with the limitations imposed upon the Shelton analysis by the district court in Vita-Mix, finding them unsup- ported by the referenced authorities and untenable un- der Sixth Circuit precedent. Indeed, as explained above, the reasoning underlying the Shelton decision applies with full force to an in-house attorney in Metz’s posi- tion. Consequently, the Court finds that heightened stan- dard of Shelton [*18] applies in this case and, there- fore, the Magistrate’s decision declining to apply that standard was contrary to law. Based upon the Court’s conclusion that Shelton applies, Plaintiffs must satisfy its three-part test in order to ob- tain Metz’s deposition in this case. This requires Plain- tiffs to demonstrate that (1) no other means exist to ob- tain the information than to depose Metz; (2) the information sought is relevant and nonprivileged; and 6 The interpretation of Pamida adopted by the district [*14] court in Ellipsis may stem from the statement in the Pamida opin- ion that the Shelton test was intended ″to protect trial attorneys from [. . .] depositions.″ Id. at 730 (emphasis added). However, the allusion to trial attorneys is unrelated to the court’s holding and nowhere in the decision is any effort made to create a distinc- tion based upon the attorney’s status. Certainly, in light of Shelton’s specific application to in-house attorneys, such a distinc- tion, if intended, would have represented a significant departure from precedent that would not have gone unexplained. 7 See In re Subpoena Issued to Dennis Friedman, 350 F.3d 65, 71 (2d Cir. 2003) (″only HN5 the Sixth Circuit has followed the Eighth in adopting the Shelton rule.″) 8 HN6 The Court [*15] does not hold that Shelton applies in all situations where a party seeks to depose an attorney. Rather, the Court concludes (1) that the test may apply to in-house counsel and is not limited, as the Magistrate held in this case, exclu- sively to trial or litigation counsel, and (2) that the test in fact does apply to Metz based upon on the facts of this case. Page 5 of 6 2009 U.S. Dist. LEXIS 22415, *13 Walt Metz
  • (3) the information is crucial to the preparation of Plain- tiffs’ case. 805 F.2d at 1327. While Plaintiffs attempt to make the requisite showing, their effort falls short. Plaintiffs wish to depose Metz concerning, inter alia, com- munications he had with third parties regarding construc- tion on Plaintiffs’ property. While Plaintiffs argue that obtaining this information from the third parties is imprac- tical, the standard requires more. Because Plaintiffs ef- fectively concede that this information is available from third parties 9 (albeit potentially more difficult to ob- tain), they fail to establish that no other means exist. In ad- dition, Plaintiffs have not properly demonstrated that the information they seek from Metz is crucial to their case. Plaintiffs [*19] cursorily suggest that the informa- tion they seek from Metz is relevant to their fraud and breach of contract claims, but fail to articulate this con- tention in sufficient detail. Having failed to satisfy two of the Shelton test’s three requirements, Plaintiffs are not entitled to take Metz’s deposition. 10 III. Conclusion For the foregoing reasons, Defendant’s objection to the or- der of the Magistrate Judge permitting Plaintiffs to de- pose in-house attorney Walter Metz is SUSTAINED, and the Magistrate’s [*20] order is REVERSED. The analy- sis set forth in Shelton applies in this case and Plain- tiffs, having failed to establish two of the three required factors, are barred from taking Metz’s deposition in this matter. IT IS SO ORDERED. Dated: January 21, 2009 /s/ Sara Lioi HONORABLE SARA LIOI UNITED STATES DISTRICT JUDGE 9 Indeed, the documents attached as exhibits to Plaintiffs’ response to the Metz declaration confirm the availability of this in- formation from other sources. (See Exhibits A, B, & C to Pls.’ Response, Doc. No. 50.) 10 Of course, by refusing to allow Plaintiffs to take Metz’s deposition and arguing that the information is available from third par- ties, Defendant significantly weakens its contention that Plaintiffs should be strictly limited to ten depositions. The Court hereby grants Plaintiffs leave to conduct the (up to four) additional third-party depositions (previously mentioned to the Court) in order to obtain the information it is precluded from questioning Metz about by the terms of this order. Page 6 of 6 2009 U.S. Dist. LEXIS 22415, *18 Walt Metz