United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM ORDER ECF NO. 57
PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff's Motion for a Protective
Order and to Quash a Deposition Subpoena to depose
Plaintiff's counsel, John Manfredonia. The basic facts of
this case are that the Defendant (“Jacobs”) holds
a contract from the Navy to design and build a hangar in
Guam. Jacobs contacted door manufacturers for assistance in
designing the doors for the hangar. Plaintiff,
(“Fleming”) was selected to work with Jacobs on
the hangar door design, without compensation. Fleming alleges
it agreed to design the hangar doors without compensation in
exchange for Jacobs' promise that it would be the sole
source supplier of the hangar doors under the contract.
Jacobs alleges that Fleming agreed to help with the door
design without compensation in the hope that it would win the
door hangar construction contract from the Navy. Fleming was
not awarded the door contract by the Navy and this lawsuit,
for breach of contract, misrepresentation and unjust
Manfredonia was hired by Fleming in September 2014.
See Declaration of John M. Manfredonia, ECF No.
68-1. He states that he was hired as litigation counsel and
has not been, nor was he acting as, general counsel.
Id. Both parties agree that Manfredonia did not
become involved until after Fleming was told that it would
not be the sole source supplier under the contract, and he
was not involved in negotiating the original agreement
between the parties. It appears from the documents filed with
this Motion and the Response/Reply, that Manfredonia was
primarily engaged in trying to convince the Navy to remove
the OCI, (organizational conflict of interest), designation
from Fleming and assist Fleming with obtaining the contract
for the doors. Manfredonia did not enter his appearance in
this case until December 13, 2017 with a motion for pro
hac vice admission at ECF No. 62.
noticed the deposition of Manfredonia regarding his
“communications with the Navy regarding Fleming's
OCI” and his “communications with O'Brien,
Gentry and Scott regarding its lobbying work on behalf of
Fleming”. ECF No. 58-2. Plaintiff argues that, because
Manfredonia is its counsel, he should not be subject to
deposition except in very limited circumstances and those are
not met here. Fleming argues that Manfredonia has had limited
conversations with the Navy. Almost everything is in writing
and this has been provided to Defendant. The information
being sought is not crucial to the issues in this case and
there are other means of obtaining this information if it is
relevant. As for O'Brien, Gentry and Scott, they are the
lobbying firm hired by Fleming to lobby the Navy and any
conversations Manfredonia had with them were held in his
capacity as counsel for Fleming, in anticipation of
litigation, and are protected under the attorney client
privilege. ECF No. 58 p. 6.
argues that it only seeks to depose Manfredonia about
conversations prior to the commencement of litigation and
that he is, in effect, a fact witness.
advocates for the application of the test set forth in
Shelton v. Am. Motors Corp., 805 F.2d 1323
(8th Cir. 1986). Under the test set forth in that
case, depositions of opposing counsel are permitted only if
(1) no other means exists to obtain the information, (2) the
information sought is relevant and non-privileged, and (3)
the information is crucial to the preparation of the case.
Id. at 1327. Defendant argues that Shelton
does not apply because the communications it seeks were
pre-litigation. It further argues that any privilege
associated with Manfredonia's communications with
O'Brien has been waived as Manfredonia has produced his
communication with that company in discovery. However,
Fleming argues that Manfredonia was representing it in
anticipation of litigation. Fleming argues that the documents
produced do not reveal legal advice or strategy and do not
open the door to privileged communication. Depositions of
O'Brien are scheduled - and Fleming has not objected-
however, it will raise the attorney client privilege and the
work product doctrine if O'Brien is questioned about its
communications with Manfredonia. ECF No. 68, p. 8 fn.1.
further argues that the Shelton test has not been
adopted by this circuit, and, even if it had, the
circumstances are entirely different. It is seeking
pre-litigation information on communications with a third
party. It is seeking only to depose Manfredonia about his
pre-litigation communications with the Navy and with the
Third Circuit has not adopted the “Shelton
Rule.” Some courts within the Circuit have adopted it,
See State Farm Mut. Auto. Ins. Co., et al., v.
Stavropolskiy, CV No. 15-5929 and 16-1374, 2017 WL
3116284, at *2 (E.D.Pa. July 21, 2017) and some have not.
See Adeniyi-Jones v. State Farm Mut. Auto. Co., CV
No.14-7101, 2015 WL 6180965, at *1 (E.D.Pa. Oct. 21, 2015).
The Court's research has shown that more courts choose
not to apply it. Second, the facts presented here are
markedly different than Shelton. First, Manfredonia
was not counsel of record in this matter until six months
after the case was filed, and after his
deposition was noticed by Jacobs. Mr. Cech filed the case and
his appearance has been on the case since the inception.
Therefore, this is a different situation than
Shelton, where the deposition being sought was of
the in house counsel assigned to supervise the litigation for
the corporate defendant. In that case, the magistrate judge
allowed the deposition and the attorney refused to answer
some of the questions on grounds of either attorney client
privilege or work product. A motion for sanctions was filed
and the district judge held that neither applied to the
information being requested. The issue on appeal to the
circuit court specifically involved whether the
deponent's acknowledgement of the existence of corporate
documents was protected. The Eighth Circuit noted that the
practice of deposing opposing counsel has become increasingly
popular, and acknowledged that such a deposition is not
prohibited by the Federal Rules of Civil Procedure. 805 F.2d
at 1326. The Court made clear that it was not holding that
trial counsel is absolutely immune from being deposed, and
established the three factor test set forth above.
Id. at 1327.
Court is inclined to agree with the conclusion of its sister
court in New Jersey, that “there is no general
prohibition against obtaining the deposition of adverse
counsel regarding relevant, non-privileged
information.” Johnston Dev. Grp., Inc. v.
Carpenters Local Union No. 1578, 130 F.R.D. 348, 352
(D.N.J. 1990). The appropriate test is found in Fed.R.Civ.P.
26(c), requiring a demonstration of good cause to preclude or
limit the testimony, with the burden on the party moving for
protection. Caution is particularly warranted where the
subject matter would be “heavily intertwined with
privileged or confidential information, ” but it may be
entirely appropriate where the attorney may be a fact
witness. Id. To prevail on a motion for protective
order the movant must show annoyance, embarrassment,
oppression, or undue burden or expense. None of these have
been proven in this case. If the questions posed implicate
attorney client privilege or work product protection, Fleming
is free to assert those objections and those questions can be
reviewed by the Court. See, Caruso v. Coleman Co.,
CV Nos. 93- 6733 and 94-2779, 1994 WL 613668 (E.D. Pa. Nov.
1, 1994). Attorney client privilege is a communication
between counsel and a client or relates to a fact of which
the attorney was informed by the client, without the presence
of strangers, for the purpose of securing primarily either an
opinion of law or legal services or assistance in some legal
proceeding (and not for the purpose of committing a crime or
tort). Rhone-Poulenc Rorer, Inc. v. Home Indem., 32
F.3d 851, 862 (3d Cir. 1994).
not clear that the information sought by Jacobs is protected
by the privilege. There is also some issue with waiver, as
documented communications between Manfredonia and the Navy,
as well as the lobbyists, has been produced. It does not seem
that the communications between Manfredonia and the Navy or
O'Brien were made with the purpose of obtaining legal
advice. The goal appears to have been convincing the Navy to
remove the OCI it had placed on Fleming and help it get the
contract for the hangar doors. Work product may apply, as the
doctrine protects the confidentiality of papers prepared by
or on behalf of attorneys in anticipation of litigation.
“Protecting attorneys' work product promotes the
adversary system by enabling attorneys to prepare cases
without fear that their work product will be used against
their clients.” Westinghouse Elec. Corp. v.
Republic of Philippines, 951 F.2d 1414, 1427-28
(3rd Cir. 1991). If the work product doctrine
applies, it may also be raised as an objection by Fleming.
this 21st day of December, 2017, IT IS HEREBY
ORDERED that the Motion for ...