RONALD E. BUSH, Chief Magistrate Judge.
Now pending before the Court are Defendant Union Pacific Railroad Company's (1) Motion for Protective Order (Docket No. 95), and (2) Motion for Protective Order Under FRCP 26(b)(2)(C) and 26(c)(1) (Docket No. 108). Having carefully considered the record and otherwise being fully advised, the undersigned enters the following Memorandum Decision and Order:
The Ninth Circuit has already provided the background information which sets the stage for the instant action. See Asarco, LLC v. Union Pacific R. Co., 765 F.3d 999 (9
Asarco, 765 F.3d at 1002-03 (internal citations omitted) (emphasis in original).
Asarco appealed the district court's dismissal of its contribution action against Union Pacific. On appeal, the Ninth Circuit reversed the district court, concluding that the UP Settlement Agreement
It is against this evolving factual backdrop that the two at-issue motions now present themselves.
The first motion — Union Pacific's Motion for Protective Order (Docket No. 95) — seeks to prohibit Asarco from taking the deposition of David P. Young, Union Pacific's current Assistant Vice President — Law (May 2014 — present), and former National Environmental Counsel (1999-2014) and General Solicitor for the Southern region (July 2005-May 2014). See Mem. in Supp. of Mot. for Prot. Order, p. 2 (Docket No. 96).
Id. (internal citations excluded).
In response, Asarco points out that it is merely seeking information from the person who negotiated, approved, and signed the above-referenced UP Settlement Agreement — Mr. Young. See Opp. to Mot. for Prot. Order, pp. 1-2 (Docket No. 97) ("Union Pacific seeks to block this important fact discovery through its Motion for Protective Order, brandishing Young's title as in-house counsel, while failing to inform the court of his important, non-privileged communications across the bargaining table. Young is a percipient witness to key events regarding this Agreement, and the information sought by Asarco doses not pertain to any of his internal communications that may be privileged."). Moreover, Asarco claims that Mr. Young is the only percipient witness for Union Pacific who is not affiliated with any of the law firms now defending it in this action. See id. at p. 2. Therefore, according to Asarco, "[t]here are . . . no other means of obtaining evidence regarding Union Pacific's intention regarding the UP Settlement [Agreement], except through its only employee who participated in the negotiations, David P. Young." Id. (emphasis in original).
The second motion — Union Pacific's Motion for Protective Order Under FRCP 26(b)(2)(C) and 26(c)(1) (Docket No. 108) — seeks to draw a line around Asarco's discovery requests. See Mem. in Supp. of Mot. for Prot. Order, p. 2 (Docket No. 109) ("The Court should forbid Asarco's duplicative and unreasonably burdensome Discovery Requests and enter a protective order that Union Pacific need not respond to them."). Specifically, Union Pacific takes issue with (1) Asarco's Fourth Set of Interrogatories (claiming that Asarco has exceeded the permissible limit of interrogatories under the Federal Rules of Civil Procedure and Local Civil Rules, having submitted a "grand total" of 93 interrogatories); (2) Asarco's Fifth and Sixth Sets of Requests for Production of Documents (claiming that they are "duplicative, unreasonably cumulative, unduly burdensome, oppressive, create undue expense for Union Pacific, and the documents can be obtained by more convenient, less burdensome, and less expensive sources"); and (3) Asarco's Second Set of Requests for Admission (claiming that they are "unreasonably cumulative and unduly burdensome and the information requested can be obtained from other more convenient, less burdensome, and less expensive sources."). Id. at pp. 6-15.
In response, Asarco contends there is no basis whatsoever for the entry of a protective order, and that Union Pacific is the bad actor in moving for one in the first place. See Opp. to Mot. for Prot. Order, p. 1 (Docket No. 118) ("Union Pacific has not shown that Asarco's requests are too broad or that they are not calculated to lead to the discovery of admissible evidence. In fact, the written discovery requests Union Pacific hopes to avoid answering are very obviously crafted with precision; they are pointed directly to issues of paramount importance in this case. Given the importance of the information being sought to the outcome of the case, it is no wonder that the Railroad would attempt this discovery maneuver.").
Federal courts may issue protective orders in connection with discovery. See Fed. R. Civ. `P. 26(c). The court may, for good cause and after good faith attempts by the parties to resolve the dispute without court action, issue an order to protect a party or person. See id. Any such order, however, requires that the court "identify and discuss the factors it considered in its `good cause' examination to allow appellate review of the exercise of its discretion." Phillips v. Gen. Motors, 307 F.3d 1206, 1212 (9
Relevant here, neither the Federal Rules of Civil Procedure nor the Federal Rules of Evidence prohibit taking the deposition of an opposing party's attorney. Rule 30(a) permits a party to take the testimony of "any person, including a party" by deposition, without leave of court — setting forth certain exceptions to this provision, none of which exempts a party's attorney from being deposed. Fed. R. Civ. P. 30(a); see also NFA Corp. v. Riverview Narrow Fabric, Inc. 117 F.R.D. 83, 84 (D. N.C. 1987). Still, perhaps reflecting the lack of any prohibition in the Federal Rules against deposing adverse counsel, courts are split over the appropriate standard to apply and whose burden it is to satisfy whatever standard that might be. See Townsend v. Imperial Co., 2014 WL 2090689, *1 (S.D. Cal. 2014) (discussing cases placing burden on either party seeking protective order under FRCP 26(c), or party seeking to depose another party's attorney by demonstrating propriety and need for deposition).
A review of these cases — particularly those involving district courts within the Ninth Circuit — identifies that the proper standard is that articulated in Shelton v. America Motors Corp., 805 F.2d 1323, 1327 (8
In Shelton, the Eighth Circuit acknowledged that the practice of forcing counsel (there, trial counsel) to testify as a witness "has long been discouraged," and disrupts the adversarial nature of our judicial system. Shelton, 805 F.2d at 1327 (quoting Hickman v. Taylor, 329 U.S. 495, 513, 516 (1947)). Even so, the court recognized some situations justified the taking of an opposing counsel's deposition, but held that this should occur only in limited circumstances. See Shelton, 805 F.2d at 1327. Specifically, the court held that a party should be permitted to take the deposition of opposing counsel only where the party seeking to take the deposition has shown that, (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. See id. (citations omitted). The Court will apply these factors when considering Union Pacific's Motion for Protective Order.
In considering Union Pacific's earlier motion to dismiss, Judge Lodge framed this action as follows:
Asarco, LLC v. Union Pacific R. Co., 936 F.Supp.2d 1197, 1202 (D. Idaho 2013) (internal citations omitted). In short, this case (seeking contribution) turns upon the meaning and effect of the mutual release language within the Bankruptcy Settlement/UP Settlement, a meaning which is informed — as such things are — by the parties' respective intent in making such a settlement Indeed, when considering Judge Lodge's dismissal of the action on appeal, the Ninth Circuit recognized as much, commenting:
Asarco, 765 F.3d at 1009 (internal citations omitted) (emphasis in original). This is the prism for examining the arguments of the parties on this dispute and, when considered alongside Shelton's three factors, the Court concludes that Asarco should not be permitted to depose Mr. Young at this time.
In correspondence between counsel on the issue of whether Mr. Young should be deposed, Asarco's counsel states:
5/6/15 Ltr. from Brys to McIntosh, attached as Ex. G to McIntosh Decl. (Docket No. 95, Att. 7) (citing Union Pacific's Ans. to FAC, p. 28 (Docket No. 65)). Union Pacific counters that "[b]oth categories of information have already been provided and are otherwise obtainable through other means and through better sources than Mr. Young or other current Union Pacific counsel." Mem. in Supp. of Mot. for Prot. Order, p. 7 (Docket No. 96). Further, Union Pacific says that (1) it has already produced nearly 500 pages of documents regarding Union Pacific's understanding of the settlement agreement's mutual release provision; (2) at least one other Union Pacific-related individual has knowledge about the settlement agreement, having "participated in the settlement negotiations on behalf of Union Pacific as its lead outside bankruptcy trial counsel"; and (3) Asarco itself participated in the settlement conversations and can speak to their content without Mr. Young testifying as much. See id. at pp. 8-9.
For the most part, these reasons are unconvincing. That Union Pacific has produced a significant number of documents "concerning the subject matter" is immaterial without knowing whether, or to what extent, such documents speak to Union Pacific's intent leading up to, and ultimately when entering into, the UP Settlement Agreement — which is exactly how the Ninth Circuit has outlined the issue and, likewise, what Asarco seeks by way of Mr. Young's deposition. Without more specifics as to these documents' ability to address that lynchpin issue, this argument misses the point. Further, the fact that Asarco representatives also took part in the UP Settlement Agreement's negotiations, while noteworthy in the abstract, is not dispositive of the matter. Contra Busey, 2014 WL 1404580 at *2 ("Defendant points out that while these communications may not be privileged, Plaintiff cannot establish that there is no other means of obtaining that information as required under Shelton, because Mr. Busey participated in the conversations and can therefore speak to their content. The Court agrees with Defendant."). Union Pacific presumably is not willing to concede that the Asarco representatives' account of the negotiations is accurate (and Union Pacific has not suggested as much); accordingly, Asarco's involvement in the negotiations does not operate as a de facto bar to its subsequent attempt at discovering Union Pacific's view from the other side of the fence.
However, it is not immediately clear that Mr. Young is the only person with pertinent information on Union Pacific's position surrounding the UP Settlement Agreement's execution. Even if Mr. Young "served as the lead counsel for Union Pacific regarding Asarco's bankruptcy and subsequent contribution litigation matters" (5/1/15 Ltr. from McIntosh to Brys, attached as Ex. D to McIntosh Dec. (Docket No. 95, Att. 4)), that connection alone does not satisfy the Shelton test. Instead, Mr. Young must be the only practical resource for such information before he can be compelled to sit for his deposition. And, on this important point, Union Pacific identifies Robert W. Jones as the "go-to" person when it comes to Union Pacific's stance on the UP Settlement Agreement. See Mem. in Supp. of Mot. for Prot. Order, pp. 8-9 (Docket No. 96) ("Although Mr. Young attended one meeting with Asarco, which was also attended by several other Union Pacific representatives, and was involved in the internal Union Pacific approval process for the final Settlement Agreement terms, a review of the nearly 500-pages of documents produced by Union Pacific on this topic demonstrates that the lead negotiator and drafter for Union Pacific was Mr. Jones. If Asarco's own presence in the settlement discussions and the documentary evidence is somehow insufficient, there are other available witnesses with demonstrated knowledge greater than that of Mr. Young that Asarco has not attempted to depose."). Union Pacific's Initial Disclosures confirm as much:
Union Pacific's Initial Disclosures, attached as Ex. J to McIntosh Decl. (Docket No. 95, Att. 10); see also Pfahl Decl., ¶ 3 (Docket No. 96) (Asarco's Corporate Land Manager testifying that, "[t]o the best of [his] recollection . . ., only counsel, including Robert Jones, Carolyn McIntosh, Norton Colvin and David P. Young, attended [the in-person settlement meeting/negotiations] on behalf of Union Pacific."). In short, the present record suggests that "other means exist to obtain the information than to depose opposing counsel." See Shelton, 805 F.2d at 1327.
In its affirmative defense No. 14, Union Pacific alleges that "[Asarco's] claims against Union Pacific are barred because Asarco entered into a comprehensive settlement with Union Pacific and released all of the claims in the FAC in the Asarco bankruptcy case." Ans. to FAC, p. 28 (Docket No. 65). This defense unquestionably makes the UP Settlement Agreement relevant to the instant action, along with Union Pacific's intentions in making the UP Settlement Agreement (as confirmed by the Ninth Circuit (see supra)). Union Pacific agrees, as reflected by the following correspondence between counsel:
5/8/15 Ltr. from McIntosh to Brys, attached as Ex. I to Brys Decl. (Docket No. 99, Att. 9).
But, as relevant as this information may be, the contours of any legitimate claim of privilege and/or work product protection are not readily apparent at this time, given Mr. Young's position within Union Pacific's legal department. Certainly, Mr. Young is a fact witness, having executed the UP Settlement Agreement on behalf of the company. Hence, there are areas of inquiry that seemingly would not properly invoke claims of privilege or work product protection. At the same time, the avenue of such inquiry remains uncertain on this record, owing to the simple realities of the situation, and therefore the other considerations described in this decision hold sway. See e.g., id. (Union Pacific noting that, "given Mr. Young's role in the context of the negotiations was as lead in-house trial counsel, coordinating the litigation and strategy regarding the Asarco bankruptcy litigation, his participation and communications by him to outside counsel and to his client, Union Pacific, are all privileged or work product protected."). To be clear, it may be that Mr. Young can properly be deposed on limited subjects directly linked to his business role as opposed to his lawyer's role. However, the scope of what that subject matter may be is unknown at this time and does not need to be addressed within this Memorandum Decision and Order. See, e.g., Melaleuca, Inc. v. Bartholomew, 2012 WL 3544738, *1 (D. Idaho 2012) (recognizing that "blanket assertions of privilege are extremely disfavored," but acknowledging that "[t]he strong presumption against a blanket assertion of privilege, while normally appropriate and necessary, must be abandoned where a party seeks to depose trial counsel.").
As stated above, Union Pacific's intent when it entered into the UP Settlement Agreement is absolutely relevant to this action. Because the case turns in part upon this issue (actually, both Union Pacific's and Asarco's intent), such information is crucial to Asarco's claims against Union Pacific. Yet, where the information that might be contained in Mr. Young's non-privileged testimony is available through others (or, at the very least, appears to be available to others based upon the current record), the Court is not persuaded that his specific testimony is crucial to Asarco's case.
With all this in mind, after considering the Shelton factors, Asarco is not permitted to depose Mr. Young at this time and Union Pacific's Motion for Protective Order is granted. However, the undersigned will not require Asarco to seek leave of court before attempting to take Mr. Young's or other Union Pacific counsel's deposition; in this respect, Union Pacific's Motion for Protective Order is denied. Some of the lines raised by the pending motions are not yet fixed, and it would be inappropriate to draw such lines indirectly by way of such a protective order when the Court cannot presently draw them on the current record.
The Federal Rules of Civil Procedure and decisions of the Ninth Circuit favor discovery to assist in the underlying goals of litigation. As such, "[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense" and this "[r]elevant information need not be admissible at trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1). The Ninth Circuit has explained that it favors a broad scope of discovery. "[W]ide access to relevant facts serves the integrity and fairness of the judicial process by promoting the search for truth." Epstein v. MCA, Inc., 54 F.3d 1422, 1423 (9
Nonetheless, the right to access information is not absolute and courts will limit the frequency or extent of discovery otherwise allowed if: "(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 burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed. R. Civ. P. 26(b)(2)(C)(i-iii).
Each party may serve 25 interrogatories — more if stipulated to or ordered by the court. See Fed. R. Civ. P. 33(a)(1); see also Dist. Idaho Loc. Civ. R. 33.1. Union Pacific generally submits that, while Asarco's four sets of interrogatories contain 22 interrogatories, they actually represent upwards of 93 interrogatories when including the interrogatories' subparts. See Mem. in Supp. of Mot. for Prot. Order, pp. 6-7 (Docket No. 109).
The undersigned has separately reviewed each of Asarco's 22 interrogatories and concludes that, while several of them contain subparts, these subparts are "logically or factually subsumed within and necessarily related to the primary question" so as to amount to a single interrogatory. Safeco of America v. Rawstron, 181 F.R.D. 441, 445 (C.D. Cal. 1998) (internal quotation marks and citations omitted); see also Paananen v. Cellco P'ship, 2009 WL 3327227, *2 (W.D. Wash. 2009) ("Subparts relating to a `common theme' should generally be considered a single interrogatory.") (citation omitted). For example, Asarco's Interrogatory No. 7 (discussed supra), makes the following request:
Asarco's Second Set of Interrogs., attached as Ex. B to McIntosh Decl. (Docket No. 110, Att. 2). Interrogatory No. 7's subparts are methods of identifying an individual — exactly what Asarco seeks to obtain by way of Interrogatory No. 7. See, e.g., Becker v. Wells Fargo Bank, NA, Inc., 2013 WL 5406894, *4 (E.D. Cal. 2013) ("[T]he subparts to Interrogatory No. 1 are logically or factually subsumed within and necessarily related to the primary question — namely, the identity of percipient witnesses currently or previously employed by defendant — and therefore only count as one interrogatory."). As such, it should be treated as one interrogatory, not nine as Union Pacific suggests. See supra. Further, Union Pacific provides no compelling argument as to why each of Asarco's other interrogatories (contained within its four sets of interrogatories) should not be similarly handled and resolved. A protective order premised upon an excessive number of interrogatories is therefore unwarranted.
Union Pacific next complains that Asarco's Fifth and Sixth Sets of Requests For Production of Documents are largely comprised of already-propounded requests, suggesting that having to respond to them represents an impermissible burden under the Rules. See Mem. in Supp. of Mot. for Prot. Order, pp. 8-12 (Docket No. 109). Specifically, Union Pacific points to Request for Production Nos. 90-92, 94-96, 108, 110-113, and 118 as examples of cumulative and/or duplicative requests. See id.
Largely, the Court agrees.
FRCP 36(a)(1) provides:
Fed. R. Civ. P. 36(a)(1)(A-B). Unlike interrogatories, document production requests, and depositions, requests for admission "are not a discovery device at all, `since [they] presuppose[] that the party proceeding under [FRCP 36) knows the facts or has the document and merely wishes its opponent to concede their genuineness.'" Pasternak v. Dow Kim, 2011 WL 4552389, *5 (S.D.N.Y. 2011) (quoting 8B Wright, Miller, & Marcus, Federal Practice and Procedure § 2253 at 324); see also Safeco, 181 F.R.D. at 445 ("Requests for admissions are not principally discovery devices . . . and they are not to be treated as substitutes for discovery processes to uncover evidence. . . .") (internal citation and quotation marks omitted). Instead, the purpose of requests for admission is to narrow the issues for trial by identifying and eliminating those matters on which the parties agree. See Safeco, 181 F.R.D. at 443; see also Asea, Inc. v. Southern Pacific Transp. Co., 669 F.2d 1242, 1245 (9
Where requests for admission do not narrow the range of issues for trial but are "`unreasonably cumulative' and `duplicative' of other discovery taken in the case, the requests do not serve the purpose of Rule 36(a)" and are properly subject to objection. Caruso v. Coleman Co., 1995 WL 347003, *2 (E.D. Pa. 1995). For example, "[a] request for admission as to whether or not a particular witness testified to certain information at a deposition is duplicative of the deposition itself" and may properly be objected to on that ground. Id.; see also Van Wagenen v. Consolidated Rail Corp., 170 F.R.D. 86, 87 (N.D.N.Y. 1997) (requests for admission that "simply restate sentences" from a previously authenticated document are "unreasonably duplicative and cumulative"); Workman v. Chinchinian, 807 F.Supp. 634, 648 (E.D. Wash. 1992) (finding requests for admission asking party to admit that letter contained certain statements improper where party had already admitted the authenticity of letter and "only purpose served by the admission would be to bolster the effect of the letter in attacking [the letter writer's] credibility"); Rios v. Tilton, 2010 WL 3784703, *7 (E.D. Cal. 2010) (finding requests for admission asking party to admit "authenticity of quoted portions" of California Code and Department Operations Manual "impermissible in scope and unduly burdensome"). In addition, "requests for admission should not be used to establish facts which are obviously in dispute, to demand that the other party admit the truth of a legal conclusion, even if the conclusion is attached to operative facts, or to ask the party to admit facts of which he or she has no special knowledge." Tuvalu v. Woodford, 2006 WL 3201096, *7 (E.D. Cal. 2006) (internal quotation marks and citations omitted).
Here, Union Pacific calculates that Asarco has made 328 requests for admission (151 in Asarco's First Set of Requests for Admission, and 177 in Asarco's Second Set), "many of which are duplicative or not directly aimed at limiting the issues for trial in this case." Mem. in Supp. of Mot. for Prot. Order, p. 14 (Docket No. 109).
Id. at pp. 14-15.
Hundreds of requests for admission almost raise a presumption of burdensome discovery, but the Court must consider them in the context of the case itself. Some cases are more complicated than others, and certainly this case has many moving parts with significant financial stakes involved. See generally Opp. to Mot. for Prot. Order, pp. 8-10 (Docket No. 118). The Court's review of Asarco's Second Set of Requests for Admission reveal that they are fashioned in an attempt to systematically establish material facts informing (perhaps, even, narrowing) relevant issues surrounding claims and defenses. This is entirely proper. As to Union Pacific's point about the possibility for depositions to more easily speak to the matters raised within the requests for admission, given the August 31, 2015 discovery deadline, there is no indication in the record that this is actually the case (even when assuming the appropriateness of having such things resolved via deposition instead of requests for admission). See Scheduling Order, p. 2 (Docket No. 83). If, indeed, the requests for admission contained within Asarco's Second Set of Requests for Admission can be answered by resorting to deposition transcripts already in existence, Union Pacific is free to move for a protective order on that basis. Until then, no protective order is warranted.
Based on the foregoing, IT IS HEREBY ORDERED that:
1. Union Pacific Railroad Company's Motion for Protective Order (Docket No. 95) is GRANTED, in part, and DENIED, in part, as follows:
a. Asarco is not permitted to depose Mr. Young at this time; in this respect, Union Pacific's Motion for Protective Order (Docket No. 95) is GRANTED;
b. The undersigned will not require Asarco to seek leave of court before attempting to take Mr. Young's or other Union Pacific counsel's deposition; in this respect, Union Pacific's Motion for Protective Order is DENIED.
2. Motion for Protective Order Under FRCP 26(b)(2)(C) and 26(c)(1) (Docket No. 108) is DENIED.