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Litigation: Preventing or limiting in-house counsel depositions

An increase in deposing in-house counsel has become a concerning trend

What was once considered a rarity has now become a trend: parties increasingly seek to depose in-house lawyers. And while courts once viewed the corporate client–in-house attorney relationship as inviolable, those opinions are eroding.

The thought of an in-house lawyer sitting for a deposition raises legitimate concerns of violating ethical mandates, waiving the attorney–client privilege, and disclosing work-product or proprietary information. The questions become what proactive efforts can in-house lawyers implement to reduce the chance of being deposed, and what reactive measures should in-house and outside counsel employ upon receipt of a subpoena or notice of deposition.

Shelton Erosion

Courts gradually eroded the strict Shelton rule in favor of a more flexible approach. The 2nd Circuit, for example, does not follow Shelton but looks at all relevant facts and circumstances, such as the deposition need, the lawyer’s role in the matter on which discovery is sought, and the risk of encountering privilege and work-product issues. In re Subpoena Issued to Dennis Friedman. Other courts simply prefer the lawyer to sit for the deposition, let the record develop through the normal question-answer-objection situation, and then rule on a question-by-question basis. And the 8th Circuit has explained that the Shelton rule applies more in situations where litigation strategies and privileged information may be revealed, and less in situations where the in-house lawyer served in a business-related role. (Pamida, Inc. v. E.S. Originals, Inc.)

Contributing Author

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Todd Presnell

Todd Presnell is a partner in the Nashville office of Bradley Arant Boult Cummings, LLP. He is licensed in Georgia and Tennessee and represents...

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