Thursday, May 17, 2012

Deposing Counsel

The holding in a decision issued today by the Nevada Supreme Court:

In this original writ petition, we address whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. In considering this issue, we adopt the framework espoused by the Eighth Circuit Court of Appeals in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). Under the Shelton analysis, the party seeking to depose opposing counsel must demonstrate that the information sought cannot be obtained by other means, is relevant and nonprivileged, and is crucial to the preparation of the case. Id. at 1327. Because the district court did not analyze these factors, we grant the writ petition in part and direct the district court to evaluate whether, applying the Shelton factors, real parties in interest may depose petitioners’ former trial attorney.

The court states

By establishing [a] heightened standard when a party is attempting to depose opposing counsel, we advise litigants to resort to alternative discovery methods and discourage endeavors to seek confidential and privileged information. When the facts and circumstances are so remarkable as to allow a party to depose the opposing party’s counsel, the district court should provide specific limiting instructions to ensure that the parties avoid improper disclosure of protected information.

(Mike Frisch)

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