Legal Memorandum: Deposition of an Opposing Counsel

Issue: Whether opposing counsel can avoid being deposed?

Area of Law: Litigation & Procedure
Keywords: Deposition of an attorney; Protective order
Jurisdiction: Federal, New Jersey, Pennsylvania, Virgin Island
Cited Cases: None
Cited Statutes: Rule 26(c), Fed. R. Civ. P
Date: 03/01/2006

There seems to be something unsettling about being able to depose a party’s attorney in a pending matter, but courts have generally held that, despite that feeling, there is nothing preventing these depositions.  In In re Arthur Treacher’s Franchisee Litig., 92 F.R.D. 429 (E.D. Pa. 1981), the plaintiffs filed a notice to depose one of the defendant’s counsel and the defendant responded by filing a motion to quash the subpoena.  The defendant resisted the deposition arguing that the deposition would be an intrusion on the attorney-client and work-product privileges and that it was harassment.  Id. at 437.  The court reviewed the federal rules and saw they provide that “any party may take the testimony of any person, including a party, by deposition upon oral examination.”  Id. (emphasis added).  The court acknowledged that the situation seems different, but said that “[t]he fact that the proposed deponent is an attorney for one of the parties in the case is clearly not enough, by itself, to justify granting in full the motion for a protective order.”  Id. (emphasis added).

The court was careful to explain that by permitting the deposition of an attorney, they were not intending to toss attorney-client and work-product privilege out the window.  It recognized that questions seeking the revelation of privileged matters should be objected to and the attorney should refuse to answer.  However, the court explained that it could not rule ahead of time that all the questions to be posed to the attorney would be […]

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