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Plaintiff Fails to Meet Burden to Depose Defendant’s In-House Counsel

Posted on August 30th, 2017

In Broyles v. Convergent Outsourcing, Inc., Case No. C16-775-RAJ (W.D. Wash. 2017), Plaintiff Ailene Broyles  alleges that Defendant Convergent Outsourcing violated the Fair Credit Reporting Act (“FCRA”) by accessing Plaintiff’s credit report despite knowing that her debts had been discharged in bankruptcy. On May 26, 2016, Plaintiff filed this action on behalf of herself and a proposed class of similarly situated consumers whose credit reports Defendant had also alledgedly wrongfully accessed.

In February of 2017, Plaintiff served Defendant with notice of her intent to depose Defendant’s in-house counsel and litigation support specialist. Defendant moved to quash Plaintiff’s notice of these depositions and requested a protective order precluding the depositions of these individuals. Plaintiff opposed that motion.

In reviewing Plaintiff’s motion, the Court first observed the judiciary’s broad discretion to control discovery. The Court then reviewed the standards by which it would consider Plaintiff’s request to depose the counsel of the opposing party:  (1) that the requesting party has the burden of showing that no other means exist to obtain the information than to depose opposing counsel; (2) that the information sought is relevant and nonprivileged; and (3) and that the information sought is crucial to the preparation of the case.

Plaintiff claimed that deposing Defendant’s in-house counsel, Timothy Collins, was necessary because she anticipates that Defendant will raise an advice of counsel defense. However, as argued by Defendant in its response, advice of counsel had not been plead as an affirmative defense, or otherwise been presented as a defense in the case. The Court further noted that speculation that Defendant may raise an advice of counsel defense in the future was insufficient basis for permitting Plaintiff to depose the counsel, particularly given the generally privileged nature of advise from counsel to client. Plaintiff also failed to show why Defendant’s counsel was the only source of the information sought.

The Court went on to examine the Defendant’s opposition to the deposition of the the litigation support specialist.  Defendant contended that the specialist was an assistant of its in-house counsel, and therefore, the attorney-client privilege should also extend to her. The Court found the Defendant’s argument supported by  law. The Court also found the Plaintiff failed to meet her burden to show how the information in the specialist’s possession was unattainable elsewhere, and how this information was crucial to the Plaintiff’s case.

Plaintiff’s arguments included a contention that Defendant made objection to discovery responses on the basis of privilege, yet failed to produce a privilege log. Under FCRP Rule 26, a party who withholds information as privileged must produce a privilege log. The Court, upon review of Defendant’s responses found that Defendant withheld information on the basis of privilege, but failed to provide the requisite log. The Court ordered Defendant to either produce a privilege log that complies with Rule 26 or to withdraw its objections.

The Court’s granted Defendant’s motion to quash Plaintiff’s deposition notices and issued the protective order as requested by Defendant.

ILS–Plaintiff ESI Discovery Experts

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