Trying to Depose Your Adversary’s Lawyer

October 11, 2000

Litigants sometimes cannot avoid the temptation to seek the deposition of the adversary’s lawyer. However, generally-accepted principles make such efforts difficult.

In Maher v. Monahan, 2000 U.S. Dist. LEXIS 8321, 98 Civ. 2319 (JGK) (MHD), at *11 (S.D.N.Y. June 14, 2000), a former police officer being investigated for alleged wrongdoing sought to depose the lawyer representing the police department. The court recognized “the general principle that attorney depositions are disfavored,” and pointed to the seminal case of Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) for guidance. The court in Shelton required a party seeking to depose the adversary’s lawyer to demonstrate 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.” 805 F.2d at 1327.

In Maher, the court found that the former police officer had failed all three of the Shelton tests, and therefore denied his efforts to depose the police department’s lawyer.

Lawyers succumbing to the temptation to seek the deposition of the adversary’s lawyer (or resisting such an effort) should determine if their jurisdiction follows the general Shelton test.