Courts Are More Likely to Order a Business Lawyer’s Deposition Than a Litigator’s Deposition

March 16, 2001

Most courts are reluctant to allow a litigant’s lawyer to depose the other side’s lawyer, because of the nearly inevitable acrimony that such a deposition would produce. For this reason, many courts require that a litigant seeking to depose the adversary’s lawyer prove the non-privileged nature of the information sought, the importance of the information and its unavailability elsewhere.

One court recently indicated that this standard would be eased a bit in the case of business lawyers rather than litigators. In United States Fidelity & Guaranty Co. v. Braspetro Oil Services Co., 97 Civ. 6124 (JGK) (THK), 98 Civ. 3099 (JGK) (THK), 2000 U.S. Dist. LEXIS 12669, at *10-11 (S.D.N.Y. Aug. 31, 2000), the court explained that a somewhat easier standard should apply to the lawyers at issue, who were “transactional lawyers who represented their clients with respect to the legal issues which arose prior to the commencement of these actions.”

Perhaps because a business lawyer’s appearance at a deposition would be less likely to result in confrontation than in the case of a litigator, business lawyers should recognize that they are more likely than their litigating colleagues to be questioned under oath about their activities.