Does the Shelton Standard Apply to In-House Lawyers?

February 22, 2017

Nearly every court protects a litigant’s lawyer from depositions or other discovery under what is called the Shelton standard (Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) or under similarly restrictive doctrines. Under the Shelton standard, adversaries seeking to depose litigants’ lawyers must show that (1) the information they seek is not available elsewhere; (2) the information is not privileged; and (3) the information is crucial.

Courts disagree about which lawyers deserve protection under this or similar standards. In Allen v. TV One, LLC, Civ. A. No. DKC 15-1960, 2016 U.S. Dist. LEXIS 169641 (D. Md. Dec. 8, 2016), the court noted that the Shelton standard rests on courts’ desire to avoid the inevitable ill feelings that would arise when a lawyer deposes the opposing party‚Äôs lawyer, and the risk of revealing that lawyer’s litigation strategy. The court ultimately held the Shelton test inapplicable — because the proposed deposition witness was “Defendant’s former in-house counsel, who left Defendant’s employ more than a year before Plaintiff filed her EEOC claim or this lawsuit.” Id. at *5 n.3.

Although the Allen court assessed the other Shelton elements, some courts automatically reject the Shelton doctrine’s application to former and even current in-house lawyers.