United States District Court, N.D. Oklahoma
AUTOMOTIVE CONSULTING RESOURCES, INC. and ROBBY HEFNER, Plaintiffs,
INTERSTATE NATIONAL DEALER SERVICES, INC., and RPMONE, INC., Defendants.
OPINION AND ORDER
H. McCarthy, United States Magistrate Judge.
Motion for Protective Order, [Dkt. 66],  is before the
undersigned United States Magistrate Judge for decision. The
matter is fully briefed. [Dkt. 69, 71');">71, 84].
have noticed the deposition of Suzanne Moon, General Counsel
for Plaintiff, Interstate National Dealer Services, Inc.
(Interstate). Plaintiffs seek a protective order to prevent
the deposition of Ms. Moon.
capacity as general counsel, Ms. Moon sent a letter dated
March 11, 2015 on behalf of Interstate to Defendant Hefner.
The letter: outlined portions of the Agent Agreement which
apparently governed the relationship between Plaintiffs and
Defendants; identified actions by Defendant Hefner which the
letter states constitute a breach of the agreement and
violation the terms of a document called “Rules of
Engagement” warns of the potential liability of
Defendant Hefner, includes a demand that Defendant Hefner
cease and desist specified actions, and threatens legal
action, including termination of the independent agent
agreement. [Dkt. 71');">71, p. 5]. Based on Ms. Moon's apparent
role in drafting the aforementioned letter, and the
“Rules of Engagement, ” Plaintiff asserts that
Ms. Moon is subject to being deposed as an important player
in “the underlying facts.” [Dkt. 71');">71, p. 1].
the deposition of an opponent's attorney, either trial
counsel or general counsel, often encumbers the case with
burdensome collateral issues which unnecessarily increase the
cost of litigation and delay the progress of the case. In
Boughton v. Cotter Corp., 65 F.3d 823 (10th Cir.
1995), the Court considered whether the trial court abused
its discretion by entering a protective order against the
deposition of opposing counsel. The trial court found that
taking the deposition of opposing counsel affects the quality
of representation, adds to the burdensome time and costs of
litigation, and results in delays to resolve collateral
issues raised by the attorney's testimony. Id.
at 829. The Tenth Circuit ruled that the trial court did not
abuse its discretion in granting a protective order to
protect defendants from an unnecessary burden. The Court
approved of the criteria set out in Shelton v. American
Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986) which
held that depositions of opposing counsel should be limited
to circumstances where it has been shown that: 1) no other
means exist to obtain the information than to depose opposing
counsel; 2) the information sought is relevant and
nonprivleged; and 3) the information is crucial to the
preparation of the case. Boughton, 65 F.3d at 829.
The Tenth Circuit ruled that a trial court has the discretion
to issue a protective order where any one or more of the
Shelton criteria are not met. Id. at 830.
to Plaintiffs, deposing Ms. Moon is the only way Plaintiffs
can determine any possible justification for the withholding
of commissions. Plaintiffs assert that Ms. Moon is the only
one who can address the topic. As proof of this assertion,
Plaintiffs state that they have attempted to depose a
corporate representative, but Defendants objected to the
topics listed for the corporate representative. Plaintiffs
conclude that this demonstrates the need for Ms. Moon's
court finds that Plaintiffs have not demonstrated the
necessity of Ms. Moon's deposition as none of the
Shelton criteria have been met. Aside from a
deposition excerpt wherein the deponent had no recollection
of the content of a meeting he had with Ms. Moon, Plaintiffs
have not provided the court with any information about the
discovery they have conducted, how the information received
has been deficient, or any reason to believe no other actor
has the information they seek. The court has not been
informed as to who Defendant has identified as fact witnesses
and there has been no information provided about their
testimony or proposed testimony. Plaintiffs attached a Rule
30(b)(6) deposition notice to their response brief, [Dkt.
71');">71-3], but the mere fact such a notice was issued does not
address the Shelton criteria. In sum, the court has
not been provided sufficient information to determine whether
Ms. Moon is a fact witness or that her deposition is
bare fact that Ms. Moon drafted and signed a letter in her
capacity as general counsel for Defendant, standing alone, is
not sufficient reason to permit her deposition. This view is
supported by the Court's decision in EEOC v. Unit Rig
Drilling, 13-CV-147-TCK-PJC, [Dkt. 209, Sept. 2, 2014],
2014 WL 4352070, cited by Plaintiff to justify deposing Ms.
Moon. In Unit Rig, the Court permitted the
deposition of an attorney who authored a letter (the VanOrman
letter) on Unit Rig's behalf. The VanOrman letter
contained Unit Rig's response to a charge of gender
discrimination. Two Rule 30(b)(6) depositions had been taken
in an effort to discover the factual basis for Unit Rig's
response. In neither 30(b)(6) deposition was Unit Rig able to
explain the factual grounds for the letter. The Court
concluded that, based on the facts presented, no other means
existed to obtain the information, except to depose attorney
VanOrman. Aside from the involvement of an attorney in
authoring a letter, Plaintiffs have not shown that this case
bears any similarity to the situation presented in Unit Rig.
Motion for Protective Order, [Dkt. 66], is GRANTED, the
Notice to Take the Deposition of Suzanne Moon is quashed.
 Docket No. 66 is titled “Notice
of Motion for Protective Order.” The memorandum in
support of the requested protective order was filed
separately from the notice, [Dkt. 69], as were the supporting
declarations. [Dkt. 67, 68]. The Local Rules of this court do
not require the filing of such a notice. It is permissible
under the Local Rules, and preferable, that the motion and
supporting memorandum be filed as a ...