Federal Trade Commission v. DIRECTV, Inc. et al

Filing 145

Discovery Order re: 143 Discovery Letter Brief. Signed by Judge Maria-Elena James on 5/3/2016. (cdnS, COURT STAFF) (Filed on 5/3/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FEDERAL TRADE COMMISSION,

Case No. 15-cv-01129-HSG (MEJ)

Plaintiff,
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DISCOVERY ORDER

v.

Re: Dkt. No. 143

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DIRECTV, INC., et al.,
Defendants.

United States District Court
Northern District of California

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BACKGROUND
Defendants DIRECTV and DIRECTV, LLC (collectively, “DIRECTV”) and Plaintiff

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Federal Trade Commission’s (“FTC”) have filed a joint discovery letter in which DIRECTV seeks

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to depose Ray McKown, counsel for FTC in this case. Dkt. No. 143. DIRECTV seeks testimony

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regarding Mr. McKown’s communications with DIRECTV and the state attorneys general of all

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50 states concerning the 2011 Multi-State Settlement (“MSA”), through which all 50 states settled

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claims covering DIRECTV’s advertising disclosures at issue in this case. Id. at 1. DIRECTV

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states Mr. McKown is the sole FTC witness to key conversations he had with DIRECTV that will

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support its MSA-related affirmative defenses. Id. at 1. It argues Mr. McKown led DIRECTV to

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believe the FTC would not take any action regarding certain issues in this lawsuit because those

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issues were covered by the MSA, and his testimony is necessary because Mr. McKown “was the

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principal if not sole interface with DIRECTV’s counsel relating to the terms of the MSA and the

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decision by the FTC not to join in the MSA.” Id. at 2. In response, the FTC argues that deposing

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opposing trial counsel during the pendency of active litigation should be permitted only under

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extraordinarily narrow circumstances, and such circumstances are not present here because

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DIRECTV itself has all the information about these communications. Id. at 3-4.

LEGAL STANDARD

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Federal Rule of Civil Procedure (“Rule”) 26 provides that a party may obtain discovery

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“regarding any nonprivileged matter that is relevant to any party’s claim or defense and

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proportional to the needs of the case[.]” Fed. R. Civ. P. 26(b)(1). Rule 26(c) “confers broad

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discretion on the trial court to decide when a protective order is appropriate and what degree of

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protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). “The court may,

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for good cause, issue an order to protect a party or person from annoyance, embarrassment,

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oppression, or undue burden or expense,” including by (1) prohibiting disclosure or discovery; (2)

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conditioning disclosure or discovery on specified terms; (3) preventing inquiry into certain
matters; or (4) limiting the scope of disclosure or discovery to certain matters. Fed. R. Civ. P.

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United States District Court
Northern District of California

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26(c)(1).

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“A party may depose ‘any person’ under Rule 30(a)(1), and there is no express prohibition

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against deposing an attorney of record in a case.” Chao v. Aurora Loan Servs., LLC, 2012 WL

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5988617, at *3 (N.D. Cal. Nov. 26, 2012) (citing Graff v. Hunt & Henriques, 2008 WL 2854517,

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at *1 (N.D. Cal. July 23, 2008). Still, “[t]he Supreme Court . . . alluded to a presumption that trial

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counsel should not be forced to testify because doing so compromises the standards of the legal

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profession.” Nocal, Inc. v. Sabercat Ventures, Inc., 2004 WL 3174427, at *2 (N.D. Cal. Nov. 15,

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2004) (citing Hickman v. Taylor, 329 U.S. 495, 513 (1947)); see also Chao, 2012 WL 5988617, at

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*3. “For this reason, attorney depositions even for fact discovery generally are allowed only when

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the discovery cannot be obtained from another place.” Chao, 2012 WL 5988617, at *3 (citing

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Graff, 2008 WL 2854517, at *1).

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In considering whether to permit testimony by an opposing party’s attorney-witness, courts

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in this District utilize the standard set out by the Eighth Circuit in Shelton v. American Motors

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Corporation, 805 F.2d 1323, 1327 (8th Cir. 1986). See, e.g., Chao, 2012 WL 5988617, at *4;

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S.E.C. v. Jasper, 2009 WL 1457755, at *3 (N.D. Cal. May 26, 2009); Graff, 2008 WL 2854517, at

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*2; Flotsam of Cal., Inc. v. Huntington Beach Conf. & Visitors Bureau, 2007 WL 4171136, at *1.

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The Shelton court explained that attorney depositions should be permitted only where the party

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seeking the deposition shows that (1) no other means exist to obtain the information, (2) the
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information sought is relevant and nonprivileged, and (3) the information is crucial to the

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preparation of the case. 805 F.2d at 1327.

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DISCUSSION

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Applying the Shelton factors, the Court finds DIRECTV has not met its burden to

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overcome the strong presumption against deposing counsel during active litigation. DIRECTV

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has not demonstrated that no other means exist to obtain the requested discovery. DIRECTV

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claims to seek this testimony to bolster its affirmative defenses of laches, waiver, and estoppel,

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and argues that Mr. McKown is the only FTC witness regarding the discussions he had with

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DIRECTV’s counsel. Jt. Ltr. at 1. However, given that DIRECTV’s own counsel were party to
those communications, it is clear that DIRECTV knows what was said during conversations

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United States District Court
Northern District of California

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between its lawyers and FTC counsel. Indeed, as the FTC points out, DIRECTV has already

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submitted its narratives of those conversations to the Court. Id. at 3 (citing Dkt. No. 36-1 at ¶¶ 11,

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12, 15, 16). Because DIRECTV itself has all the information about these communications,

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deposing Mr. McKown is unwarranted. See Chao, 2012 WL 5988617, at *5 (rejecting

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defendant’s demand to depose plaintiffs’ trial counsel where defendant’s own records, combined

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with document productions, “provides a sufficient avenue for [defendant] to obtain the

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information it needs”); Coleman v. Dist. of Columbia, 284 F.R.D. 16, 19 (D.D.C. 2012) (barring

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the deposition of defendant’s attorney about communications between her and plaintiff’s counsel

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where “[p]laintiff’s counsel admits that it was present during these communications”).

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Further, while information regarding the FTC’s commitments concerning the MSA may be

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relevant, DIRECTV has not shown why it cannot seek the same information directly from the FTC

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through a Rule 30(b)(6) deposition. As Mr. McKown’s communications with DIRECTV’s

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counsel are relevant to the extent they were made on behalf of the FTC, the appropriate course is

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for DIRECTV to seek discovery about these communications from the FTC itself. See Graff,

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2008 WL 2854517, at *1-2 & n.2 (noting defendant’s ability to determine the scope of plaintiff’s

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grant of authority to its counsel through interrogatories and party depositions, instead of deposing

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the lawyer himself). In fact, it appears DIRECTV has already done precisely that, as it has noticed

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the FTC’s Rule 30(b)(6) deposition on “[a]ll communications, negotiations, and discussions
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between or involving the FTC, on the one hand, and DIRECTV (including its attorneys) and/or

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any or all of the ‘attorneys general of all 50 states and the District of Columbia,’ on the other, both

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before and after the effective date of the multi-state settlement agreement, concerning the multi-

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state settlement agreement and any of its terms.” Jt. Ltr. at 5 (quoting DIRECTV’s Rule 30(b)(6)

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Deposition Notice, Topic 1). This topic includes Mr. McKown’s communications made within

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the scope of his duties for the FTC, and it subsumes Mr. McKown’s communications on behalf of

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the FTC with the states and their attorneys general. DIRECTV has also noticed the FTC’s

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deposition on “[t]he decision by the FTC, including the reasons for the decision, not to object to,

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to intervene in, or to seek to modify or augment the terms of the multi-state settlement agreement.”

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Id. (quoting DIRECTV’s Topic 2). Thus, DIRECTV has failed to establish that its need to depose

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United States District Court
Northern District of California

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Mr. McKown is “crucial” to its preparation of its case.

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CONCLUSION

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Based on the analysis above, the Court DENIES DIRECTV’s request to compel Ray

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McKown’s deposition.
IT IS SO ORDERED.

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Dated: May 3, 2016
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

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