Coleman v. Garland

Filing 32

MEMORANDUM Opinion and Order. Signed by the Honorable Young B. Kim on 3/10/2025: Mailed notice (ec)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
SHANE COLEMAN,
Plaintiff,
v.
PAM BONDI, Attorney General of the
United States,
Defendant.

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No. 24 CV 1195
Magistrate Judge Young B. Kim

March 10, 2025

MEMORANDUM OPINION and ORDER
Plaintiff Shane Coleman filed this disability discrimination suit against
Defendant Merrick Garland, then-serving Attorney General of the United States
charged with overseeing the Federal Bureau of Investigation (“FBI”). 1 Coleman
alleges that the FBI violated Section 501 of the Rehabilitation Act of 1973, as
amended, by discontinuing his employment application based on his recorded
disability, or alternatively, because the FBI perceived him as being disabled.
Discovery is ongoing, and Coleman seeks to depose Drew Ambrose, an attorney with
the FBI, as a fact witness. Before the court is the FBI’s motion for a protective
order barring Ambrose’s deposition.

For the following reasons, the motion is

granted:

On February 4, 2025, the Senate confirmed Pam Bondi as Attorney General of the
United States. As a result, she is substituted as Defendant in this case, replacing
Merrick Garland.

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Background
Coleman, a police officer and SWAT Assistant Team Leader and Training
Instructor with the Chicago Police Department (“CPD”), applied to be an FBI
Special Agent in January 2022. (R. 1, Compl. ¶¶ 5-7.) The FBI extended an offer of
employment to Coleman in March 2022, partially conditioned on a successful
physical fitness test and medical review. (Id. ¶ 9.) Six days after the offer, Coleman
suffered a cardiac arrest without any apparent cause. (Id. ¶¶ 11-12.) The FBI
conducted a review of Coleman’s medical records and discontinued his application in
November 2022. (Id. ¶ 15.) Coleman twice appealed this decision, and the FBI
finally rejected his application in January 2023. (Id. ¶¶ 18-22.) Coleman then filed
this action accusing the FBI of discriminating against him based on a perceived
disability.
Coleman now seeks to depose Ambrose, arguing that as then-serving
Assistant General Counsel in the FBI’s Human Resources Division, Ambrose was
directly involved in the decision to discontinue Coleman’s application.

(R. 26,

Govt.’s Mot. ¶¶ 5, 8, Ex. 1 ¶ 3.) For support, Coleman cites to a document the FBI
produced indicating that the medical officer who disqualified Coleman wrote in an
email that “Drew helped write” the “second DQ” and that “Drew was involved with”
the “[f]inal DQ letter.” (R. 30, Pl.’s Resp. ¶¶ 5-6.) The FBI claims that only medical
professionals were involved in the decision to discontinue Coleman’s application.
(R. 26, Def.’s Mot. ¶ 10.) In an affidavit attached to the current motion, Ambrose
attests that he “did not provide the medical review team with any advice concerning

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the decision to discontinue . . . Coleman’s application.” (Id. Ex. 1 ¶ 4.) Rather,
Ambrose says he was included on emails regarding the FBI’s communications to
and from Coleman to ensure the medical review team followed proper procedures.
(Id.)
Analysis
The FBI argues that Ambrose, who now serves as Unit Chief of Employment
Law Unit II in the FBI’s Office of General Counsel, is involved in defending the FBI
in this action and, as such, should be protected from sitting for a deposition because
he cannot offer any non-privileged or first-hand knowledge of relevant facts and his
position as a fact witness would hinder the FBI’s case. (R. 26, Govt.’s Mot. ¶ 7,
Ex. 1 ¶¶ 1-2, 5.) Under Rule 26(b)(1), a party may obtain discovery “regarding any
non-privileged matter that is relevant to any party’s claim or defense and
proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1); see Motorola Sols.,
Inc. v. Hytera Commc’ns Corp., 365 F. Supp. 3d 916, 924 (N.D. Ill. 2019) (“Relevance
focuses on the claims and defenses in the case, not its general subject matter.”).
Coleman correctly notes that an attorney, even one representing the opposing party,
may be deposed despite claims that the deposition would violate the attorney-client
privilege. See Hunt Int’l Res. Corp. v. Binstein, 98 F.R.D. 689, 689 (N.D. Ill. 1983)
(holding that an attorney may be deposed and, during the deposition, may claim
privilege as needed); Fed. R. Civ. P. 30(a)(1) (“A party may, by oral questions,
depose any person” (emphasis added)). As such, the FBI’s assertion of the attorneyclient privilege alone is not enough to bar Ambrose’s deposition. See Marco Island

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Partners v. Oak Dev. Corp., 117 F.R.D. 418, 419 (N.D. Ill. 1987) (“Although it would
confine the boundaries of the [] deposition, the mere invocation of the [attorneyclient] privilege, without more, would not justify granting plaintiffs’ motion.”).
Nonetheless, the court has the discretionary power to limit discovery where
“the discovery sought is unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less burdensome, or less
expensive.” Fed. R. Civ. P. 26(b)(2). In this district, a party seeking to depose the
opposing party’s attorney must first “exhaust other reasonable means of obtaining
relevant information.” St. Paul Guardian Ins. Co. v. Walsh Constr. Co., No. 15 CV
10324, 2021 WL 4777337, at *13 (N.D. Ill. Oct. 13, 2021) (collecting cases). Courts
impose this heightened burden because the deposition of an attorney “provides a
unique opportunity for harassment; it disrupts the opposing attorney’s preparation
for trial, and could ultimately lead to disqualification of opposing counsel if the
attorney is called as a trial witness.” Marco Island, 117 F.R.D. at 420; see also
Espejo v. Santander Consumer USA, Inc., No. 11 CV 8987, 2014 WL 6704382, at *3
(N.D. Ill. Nov. 25, 2014) (“[T]he deposition of a party’s attorney—whether in-house
or trial counsel—does impose more of a burden than the deposition of other fact
witnesses.”). While Ambrose has not appeared in this case as an attorney of record,
he has attested that he is involved in defending this case. (R. 26, Govt.’s Mot. ¶ 11,
Ex. 1 ¶¶ 1-2.) Coleman, as the party requesting the deposition of an opposing
attorney, must therefore demonstrate that Ambrose’s deposition would produce
relevant information not available from other reasonable sources.

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See St. Paul

Guardian Ins. Co., 2021 WL 4777337, at *10 (citing Rennie v. Dalton, 3 F.3d 1100,
1110 (7th Cir. 1993)).
But Coleman fails to demonstrate that Ambrose’s deposition would yield
material, non-privileged information relevant to his claims.

Indeed, Coleman

requests Ambrose’s deposition to “determine which person or people made the
decision to disqualify him, when the decision was made, and why those people made
that decision.” (R. 30, Pl.’s Resp. ¶ 2.) But Coleman does not sufficiently explain
why Ambrose should be the source of that information or whether other sources are
available for the same information.

This is particularly significant given that

Coleman acknowledges that the FBI answered an interrogatory (“INT”) that
“Dr. Kevin Kapov was the decision maker, ‘with input from Dr. [James] Leonard.’”
(Id. ¶ 3, Ex. 1 at 3 (Def.’s Resp. to Pl.’s INT No. 1).)
Despite already having the information Coleman purports to seek from
Ambrose, Coleman points to documents the FBI produced to highlight Ambrose’s
alleged significance in the decision to reject Coleman’s application. (Id. ¶¶ 4-7.)
But even accepting as true that Ambrose was involved in drafting the letters related
to the FBI’s discontinuation of Coleman’s application, (id.), there is no evidence that
Ambrose denied Coleman’s application. The emails that Coleman references merely
state that Ambrose “helped write” the second disqualification and “was involved
with” the final disqualification letter. (Id. ¶¶ 5-7.) The final disqualification letter
from the Human Resources Department, also produced in discovery, delivers the
news that Coleman’s application was denied based on the medical assessment,

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notes that the decision is final and effective upon receipt, and encourages Coleman
to consider other positions. (Id. at 3, Ex. 4.) This letter appears to be a standard
rejection letter. Regardless, advising a client in the drafting process of a rejection
letter to ensure compliance with internal procedures is simply not the same as
making or contributing to the underlying decision to reject Coleman’s application.
Accordingly, Coleman fails to carry his burden of showing Ambrose’s deposition
would produce relevant, non-privileged information. See Anaya v. Birck, No. 21 CV
02624, 2022 WL 1523640, at *26 (N.D. Ill. May 13, 2022) (granting a motion to
quash the subpoena of the defendant’s attorney in an employment discrimination
case where the plaintiff failed to demonstrate how the desired information would
not be duplicative or non-privileged).
Conclusion
For the foregoing reasons, the FBI’s motion is granted.
ENTER:
____________________________________
Young B. Kim
United States Magistrate Judge

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