PAIN CENTER OF SE INDIANA, LLC et al v. ORIGIN HEALTHCARE SOLUTIONS LLC et al

Filing 237

ORDER denying 228 Motion for Protective Order. Signed by Magistrate Judge Denise K. LaRue on 6/10/2015. (REO)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
INDIANAPOLIS DIVISION

PAIN CENTER OF SE INDIANA, LLC, et
al.,
Plaintiffs,
CAUSE NO. 1:13-cv-133-RLY-DKL

vs.
ORIGIN HEALTHCARE SOLUTIONS,
LLC, et al.,
Defendants.

ENTRY
Defendants’ Motion for Protective Order Barring the Deposition
of Brian Vandenberg [doc. 228]
Plaintiffs served Defendants with a copy of a subpoena for Brian Vandenberg to
appear for an oral deposition on June 10, 2015. [Doc. 228-1.] Mr. Vandenberg was
formerly Executive Vice President and General Counsel for defendant Origin Healthcare
Solutions, L.L.C. (“O.H.S.”) and no longer works for the company.1 Declaration of Brian
Vandenberg (May 28, 2015) (“2015 Declaration”) [doc. 228-2] ¶ 1; Declaration of Brian
Vandenberg (August 28, 2014) (”2014 Declaration”) [doc. 232-1] ¶ 1. Defendants now move
for a protective order suppressing the deposition on the ground that Plaintiffs cannot
satisfy the enhanced criteria for deposing an opposing party’s attorney that were
established by the United States Court of Appeals for the Eighth Circuit in Shelton v.
American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986): “(1) no other means exist to

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Defendants’ counsel is representing Mr. Vandenberg for the purposes of the noticed deposition.

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obtain the information than to depose opposing counsel . . . ; (2) the information sought
is relevant and nonprivileged; and (3) the information is crucial to the preparation of the
case.”
Defendants submitted Mr. Vandenberg’s 2015 Declaration in which he states that
he served as O.H.S.’s Executive Vice President and General Counsel from January 2011
to December 2014 and that, in that position, he “acted as legal advisor to personnel and
staff” and “did not provide business or financial advice to personnel and staff.” 2015
Declaration ¶¶ 1-4. In his 2014 Declaration, Mr. Vandenberg stated that he was “tasked
with overseeing the management of Defendants’ defense in this action.” 2014 Declaration
¶ 2. Defendants argue that Plaintiffs fail the three-part Shelton test for deposing Mr.
Vandenberg because (1) information that he possesses can be obtained by other means,
specifically the depositions of other current and former employees of O.H.S. that
Plaintiffs have taken or will take; (2) any information received by Mr. Vandenberg during
his tenure with O.H.S. was acquired in his capacity as General Counsel and, thus,
protected by the attorney-client privilege; and (3) Plaintiffs have not shown that the
information possessed by Mr. Vandenberg is crucial to their case. (Motion for Protective
Order Barring the Deposition of Brian Vandenberg [doc. 228] (“Motion”) at 2-3.)
In their response, Plaintiffs contend that Mr. Vandenberg “had substantial nonlegal, and non-litigation involvement irrespective of his assertion of never providing
business advice”; that he “is unique given his substantial involvement in non-legal
matters with Defendant entities including the corporate sale of Defendant entities”; that
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his testimony is “crucial”; and that there is no practical way to obtain the same breadth
of information that Mr. Vandenberg has. (Plaintiffs’ Response to Defendants’ Motion for
Protective Order Barring the Deposition of Brian Vandenberg [doc. 232] (“Response”) at 3-4.)
Plaintiffs do not provide the bases for these assertions.

The only apparent

indication is that they rely on Mr. Vandenberg’s 2014 Declaration, which Defendants
originally submitted in support of their resistance to Plaintiffs’ alter-ego discovery. In
that declaration, Mr. Vandenberg stated that he was “familiar with the operations” of
Defendants and briefly described their corporate structures and how “various common
functions are centralized for the benefit of the group” ― e.g., marketing and
finance/accounting functions ― while still adhering to corporate formalities.2 Plaintiffs
argue that, by this declaration, Mr. Vandenberg “has already testified as a witness about
information that is crucial to this case and the fact that he was heavily involved in a
corporate capacity regarding marketing, finance, and the SSIMED Manager or SSIMED
Emerge Application”, (Response at 4), and that this previous testimony “appears
inconsistent with the evidence produced in this case thus far”, (Response at 3). Plaintiffs
argue that, therefore, they are entitled to challenge the 2014 Declaration, (id. at 4 n. 2), but
they state that they do not intend to seek Mr. Vandenberg’s testimony about information
that he was provided in order to obtain his legal advice, (id. at 3). Plaintiffs do not specify

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The point of the declaration was to support Defendants’ argument that, due to the centralization
of functions among Defendants, voluminous documents would be responsive to Plaintiffs’ alter-ego
discovery requests for, inter alia, communications and information that were shared between Defendants,
which would, thus, impose an undue production burden on Defendants.

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what “evidence produced in this case so far” is inconsistent with which parts of Mr.
Vandenberg’s 2014 Declaration, or why it is inconsistent.
If Shelton’s test governed, and Defendants’ interpretation of its scope were correct,
then their argument might carry the day. But Shelton does not, and should not, govern
and, even on its own terms, is likely inapplicable to the current circumstances.
Defendants provide no support for their assertion that the Eighth Circuit’s three-prong
Shelton test has been “adopted by the Seventh Circuit”, (Defendants’ Reply in Support of
Motion for Protective Order Barring the Deposition of Brian Vandenberg [doc. 235] (”Reply”)
at 2), and the Court has not found any Seventh Circuit opinion discussing, let alone
adopting, Shelton’s test. While Defendants are correct in their assertion that “[c]ourts in
this Circuit” have applied Shelton’s criteria for attorney depositions, (Response at 2); see,
e.g., F.D.I.C. v. Fidelity and Deposit Co. of Maryland, No. 3:11-cv-19-RLY-WGH, Entry on
Motion for Protective Order, 2013 WL 2421776 (S.D. Ind., June 3, 2013), objections overruled,
2013 WL 6181127 (S.D. Ind., Nov. 26, 2013)3, there is a more persuasive line of decisions
in this district rejecting Shelton’s special test for attorney depositions, Phillips v.
Indianapolis Life Ins. Co., No. 1:06-cv-1544-WTL-JMS, Order, 2009 WL 1564384 (S.D. Ind.
2009); Cook, Inc. v. C R Bard, Inc., No. IP 00-1791-C-B/S, Entry on Objections to Magistrate

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In overruling the objections to the magistrate judge’s decision in Fidelity and Deposit, the district
judge held that, because district courts in this circuit have varied in their treatment of Shelton and “[b]ecause
there appears to be no majority approach”, the magistrate judge’s application of the Shelton test could not
be held “clearly erroneous or contrary to law”, the standard of review for magistrate-judge non-dispositive,
pre-trial rulings under 28 U.S.C. § 636(b)(1)(A) and Fed. R. Civ. P. 72(a).

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Judge’s Denial of Motion for Protective Order, 2003 WL 23009047 (S.D. Ind. 2003); Kaiser v.
Mutual Life Ins. Co. of New York, 161 F.R.D. 378 (S.D. Ind. 1994).
The Court will follow this authority, rather than Shelton, and apply no special
threshold criteria for Mr. Vandenberg’s deposition. The Court also notes that Shelton’s
criteria are, most likely, inapplicable because Mr. Vandenberg is not Defendants’ current
litigation or trial counsel. See Pamida, Inc. v. E. S. Originals, Inc., 281 F.3d 726, 730 (8th Cir.
2002); Cook, 2003 WL 23009047, *1.
Alternatively considering the protections afforded under Fed. R. Civ. P.
26(b)(2)(C), Defendants have not shown that the probability that all the information
sought from Mr. Vandenberg will be privileged is so high that the deposition clearly will
be a waste of time and resources. Mr. Vandenberg’s 2014 Declaration addresses facts
regarding the structure, centralized functions, and internal operations of Defendants that
could be relevant to Plaintiffs’ alter-ego and other allegations. Plaintiffs are entitled, at
least, to explore the matters addressed in this declaration. Defendants’ assertion that the
attorney-client privilege precludes the disclosure of any and all information that Mr.
Vandenberg acquired during his employment with O.H.S. because he received it in his
capacity as General Counsel, (Motion at 3), is simply not credible.4

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Even granting Defendants’ argument, Plaintiffs would be entitled to explore the assertedly
privileged information that Mr. Vandenberg acquired during his employment but nonetheless disclosed in
his 2014 Declaration.

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As this Court has ruled in Phillips, Cook, and Kaiser, Mr. Vandenberg must invoke
any privileges or immunities to specific questions at his deposition. If he so invokes, he
must answer reasonable circumstantial questions relevant to the application of the
privilege or immunity, in order to permit meaningful review in the event that any of the
invocations is submitted to the Court. The Court notes that Mr. Vandenberg will be
deposed as only a fact witness; Defendants already have designated representatives for
Plaintiffs’ Rule 30(b)(6) depositions of them.
The Court repeats the warning that was issued in Cook:
While the Court generally will not prohibit such depositions preemptively
― absent, as the magistrate judge held, some showing that the impetus
behind the deposition request is harassment ― the Court will be vigilant in
utilizing all available sanctions provisions if, in retrospect, it is apparent
that the deponent had so little relevant, non-privileged information that the
deposition was no more than a waste of everyone’s time.
Cook, 2003 WL 23009047, *2. Plaintiffs should be well-confident in the usefulness of taking
Mr. Vandenberg’s deposition before convening it and they should take appropriate steps
to minimize the time and resources expended should their confidence prove unfounded
during the deposition.
Plaintiffs argued that Defendants failed to engage in a good-faith attempt to
resolve the dispute, as mandated by S.D. Ind. L.R. 37-1(a), and it is apparent that
Defendants failed, in their motion, to “include a certification that the movant has in good
faith conferred or attempted to confer with other affected parties in an effort to resolve
the dispute without court action”, as required by Fed. R. Civ. P. 26(c)(1). Whether a good

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faith effort was attempted is also relevant to the award of costs and fees under Fed. R.
Civ. P. 37(a)(5), which is applied to motions for protective orders, Fed. R. Civ. P. 26(c)(3).
Plaintiffs concede that, at the end of an unrelated telephone conference on the day before
Defendants filed their motion, Defendants asked Plaintiffs to withdraw the subpoena for
Mr. Vandenberg’s deposition because he is Defendants’ former counsel and that they
attempted to engage in a discussion about the matter. (Response at 2.) According to
Plaintiffs’ counsel, he told Defendants’ counsel that he refused to discuss the matter
because was unavailable, at that time, to meaningfully engage in a separate meet and
confer conference. Id. Later that same day, at 4:46 p.m., Defendants’ counsel sent an email to Plaintiffs’ counsel summarizing their conversations during the conference and
included therein a section addressing Mr. Vandenberg’s deposition. [Doc. 228-3.] In it,
Defendants’ counsel advised Plaintiffs’ counsel that Defendants intended to move for a
protective order, asked Plaintiffs to withdraw the subpoena, asked what information
Plaintiffs were seeking from Mr. Vandenberg, and stated that counsel could not imagine
any such information that would not be privileged. Id. She advised that Defendants
would file a motion for protective order the next day unless Plaintiffs agreed to withdraw
the subpoena. Id. The present motion was filed the next day at 11:47 a.m.
Compliance with the requirements to make an effort to informally resolve
discovery disputes before motions are filed obviously means that those efforts must be
made in sufficient time and have sufficient content to be meaningful. The effort made by
Defendants in this instance skirts the edge of meaningfulness, but, considering the

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circumstances of the brief time since Plaintiffs’ subpoena was served (May 23, 2015), the
fast-approaching discovery deadline of June 30, 2015, and the many other depositions
needing to be scheduled and conducted, the Court does not find that Defendants failed
to comply.
Plaintiffs requested an award of costs and attorney’s fees for responding to
Defendants’ motion. (Response at 4.) Defendants did not respond in their Reply. Plaintiffs
may file a motion for an award of fees and costs, including an itemization of those fees
and costs. Defendants’ response thereto will be their opportunity to be heard on, inter
alia, the issues of substantial justification and any other circumstances making an award
unjust. Fed. R. Civ. P. 37(a)(5)(A).
Defendants’ Motion for Protective Order Barring the Deposition of Brian Vandenberg
[doc. 228] is DENIED.
DONE this date: 06/10/2015

Denise K. LaRue
United States Magistrate Judge
Southern District of Indiana

Distribution to all ECF-registered counsel of record via ECF-generated e-mail.

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