Fugett v. Security Transport Services, Inc.
Filing
24
MEMORANDUM AND ORDER denying 9 Motion for Protective Order. Signed by Magistrate Judge K. Gary Sebelius on 2/2/15. (bh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MARSHONDA FUGETT,
Plaintiff,
v.
SECURITY TRANSPORT
SERVICES, INC.,
Defendant.
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Case No. 14-2291-JAR
MEMORANDUM AND ORDER
This matter comes before the court upon Defendant Security Transport Services, Inc.’s
Motion for Protective Order (ECF No. 9). Security Transport Services, Inc. (STS) seeks a
protective order forbidding discovery with regard to A.J. Kotich, one of STS’s attorneys of
record who also served as STS’s general counsel during the period when the events giving rise to
this litigation occurred. Alternatively, STS asks the court to forbid inquiry into certain matters or
to limit the scope of discovery to certain matters. Plaintiff Marshonda Fugett opposes the motion.
Although Mr. Kotich is an attorney of record, STS also identified him as a potential
witness on its Rule 26(a)(1) initial disclosures, as did Ms. Fugett. The court recognizes the
heightened showing usually employed when considering whether to permit the deposition of
opposing counsel; however, the line of cases utilizing that test did not involve a scenario in
which the party itself has suggested it might call its own attorney to testify. As a general
principle, the attorney-client privilege cannot be used as a sword and a shield, and fairness
dictates that if STS has disclosed Mr. Kotich as a potential witness in support of its defenses, Ms.
Fugett should be afforded the opportunity to depose him. The court will not enter a protective
order wholly prohibiting his deposition or any other discovery. Should STS wish to assert
attorney-client privilege or work-production objections, it may do so in response to specific
questions posed during Mr. Kotich’s deposition or in response to discovery requests.
I.
Relevant Background
Ms. Fugett asserts she was subjected to unwelcome sexual harassment, a sexually hostile
work environment, and retaliation in violation of state and federal statutes. She brings claims
under Title VII of the Civil Rights Act of 1964,1 Title I of the Civil Rights Act of 1991,2 and the
Kansas Act Against Discrimination.3 Ms. Fugett alleges, among other things, that she
complained to STS’s management about sexual harassment in the workplace during her
employment.4 She alleges that STS “failed to take prompt and appropriate corrective action in
response to these complaints to protect [Ms. Fugett] from being subjected to sexual harassment
and a sexually hostile work environment.”5 Ms. Fugett also alleges that STS “failed to exercise
reasonable care to prevent and promptly correct the sexual harassment to which [Ms. Fugett] was
subjected.”6 She further alleges that STS failed to “establish and enforce policies to prevent
unlawful sexual harassment;” it “failed to properly train…its supervisors and employees
concerning their duties and obligations under…Title VII;” and its managers “failed to remedy
the harassment and discrimination.”7 STS denies these allegations.8
1
42 U.S.C. § 2000e, et seq.
2
42 U.S.C. § 1981A.
3
K.S.A. § 44-1009, et seq.
4
Compl. at ¶ 28, ECF No. 1.
5
Id.
6
Id. at ¶ 29.
7
Id. at ¶¶ 33–35.
8
Answer at ¶¶ 2, 10, ECF No. 3.
2
Mr. Kotich serves as general counsel for STS and is an attorney of record in this case.
Mr. Kotich is an attorney in private practice who also represents other clients.9 Prior to the this
lawsuit, STS states it hired Mr. Kotich to teach mandatory training classes to STS employees on
the topic of sexual harassment. Mr. Kotich served as STS’s general counsel during the time
period when Ms. Fugett complained of sexual harassment. STS states that President Tom
Baumann and Mr. Kotich jointly investigated Ms. Fugett’s allegations when the claims came to
their attention.10 During the investigation, Mr. Kotich attended interviews of employees,
including Ms. Fugett, and STS states he advised Mr. Baumann during the investigation.11
Both STS and Ms. Fugett listed Mr. Kotich as a potential witness in the parties’
respective Fed. R. Civ. P. 26(a)(1) initial disclosures, copies of which the parties submitted to the
magistrate judge prior to the scheduling conference. STS argues in the present motion that it is
entitled to a protective order to protect the attorney-client discussions that were held between Mr.
Kotich and STS employees and to protect Mr. Kotich’s attorney work-product.12
II.
Discussion
Fed. R. Civ. P. 26(c) governs protective orders. The rule states, “The court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or
undue burden or expense . . . ”13 The district court has broad discretion to fashion the scope of a
protective order.14 Despite this substantial latitude, “a protective order is only warranted when
9
Id.
10
Fed. R. Civ. P. 26(a) Initial Disclosures at 4 (submitted to the magistrate judge).
11
Mem. in Supp. of Def.’s Mot. for a Protective Order at 4, ECF No. 10.
12
Id. at 7.
13
Fed. R. Civ. P. 26(c)(1).
14
Layne Christensen Co. v. Purolite Co., 271 F.R.D. 240, 244 (D. Kan. 2010).
3
the movant demonstrates that protection is necessary under a specific category set out in Rule
26(c).”15 The party seeking a protective order bears the burden of establishing good cause.16 To
do this, the movant must make “a particular and specific demonstration of fact, as distinguished
from stereotyped and conclusory statements.”17
STS has not established good cause for the entry of a protective order. STS seeks an
order “forbidding discovery with regard to A.J. Kotich;”18 however, the substance of STS’s
supporting memorandum focuses only on the test for deposing an opposing party’s attorney, not
on any document production, which would require STS to properly support an attorney-client
privilege or work-production objection.19 STS fails to set forth, let alone satisfy, the elements of
an attorney-client privilege or work-production objection, and therefore a protective order
barring document discovery “with regard to” Mr. Kotich is inappropriate at this time. STS may
still lodge well-founded attorney-client privilege or work-production objections in response to
specific discovery requests.
STS also has not shown good cause for the entry of a protective order barring Mr. Kotich’s
deposition. In general, “[a]ttorneys with discoverable facts, not protected by attorney-client
privilege or work product, are not exempt from being a source for discovery by virtue of their
15
Herrera v. Easygates, LLC, No. 11-2558-EFM-GLR, 2012 WL 5289663, at *2 (D. Kan. Oct. 23, 2012) (citing
Aikins v. Delux Fin. Servs., Inc., 217 F.R.D. 533, 534 (D. Kan. 2003)).
16
Layne Christensen Co., 271 F.R.D. at 244.
17
Aikins, 217 F.R.D. at 534 (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89, n.16 (1981).
18
Mot. for Protective Order at 1, ECF No. 9.
19
See Peat, Marwick, Mitchell & Co. v. West, 748 F.2d 540, 542 (10th Cir.1984) (finding that the party asserting an
attorney-client privilege or work-product objection as a bar to discovery bears the burden of establishing that either
or both apply); see also McCoy v. Miller, No. 12-3050-JAR, 2013 WL 5966137, at *2 (D. Kan. Nov. 8, 2013)
(suggesting that attorney-client privilege is not an appropriate basis upon which to enter a protective order because it
does not fall within the categories set out in Rule 26(c)); P.S. v. Farm, Inc., No. 07–CV–2210–JWL, 2009 WL
483236, at *11 (D. Kan. Feb. 24, 2009) (stating that assertions of attorney-client privilege do not give rise to “good
cause” within the meaning of Rule 26(c)).
4
license to practice law or their employment by a party to represent them in litigation.”20
Although the Federal Rules of Civil Procedure exempt privileged material from discovery, the
“Rules…do not themselves exempt attorneys from being a source of discoverable facts.”21
This district, however, has recognized the potential for abuse in deposing an opponent’s
attorney by inviting “delay, disruption of the case, harassment, and unnecessary distractions into
collateral matters.”22 As a result, this district has generally applied a heightened standard to
requests to depose an opposing party’s attorney. Notably, none of these cases involved a
situation in which the party seeking to prevent the deposition of its attorney had itself listed the
attorney as a potential witness in its Rule 26(a)(1) initial disclosures.
In Kannaday v. Ball,23 the undersigned considered whether to apply the heightened
standard for deposing opposing counsel. Highly summarized, the action arose from a motor
vehicle accident resulting in the death of the driver and causing severe injuries to the plaintiff, a
passenger in the vehicle. After obtaining a state-court judgment in her favor, the plaintiff filed
two related garnishment actions in federal court. In both federal proceedings, the insurer
defendant sought to depose plaintiff’s counsel, who had represented the plaintiff in the state
court action as well as the federal proceedings. In the federal garnishment proceedings, Chief
Magistrate Judge James P. O’Hara and the undersigned both held that the heightened standard
for deposing opposing counsel did not apply to the deposition of plaintiff’s counsel because the
deposition included topics related to the underlying tort case and not to counsel’s role as the
20
United Phosphorous, Ltd. v. Midland Fumigant, Inc., 164 F.R.D. 245, 248 (D. Kan. 1995).
21
Id. at 247.
22
Mike v. Dymon, Inc., 169 F.R.D. 376, 378 (D. Kan. 1996) (citing Hay & Forage Indus. v. Ford New Holland,
Inc., 132 F.R.D. 687, 689 (D. Kan. 1990)).
23
No 12-2742-RDR, 2013 WL 3820013 (D. Kan. July 24, 2013).
5
plaintiff’s attorney in the federal garnishment actions.24 The rationale for applying the
heightened standard—delay, disruption of the case, harassment, and unnecessary distractions
into collateral matters—were not present in the federal garnishment actions.25
Likewise, it appears Ms. Fugett will seek information pertaining to the events giving rise
to her cause of action rather than legal advice Mr. Kotich provided to STS or information related
to Mr. Kotich’s role as STS’s counsel in this action. This case provides a stronger basis for
allowing the deposition of Mr. Kotich than did the Kannaday cases because here, STS has itself
identified Mr. Kotich as a potential witness. Rule 26(a)(1) requires, among other things, that a
party must disclose the name and contact information of each individual likely to have
discoverable information “that the disclosing party may use to support its claims or defenses,
unless the use would be solely for impeachment.”26 Mr. Kotich is the second-named individual
appearing on STS’s initial disclosures, listed just after Mr. Baumann. The disclosures state that
he “is likely to have discoverable information relevant to disputed facts alleged with particularity
in the pleadings.” They go on to state,
A.J. Kotich will testify to the fact STS, Inc. has a policy
prohibiting sexual harassment. The policy prohibiting sexual
harassment was in effect prior to the alleged incidents involving
the plaintiff and Deb Ponton. Mr. Kotich will testify that he and
Tom Baumann immediately investigated the allegations of Ms.
Fugett when the claims came to their attention. Mr. Kotich can
testify to the investigation that was completed in a timely manner.
Mr. Kotich will testify there was no sexual harassment of the
plaintiff by Deb Ponton. A.J. Kotich will testify that STS
counselled Ms. Ponton regarding sexual harassment and not to
make similar rude statements in the future. On July 9, 2013, A.J.
Kotich taught a session on legal issues, including the STS
24
Id. at *3 (citing Kannaday v. Ball, Case No. 09-255-JWL, Order at 3, ECF No. 75).
25
Id.
26
Fed. R. Civ. P. 26(a)(1)(A)(i).
6
prohibition on sexual harassment which was attended by
Marshonda Fugett.
The description of Mr. Kotich’s proposed testimony concerns factual occurrences and not
legal advice provided to STS. By listing Mr. Kotich as a potential witness on its initial
disclosures, STS has admitted that he possesses relevant, discoverable information. Certainly,
Mr. Kotich also possesses information that may be shielded from discovery by the attorney-client
privilege. But the attorney-client privilege cannot be used as a sword and a shield—disclosing
Mr. Kotich as a potential witness in support of the defense of this case but then seeking to
prevent the opposing party from testing his testimony because he also happens to be an attorney
of record.
Even considering the heightened standard typically required for deposing opposing
counsel, the court would still allow the deposition. This district generally follows the criteria set
forth in Shelton v. American Motors Corp.,27 when determining whether to allow the deposition
of opposing counsel.28 The Eighth Circuit in Shelton held that depositions of opposing counsel
should be limited to those circumstances when the party seeking to take the deposition has
shown that: (1) no other means exist to obtain the information except to depose opposing
counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is
crucial to the preparation of the case.29
27
805 F.2d 1323 (8th Cir. 1986).
28
See, e.g., Buth v. AAA Allied Grp., Inc., No. 12–CV–1223–JWL–DJW, 2013 WL 1308543, at *1 (D. Kan. Mar.
28, 2013) (stating that as a result of potential abuse in deposing opposing counsel, this district generally follows the
Shelton criteria); Ed Tobergate Assocs. v. Russell Brands, LLC, 259 F.R.D. 550, 554–55 (D. Kan. 2009) (stating that
“courts in this District have almost universally applied the Shelton criteria in deciding whether to allow the
deposition of opposing trial counsel”); Cont’l Coal, Inc. v. Cunningham, No. 06–2122–KHV, 2008 WL 145245, *2
(D. Kan. Jan. 14, 2008) (applying the Shelton criteria to a motion for a protective order prohibiting the depositions
of opposing counsel). See also Boughton v. Cotter Corp., 65 F.3d 823, 829-30 (10th Cir. 1995) (applying the
Shelton criteria).
29
Shelton, 805 F.2d at 1326.
7
While STS argues all information may be obtained from Mr. Baumann, Ms. Fugett
argues STS presumably listed Mr. Kotich in its initial disclosures for a reason. Ms. Fugett
speculates that Mr. Kotich likely possesses certain information about the investigation into her
claims that Mr. Baumann might not. At this early stage of the proceedings, with little discovery
having taken place, it is difficult to determine whether there are other avenues to obtain the
information sought because, for one, the court is unclear what information Ms. Fugett may seek.
At the time STS filed its motion for a protective order, Ms. Fugett had yet to notice Mr. Kotich’s
deposition or to subpoena him, and it appears she has not yet served any written discovery
concerning Mr. Kotich. The fact that STS listed Mr. Kotich in its initial disclosures also suggests
that he possesses relevant, non-privileged information.
Ms. Fugett also argues that information possessed by Mr. Kotich is crucial to the
preparation of her case because STS “has made it clear that it intends to assert that an appropriate
and timely investigation was conducted in response to [Ms. Fugett’s] complaints of sexual
harassment.”30 Accordingly, plaintiff argues that without information from Mr. Kotich, she will
have no other means to fully rebut STS’s claim that it exercised reasonable care to promptly
correct the alleged sexual harassment.
The court previously considered the third Shelton criterion in Rahn v. Junction City
Foundry, Inc.31 In Rahn, the court held that a deposition of opposing counsel was crucial because
it would allow the deposing party to determine the extent of certain investigations undertaken by
the deponent.32 The court permitted the plaintiff to depose opposing counsel when the
information plaintiff sought could be used to undermine a required element of the defendant’s
30
Pls. Resp. in Opp’n to Def.’s Mot. for Protective Order at 8, ECF No. 12.
31
No. 00–2128–KHV, 2000 WL 1679419, at *1 (D. Kan. Nov. 3, 2000).
32
Id. at *3.
8
defense that it acted reasonably and promptly to correct any sexual harassment. The court also
held that information necessary to rebut a defense of the opposing party was “crucial.”33 Here,
as in Rahn, what took place during the investigation of Ms. Fugett’s allegations is relevant
because STS has taken the position that it exercised reasonable care to prevent and correct
promptly any sexually harassing behavior.34 The information regarding the investigation that
plaintiff seeks could be potentially used to undermine a defense. Therefore, the third criterion of
the Shelton test is satisfied.
For these reasons, the court denies STS’s motion for a protective order barring discovery
with regard to Mr. Kotich. Nothing in this order shall be construed as prohibiting any properly
raised attorney-client privilege or work-production objections asserted in response to specific
questions during Mr. Kotich’s deposition or in response to discovery requests.
Accordingly,
IT IS THEREFORE ORDERED that Defendant Security Transport Services, Inc.’s
Motion for Protective Order (ECF No. 9) is denied.
IT IS SO ORDERED.
Dated this 2nd day of February, 2015, at Topeka, Kansas.
s/ K. Gary Sebelius
K. Gary Sebelius
U.S. Magistrate Judge
33
Id.
34
See Mot. by Def. Security Transport Services to Amend the Pleadings at 2, ECF No. 13 (moving to amend its
answer to more specifically plead certain affirmative defenses).
9
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