Price v. Jarett et al

Filing 69

ORDER - Union Pacific Railroad Company's Motion to Quash Notice of Deposition Duces Tecum of Kathleen Hughes and for Protective Order (Filing No. 59 ) is granted in part, and denied in part. Union Pacific shall produce, no later than April 28, 2017, the seven emails identified above. The email dated March 27, 2014 from Winkler to Hughes need not be produced. The parties are directed to submit a proposed amended progression order to [e-mail] no later than May 1, 2017. The Clerk of Court is directed to set a case management deadline in this case using the following text: "May 1, 2017: Proposed Amended Progression Order Due." Ordered by Magistrate Judge Susan M. Bazis. (GJG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
SEAN D. PRICE,
Plaintiff,

8:15CV200

vs.
ORDER
BRIAN JARETT, and UNION PACIFIC
RAILROAD COMPANY,
Defendants.
This matter is before the Court on Defendant Union Pacific Railroad Company’s (“Union
Pacific”) Motion to Quash Notice of Deposition Duces Tecum of Kathleen Hughes and for
Protective Order (Filing No. 59). For the reasons explained below, the motion will be granted in
part, and denied in part.

BACKGROUND

In this action, Plaintiff alleges that Union Pacific wrongfully terminated his employment.
(Filing No. 1.) Plaintiff seeks to depose Union Pacific’s in-house counsel, Kathleen Hughes
(“Hughes”). Plaintiff contends that Hughes was part of a committee that was tasked with
deciding whether Plaintiff’s employment with Union Pacific should be terminated. Plaintiff
maintains that Hughes acted as a business decision-maker in connection with Plaintiff’s
termination, and that her communications in that context are not protected by the attorney-client
or work-product privileges. Plaintiff bases this assertion largely upon the deposition testimony
of Union Pacific employee, Elizabeth Winkler (“Winkler”). Winkler testified that there was a
“panel” that she had to consult before terminating Plaintiff.

This panel included Hughes.

Winkler testified that the panel would have to come to a “unanimous consensus to move forward
on [a] termination.” (Filing No. 60-4 at CM/ECF pp. 5-6.)

Union Pacific contends that any testimony Hughes could provide in this case relates to
legal advice she provided to Union Pacific. Union Pacific maintains that the “panel” Winkler

referred to in her deposition did not meet as a group to evaluate Plaintiff’s termination. Rather,
Winkler requested input from each panel member separately. The panel members then reviewed
the termination request independently, and provided a response based upon their respective areas
of expertise. Union Pacific asserts that Hughes’s role in evaluating Plaintiff’s termination was
solely to review whether there were legal implications of concern for Union Pacific.

Because it was unclear whether Hughes was serving as an attorney or business advisor in
connection with Plaintiff’s termination, the Court ordered Union Pacific to produce eight emails
for in camera review.1 (Filing No. 68.) Union Pacific provided the Court with copies of the
documents on April 10, 2017. The Court has now completed its in camera review of the emails.

DISCUSSION

The attorney-client privilege only applies to confidential communications made to
facilitate legal services, and does not apply where a lawyer acts as a business advisor. United
States v. Horvath, 731 F.2d 557, 561 (8th Cir. 1984). “Where business and legal advice are
intertwined, the legal advice must predominate for the communication to be protected.” Neuder
v. Battelle Pacific Northwest National Laboratory, 194 F.R.D. 289, 292 (2000).
“[C]ommunications by a corporation with its attorney, who at the time is acting solely in his
capacity as a business advisor, would not be privileged.” Id. (quotation omitted).

From the emails produced by Union Pacific, it appears that Union Pacific does, in fact,
have a “panel,” consisting of individuals who have to approve employee termination requests.
At least in Plaintiff’s case, the approval process was seemingly accomplished through a series of
emails, each with the subject line: “Your Legal Assistance Request.” Seven of the eight emails
produced only deal with the panel’s termination approval process and do not appear to directly
relate to the rendition of legal advice. Therefore, these documents must be provided to Plaintiff.
However, the email dated March 27, 2014 from Winkler to Hughes is clearly related to the
solicitation of legal advice, and is protected by the attorney-client privilege.
Plaintiff’s Notice of Deposition Duces Tecum of Hughes directed that Hughes bring those eight emails with her to
her deposition. (Filing No. 48.)
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2

Union Pacific’s request for a protective order precluding Plaintiff from deposing Hughes
will be denied. Pursuant to Federal Rule of Civil Procedure 26(b)(1), as amended, “[p]arties may
obtain discovery regarding any nonprivileged 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). Rule 26 “is to be
construed broadly and encompasses any matter that bears on, or that reasonably could lead to
other matter that could bear on, any issue that is or may be in the case.” Hodges v. Pfizer, Inc.,
Civ. No. 14-4855-ADM/TNL, 2016 WL 1222229, *2 (D. Minn. March 28, 2016) (internal
quotation omitted). Nevertheless, the scope of discovery is not unlimited. Courts must limit the
frequency or extent of discovery if it determines that “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). Further, under Rule 26(c), “[t]he
court may, for good cause, issue an order to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense.”

Id.

Rule 26(c) “confers broad

discretion on the trial court to decide when a protective order is appropriate and what degree of
protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984).
“A motion seeking to prevent the taking of a deposition is regarded unfavorably by the
courts, and it is difficult to persuade a court to do so.” Raml v. Creighton University, No.
8:08CV419, 2009 WL 3335929, *2 (D. Neb. Oct. 15, 2009). See also Hawkins v. County of
Lincoln, No. 7:10CV5001, 2012 WL 12884563, *2 (D. Neb. Apr. 5, 2012) (“Protective orders
prohibiting depositions are rarely granted”); In re McCorholl Publishing, Inc., 91 B.R. 223, 225
(Bankr. S.D.N.Y. 1988) (“A prohibition against the taking of an oral deposition is a very unusual
procedure and a party who seeks a protective order prohibiting such a deposition bears a heavy
burden of demonstrating good cause for such an order”). Still, “federal courts have disfavored
the practice of taking the deposition of a party’s attorney” and have made clear that “the practice
should be employed only in limited circumstances.”

Desert Orchid Partners, LLC v.

Transaction System Architects, Inc., 237 F.R.D. 215, 218 (D. Neb. 2006) (quotation omitted).

The problem in this case is that it remains entirely unclear whether Hughes was acting
entirely in a legal capacity while serving on the review panel. Frankly, the documents produced
by Union Pacific for in camera review shed very little light on this issue. It is possible that a
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portion of the information held by Hughes could be subject to the attorney-client privilege. It is
also possible that the information obtained from Hughes would be cumulative or could be
obtained from other sources. However, Winkler’s testimony regarding the need for unanimous
consent for termination indicates that Winker may have some, non-cumulative, non-privileged
factual information relevant to the case.
The Court acknowledges Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir.
1986), and the Eighth Circuit’s three-prong test that a party must satisfy in order to depose the
opposition’s attorney. Shelton, 805 F.2d at 1327 (finding that to depose opposing counsel, the
party seeking the deposition must show that (1) no other means exist to obtain the information
than to depose opposing counsel, (2) the information sought is relevant and non-privileged, and
(3) the information is crucial to the preparation of the case). However, a number of courts have
found that Shelton does not apply where the lawyer to be deposed acts as a business advisor to
the party, rather than its counsel.

See Chesemore v. Alliance Holdings, Inc., No. 1:11MC43,

2011 WL 4458782 (N.D. Ohio Sept. 23, 2011) (declining to apply Shelton to proposed
deposition of counsel to the extent that the questioning related to counsel’s prior role as
transactional counsel); Wright v. Life Investors Insurance Company of America, No. 2:08-CV03-P-A, 2009 WL 4347024, *3 (N.D. Miss. Nov. 24, 2009) (finding that Shelton factors were not
controlling because the lawyer was serving both business and legal functions). In short, based on
the limited information before it, the Court is unable to conclude that Hughes was acting solely
in a legal capacity in connection with Plaintiff’s termination. Given the uncertainty surrounding
the “hat” Hughes was wearing while serving on the panel, the Court finds that an order entirely
precluding Hughes’s deposition is not warranted in this case.

Plaintiff is admonished, however, to strictly limit the subjects of inquiry to facts relevant
to the issues presented in this case. Plaintiff may not inquire into topics or conversations
shielded by the attorney-client privilege, and Union Pacific is, of course, free to object to
questions based on this privilege.

Accordingly,

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IT IS ORDERED:

1.

Union Pacific Railroad Company’s Motion to Quash Notice of Deposition Duces

Tecum of Kathleen Hughes and for Protective Order (Filing No. 59) is granted in part, and
denied in part.

2.

Union Pacific shall produce, no later than April 28, 2017, the seven emails

identified above.

The email dated March 27, 2014 from Winkler to Hughes need not be

produced.

3.

The parties are directed to submit a proposed amended progression order to

[e-mail] no later than May 1, 2017. The Clerk of Court is directed to set a case
management deadline in this case using the following text: “May 1, 2017: Proposed Amended
Progression Order Due.”
Dated this 21st day of April, 2017.
BY THE COURT:
s/ Susan M. Bazis
United States Magistrate Judge

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