Doe v. Board of Trustees of the Nebraska State Colleges

Filing 100

ORDER - that Plaintiff's motion to quash, for protective order, and for recovery of attorney fees, (Filing No. 92 ), is denied. Ordered by Magistrate Judge Cheryl R. Zwart. (LKO)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JANE DOE,
Plaintiff,

8:17CV265

vs.
ORDER
BOARD OF TRUSTEES OF THE
NEBRASKA STATE COLLEGES, a
Political Subdivision of the State of
Nebraska;
Defendant.

Defendant noticed the deposition of Plaintiff’s counsel, with deposition
currently scheduled for January 7, 2019. (Filing No. 89, Filing No. 94-1, at
CM/ECF p. 55). Plaintiff moved to quash that notice, for a protective order, and
for a reward of the attorney fees expended in filing the motion. (Filing No. 92).
For the reasons stated below,1 the motion will be denied.

STATEMENT OF FACTS
Plaintiff’s complaint alleges Doe was a full-time student at Chadron State
College (CSC) from August 2013 until she graduated in December 2016. Doe
alleges she was sexually assaulted by a fellow student, and CSC investigated
the incident. CSC concluded the sexual assault occurred, and on October 25,
2016, the assailant, Ige, was disciplined, but was not expelled from school.
1

To avoid case progression delays, the parties were placed on an
expedited motion and briefing schedule. Consistent with that scheduling, the
court enters this expedited order. As such, this order does not separately discuss
each case cited in the parties’ briefs.

(Filing No. 94-1, at CM/ECF p. 57). The discipline included imposing a No
Contact Order prohibiting Ige from contacting Doe. Doe complained that the
discipline was too lenient; that so long as Ige was on the campus, she would
possibly encounter him—a risk that was interfering with her on-campus
employment and counseling, her mental health, and her ability to fully attend
school. (Filing No. 94-1, at CM/ECF pp. 57-58). An email sent by Defendant’s
Vice President for Student Affairs, Jon Hansen, on November 14, 2016 explained
the school’s position. (Filing No. 94-1, at CM/ECF p. 59-61). The email ended,
“Please let me, your supervisor, or DeMersseman know if you have any
questions or concerns.” (Filing No. 94-1, at CM/ECF p. 61). Plaintiff responded
by asking “what options are available to me such as completing the rest of my
semester online or transferring?” (Filing No. 94-1, at CM/ECF p. 62). Hansen
responded to this email on November 16, 2018. (Filing No. 94-1, at CM/ECF p.
63). This was the last communication between Doe herself and the CSC
administration regarding the facts underlying this lawsuit. (Filing No. 94-1, at
CM/ECF p. 33).
Doe’s counsel sent a letter to CSC on November 18, 2016, which notified
CSC that the Chaloupka, Holyoke law firm represents Doe, demanded that CSC
preserve all evidence relevant to Doe’s case, and directed CSC to “address
further communications regarding [Doe] to [Doe’s counsel] rather than contacting
[Doe] directly.” (Filing No. 94-1, at CM/ECF p. 18). On behalf of Defendant,
Taylor Sinclair acknowledged receipt of the letter on November 22, 2016. (Filing
No. 94-1, at CM/ECF p. 20). Doe’s counsel sent a letter to CSC on Doe’s behalf
on November 23, 2016, asking that Doe’s assailant be expelled from the school
and that Doe be permitted to attend school as a normal student—without a
security escort or taking independent study courses. (Filing No. 94-1, at CM/ECF
p. 34). Doe graduated a month later, on December 16, 2016.

2

Does’ complaint alleges she could not attend counseling because CSC
failed to offer time and location options that did not pose a risk of encountering
her assailant. (Filing No. 1, at CM/ECF pp. 6-7, ¶¶ 27-28). See also, Filing No.
97-2, at CM/ECF p. 2-3, Response to Inter. No. 9. She alleges she did encounter
her assailant in an academic building, had a panic attack, and was unable to
complete an exam at the scheduled time. (Filing No. 1, at CM/ECF p. 7, ¶ 29).
See also, Filing No. 97-2, at CM/ECF p. 2-3, Response to Inter. No. 9.
Essentially summarizing the November 2016 email exchanges between Doe and
CSC, and thereafter Doe’s counsel and CSC, Doe’s complaint alleges:
30.

DOE asked CSC what her options were, so that she could complete
her coursework without encountering Ige. In response, CSC
approved DOE for independent study, and thereafter insisted that
DOE had requested independent study. DOE did not want
independent study. DOE wanted the freedom to attend class and
work on-campus without the threat that she would encounter her
rapist.

31.

CSC advised DOE that she could have another campus security
officer escort her around campus.
This proposal would not prevent DOE from seeing Ige. It would also
make DOE conspicuous to other students and staff. DOE would
visibly be “the student who needs a security escort.”
DOE did not want to be conspicuous. She declined that proposal.
What DOE wanted was the freedom to attend classes, like any other
student, without fear of encountering Ige.
DOE expressed to CSC her concerns and her disappointment with
CSC’s refusal to ban Ige from campus. She did so multiple times, in
writing and eventually through the assistance of counsel.
In its responses, CSC insisted repeatedly that DOE had requested
independent study, and that it had done everything appropriate to
accommodate and protect DOE. If anything, CSC’s responses
exacerbated DOE’s sense of despair and helplessness.

32.

33.

34.

35.

3

Filing No. 1, at CM/ECF pp. 7-8, ¶¶ 30-35). In her interrogatory responses, Doe
states “Plaintiff also saw Ige when she returned to work on the representation
that Ige would not be in the housing complex. She saw Ige that night, which is
how Plaintiff learned that Ige had not been moved.” (Filing No. 97-2, at CM/ECF
p. 7, Supp. Response to Inter. No. 9). Does’ complaint alleges Defendant acted
with deliberate indifference in failing to protect and assist Doe while she
completed her education at CSC.
CSC’s answer denies any allegations of deliberate indifference, specifically
alleging:
Doe never reported to CSC that Ige violated the No Contact Order or
that she had subsequently encountered Ige on campus. CSC also
offered Doe a security escort upon request. CSC repeatedly
requested of both Doe and her legal counsel that they inform CSC of
any further concerns or necessary accommodations. Neither Doe
nor her counsel ever told CSC that Doe was concerned about
encountering [her assailant] in the counseling center, or that Doe
may need alternate counseling locations or times.
(Filing No. 18, at CM/ECF pp. 10-11, ¶ 27).
Doe’s counsel warned “this is not a one-way street:” “The development of
this evidence, if allowed, should concomitantly allow the undersigned to take
depositions duces tecum – with no privileges available – of Taylor Sinclair and
Kristin Peterson.” (Filing No. 93, at CM/ECF p. 41). “If you’re going to push to
depose me, I’ll probably need to depose Taylor Sinclair as well.” (Filing No. 97-2,
at CM/ECF p. 8). Taylor Sinclair is an attorney employed by Defendant.
“Defendant has never taken the position with Plaintiff's counsel that Taylor
Sinclair, the NSCS's Title IX Director, is protected from deposition. Although

4

Sinclair is a licensed attorney, her relevant actions on behalf of the NSCS were
not in her capacity as an attorney.” (Filing No. 97-1, at CM/ECF p. 1, ¶ 6).
To avoid noticing the deposition of Doe’s counsel, Defendant proposed a
stipulation on November 20, 2018. (See, Filing No. 94-1, at CM/ECF p. 12-13).
Defendant believes this stipulation would render the testimony Doe’s counsel as
undisputed, thereby sidestepping any need to depose Doe’s counsel. The
stipulation provides foundation for admitting the emails and letters exchanged
between CSC and Doe’s counsel into evidence and confirms that no other
communications occurred between Doe’s counsel and CSC between November
16 and December 16, 2016 other than those reflected in the stipulation’s
attachments. (Filing No. 94-1, at CM/ECF p. 11).
Doe’s counsel asked why the stipulation was necessary. (Filing No. 94-1,
at CM/ECF p. 10). In response, defense counsel explained:
By requiring that all communications with Ms. [Doe] regarding her
Title IX complaint and remaining time on campus be filtered through
you, you made vourself her spokesperson. In fact, you explicitly
instructed the College to cease any direct communication with Ms.
[Doe]. Consequently, the College's knowledge of Ms. [Doe]'s needs
or accommodations, her access to educational opportunities, or her
concerns regarding encountering lge necessarily depends on what
you communicated to the College and when. The information you
provided to the College and all communications you had regarding
Ms. [Doe] need to be confirmed for purposes of summary judgment
and trial. Ms. [Doe] cannot testify as to communications to which she
was not a party. Thus, you are a necessary witness.
(Filing No. 94-1, at CM/ECF p. 39). See also, (Filing No. 94-1, at CM/ECF p. 43
(“[W]e are not ‘making you a witness,’ but the very nature of the allegations in the
Complaint, which encompass a period of time where you were acting as the sole
communicator on behalf of a student, necessarily implicate you as a witness.”)).
5

Defendant argues that the communications made on Doe’s behalf are highly
relevant to any claim that CSC was deliberately indifferent to Doe’s ongoing
needs.
Doe’s counsel does not object to the substance of the stipulation, and she
does not claim that communications occurred other than those disclosed in the
stipulation. (Filing No. 94-1, at CM/ECF p. 47, 50-51). Her concern is that the
context of her statements will be misconstrued, and that the stipulation will be
misused at trial. (Filing No. 94-1, at CM/ECF p. 51). Doe’s counsel explains,
“What I do not want is whomever tries this case waving ‘Jane Doe's own lawyer's
testimony’ in front of a jury and attributing statements and intentions and
implications to me that can only be countered by me taking the witness stand,
which is inappropriate.” (Filing No. 94-1, at CM/ECF p. 43). Does’ counsel asked
defense counsel to re-draft the stipulation as Requests for Admissions.
Defense counsel responded, “[T}he proposed stipulations are between the
parties, and aren't the ‘testimony of Jane Doe's lawyer.’ Thus, I see no reason to
spend the time reframing the stipulations as admissions when they would have
the exact same effect at trial, nor have you provided such a reason.” (Filing No.
94-1, at CM/ECF p. 44).
Doe’s counsel ultimately responded, “Better check with the Magistrate
first.” (Filing No. 94-1, at CM/ECF p. 45).

ANALYSIS

Doe moves to quash the deposition notice served to depose her attorney.
To defeat this motion, Defendant must show that “(1) no other means exist to

6

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.” Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 729
(8th Cir. 2002) (citations omitted). This difficult burden protects against the
“harassing practice of deposing opposing counsel” which often “does nothing for
the administration of justice but rather prolongs and increases the costs of
litigation, demeans the profession, and constitutes an abuse of the discovery
process.” Shelton v. American Motors Corp., 805 F.2d 1323, 1330 (8th Cir.
1986).
Defendant argues that by becoming Doe’s contact person while the events
at issue occurred, Doe’s counsel gained first-hand knowledge regarding the
merits of the case, making her a material, and perhaps necessary, witness for
trial. See e.g., Applied Underwriters, Inc. v. Top's Pers., Inc., No. 8:15CV90,
2017 WL 3396453, at *9 (D. Neb. Aug. 7, 2017) (Zwart, M.J.); Cascone v. Niles
Home for Children, 897 F. Supp. 1263, 1266 (W.D. Mo. 1995); Beller v. Crow,
274 Neb. 603 (2007) (overruled on other grounds), Heckman v. Marchio, 296
Neb. 458, 894 N.W.2d 296 (2017). Defendant proposed a stipulation of facts to
avoid needing to depose Doe’s counsel. A lawyer who is a material witness to
some facts may represent a client at trial if “the lawyer's testimony relates to an
issue that the lawyer reasonably believes will not be contested . . ..” Restatement
(Third) of the Law Governing Lawyers § 108 (2)(a) (2000).
Plaintiff’s

counsel

argues:

1)

deposing

her

regarding

pre-suit

communications with Defendant may necessitate disqualifying Doe’s counsel of
choice; 2) will delve into attorney-client privileged and

work product

communications; and 3) the testimony of Doe’s counsel is not relevant or crucial.

7

1.

Risk of Disqualification.

Doe’s counsel argues the deposition notice is a tactical attempt to bait her
into becoming a material witness and thereby disqualified from representing Doe
at trial. She explains:
Defendant’s proposed Stipulation asks for more than the
undersigned’s agreement to the dates [of] her two letters to CSC. It
asks that she agree that she “acted as an agent for DOE,” and thus
as a character in the story of these events. And its concluding
paragraph, that “the foregoing documents constitute the only
communications between Ms. Chaloupka and Chadron State
College from Nov. 16, 2016 to the date of DOE’s graduation,” carry
the implication that if the undersigned elected to not engage with
Defendant’s in-house lawyers (Taylor Sinclair and Kristin Peterson)
in the subjects those lawyers raised in their responsive
correspondence, then that must have been some sort of concession
that Defendant can now use as evidence.
(Filing No. 93, at CM/ECF p. 20). As Doe’s counsel explains, she is Doe’s
chosen and only attorney and disqualification will impose a significant hardship
on Doe. She therefore argues that the deposition must be quashed.

The matter of attorney disqualification is within the sound discretion of the
court. See Jenkins v. State of Missouri, 931 F.2d 470, 484 (8th Cir. 1991). The
party moving to disqualify opposing counsel bears the burden of proving
disqualification is an appropriate remedy. Gifford v. Target Corp., 723 F. Supp.
2d 1110, 1117 (D. Minn. 2010). When considering motions to disqualify, courts
must balance public policy concerns and the court’s responsibility to uphold the
integrity of judicial proceedings with a party’s right to select his or her own
counsel. In determining whether to disqualify counsel, a court balances the
interests and motivations of the attorneys, the clients, and the public. Marvin
Lumber & Cedar Co. v. Norton Co., 113 F.R.D. 588, 592 (D.Minn.1986). Factors
8

considered include a court's “duty to maintain public confidence in the legal
profession and its duty to insure the integrity of the judicial proceedings,” (In re
Potash Antitrust Litig., No. CIV. 3-93-197, 1993 WL 543013, at *16 (D. Minn.
Dec. 8, 1993); a party's “interest in a trial free from even the risk that confidential
information has been unfairly used against it,” (Arnold v. Cargill Inc., No. 01-2086
(DWF/AJB), 2004 WL 2203410, at *5 (D. Minn. Sept. 24, 2004); the “important
public right” of a party to select its own counsel, (Macheca Transport Co. v.
Philadelphia Indemnity Insurance Co., 463 F.3d 827, 833 (8th Cir.2006). Gifford,
723 F. Supp. 2d at 1117-8); and the relevant rules of professional conduct,
although such rules are not controlling. See F.D.I.C. v. U.S. Fire Ins., Co., 50
F.3d 1304, 1314 (5th Cir. 1995).
The court will strictly scrutinize any motion to disqualify a party’s chosen
counsel due to the potential for abuse, with pretrial disqualification of counsel
especially disfavored. Droste v. Julien, 477 F.3d 1030, 1035 (8th Cir. 2007). As
explained in Droste, the lawyer-witness ethical rules do not apply to pretrial
preparation. At that stage of the case, the court must consider whether
disqualification at the pretrial stage is necessary and whether it will impose a
substantial hardship upon the plaintiffs.

Given the legal backdrop explained above, permitting Defendant to take a
pretrial deposition of Doe’s counsel will not necessitate disqualification, and there
is no evidence before me that taking the deposition of Doe’s counsel will create a
risk that counsel will be disqualified for trial purposes. Particularly where it
appears any need for a deposition could be side-stepped by a stipulation of facts,
the court will not quash a properly noticed deposition of Doe’s counsel based on
an unsupported possibility of attorney disqualification.

9

2.

Attorney-Client Privilege and Work Product Doctrine.

Doe’s counsel argues that her pre-filing communications with CSC began
after it became evident that DOE would have to file this lawsuit. (Filing No. 92, at
CM/ECF p. 4). She claims her pre-filing communications with her client are
privileged and protected from disclosure by the work product doctrine.
Privileges in federal-question cases are “governed by the principles of the
common law as they may be interpreted by the courts of the United States in the
light of reason and experience.” Fed.R.Evid. 501; In re Bieter Co., 16 F.3d 929,
935 (8th Cir.1994). The attorney-client privilege is “the oldest of the privileges for
confidential communications known to the common law.” Upjohn Co. v. United
States, 449 U.S. 383, 389 (1981). It protects communications made in
confidence by a client to an attorney, acting as an attorney, for the purpose of
obtaining legal advice. Fisher v. United States, 425 U.S. 391, 403 (1976).

The work-product doctrine was recognized in Hickman v. Taylor, 329 U.S.
495 (1947). The doctrine reflects the practical reality that proper preparation of a
client's case demands that a lawyer assemble information, sift through it to
separate the relevant from the irrelevant facts, prepare legal theories and plan
strategy without undue and needless interference. Id. at 393. The Court has
therefore recognized a qualified privilege for certain materials prepared by an
attorney “acting for his client in anticipation of litigation.” Id. at 508, 67 S.Ct. 385.
The work product doctrine is intended to guard against divulging the attorney's
strategies and legal impressions. It does not preclude inquiry into the mere fact of
investigation, and it does not preclude discovery of the facts. Carlson v.
Freightliner LLC, 226 F.R.D. 343, 366 (D. Neb. 2004), (citing Resolution Trust
Corp. v. Dabney, 73 F.3d 262 (10th Cir.1995)). As with documents and

10

communications protected by the attorney-client privilege, the work product
doctrine provides no valid reason for refusing to respond to discovery seeking
disclosure of nonprivileged facts. Carlson v. Freightliner LLC, 226 F.R.D. at 366,
(citing Phillips Electronics North America Corp. v. Universal Electronics, Inc., 892
F.Supp. 108 (D.C.Del.1995)).
As Defendant correctly states, the communications between Doe’s counsel
and Defendant are not between counsel and her own client, and they are not
protected under the attorney-client privilege. (Filing No. 96, at CM/ECF p. 18).
Defendant further represents that it “does not intend to question Chaloupka about
privileged conversations she had with Doe. Contrary to Doe’s surmising, the
NSCS also ‘does not intend to ask Chaloupka why’” she did not communicate
further with Defendant between November 16, and December 16, 2018. (Filing
No. 96, at CM/ECF p. 18-19) (emphasis in original). But Defendant argues it “is
entitled to know what ‘context’ Chaloupka ascribes to her communications with
[Defendant], at least to the extent she intends to use that alleged context at trial
to support Doe’s allegation that the NSCS was deliberately indifferent or to rebut
inferences regarding those communications that the NSCS would be entitled to
argue at trial.” (Filing No. 96, at CM/ECF p. 19).

The court agrees, and notes the discovery rules anticipate that a deponent,
including counsel for a party, may possess both privileged and nonprivileged
information and may object to questions on the basis of privilege and refuse to
answer such questions. See Fed. R. Civ. P. 30(c). If the deposing party believes
the objections were improper, it may certify the questions and objections and
present the deposition transcript as supporting evidence on a motion to compel.
Then the court will decide if privilege objections were properly invoked on a
question-by-question basis. Simply stated. the court cannot rule on attorney-

11

client or work product objections in the abstract, and the fact that such objections
may be raised during a deposition does not support an anticipatory ruling to
quash a deposition.
Doe’s counsel possesses first-hand knowledge of Doe’s communications
with Defendant during Doe’s last month attending school at CSC. The court will
not quash the deposition of Doe’s counsel merely because she believes
Defendant may pose questions requesting disclosure of information protected
under the attorney-client privilege or work product doctrine.

3.

Relevance.

Doe claims Defendant violated her Title IX rights during the four-week
period when all of CSC’s communications with Doe were made by and through
Doe’s counsel. Defendant argues:
Doe claims that the College had actual knowledge of, but was
deliberately indifferent to, harm she suffered during that four week
period when she encountered (or anticipated encountering) a
student on-campus who had previously admitted to sexually
assaulting her (as that term is defined under the NSCS's relevant
policies). Chaloupka's knowledge of her communications with the
NSCS on Doe's behalf about the encounters (or near encounters)
that Doe claims created a hostile educational environment for her
under Title IX is therefore critical to the NSCS's defense of this
matter. Chaloupka's knowledge about her communications with the
NSCS on Doe's behalf about the College's other acts or omissions
during that four week period is likewise critical to the NSCS's
defense. The NSCS therefore seeks to depose Chaloupka about
that knowledge—knowledge that is relevant, non-privileged,
unobtainable from another source, and (again) crucial to the NSCS’s
defense.
(Filing No. 96, at CM/ECF p. 1-2).

12

Doe asserts her counsel’s testimony is not relevant, much less crucial.
Doe’s counsel argues:
While the undersigned does not dispute the authenticity of her own
correspondence to and from Chadron State College/Board of
Trustees employees, the undersigned does not agree that her
communications, and what she did and did not say in those
communications, are relevant to any of the claims and defenses
presented in this case.
(Filing No. 92, at CM/ECF p. 4). The court disagrees.
The gravamen of Plaintiff’s complaint is that CSC failed to sufficiently
discipline Ige, leaving Doe at risk of encountering him on campus. Doe’s
complaint states she voiced her ongoing concerns, including concerns about
access to on-campus counseling and classes, but to her knowledge, Ige was
never expelled. Doe was advised of the discipline Ige received on October 25,
2016, and she graduated on December 16, 2016. (Filing No. 1, at CM/ECF p. 5,
¶ 22). For the last month of that seven-week period, as directed in counsel’s
letter, Doe’s counsel served as Doe’s spokesperson with CSC. And during that
month, Doe alleges her injuries from Ige’s actual or possible presence on
campus were ongoing. She claims she was unable to attend on-campus
counseling for fear of seeing her assailant, and she missed an examination
because she did see him. The complaint alleges Doe personally objected to the
alleged lenient discipline imposed on Ige, and she asked for options to complete
her education while avoiding any encounters with Ige. But based on the evidence
of record, Doe ultimately decided those options were insufficient. She rejected
online study and a security escort—as stated in paragraphs 30, 32, and 33 of the
complaint—through her counsel’s written communications, not personally. As
stated in the complaint, Doe “expressed to CSC her concerns and her
13

disappointment with CSC’s refusal to ban Ige from campus. . . multiple times, in
writing and eventually through the assistance of counsel. Doe claims Defendant
was thereby deliberately indifferent to Doe’s needs and educational rights.
Doe’s counsel became personally involved in the underlying merits of this
case when, at her request, she became Doe’s sole contact with CSC regarding
events occurring while Doe was still attending college. From November 16 until
December 16, 2016, all communications about the merits of this case were
exchanged, if at all, between CSC and Doe’s counsel. The communications
between Doe’s counsel and CSC provide the basis for paragraphs 30, 32, and 33
of the complaint (as well as other paragraphs). If those paragraphs within the
complaint are relevant, then the first-hand knowledge of Doe’s counsel regarding
those allegations is also relevant. And if CSC’s failure to respond to Doe’s
ongoing problems on campus is relevant, then so is the content and scope of any
notice Doe provided, directly or through her attorney, to CSC about any ongoing
problems, along with CSC’s response to those complaints. Under such
circumstances, the court is convinced the first-hand knowledge possessed by
Doe’s counsel is very relevant to the claims alleged against CSC and CSC’s
defense to those claims.

4.

Necessary and Crucial.

Doe’s counsel states her testimony is not “crucial;” that others could
provide the same information. The court agrees that as to providing foundation
for the written communications CSC received from Doe’s counsel, counsel is not
a crucial witness. (Filing No. 93, at CM/ECF p. 19). Defendant’s witnesses can
lay foundation for these documents.

14

However, Doe’s counsel will not stipulate that she acted as Doe’s agent in
communicating with CSC beginning on November 16, 2016, (Filing No. 94-1, at
CM/ECF p. 12, ¶ 1), or that the documents referenced in the stipulation
“constitute the only communications between Ms. Chaloupka and Chadron State
College from Nov 16, 2016 to the date of Doe's graduation.” (Filing No. 94-1, at
CM/ECF p. 13, ¶9). Doe claims she is not a necessary witness as to the scope of
communications because CSC could call witnesses to confirm they received no
additional communications from Doe’s counsel. But considered from the
perspective of an educational institution with multiple departments, calling every
possible witness to prove no one at CSC received any further complaints or
communications from Doe’s counsel is an impractical if not impossible task.
Consistent with the Federal Rules of Civil Procedure, the court will not foist that
responsibility on Defendant when Doe’s counsel is a fact witness, agrees there
were no further communications between herself and CSC, but nonetheless
refuses to stipulate as such.
Doe’s counsel argues the stipulation is insufficient: A signed stipulation will
unduly limit Plaintiff’s ability to explain the context of her communications with
CSC.2 But if there is more to say—if the context of the information within the
stipulation must be explained—then Doe can call witnesses (including Doe or
CSC employees) to do that. And if Doe’s counsel is the only person who can
adequately explain the context of the November through December 2016
communications with CSC as reflected in the stipulation, and if that context is
material and must be heard by a jury for fair consideration of Doe’s case, then

2

Any claim that Defendant will unduly prejudice Doe by waving "Jane
Doe's own lawyer's testimony" in front of a jury can be raised and resolved by
motion in limine or by objection at trial.
15

Doe’s counsel is a necessary and “crucial” trial witness, and Defendant is entitled
to obtain her pre-trial deposition to prepare for trial.
Doe’s counsel asked Defendant to convert the stipulation to requests for
admissions, stating she would provide expedited answers to those requests. The
court will rarely order a party to use a specific method to collect its evidence.
More importantly, Defendant’s proposed stipulation and requests for admissions
as to the facts within that stipulation would accomplish the same thing, except
that Plaintiff’s responses to requests for admissions could include an explanation
for the written communications, or lack thereof, with CSC in November and
December of 2016. However, if that explanation is material to the case and can
be provided only by Doe’s counsel, then Defendant may be entitled to crossexamine Doe’s counsel at trial. If Doe’s counsel is not the only witness who can
explain the admissions, then Plaintiff can call a witness at trial to provide that
explanation. Under either circumstance, nothing is accomplished by requiring
Defendant to re-draft the stipulation as requests for admissions in order to prove
the full scope and content of communications between Doe and CSC from
November 16 through December 16, 2016.

CONCLUSION
If Doe will not sign the stipulation, then the testimony of Doe’s counsel
regarding the extent and content of all communications she made on Doe’s
behalf between November 16, 2016 and December 16, 2016 is not only relevant,
but crucial. If the context of the statements within the stipulation is material and
necessary for a fair resolution of this case, and only Doe’s counsel can provide
that information, Doe’s counsel is a crucial material witness. As to that context,
only Doe’s counsel currently knows what that testimony would be—and

16

Defendant is entitled to depose Doe’s counsel prior to trial so it can prepare its
response to that testimony at trial. But if Doe signs the stipulation, leaving herself
or others who are not trial counsel to explain the context, then the testimony of
Doe’s counsel is not crucial: that is, the stipulation can be read or received at
trial, or both, and the trial will proceed without Doe’s counsel serving as a
witness.
In the end, the question of whether the testimony of Doe’s counsel is
crucial, and therefore whether she must submit to a deposition, is up to Doe. But
on the facts currently before the court, she has refused to sign the stipulation that
could moot that problem.

Accordingly,
IT IS ORDERED that Plaintiff’s motion to quash, for protective order, and
for recovery of attorney fees, (Filing No. 92), is denied.

December 31, 2018.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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