United States District Court, D. Kansas
MEMORANDUM AND ORDER
K. GARY SEBELIUS, Magistrate Judge.
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,  Title I of the Civil Rights Act of 1991,  and the Kansas Act Against Discrimination. Ms. Fugett alleges, among other things, that she complained to STS's management about sexual harassment in the workplace during her employment. 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." 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." 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." STS denies these allegations.
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. 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. During the investigation, Mr. Kotich attended interviews of employees, including Ms. Fugett, and STS states he advised Mr. Baumann during the investigation.
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.
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... " The district court has broad discretion to fashion the scope of a protective order. Despite this substantial latitude, "a protective order is only warranted when the movant demonstrates that protection is necessary under a specific category set out in Rule 26(c)." The party seeking a protective order bears the burden of establishing good cause. To do this, the movant must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements."
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;" 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. 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 license to practice law or their employment by a party to represent them in litigation." 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."
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." 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 ,  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 plaintiff's attorney in the federal garnishment actions. 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.
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." Mr. Kotich is the second-named individual appearing on STS's initial ...