United States District Court, District of Columbia
C. LAMBERTH UNITED STATES DISTRICT JUDGE
Court has before it the "Defendants' Motion to Quash
Plaintiffs Rule 30 Deposition Notice Directed at
Defendants' Lead Litigation Counsel Timothy Mills or, in
the Alternative, for a Protective Order." Defs.'
Mot. Quash, ECF No. 204 [hereinafter ECF No. 204].
Federal Rules of Civil Procedure contain broad discovery
rules that allow oral deposition on "any nonprivileged
matter that is relevant to any party's claim or
defense." Fed.R.Civ.P. 26(b)(1). However, the discovery
rules are not open-ended and the normally permissive
discovery rules are much narrower when a party seeks to
depose opposing counsel. See Fed. R. Civ. P.
26(b)(2)-(3), (c); Coleman v. D.C., 284 F.R.D. 16,
18 (D.D.C. 2012); see also Shelton v. Am. Motors Sales
Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). The Court
must be wary of permitting depositions of opposing counsel,
especially when such depositions could "undermine
attorney-client communications, present unique opportunities
for harassment, disrupt opposing counsel's preparation,
may lead to opposing counsel's disqualification, and may
spawn collateral litigation on issues of privilege, scope,
and relevancy." Coleman, 284 F.R.D. at 18-19.
In determining whether to allow the deposition of opposing
counsel, courts consider "the need to depose the lawyer,
the lawyer's role in connection with the matter on which
discovery is sought and in relation to the pending
litigation, the risk of encountering privilege and
work-product issues, and the extent of discovery already
conducted." In re Subpoena Issued to Dennis
Friedman, 350 F.3d 65, 72 (2d Cir. 2003); see also
Coleman, 284 F.R.D. at 16, 18-19; Sterne Kessler
Goldstein & Fox, PLLC v. Eastman Kodak Co., 276
F.R.D. 376, 380-82 (D.D.C. 2011).
January 26, 2018, plaintiff, Wye Oak Technology, Inc. (Wye
Oak), gave notice of deposition of Mr. Timothy Mills.
Defs.' Mot. Quash Ex. 1, ECF No. 204-1. Mr. Mills is the
defendants', Republic of Iraq (Iraq) and Ministry of
Defense of the Republic of Iraq (MoD), lead litigation
counsel in this case. This notice of deposition was not
limited and for the reasons stated supra, the Court
proceeds with great caution when analyzing whether attorneys
involved in ongoing litigation should be allowed to be
deposed. However, Wye Oak has indicated in its opposition to
the present motion, ECF No. 204, that it solely seeks to
depose Mr. Mills regarding a single conversation between Mr.
John Quinn, who was the Secretary and Treasurer of Wye Oak as
well as Wye Oak's attorney, and Mr. Murtaza Lakhani, who
was the principal of Laru, Ltd., a company in Baghdad that
provided logistics and life support services. This
conversation occurred in January 2005 at the Four Seasons
Hotel in Washington, D.C., and was allegedly witnessed by Mr.
Mills. Pl.'s Opp'n to Defs.' Mot. Quash, ECF No.
206. During this meeting, defendants allege that Mr. Quinn
made a party admission on the part of Wye Oak that Wye Oak
withdrew from Iraq after Mr. Dale Stoffel, who was the
president of Wye Oak, was killed in December 2004. ECF No.
204. The issue of whether Wye Oak withdrew from Iraq and
abandoned the contract between Wye Oak and MoD is a critical
issue in this case and constitutes one of the affirmative
defenses put forward by defendants.
regarding the conversation that occurred between Mr. Quinn
and Mr. Lakhani, which Mr. Mills allegedly witnessed, is not
privileged information. In order to withhold information from
discovery based on attorney-client privilege, a client
"must show that the information provided to its lawyers
was intended to be confidential and was not disclosed to a
third party." United States v. Singhal, 842
F.Supp.2d 1, 5 (D.D.C. 2011). The conversation between Mr.
Quinn and Mr. Lakhani is not privileged because a third
party, Mr. Quinn, was present; the conversation occurred in
public and was therefore not confidential; and Mr. Lakhani,
not the defendants, was Mr. Mills' client at the time of
this conversation. Defendants did not become Mr. Mills'
clients until after this conversation occurred. Although Mr.
Mills' conversations with defendants are privileged, this
does not prevent Wye Oak from being able to discover
information about Mr. Mills' personal observations
regarding the discussion that occurred between Mr. Quinn and
Mr. Lakhani, which occurred before defendants became Mr.
Mills' clients. See Upjohn Co. v. United States,
449 U.S. 383, '395 (1981) (declaring that although the
attorney-client privilege protects communications between an
attorney and client, the privilege does not prohibit the
disclosure of the underlying facts that are communicated
between an attorney and client). Thus, Wye Oak may depose Mr.
Mills regarding the underlying facts of the contents of the
conversation between Mr. Quinn and Mr. Lakhani that Mr. Mills
allegedly witnessed even though Mr. Mills relayed this
information to defendants in this case. See In re Sealed
Case, 737 F.2d 94, 99 (D.C. Cir. 1984) ("When an
attorney conveys to his client facts acquired from other
persons or sources, those facts are not privileged.").
Court limits the scope of the deposition solely to
information regarding this conversation. This limiting
instruction will prevent attorney-client privileged
information and attorney work-product information from being
inquired about during plaintiffs deposition of Mr. Mills, and
will guard against the concerns that make this Court wary of
permitting depositions of opposing counsel.
the defendants' motion to quash will be
DENIED, but the defendants' motion for a
protective order will be GRANTED to prohibit
the deposition of Mr. Mills on any issue other than the
conversation between Mr. Quinn and Mr. Lakhani that occurred
in January 2005 at ...