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Cooper v. Omni Insurance Co.

United States District Court, D. South Carolina, Florence Division

April 29, 2015

Antoinette Cooper, Plaintiff,
Omni Insurance Company, Defendant.


R. BRYAN HARWELL, District Judge.


This matter is before the court on Defendant Omni Insurance Company's ("Defendant" or "Omni") Motion to Compel, filed March 10, 2015. See Def.'s Mot., ECF No. 55. Defendant seeks an order compelling the deposition of Plaintiff's counsel, Pamela R. Mullis, Esquire ("Attorney Mullis"). See id. at 1. Plaintiff timely filed a response in opposition to Defendant's motion on March 25, 2015. See Pl.'s Resp., ECF No. 58. Defendant then filed a reply in support of its motion on April 6, 2015. See Def.'s Reply, ECF No. 60. For the reasons stated below, the Court denies Defendant's motion.


Rule 26(b)(1) governs the scope of discovery and provides that:

Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense-including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).

Fed. R. Civ. P. 26(b)(1). The court may restrict the discovery of otherwise allowable information, however, 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)(2)(C)(i). The Court may also restrict discovery where "the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues." Fed.R.Civ.P. 26(b)(2)(C)(iii). Broad discretion is afforded a district court's decision to grant or deny a motion to compel. Erdmann v. Preferred Research Inc. of Ga., 852 F.2d 788, 792 (4th Cir. 1988) (citation omitted).


I. Factual Background

The parties do not dispute the factual background giving rise to this motion.[1] This action involves a bad faith claim asserted by Plaintiff against Defendant. See generally Compl., ECF No. 1-1. Plaintiff alleges that the bad faith arose in connection with an underlying automobile accident/tort claim ("the underlying action"), where Plaintiff brought suit against Omni's insured, Benjamin Spears ("Spears"). See id. at ¶¶ 5-6. Spears's policy limits provided for the minimum liability coverage limits ($25, 000/$50, 000/$25, 000). See id. at ¶ 10. Plaintiff, however, obtained an excess verdict of $854, 075.00 against Spears at trial. See id. at ¶ 6. Spears then assigned his bad faith claim against Omni to Plaintiff, who brought this action against Omni. See id. at ¶ 8. Plaintiff alleges that Omni wrongfully failed to settle her claim against Spears within Spears's policy limits. See id. at ¶¶ 9-15. Plaintiff's counsel, Attorney Mullis, also represented the Plaintiff during the underlying automobile accident/tort suit against Spears.

II. Parties' Arguments

Defendant seeks to compel Attorney Mullis's deposition, asserting that she "is a witness concerning the facts of this case." See ECF No. 55 at 2. Defendant argues that the present bad faith claim calls into question the facts and circumstances surrounding the underlying case and the failure of the claim to settle. See id. at 3. Defendant contends that this makes the facts and circumstances surrounding settlement-related communications involving Attorney Mullis relevant. See id. Defendant also notes that Spears was charged with felony driving under the influence in connection with the accident, and while he faced a mandatory minimum sentence of 30 days imprisonment and up to 15 years, Plaintiff submitted an affidavit requesting leniency. Defendant argues that communications between Spears's defense attorney in the criminal matter, Guy Ballenger ("Attorney Ballenger"), and Attorney Mullis are also relevant as a result. See id. at 3-4. Defendant notes that while deposing opposing counsel is typically unusual, in a bad faith situation like this it is logical, as Plaintiff's counsel was an active participant in the very events that gave rise to the alleged bad faith claim. See id. at 4. Accordingly, Defendant asserts that it should be allowed to depose Attorney Mullis about any non-privileged matter that is relevant to the claims or defenses.

Plaintiff responded, first asserting that the motion to compel is premature, as Omni has not actually noticed Attorney Mullis's deposition. See ECF No. 58 at 2. Accordingly, Plaintiff asserts that the Court should not compel a deposition which has yet to even be noticed. See id. Plaintiff then contends that, even if it were procedurally proper, the motion should be denied on substantive grounds. Plaintiff acknowledges that the rules do not prevent the deposition of another party's lawyer, as long as it seeks relevant, non-privileged information. She argues, however, that courts are typically skeptical of an effort to do so, and suggests that the Court should apply the test articulated by the Eighth Circuit in Shelton v. American Motors, 805 F.2d 1323 (8th Cir. 1987). Shelton set forth a burden-shifting test favoring the party opposing the deposition, stating that such a deposition can only occur where the party seeking it shows: (1) no other means exists to 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. Id. at 1327. Plaintiff argues that Defendant has not met this burden, as it has not sufficiently detailed the specific information sought from Plaintiff's counsel or explained its relevance. See ECF No. 58 at 5-7. Moreover, Plaintiff argues Defendant has not shown that taking counsel's deposition is the only means of obtaining the information or that other methods of discovery would be ineffective. See id. at 7-8. Plaintiff notes that Omni has not attempted to depose Spears's counsel in the criminal matter or attempted to depose Spears's attorneys hired by Omni in the underlying tort action. See id. at 8. Finally, Plaintiff asserts that, to the extent Omni seeks to explore Attorney Mullis's mental impressions or other privileged information, Defendant is prohibited under the work product doctrine. See id. at 9.

Defendant filed a reply in support of its motion, reasserting that deposing Attorney Mullis would be proper. Defendant first contends that Plaintiff's procedural argument is without merit, as it conferred with Attorney Mullis prior to filing the motion and she stated she would object to any deposition notice. See ECF No. 60 at 1. After the matter could not be resolved, the parties set up a telephone conference with the undersigned to discuss the matter informally, as provided for in the scheduling order. See Notice, ECF No. 49. After the telephone conference, the Court noted that it was unlikely this matter could be resolved informally and told the parties to go ahead and file any appropriate motion and brief the issue. See ECF No. 60-2 at 1. Defendant notes that it would not have made sense to blind notice a deposition and force Attorney Mullis to move to quash it after all of this occurred. See ECF No. 60 at 2-3. Defendant then argues that the motion also fails on its merits, asserting that the legal authority cited by Attorney Mullis is not applicable in this situation. See id. at 3. Moreover, Defendant contends that, even applying the Shelton test, it has met its burden. Defendant argues that it has a legitimate basis in seeking the deposition, as the information sought relates to the facts and circumstances surrounding the underlying action's failure to settle. See id. at 4-5. Defendant notes that Attorney Mullis personally communicated with Omni regarding potential settlement and with Attorney ...

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