• Court of Federal Claims Allows Deposition of Opposing Party's Trial Attorney As Fact Witness
  • April 27, 2007
  • Law Firm: Wilmer Cutler Pickering Hale and Dorr LLP - Washington Office
  • In considering a motion for a protective order and a cross-motion to compel the deposition of the opposing party’s attorney, the Court of Federal Claims (Lettow, J.) held that the attorney could be deposed. Boston Edison Co. v. U.S. involved a contract between Boston Edison Company (“Boston Edison”) and the Department of Energy (“DOE”) for the disposal of spent nuclear fuel from one of Boston Edison’s plants beginning by January 31, 1998. No. 99-447C, No. 03-2626C, 2007 U.S. Claims LEXIS 54, at *3-4 (Ct. Fed. Cl. Feb. 26, 2007). Boston Edison filed its complaint against DOE on July 12, 1999, and sold the plant to Entergy Nuclear Generation Company (“Entergy”) on July 13, 1999. Id. at *4. The complaint included claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and was amended to include a claim alleging an uncompensated taking of Boston Edison’s property, with damages measured by the diminution in value of the plant at the time of its sale to Entergy.

    During discovery, the government sought to depose one of the attorneys on Boston Edison’s trial team, Mr. Mattia, regarding his work as a non-legal consultant for Boston Edison during the sale and transfer of the plant. Boston Edison argued that Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986), and its three-part test for determining whether a court should allow the taking of opposing counsel’s deposition applied, involving consideration of (1) the unavailability of the information through other means, (2) the relevance and nonprivileged nature of the information sought, and (3) the crucial nature of the information to case preparation. Boston Edison, 2007 U.S. Claims LEXIS 54 at *9. The government asserted that Shelton was inapplicable because it sought to depose Mr. Mattia as a fact witness and not in his capacity as trial counsel for Boston Edison. Id. at *10. The court ruled in favor of the government and distinguished the facts at hand from Shelton: “[T]he government’s proposed deposition is focused on his ‘substantial non-legal’ responsibilities as a consultant to Boston Edison at the time of the [plant’s] sale, and the government is not seeking to discover Boston Edison’s litigation strategy or to obtain Mr. Mattia’s mental impressions of that strategy.” Id. at *21-22. The court thus determined that Boston Edison had not shown good cause, as required by Rules of the U.S. Court of Federal Claims 26(c), for the court to preclude the deposition of Mr. Mattia through issuance of a protective order. Id. at *23.