Before the Court En Banc (Justice Parraguirre recused). Opinion by Chief Justice Cherry.
In this petition for writ of mandamus or prohibition, the Court considered whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. The Court discussed the inherent policy concerns surrounding the deposition of a party’s attorney and noted that many jurisdictions disfavor the practice of taking the deposition of a party’s attorney. As such, because of the potential to create an undue burden, the Court concluded that such depositions should only be permitted in “exceptionally limited circumstances.” Therefore, the Court adopted a stringent framework established by the Eighth Circuit in Shelton v. American Motors Corp., 805 F. 2d 1323 (8th Cir. 1986) rather than a flexible standard as proposed by the real parties in interest. The Court held that a party seeking to depose opposing counsel has the burden of proving that: (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information is relevant and nonprivileged; (3) and the information is crucial to the preparation of the case. The Court also indicated that the district court should consider whether the attorney is a percipient witness to the facts giving rise to the complaint. In light of these considerations, the Court directed the district court to consider whether the deposition would be permissible when analyzed under the Shelton framework. Petition granted in part. (Amanda M. Perach, Associate in the Las Vegas office of McDonald Carano Wilson.)
