In a malicious prosecution case where the former Defendant (now Plaintiff) is suing the former Plaintiff, can the former Defendant (now Plaintiff) depose the attorney of the former Plaintiff (now Defendant), especially if the former Plaintiff (now Defendant) is using the same attorney as in the original trial? For that matter, a party depose the other party's attorney in any civil case as the long as the questioning doesn't violate attorney/client privilege?Attorney is not personally a Defendant in the case, but is representing the Defendant and also represented the Defendant in the former trial when they were a Plaintiff.
"[The] practice of taking the deposition of opposing counsel should be severely restricted, and permitted only upon showing of extremely good cause . . . ." (Spectra-Physics, Inc. v. Superior Court (1988) 198 Cal.App.3d 1487, 1493, citing Fireman's Fund Ins. Co. v. Superior Court (1977) 72 Cal.App.3d 786, 790; also see Estate of Ruchti (1993) 12 Cal.App.4th 1593, 1600; Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.)
Opposing counsel may only be deposed under the following circumstances:
(1) where no other means exist to obtain the information than to depose opposing counsel;
(2) where the information sought is relevant and not privileged; and
(3) where the information is crucial to the preparation of the case.
(Spectra-Physics, supra, 198 Cal.App.3d at 1496, citing Shelton v. American Motors Corp. (8th Cir. 1986) 805 F.2d 1323, 1327; Fireman's Fund, supra, 72 Cal.App.3d at 789-790.)
An attorney to be deposed can bring a motion for protective order pursuant to California Code of Civil Procedure section 2025.420(b)(1), and seek monetary sanctions pursuant to Code of Civil Procedure section 2025.420(d.
Frank W. Chen is licensed to practice law in the State of California. The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, consult your own attorney.
Yes if the attorney is a defendant in the case, maybe if not.
No attorney/client relationship is or shall be created by this response on Avvo to non-clients of The Law Offices of Norman Gregory Fernandez.
It is possible, I've done it. It depends on the facts and circumstances, but not enough facts in your posting, thus, call a lawyer in your city for a free consultation to discuss.
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