UPDATES & ANALYSIS

5.21

Two assistant attorneys general subpoenaed, but only one must testify, Iowa Supreme Court holds

by Rox Laird | May 21, 2024

Two assistant Iowa attorneys general subpoenaed to testify by deposition in an employment suit against the State appealed to the Iowa Supreme Court after the trial court denied their motion to quash the subpoenas. The Supreme Court held that while one of the attorneys is shielded from testifying, the other is not.

Department of Public Safety (DPS) special agent Charis Paulson sued the department in 2021 under the Iowa Civil Rights Act claiming gender-motivated discrimination and retaliation. Paulson sought depositions from Assistant Attorneys General Molly Weber and Jeffrey Peterzalek. Weber, who has since left the Attorney General’s Office, represented the department in the dispute with Paulson. Peterzalek, who remains on the Attorney General’s staff, has represented the Department of Public Safety on other matters but has not participated in the State’s defense against Paulson’s suit.

In their motion to quash the subpoenas, Weber and Peterzalek argued that allowing them to be deposed could lead to the disclosure of privileged information and violate their ethical duty to maintain client confidences.

The Polk County District Court denied the motion to quash but ordered that the depositions be sealed.

In reversing the district court in part and affirming in part, the Supreme Court in a unanimous decision written by Justice David May held that while Peterzalek may be compelled to testify by deposition, Weber may not.

The reason for the difference in the Court’s treatment of the two attorneys lies in their respective roles in the underlying Paulson lawsuit: Weber was engaged in the State’s defense at an early stage of Paulson’s suit; Peterzalek was prevented from participating in the employment case because he was representing Paulson in an unrelated matter within the DPS and unable to represent the Department in any matter adverse to Paulson.

In reaching its conclusion in this case, the Court adopted the so-called Shelton test, first articulated in 1986 by the U.S. Court of Appeals for the Eighth Circuit in Shelton v. American Motors Corp.

In Shelton, the Eighth Circuit, which has appellate jurisdiction in federal courts within Iowa and six other Midwestern states, held that while there is no absolute immunity for a lawyer being deposed by an opposing party, depositions in such situations should be limited to circumstances where the party seeking to take the deposition has shown that “(1) no other means exist 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.”

“Like the Shelton court, we believe that the ‘harassing practice of deposing opposing counsel (unless that counsel’s testimony is crucial and unique) appears to be an adversary trial tactic that does nothing for the administration of justice but rather prolongs and increases the costs of litigation, demeans the profession, and constitutes an abuse of the discovery process,’” Justice May wrote, quoting from the Eighth Circuit decision in Shelton.

Applying Shelton’s three-factor test in this case, the Court held that the trial court should have quashed the subpoena seeking Weber’s deposition. Prior to her departure from the Attorney General’s Office, she assisted the Department of Public Safety in responding to an administrative complaint in which Paulson raised the same allegations being litigated in the district court.

“And so we view Weber as opposing counsel for purposes of Paulson’s ongoing civil rights dispute with DPS,” Justice May wrote. “Therefore, the Shelton test applies to Weber.”

The same could not be said about Peterzalek, however.

Peterzalek has not represented the Department of Public Safety in its ongoing civil rights dispute with Paulson because, as counsel for Paulson in another matter, the Court said the Attorney General’s Office has appropriately “walled” Peterzalek “off” from any involvement in Paulson’s dispute with DPS. “As to Paulson, then, Peterzalek is not ‘opposing counsel’,” Justice May wrote. “And so the Shelton test does not apply to Peterzalek.”

The Court added that while Peterzalek should be subject to deposition on some matters in Paulson’s case, such as nonprivileged information relevant to her claims including their DPS work together over nearly two decades, much of his information may be protected by the work-product doctrine, the attorney–client privilege, or both, and any “appropriate boundaries” for his deposition should be set by the district court.

 

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