UNITED STATES OF AMERICA v. BERGER GROUP HOLDING, INC.
2:17-cv-05456
D.N.J.Mar 23, 2022Background
- This is an FCA case in which defendant Derish M. Wolff asserted affirmative defenses alleging prosecutorial misconduct, principally that the Government kept the case sealed for about ten years to Wolff's detriment.
- Judge Linares denied the Government’s motion to strike those Affirmative Defenses, allowing discovery on them.
- The Court previously reviewed privilege issues in camera, denied Wolff’s attempt to invoke the crime‑fraud exception, and held Wolff may be entitled to opinion work‑product in limited circumstances because counsel’s conduct is directly at issue.
- Wolff moved to depose two DOJ lawyers who substantially litigated this matter: Senior Trial Counsel Russell Kinner and former AUSA Michael DiPietro (now a judge). The Government sought a protective order barring those depositions and prospectively barring depositions of other government attorneys.
- The magistrate applied the three‑factor Shelton test (805 F.2d 1323) for counsel depositions rather than a plain Rule 26 analysis, and evaluated (1) whether other means exist to obtain the information, (2) whether the information is relevant and non‑privileged, and (3) whether it is crucial to the defenses.
- The Court granted the protective order in part and denied it in part: it limited permissible questioning to topics closely tied to Wolff’s Affirmative Defenses (notably sealing applications and pre‑filing government involvement), barred fishing expeditions, and denied a blanket prohibition while preserving privilege objections to be raised contemporaneously.
Issues
| Issue | Plaintiff's Argument (Government) | Defendant's Argument (Wolff) | Held |
|---|---|---|---|
| 1. Applicable standard for deposition of opposing counsel | Apply Shelton three‑factor rule to protect adversary counsel from routine deposition | Apply the ordinary Rule 26 discovery standard | Court applied Shelton (district practice and persuasive authority favor Shelton) |
| 2. Whether depositions of Kinner & DiPietro should be barred entirely | Protective order: counsel depositions disfavored; topics will inevitably probe privileged mental impressions | Depositions necessary to prove prosecutorial‑misconduct defenses; counsel are uniquely situated | Denied in part: depositions not categorically barred; limited topics permitted under Shelton |
| 3. Shelton factor 1 — Are other means available? (topics re: settlement, communications with defendants, LBG actions) | Information obtainable from other parties (defendants, LBG personnel); no need to depose counsel | Counsel are best/unique sources for these matters | Court: topics 3, 6, 8 (settlement, communications with defendants, LBG personnel actions) fail Shelton factor 1 and are disallowed absent later showing |
| 4. Shelton factors 2 & 3 — Privilege and cruciality (sealing applications; pre‑filing control/participation) | Much of the inquiry will invade privileged work product and mental impressions; protective order justified | Sealing applications and pre‑filing involvement are central to Affirmative Defenses and crucial to Wolff's ability to defend | Court: Permitted limited inquiry into (a) preparation/content/filing of sealing applications and (b) government control/participation pre‑Complaint, but only to the extent each line of questioning is crucial to proving Wolff's Affirmative Defenses; privilege objections may be raised in real time. Depositions of additional government attorneys denied without specific showing. |
Key Cases Cited
- Shelton v. Am. Motors Corp., 805 F.2d 1323 (8th Cir. 1986) (three‑factor test limiting depositions of opposing counsel)
- United States v. Exxon Corp., 87 F.R.D. 624 (D.D.C. 1980) (counsel activities directly at issue can make opinion work‑product discoverable)
- In re Linerboard Antitrust Litig., 237 F.R.D. 373 (E.D. Pa. 2006) (counsel depositions disfavored; Shelton factors applied)
- Jamison v. Miracle Mile Rambler, Inc., 536 F.2d 560 (3d Cir. 1976) (objections to privileged questioning may be raised and ruled on during depositions)
- Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726 (8th Cir. 2002) (discusses limits of Shelton in certain contexts)
- Sterne Kessler Goldstein & Fox, PLLC v. Eastman Kodak Co., 276 F.R.D. 376 (D.D.C. 2011) (deposing opposing counsel may chill attorney‑client communications)
- Alcon Labs., Inc. v. Pharmacia Corp., 225 F. Supp. 2d 340 (S.D.N.Y. 2002) (no requirement to exhaust every alternative before seeking counsel deposition)
- Ed Tobergte Assocs. Co. v. Russell Brands, LLC, 259 F.R.D. 550 (D. Kan. 2009) (burden on party seeking deposition under Shelton)