Tenth Circuit Magistrate Judge Applies Shelton Standard to Block Deposition of Opposing Counsel as 'Fact Witness'

TULSA (LN) — U.S. Magistrate Judge Susan E. Huntsman on Tuesday granted plaintiff Gene Bicknell’s motion for a protective order, barring defendant Larry K. Wilhite from deposing Bicknell’s attorney, Michael S. Nadel. The judge held that the Tenth Circuit’s Shelton standard for deposing opposing counsel applies even when the attorney is classified as a fact witness, and that Wilhite failed to satisfy its criteria.

Wilhite sought to depose Nadel about his pre-retention investigation and communications with Bicknell regarding the American Heartland Project. Wilhite argued that Nadel’s role rendered him a "fact witness" who "helped shape the narrative that led to the filing of suit before any engagement existed," and that the Shelton standard should not apply in such cases.

Nadel’s firm was initially engaged by Bicknell’s family in May 2024 to investigate the project. In an October 2024 email, Nadel told Bicknell he believed the project was a "con by Larry and Rick and perhaps others to take money from you."

Huntsman rejected Wilhite’s argument that Shelton did not apply because Nadel was a fact witness. The judge noted that district courts in the Tenth Circuit have consistently applied the Shelton criteria even when opposing counsel is classified as a fact witness, citing cases where attorneys were involved in underlying events or investigations.

The magistrate judge held that Wilhite failed to satisfy the Shelton factors, which require the party seeking the deposition to show that no other means exist to obtain the information, that the information is relevant and nonprivileged, and that it is crucial to the preparation of the case.

Huntsman ruled that Wilhite could obtain the information through other means, including deposing Bicknell himself, and noted that Wilhite had already obtained unprivileged written communications between Nadel and Bicknell.

The judge also held that the information Wilhite sought was of "doubtful relevance" and not crucial to his case, stating that Wilhite did not explain how Nadel’s role in convincing Bicknell he was defrauded related to whether Wilhite caused Bicknell’s damages.

Huntsman concluded that the proposed deposition would likely disrupt the adversarial system and create side issues regarding work product protections, adding to the "already burdensome time and costs of litigation" without providing benefit to the factfinder.

Wilhite did not immediately return a call for comment Tuesday.

Huntsman is a U.S. Magistrate Judge for the U.S. District Court for the Northern District of Oklahoma.