What Discovery is Permitted for Affirmative Defenses?

When an answer is filed it is typically accompanied by a varying of affirmative defenses. Then discovery opens and the client receives an interrogatory asking it to state all facts supporting each of the affirmative defenses alleged in the answer. When that happens, I occasionally get an email from a reader asking, “can they do that?” Yes, but within some limitations.

United States EEOC v. Caesars Entm’t, Inc.[1]expressly addressed this question in the context of a 30(b)(6) deposition notice. The EEOC first requested a designee to testify regarding “[t]he factual information and source of such information supporting Defendants’ defense and affirmative defenses as reflected in the pleadings and discovery responses.”[2] The topic was later revised to include “[t]he factual information and source of such information supporting Defendants’ third, fourth, fifth, sixth, eighth, ninth, tenth, and eleventh affirmative defenses as reflected in the Answer dated July 19, 2005.”[3] Caesars objected and sought “a protective order to limit the scope of Rule 30(b)(6) deposition questioning to preclude inquiry into the factual bases for defendant’s asserted position statements and affirmative defenses.”[4]

After surveying the caselaw, the court concluded two primary questions were at issue: “(1) whether the attorney-client privilege or work product doctrine prevents the witness from answering questions regarding facts supporting the parties’ contentions or affirmative defenses, and (2) if not, whether a Rule 30(b)(6) deposition is an overly burdensome method of acquiring this information, or whether less burdensome methods exist.”[5]

The analysis began with the general reminder that “[t]he attorney-client privilege does not prevent the disclosure facts communicated to an attorney, and the work product doctrine does not prevent the disclosure of facts communicated by an attorney to a client that the attorney obtained from independent sources.”[6] It then surveyed a split of authority in certain jurisdictions and concluded the 30(B)(6) topic was appropriate. “Oral deposition questions of non-lawyer witnesses may pose a slightly greater risk of inadvertent disclosure of privileged or protected information, but that risk is adequately addressed by the presence of counsel who may instruct the witness not to answer improperly phrased questions which would reveal attorney-client privileged information.” Instead it sought the “discovery of facts and the source of information about the defendants’ claims and defenses which are clearly relevant and discoverable within the meaning of Rule 26(b). … [D]efense counsel may not object to this line of questioning on the basis that it calls for the application of fact to law.[7]

The court then moved to the second step: was the deposition overly burdensome. Although it acknowledged there may be certain fact patterns where a 30(b)(6) deposition on affirmative defenses may in fact be overly burdensome, this was not one. Caesars’ “affirmative defenses are not complex patent issues that call for ‘quasi-legal argument.’ … The affirmative defenses are obviously legal in nature, but the facts which support them are not.”[8] Further, the revised scope of the deposition notice excluded “some of the defendant’s affirmative defenses that only call for legal analysis, and therefore have limited the scope of the areas of examination to affirmative defenses that require factual support.”[9] The deposition was allowed.

This same logic applies to interrogatories and requests for production. Facts are not privileged but attorney impressions are. Drawing the line between them can be difficult but can be done.

[1] 237 F.R.D. 428 (D. Nev. 2006).
[2] Id. at 430.
[3] Id.
[4] Id. at 433.
[5] Id.
[6] Id. at 434.
[7] Id. at 434-35.
[8] Id. at 435.
[9] Id.