Yes, it can be done but its not easy. When might it ever be justified?
Club Vista Fin. Servs. v. Dist. Ct., 128 Nev. Adv. Rep. 21, 276 P.3d 246 (2012) concerned an investment in a multi-purpose development gone horribly wrong. Club Vista hired counsel to investigate and eventually followed their advice to file suit. In deposition, however, the only individuals at Club Vista with knowledge of the transactions had no knowledge of the facts alleged in the complaint. The only people that did were Club Vista’s counsel, whom the other parties then sought to depose. This caused a kerfuffle.
To resolve the conundrum, the court employed an analysis somewhat similar to that used when determining whether attorney work-product is discoverable.
In this original writ petition, we address whether, and under what circumstances, a party to a lawsuit may depose an opposing party’s former attorney. In considering this issue, we adopt the framework espoused by the Eighth Circuit Court of Appeals in Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986). Under the Shelton analysis, the party seeking to depose opposing counsel must demonstrate that the information sought cannot be obtained by other means, is relevant and nonprivileged, and is crucial to the preparation of the case. Id. at 1327.
Club Vista, 276 P.3d at 247.
Can you depose opposing counsel? Yes, but for good reason the courts have made it difficult to obtain.