Part of this story has already been told. See Insurance Claims and Issues, October 6, 2014. What follows is told here for the first time.
This is a story of deposing two lawyers and how a Court chose between them. Oh, there are allegations and mysterious overtones of bad faith and skulduggery. The lawyers themselves were accused by Bank of America of perpetuating a bad faith scheme by "requiring" the bank "to sign a 'factually incorrect release ('Release')," among other things. Bank of America, N.A. v. Georgia Farm Bureau Mut. Ins. Co., 2014 WL 4851853 *1 (M.D. Ga. September 29, 2014.)
That is why the bank wanted to depose these two lawyers. The decision over which one or both or neither of these lawyers could be deposed presented "a discovery dispute surrounding BANA's [Bank of America's] claim of bad faith and Mr. Dietrichs' and Ms. Murtha's alleged involvement surrounding the disputed Release." Bank of America, N.A. v. Georgia Farm Bureau Mut. Ins. Co., 2014 WL 4851853 *1 (M.D. Ga. September 29, 2014.)
But let's return to the real story here. This was a case of choosing between two lawyers, one or both or neither of whom would be picked for giving a deposition.
One of the two lawyers is a woman, admitted to practice in 2008, and no longer employed at the law firm which represented the insurance company in obtaining the apparently offending release and which represents the insurance company in Bank of America's bad faith lawsuit.
The other lawyer is a man, admitted to practice in Georgia in 1981, and a member of the large Atlanta law firm representing the insurance company at all material times.
The Georgia Judge ruled that only one of these two lawyers could be deposed and deposing the former associate who is no longer involved in the case would cause the least prejudice to the insurance company, so the Court in this case chose her to be deposed. "Ms. Murtha's deposition must be held in the Middle District Courthouse in Macon, GA." Bank of America, N.A. v. Georgia Farm Bureau Mut. Ins. Co., 2014 WL 4851853 *6 (M.D. Ga. September 29, 2014.)
It is respectfully submitted that this ruling leaves a couple of questions unanswered and perhaps unasked. Let's ask them now. Rule 26(c) authorizes, perhaps requires, Federal District Judges "to protect a party or person from annoyance, embarassment, oppression, or undue burden or expense". The judicial inquiry into annoyance, etc., in this case properly focused on the insurance company to the extent that the Court ruled that the least prejudice to the insurance company in allowing either of these depositions to be taken would be if only one deposition is allowed and that deposition can be of the former associate who no longer represents the insurance company in this case. So far, so good.
However, there does not appear to be the same level of concern over the prejudice to the former associate. To be accurate, the opinion does not display any level of concern over the possibilities of annoyance, embarassment, oppression, or undue burden or expense from her standpoint. Perhaps the Court was concerned with these factors yet did not display them in its opinion, but regardless, the parties and the world -- readers like you and me -- would benefit from knowing what weight if any these factors played in this ruling.
Before concluding these thoughts, the part of the story involving Macon, Georgia is particularly interesting. According to a Google Search, Macon is some 85 miles from Atlanta. I also did a Google Search for the former associate but could not find a location for her other than Atlanta in a brief search. Assuming that the witness -- the former associate lawyer who does not represent the insurance company in the lawsuit -- resides in Atlanta, what basis was there for ordering her to appear for a deposition 85 miles away in Macon?
Like I said earlier, there are unanswered questions here. These have been some of them.
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