Deposition sought for poultry suit

BY ROBERT J. SMITH

Posted on Friday, January 26, 2007

Arkansas poultry companies want to depose Oklahoma Attorney General Drew Edmondson as they prepare for the federal lawsuit he filed against them.

That shouldn’t happen, Oklahoma officials said in federal court documents filed Thursday. The defendants shouldn’t be allowed to depose the plaintiff’s lead attorney in the case, they argued.

U. S. Magistrate Judge Sam Joyner will take up the question at a Feb. 15 hearing in U. S. District Court at Tulsa.

“It is improper to depose the attorney general, because he is not a party to this litigation,” Charlie Price, a spokesman for the attorney general’s office, said in a statement. “He is the attorney for the plaintiff. Depositions are intended for witnesses — plaintiffs’ and defendants’ — not their lawyers.

“ This is nothing more than gamesmanship, once again, on the companies’ behalf.”

John Elrod, a Fayetteville attorney who represents defendant Simmons Foods Inc., said Thursday that Edmondson should be deposed.

“Drew has made all these public pronouncements in the press way above and beyond what happens in court filings,” Elrod said. “The thrust is, he’s a fact witness.”

Edmondson sued the poultry companies in June 2005, accusing them of polluting the Illinois River watershed with poultry litter. The litter is a combination of wood chips, rice hulls and bird manure that’s spread on fields to fuel hay growth. Heavy rain can carry phosphorus found in litter into streams, where it can harm water quality.

Elrod raised the issue of deposing Edmondson in a Dec. 5 e-mail to Rick Garren, a private attorney in Tulsa who’s working for Edmondson’s office in the lawsuit against the companies.

The poultry companies wanted to depose Edmondson over two days sometime between Jan. 15 and Feb. 15, the e-mails show.

“I have consulted with my colleagues and would request you to provide to us the reasons and basis for which you propose to take the deposition of the attorney general,” Garren wrote in a Dec. 8 e-mail to Elrod. “Clearly, Mr. Edmondson is our lead attorney in this case, and it seems on its face to be an inappropriate or unjustified request.”

Elrod disagreed.

“[Edmondson ] is one of the named plaintiffs,” he wrote. “I was curious how he could be both an attorney and plaintiff in the same lawsuit when it was filed. But that was his choice.”

Attorneys for Edmondson filed requests in court Monday asking for a protective order to block the deposition, saying it’s improper to depose Edmondson because he’s the case’s lead attorney and a high-ranking government official. They wrote that Oklahoma is the plaintiff in the lawsuit; not Edmondson.

Federal and state courts rarely allow depositions of the opposing side’s attorney, said David Markowitz, a Portland, Ore., trial lawyer and an expert on the issue of deposing the opposing counsel.

“Courts will almost always prohibit the taking of a deposition of the other counsel,” said Markowitz, who is not connected with the case between Oklahoma and the poultry companies.

Nothing in the Federal Rules of Civil Procedure prohibits deposing the other side’s attorney, Markowitz said. It has been allowed in cases where an opposing attorney is accused of professional misconduct, witness tampering or destroying evidence, he said.

Allowing the deposition would invade attorney-client privilege, and it would put Edmondson in a position where he could be asked to reveal trial strategy, said Jim Rose, a Fayetteville attorney who’s worked criminal cases in federal and state courts more than 29 years.

“I don’t see that there’s any way in hell that they can depose him,” Rose said. “I watch Law and Order and all the reruns religiously, and I haven’t even seen it done on there.”

Joyner, the federal magistrate, could choose a middle ground, Markowitz said. He could allow the Edmondson deposition, but appoint a special master to oversee it. That would limit the types of questions Edmondson would have to answer under the supervision of the special master, Markowitz said.