IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Charles R. Ogle, et al., :

 Plaintiffs, :

 v. : Case No. 2:10-cv-1059

Columbia Gas Transmission, : JUDGE PETER C. ECONOMUS

LLC, fka Columbia Gas Magistrate Judge Kemp

Transmission Corp., et al., :

Defendants. :

OPINION AND ORDER

I. Background

This case involves, as the Court of Appeals has put it,

Plaintiffs Charles and Melanie Ogle’s claim for “damages and

injunctive relief relating to the expansion of natural-gas

facilities on their land ....” See Ogle v. Columbia Gas

Transmission Co., LLC, Case No. 11-4155 (6th Cir. January 31,

2013), slip op. at 2. More particularly, Columbia Gas

Transmission asked, in 2008, for permission from the Federal

Energy Regulatory Commission to place a second storage well and

an access road on the Ogles’ property. Permission was granted,

and the Court has dismissed all of the Ogles’ claims for

injunctive relief, so the remaining issue in the case is damages. 

Those damages are limited to the effect that Columbia’s actions

had on the property prior to November 5, 2009, when the property

was transferred to Ogleshill Farm, LLC. See Opinion and Order of

August 9, 2013 (dismissing all other claims for lack of standing)

(Doc. 84). Specifically, these damages are limited to

construction, crop, and diminution damages, criminal trespass and

theft damages, and well rental payment and pipeline payment

required in advance of construction. See Order of October 10,

2013 (Doc. 93). The following claims set forth in the Ogles’

second amended complaint (Doc. 85) were specifically dismissed by

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the Court: a claim for damage which occurred in 2012 (¶41);

various claims labeled “False, Fictitious, Perjured and

Fraudulent Documents” (¶¶42-49); various claims labeled “Surface

Owner Rights and Good Faith and Fair Dealing” (¶¶55-59); and

various claims labeled “Civil Rights Violations and Conspiracy

and Complicity to Commit Civil Rights Violations, False Report,

Perjury, Libel, Slander, Abduction and Conspiracy and Complicity

to Commit False Report, Perjury, Libel, Slander and Abduction”

(¶¶60-64). See Order of December 12, 2013 (Doc. 98). 

II. Pending Motions

Currently before the Court are the Ogles’ motion to compel

and a corresponding motion for a protective order filed by

defendants Columbia Gas Transmission, Fredric George, and Beth

Minear. 

In their motion to compel, the Ogles contend that Jason

Martin and Columbia Gas Transmission have failed to respond to

interrogatories, produce documents or answer deposition questions

which the Ogles believe could lead to admissible evidence

relating to damages for criminal trespass and theft. The extent

of their argument, unaccompanied by evidentiary support, is set

forth in one paragraph which states:

Defendants have intentionally caused delay of the

discovery process to the prejudice of Plaintiffs by

refusing to divulge to the Columbia Gas Transmission,

LLC employees who instructed Jason Martin to take

actions that prove part of the criminal trespass and

theft committed upon Plaintiffs’ property. Defendants’

attorney, James Doerfler, has also interfered with

Plaintiffs’ rights by advising his clients not to

answer questions related to the criminal trespass and

theft upon Plaintiffs’ property.

The Ogles also argue that Columbia has refused to produce

defendants Beth Minear and Fredric George for deposition. They

contend that these defendants are not exempt from the discovery

process simply because they are employed as in-house counsel by

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Columbia. 

In response, these defendants filed a motion for a

protective order relating to the proposed depositions of Ms.

Minear and Mr. George. As they explain, these defendants are

both in-house counsel and the allegations against them are

limited. According to defendants, the Ogles allege that these

defendants were complicit in criminally trespassing on the Ogles’

property in connection with well installation activities and that

these defendants submitted false and fraudulent filing with

regulatory agencies. Defendants cite to the Court’s previous

orders dismissing any fraudulent filing claims and argue that,

notwithstanding these orders, the deposition notices directed to

Mr. George and Ms. Minear contain ten topics, most of which

relate to regulatory filing issues. They contend that the

remaining deposition topics have either been addressed previously

in the deposition testimony of non-attorney witnesses or involve

the Ogles’ attempt to make inquiries about construction

activities on the properties of hundreds of other landowners. 

Given the attorney-client privilege implications, defendants

assert that they have asked for an explanation of the need to

depose in-house counsel, but the Ogles have declined to provide

one. 

The deposition notice attached to the motion for a

protective order as Exhibit B indicates that the proposed topics

for Mr. George’s deposition include: 

1. Knowledge of the intended and actual construction

activities and/or damages on Plaintiffs’ property as

specified in Plaintiffs’ amended complaint;

2. Communications with other defendants and/or other

persons or agencies, including the Federal Energy

Regulatory Commission, regarding the intended and

actual construction activities and/or construction

damages on Plaintiffs’ property during the time

specified in Plaintiffs’ amended complaint;

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3. Knowledge regarding Plaintiffs’ wood products as

referenced in Plaintiffs’ amended complaint;

4. Knowlege pertaining to any documents regarding

Plaintiffs’ property submitted by Fredric J. George to

the Federal Energy Regulatory Commission and/or any

other agency;

5. Knowledge of the intended and actual construction

activities and/or damages on each and all other

properties in FERC docket CP08-431;

6. Communications with other defendants and/or other

persons or agencies, including the Federal Energy

Regulatory Commission, regarding the intended and

actual construction activities and/or damages on each

and all other properties in FERC docket CP08-431;

7. Knowledge regarding wood products on each and all

other properties in FERC docket CP08-431;

8. Knowledge pertaining to any documents regarding

each and all other properties in FERC docket CP08-431

submitted by Fredric J. George to the Federal Energy

Regulatory Commission and/or any other agency;

9. Communications with any other defendant and/or

person or agency regarding security on Plaintiff’s

property;

10. Communications with any other defendant and/or

person or agency regarding security on each and all

other properties in FERC docket CP08-431. 

The proposed deposition topics for Ms. Minear are identical with

the exception of topic 4. In Ms. Minear’s deposition notice,

attached to the motion as Exhibit C, topic 4 is not limited to

submissions by Mr. George but encompasses submissions by any

defendant.

The defendants rely on the three-part test set out in

Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986),

and adopted by the Sixth Circuit Court of Appeals, in support of

their position that a protective order prohibiting the

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depositions of Ms. Minear and Mr. George is required here. 

According to defendants, because Shelton applies, the Ogles must

demonstrate that they have no other means of obtaining the

desired information and the information sought is relevant, nonprivileged, and crucial to their preparation of their case.

Defendants contend that the Ogles have not met their burden on

any of these issues. 

Alternatively, defendants request that the Court enter an

interim protective order and require the Ogles to complete

depositions of other, non-attorney defendants and the corporate

representative. If, after the completion of these depositions,

the Ogles remain unsatisfied, defendants ask that the Ogles be

required to seek leave of Court to issue deposition notices

specifying “(1) the relevant information that is uniquely in

possession of the proposed attorney deponents; (2) why that

information is necessary to Plaintiffs’ affirmative case; and (3)

describing how that questioning can be pursued without revealing

attorney-client privileged information or protected litigation

strategies.” According to defendants, the depositions of Mr.

George and Ms. Minear will not elicit information relevant to any

remaining claims or damages but would certainly result in

“annoyance, embarrassment, oppression, or undue burden or

expense” of the type generally sought to be prevented by

Fed.R.Civ.P. 26. Defendants argue that the primary risk

associated with the proposed depositions is that the questioning

may infringe on attorney-client communications or reveal

litigation strategies. Because FERC filings are not at issue

here, they assert that Mr. George has no relevant information to

offer but his deposition may result in the disclosure of

privileged information or mental strategies. They argue that the

risk is even greater with respect to Ms. Minear in light of her

involvement in extensive state court litigation adverse to the

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Ogles, much of which involved substantive issues relating to the

interpretation of the lease at issue in this case. They state,

without elaboration, that state court litigation over lease

interpretation issues, remains ongoing.

The Ogles have not filed a response to the motion for a

protective order.

In addition to the motion for a protective order, defendants 

filed a response to the motion to compel. In the response,

defendants assert that the Ogles have been afforded a complete

opportunity to obtain relevant evidence in support of their

claims of theft and criminal trespass. Specifically, they

explain that the Ogles have been able to depose Jason Martin and

Keith Hedges, two individuals who oversaw the construction work

on the Ogles’ property on behalf of Columbia. According to

defendants, during their depositions Mr. Hedges and Mr. Martin

answered questions regarding the physical construction activities

on site, including how the construction work was performed, who

performed it, and how the remediation of the property was

performed. Additionally, defendants state that the Ogles took

the depositions of Rebekah Hovermale and Scott Burnsworth, two

Columbia environmental specialists. Defendants explain that the

Ogles were able to question these witnesses regarding any

environmental conditions relating to construction activities on

their property and FERC filings. 

Defendants also note that, because the Ogles have not

provided a copy of Mr. Martin’s deposition transcript or

otherwise explained what information relating to claims of

trespass or theft they still need to explore, Columbia has

fulfilled its discovery obligations. By way of explanation, they

state that Mr. Martin’s deposition testimony was restricted only

with respect to a line of inquiry directed to a driveway

application made to a state regulatory agency and to FERC

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filings. The remainder of the response primarily incorporates by

reference the arguments raised in its motion for a protective

order.

III. Analysis

Turning first to the issue relating to Mr. Martin,

defendants are correct that the Ogles have failed to identify

with any specificity an interrogatory, document production

request, or line of deposition questioning addressed to

information the Ogles maintain they have been unable to obtain. 

Further, the Ogles did not respond in any way to the defendants’

representations so the Court has no record from which to conclude

that any discovery from Mr. Martin remains outstanding. 

Consequently, the motion to compel will be denied as moot as it

relates to Mr. Martin. 

Turning to the issue of the depositions, Mr. George and Ms.

Minear are parties, they have not been deposed, and their

depositions were properly noticed pursuant to Fed.R.Civ.P. 30(b). 

These facts are not in dispute. In this situation, the general

rule to be applied is that “[u]nder the liberal discovery

principles of the Federal Rules” a party is “required to carry a

heavy burden” to show why a properly-noticed deposition should

not go forward. See Blankenship v. Hearst Corp., 519 F.2d 418,

429 (9th Cir. 1975). The Court recently addressed the issue of a

party’s burden in this circumstance in Libertarian Party of Ohio

v. Husted, –- F.R.D. –, 2014 WL 3456835, *3 (S.D. Ohio July 11,

2014):

Although difficult to do, a party may meet that

burden in a number of different ways. For example, the

party may prove that he or she has already been deposed

in the case or that the deposition would exceed the

ten-deposition limit. See Fed.R.Civ.P. 30(a)(2). The

party might also show that the deposition has been

noticed too early (before the Rule 26(f) conference) or

too late (after the discovery cutoff date); or that he

or she falls into a category of witnesses, like heads

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of agencies, CEOs of large corporations, or the

opposing party’s attorney, who are easy targets for

harassment, and for whom the burden of showing the

appropriateness of the deposition may shift to the

requesting party. See, e.g., Salter v. Upjohn Co., 593

F.2d 649 (5th Cir. 1979); see also Shelton v. American

Motors Corp., 805 F.2d 1323 (8th Cir. 1987).

It is also possible, but much more difficult, to

obtain an order precluding a party’s deposition from

taking place on grounds that the party has no relevant

knowledge, or that, despite the fact that the party has

not been deposed even once, the deposition would be

“unreasonably cumulative or duplicative” or “the burden

or expense of the proposed discovery outweighs its

likely benefit, considering the needs of the case, the

amount in controversy, the parties’ resources, the

importance of the issues at stake in the action, and

the importance of the discovery in resolving the

issues.” Fed.R.Civ.P. 26(b)(2)(I), (iii). However,

granting such orders absent a specific and persuasive

showing of good cause would cut against the fact that,

under Rule 30(a), “[a] party may ... depose any person,

including a party, without leave of court....” The

fact that depositions “relate to [a party’s] trial

preparation and defense .... [which] are important

interests, and great care must be taken to avoid their

unnecessary infringement,” Farnsworth v. Procter &

Gamble Co., 758 F.2d 1545, 1547 (11th Cir. 1985),

explains why the courts impose a heavy burden on the

movant in these circumstances. As the court in EEOC v.

Freeman, 2012 WL 2370122, *1 (D. Md. June 21, 2012)

aptly observed,

In general, motions for protective orders “seeking

to prevent the taking of a deposition [are]

regarded unfavorably by the courts.” Minter v.

Wells Fargo Bank, N.A., 258 F.R.D. 118, 125 (D.

Md. 2009). Such orders “should be rarely granted

absent extraordinary circumstances;” therefore,

the moving party bears a “heavy burden.” Id.

(quoting Static Control Components, Inc. v.

Darkprint Imaging, 201 F.R.D. 431, 434 (M.D.N.C.

2001)) (internal quotation marks omitted).

 

The defendants’ motion to preclude the depositions of Mr. George

and Ms. Minear, despite the fact that they are parties to this

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case, must be judged under these principles.

A. Necessity for a Shelton Analysis

Defendants’ primary argument is that Shelton applies here,

placing the burden on the Ogles to prove the necessity of the

depositions. In recognition of the fact that Mr. George and Ms.

Minear are also named as defendants here, defendants assert that

“when an attorney is named as a party to the action, that

attorney may only be deposed under limited circumstances.” They

contend that this Court has previously prohibited the depositions

of other attorneys named as defendants and cites as support to

United States v. Thirty-six (36) 300CC On Road Scooters, 2013 WL

5487297 (Sept. 30, 2013)(Abel, J.), adopted and affirmed 2013 WL

6710893 (Dec. 18, 2013)(Sargus, J.). Beyond this particular

case, they cite no authority to support the suggestion that a

Shelton analysis is generally undertaken to determine the

appropriateness of a deposition of a party who also happens to be

in-house counsel.

Initially, the Court notes that the defendants are correct

that this Court has applied the Shelton rule to preclude the

deposition of in-house counsel under various circumstances. 

Further, they are correct that, under the Shelton rule, the

burden shifts to the party seeking to take the deposition of inhouse counsel to demonstrate that the deposition is necessary. 

However, the Court is not persuaded that Shelton is intended to

be read so expansively as to apply to the situation presented

here. 

Notably, the defendants have provided no authority

suggesting such an automatic application of Shelton. To the

extent that they rely on the Road Scooters case as support for

their reading of Shelton, the Court notes that in that particular

case, the counsel at issue was not a named party, although he had

been named as a defendant in related litigation. Further, the

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Court in that case did not rely on Shelton as a basis for

prohibiting the deposition. 

Further, defendants have not seriously contended, let alone

provided any evidence, that the Ogles are seeking to depose Mr.

George and Ms. Minear solely for purposes of harassment. Rather,

the crux of defendants’ position is that the status of Ms. Minear

and Mr. George as in-house counsel triggers a Shelton analysis. 

As this Court has discussed previously, however, this fact alone

is not determinative of Shelton’s applicability:

The issue is not quite that simple. As this Court

explained in Williams v. Wellston City Sch. Dist., 2010 WL

4513818 (S.D. Ohio Nov. 2, 2010), the primary rationale

behind Shelton’s imposition of a burden on a requesting

party to show why it is entitled to take a deposition - a

reversal of the usual procedure which places the burden of

persuasion on the party seeking protection - is to protect

against the discovery of trial or litigation strategy. 

Consequently,

[w]hen the attorney whose deposition is requested

is not litigation counsel, is not in-house counsel

who is involved to some extent in directing

litigation, or is not an attorney who has advised

the client concerning the same or similar

litigation or has helped develop its defense

strategy, the reasons for applying Shelton are

much less compelling because there is little or no

risk that the attorney's testimony might reveal

any litigation strategy, or that the purpose of

the deposition is to drive a wedge between the

opposing party and its current counsel.

Id. at *5. See also Ellipsis, Inc. v. Color Works,

Inc., 227 F.R.D. 496, 497 (W.D. Tenn. 2005)(“the

Shelton test should be limited to those instances where

the attorney to be deposed is either trial/litigation

counsel or the subject matter of the deposition may

elicit litigation strategy”); Cheesemore v. Alliance

Holdings, Inc., 2011 WL 4458782 (N.D. Ohio Sept. 23

2011)(declining to apply Shelton to proposed deposition

of opposing counsel to the extent that the questioning

related to their prior role as transactional counsel

and not their current role as litigation counsel). Of

course, it also makes sense that the burden of

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producing evidence to show what role counsel actually

plays in a case - assuming that the answer to this

question is not obvious, as it would be for outside

litigation counsel and perhaps for in-house counsel who

have entered an appearance in the case - should be on

the party asserting that Shelton applies, since that

party is in the best position to know exactly what

counsel’s role was or is.

Libertarian Party v. Husted, –- F.Supp.2d –-, 2014 WL 3509749,

*10 (S.D. Ohio July 14, 2014). 

 Beyond relying on Ms. Minear’s and Mr. George’s in-house

counsel status, defendants have presented no evidence detailing

the extent of their involvement in this case. At most, they have

stated in passing that some facet of the state court litigation

in which Ms. Minear is involved remains pending and they refer to

these parties without explanation, in a phrase buried on page 10

of their supporting memorandum, as “attorney-advisors to other

defendants.” Further, the Ogles have not expressed any intent to

question these defendants about those matters, but rather to

depose them on issues relating to knowledge of wood products,

construction activities, and damages. Given this factual record,

there is no basis for applying Shelton, and the question then

becomes whether the defendants have advanced other persuasive

reasons in support of their position that Ms. Minear and Mr.

George should not be deposed.

B. Undue Harm, Burden, and Expense

The defendants’ secondary argument is that allowing the

depositions of Mr. George and Ms. Minear to go forward would

cause undue harm, burden and expense justifying the entry of a

protective order. In support of this position, the defendants

claim that Mr. George and Ms. Minear have no relevant information

relating to any remaining claims or damages. Further, they argue

that their positions as in-house counsel present a significant

risk of infringement on privileged information. They do not

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offer these arguments in support of the complete preclusion of

the depositions, however, but propose the entry of an interim

protective order designed to minimize what they perceive as the

inherent risks associated with the depositions. 

Specifically, the defendants propose that the Court require

the Ogles to complete the depositions of other, non-attorney

defendants and corporate representatives. When those depositions

are completed, they propose that the Ogles be required to move

the Court for leave to issue deposition notices specifying “(1)

the relevant information that is uniquely in the possession of

the proposed attorney deponents; (2) why that information is

necessary to Plaintiffs’ affirmative case; and (3) describing how

that questioning can be pursued without revealing attorney-client

privileged information or protected litigation strategies.” 

One problem with the defendants’ proposal is that they are

attempting to require the Ogles to describe, in advance, the

subjects to be covered, when a party ordinarily has no such

obligation. The only time that, by Rule, a party must specify

the subjects about which it wishes to depose a witness is when

noticing a Rule 30(b)(6) deposition. Other deposition notices

need not contain that information. See Fed.R.Civ.P. 30(b)(1),

(3); see also Bennett v. The Westover, Inc., 27 F.Supp. 10, 11

(S.D.N.Y. 1938)(“The Federal Rules of Civil Procedure do not

require that the ‘notice to take deposition’ state the matters

upon which the examination is sought”). 

As this Court has previously explained:

The noticing party may be required to explain its

purposes in taking a deposition, however, if the facts

suggest that those purposes are improper. That concept

underlies the “apex deposition” rule applied in some

jurisdictions, see Salter v. Upjohn, supra, where the

identity of the deponent itself indicates an intent to

harass rather than an intent to engage in legitimate

discovery. It also explains the restriction on a

second deposition of the same witness; once the

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deposing party has had a full opportunity to question a

witness, doing that for a second time is presumptively

duplicative and it is appropriate to ask the requesting

party to explain what else might be asked that has not

already been covered adequately in the first

proceeding. Cf. Powell v. United Parcel Service, Inc.,

2011 WL 124600, * (S.D. Ind. Jan. 13, 2011)(in order to

grant leave to take a second deposition of the same

witness, the Court’s order must be “consistent with

Rule 26(b)(2), which provides that discovery must be

limited when it is unreasonably duplicative...”). 

Otherwise, however, the courts should be reluctant to

permit a party who wishes not to be deposed to use a

procedural device such as a motion for a protective

order to force the requesting party to specify, in

advance, the subject of the deposition as a

precondition to proceeding.

Libertarian Party, 2014 WL 3456835, at *4. 

The more obvious problem with the defendants’ position is

that the Ogles already have disclosed in advance the subject

matter of the proposed depositions. With respect to Mr. George,

defendants’ position, aside from arguing that he has no relevant

information to provide, is that the majority of the identified

topics concern matters about regulatory submissions to FERC or

state agencies - issues dismissed from this case. With respect

to Ms. Minear, Columbia’s position is focused less on the issue

of relevance and more on a concern that privileged communications

and mental impressions may be revealed. 

 The Court notes that the defendants do not raise an

extensive argument on the issue of relevance, either in their

Shelton analyis or independently. Further, neither Mr. George

nor Ms. Minear have submitted an affidavit swearing that they

have no information relevant to the issues remaining in this

case. Moreover, defendants have a heavy burden of showing that

Mr. George or Ms. Minear could not be asked a single relevant

question such that their depositions should be precluded in their

entirety. Libertarian Party, 2014 WL 3509749, *11, citing

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Naftchi v. New York University Medical Center, 172 F.R.D. 130,

132 (S.D.N.Y. 1997). 

 Rather, to the extent defendants make an argument directed

to relevance, it revolves around their interpretation of the

deposition topics outlined by the Ogles. However, defendants

raise their objections in general terms and do not raise

objections to identified topics in any specific detail. The

Court is not convinced that the outlined topics relate to

dismissed claims regarding fraudulent regulatory filings to the

extent defendants contend. Rather, some of the outlined topics

appear to be intended to elicit information relating to damages

arising from construction on the Ogles’ property. At the same

time, however, some of the topics do appear to go beyond the

issue of damages to the Ogles’ property as a result of Columbia’s

actions on the property prior to November 5, 2009. For example,

as defendants point out, several of the deposition topics involve

inquiries regarding the construction activities on the properties

of other landowners. These deposition topics are 5, 6, 7, and

10. Further, topics 4 and 8 appear to relate to documents filed

with FERC or other agencies. 

This issue is easily addressed by the Court’s granting of a

more limited protective order designed to forbid inquiry into

these matters as contemplated by Rule 26(c)(1)(D) rather than

precluding the depositions of Ms. Minear and Mr. George outright. 

Consequently, the Court will grant the defendants’ motion for a

protective order to the limited extent that questions relating to

topics 4, 5, 6, 7, 8, and 10 will not be allowed. 

In reaching this conclusion, the Court is mindful of the

concerns regarding privileged information and fully recognizes

the potential that the pro se plaintiffs’ questioning of these

defendants, even within the limitations established here, may

cross into areas where the attorney-client or work product

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privileges might apply. This order is not intended to either

suggest that these defendants can be questioned without proper

regard for these privileges or that defendants may not properly

invoke them if a question calls for the disclosure of privileged

information. This order merely permits plaintiffs to convene the

depositions of these defendants on the topics identified as Nos.

1, 2, 3, and 9. All of the other rules relating to discovery and

depositions still apply.

IV. Conclusion

For the reasons set forth above, the Ogles’ motion to compel

discovery and to produce defendants for deposition (Doc. 131) is

denied in part and granted in part as set forth above. The

motion for a protective order (Doc. 132) is denied in part and

granted in part as set forth above. The depositions shall be

convened within 30 days of the date of this order. 

V. Motion for Reconsideration

Any party may, within fourteen days after this Order is

filed, file and serve on the opposing party a motion for

reconsideration by a District Judge. 28 U.S.C. §636(b)(1)(A),

Rule 72(a), Fed. R. Civ. P.; Eastern Division Order No. 14-01,

pt. IV(C)(3)(a). The motion must specifically designate the

order or part in question and the basis for any objection. 

Responses to objections are due fourteen days after objections

are filed and replies by the objecting party are due seven days

thereafter. The District Judge, upon consideration of the

motion, shall set aside any part of this Order found to be

clearly erroneous or contrary to law.

 This order is in full force and effect even if a motion for

reconsideration has been filed unless it is stayed by either the

Magistrate Judge or District Judge. S.D. Ohio L.R. 72.3.

/s/ Terence P. Kemp 

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United States Magistrate Judge

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