WILLIAM S. HARRIS, et al ., P laintif fs,

v. JAMES E. KOENIG, et al.,

Defendan ts. UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

Civil Action No. 02-618 (G K/JM F )

MEMORAN DUM OP INION Pending be fore me now is Plaintiffs’ Motion for Protective O rder to Prohibit Def endants’ Propose d Deposition of Plaintiffs’ Counsel Ellen M. Doyle (“ Mot.”) [#395]

. The leng thy

and complicated history

of this case , now in its eighth y ear of litigation, is

rec ounted in opinions by

both J udg e Ke ssler and my self. For prese nt purposes, it 1 suffice s to say

that the Four

th Amended Complaint (Docke t #280) sets forth c laims perta ining to the se ttlement by the Waste Manag ement def endants (“ WM”) and State 2 Street B ank and T rust Company (“SSBT” ) of c laims in courts in I llinois and Te x as. Specifica lly , the per

tinent counts can be summarized as follows:

Har ris v. Koenig , No. 02-CV-618, 2010 WL2560038(D.D.C. Jun. 10, 2010); Harris v. 1 Koenig , 602 F.Supp.2d 39, 42-44 (D .D.C.2009); Har ris v. Koenig , No. 02-CV-618, __ F.R.D. ___, 2010 WL3909507(D.D.C. Sept. 16, 2010). For prese nt purposes, “Waste Ma nag ement def

endants” and “WM” re fer to defe ndants 2 Waste Manag ement Holding s I nc., Waste Mana g ement Retireme nt Savings Plan, WMI Boa rd of Dir ector s, Waste Manag ement Inc. Profit Sharing and Saving s Plan I nvestment Commi ttee, Waste Mana g ement I nc. Profit Sharing and Saving s Plan Administ rative Commi ttee, and I

nvestment Commit tee of

the Waste Manag ement Retireme nt Savings Plan. Memorandum of Points and Authorities in Support of Plaintiffs’ Motion for Protective Or der to Prohibit Defe ndants’ Proposed De position of Pl aintiffs’ Counsel Ellen M. Doyle [#395-1] at 1; Def endants’ O pposition t o Plaintiffs’ Motion for Protective Or der to Prohibit Deposition of Ellen M. Doyle (“ Opp.”) [#396] at 1.(1) WM and SS BT br eac hed their f iduciary duties under ERI SA and eng ag ed in prohibited transac tions by

causingor per

mitti ng the plan to participate in the settlement of the I llinois Securities Class Action, causingthe claims to be re lease d (Counts VI -I X); (2) SSBT brea ched its fiducia ry duties under ERI SA and eng ag ed in prohibited transa ctions by causing or per mitti ng the Plan to participate in the settlement of the Te x as Secur ities Class Action, failing to conduct ade quate r eviews of potential ERI SA claims, and ca

using the claims to be rele ased ( Count X). See Opp. at 3. Ellen M. Doyle, Esq., is an attorne y for plaintiffs in this action. In 2002, one

wee k following the filing of the orig inal ERI SA complaint in this case (Doc ket #1), Doyle wrote a letter

to Diane V. D y g ert, c ounsel for the Waste Manag ement re tirement plan. Opp. at 3- 4, Ex h. 1. Doyle soug ht assuranc e that “no r ights of the Plan and its participa nts asserted in this newly -filed ERI SA Action [were] being rele ased w ithout adequate consider ation in the secur ities lit iga tion pending in the U nited States District Court for the Southern D istrict of Texas.” Opp. at Ex h. 1. That sec urities litigation was, of cour se, the “ Texas L itigation” r efe rre d to in Count X of the F ourth Amende d Complaint, wherein plaintiffs c laim that, among other thing s, SS BT r elea sed the Plan’s claims without adequate consider ation. Four th Amended Complaint at ¶¶ 224- 28. Ultimately , Doyle, as c ounsel for William S . Har ris, one of the plaintiffs in this action, moved to interve ne in the Te x as litigation to object to a proposed se ttlement. Opp. at 5. The Te x as trial judg e denie d Har ris’ motion to int erve ne and a pproved the settlement, and Ha

rris appe aled to the F ifth Circuit. I d. Whil e the a ppeal wa s pending , counsel for

Har ris and counse l for the lea d plaintiff in the Texas Securities Class Action

2neg otiated a stipulation of settlement modifying the plan of a llocation; the trial judg e

approve d the proposed a

mendment. I d. at 6, Exh. 10. The plan of allocation entere d into

connec tion with the Tex as settlement wa s modified so that $4.5 mill ion was set aside from the Ne t Settlement Fund and a llocated to the Waste Mana g ement Retireme nt Savings Plan (in a ddition to t he $2 million P lan par ticipants would otherwise r ece ive under the plan of a llocation). I d. at 6. I n Aug ust 2003, Doyle and f ellow counse l for plaintiffs filed a n application for $1.125 milli on in attorney s’ fe es for the work the y

perf ormed in opposing the Texas Settlement, and obtaining the incre ased a llocation. I d. at Exh. 11. I n the ac company ing fee petition, Doy le and he r collea g ues made the following statements about their w ork: (1) Har

ris’ objec tions “involved novel and diff icult issues” conc erningthe eff ect of a re lease in a sec urities class ac tion settlement on ERI SA plan settlements and the r esponsibiliti es of f iduciarie s. Opp. at Exh. 11 at 9. Har ris’ objec tions could “not be re g arde d as a pa rticularly desirable ‘ca se,’” and Ha

rris’ objec tion “was fa

r fr om a ‘slam dunk.’” I d. at Exh. 11 at 12. (2) Neither

Har ris nor the pa

rties wer e able to cite any published court opinions addressing the issues at the time of Ha rris’ objec tions. I d. at Exh. 11 at 9. (3) The De partment of L abor pr oposed a pr ohibited transac tions ex emption relating to the pa

rticipation of ERI SA plans in securities cla ss action settlements, in light of “ issues . . . that had not bee n previously considere d.” I d. at 6, Exh. 11 at 11. Nothing w arms the c ockles of a lawy er’ s hear

t quite like catchingopposing counsel in a c ontradiction, and de fenda nts in thi s case want now to take Doyle’s deposition to ex plore the f ee pe tition s tatements with her. I t now appea

rs, howeve r, that plaintiffs ar e dismissing Count X of the F ourth Amended Complaint, having decide d to dismi ss the claims based on the settlement of the

3Texas liti g ation. Def endants we re una

war e of pla intiffs’ intent when they noticed 3 Doyle’s deposition, or eve n when they submitt ed their opposition to the protec tive order

. Def endants’ Sur- Reply

in Support of Opposition t o Plaintiffs’ Motion for Protective Orde r to Prohibit Deposition of Ellen M. Doy le (“ Sur-re ply ”) [#411] at 2. 4 Wit h the withdraw al of Count Ten a nd the claims base d on the Texas litigation, the air ha s g one out of the ba lloon. All dis cover y is subject to a balanc ing c alculus, wher ein its util ity

is weig hed ag ainst its cost. Fed. R. Civ. P. 26(b)(2)(C)( iii). The best defe ndants ca

n do is arg ue that Doyle’s stateme nts about the Texas liti g ation will bear on the wisdom of the def

endants’ se ttlement of the I llinois litigation. Sur-re ply at 3. Doyle, howeve r, has a lrea dy

made the statements that defe ndants wish to expl oit, and taking her deposition will onl y

cause her to re peat them, or to qualify

them and show that they

are of no sig nificanc e to the I llinois litigation. That discussion has nothingto do with the fac ts of this case, but consists of leg al ar g uments about the validity of the positions plaintiffs have taken. Judge Kessler alre ady knows what Doy

le said in her f

ee pe tition, and ca n assess its leg al sig nificanc e without further elucidation by

Doyle. I f I

know any thing a bout lawy ers, the notion that def endants’ c ounsel will secure additional and fata l admissions from opposing counse l is a pipe drea m. More sig nificantly , Doyle will likely not answer

any questions, and will be

On Novembe r 9, 2010, four day s after

filing the ir Reply

Memorandum in Support of 3 Plaintiffs’ Motion for Protective Or der ( “Reply”) [#400], pl aintiffs filed Plaintiffs’ Unopposed Motion for L eave to File F ifth Amended Complaint to Wi thdraw Count Ten and to Conform Complaint to C ourt' s Prior Rulings Concer ning Counts Eleve n, Twelve , Thirteen, a

nd Four teen [#403]. The moti on was grante d, and the F ifth Amended Complaint was entere d November 12, 2010, at Docke t #408. Plaintiffs asserted in their reply that defe ndants had be en advise d of their intentions, but 4 do not note when. Reply

at 2.
4justified in doing so. I t must be reca lled that the only questions defe ndants ca

n ask of Doyle ar e why

she said what she said in a filing in the Texas court, her views on the validity of the position she took on behalf of her c lient in Tex as, and howthey relate to the position she is taking on be half of the same c lient in the I llinois litigation. I t is impossibl e for

the answe rs to be any

thing but her

protec ted work pr oduct, for he r thoughts on those topics a re obviously

her “ mental impressions, conclusions, opinions, or leg al theorie s.” F ed. R. Civ. P. 26(b)(3)(B ). In light of that, Ifind defe ndants’ assur ance s to Doy le that their de position questions will not invade her w ork produc t to be hollow; how ca n one ask a

lawy er he r views a s to the validity of the positions she took, and will take, on be half of a

client without invading he r work pr oduct? Fur thermore , it is m y

prac tice to pre side persona lly over de positions where I anticipate the re w ill be objections on the basis of wor k product a

nd attorney -client privileg e. I

cannot br ing my self to spend the ta x pay ers’ money presiding over a deposition where Ianticipate sustaining objection af ter objec tion. Thus, plaintiffs’ motion for a prote ctive orde r will be g rante d, the subpoena s serve d upon Ellen M. Doyle shall have no e ffe ct, and Doy le is discharg ed fr om any obligation to comply

with the subpoenas. Imust add that Iam troubled by how counse l conducted the mselves with ref ere nce to this motion. I do not understand why defe ndants’ counse l, who have ha d

acc ess to the Texas fee petition since 2003, dec ided to take Doy le’s deposition seven y ear s later. I

also ca nnot comprehe nd why

plaintiffs did not move me to stay resolution of their motion for a

protec tive order

when they

wer e conte mplating dismissing the c ount based on the Texas liti g ation. Finally , Ido not know why counsel did not have a

5thorough discussion of plaintiffs’ intentions as to that count and its signif icanc e for plaintiffs’ motion, if they wer e g enuinely

meeting and conf

err ing a bout the motion before it was filed, as the y

wer e supposed to be doing , and cla imed they did. 5 Iam oblige d to find out what happe ned, and to that e nd, Iam orde ringboth parties to show c ause in wr iting by Dec ember

8, 2010, why

they both should not be sanctioned pur suant to 28 U.S.C. § 1927 for their conduc t in the prosecution and de fense of this motion. A sepa rate Orde r ac companies this Memora ndum Opinion.

J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

Plaintiffs state that WM served their subpoe na on Doyle on Octobe r 8, 2010, while 5 SSBT serve d its subpoena on Doyle on Octobe r 12, 2010. Mot. at 1. Plaintiffs’ counse l asser t that they confe rre d with defe ndants’ counse l “in a g ood faith ef fort to re solve the dispute without Court action” on Octobe r 12, 2010, the same day the sec ond subpoena was ser ved. I d. at 2. Plaintiffs’ motion was filed Oc tober 15, 2010.
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