Shelton Comes to West Virginia: Opposing Counsel Depositions Allowed Only in Limited, Exceptional Circumstances

Introduction

In SER Mary C. Sutphin v. The Honorable Darl W. Poling, et al., the Supreme Court of Appeals of West Virginia granted a writ of prohibition preventing the enforcement of a circuit court order compelling the deposition of the plaintiff’s trial counsel. Authored by Justice Armstead, the opinion addresses a recurring but unsettled discovery flashpoint: when, if ever, a party may depose the opposing side’s lawyer about the very case being litigated.

This dispute arises from a complex, multi-year intra-family and corporate governance case involving allegations of misconduct in the management of Lewis Chevrolet in Beckley, West Virginia. The plaintiff, Mary C. Sutphin, brought wide-ranging claims—including breaches of fiduciary duty, violations of the Uniform Trust Code and the West Virginia Business Corporation Act, tortious interference with inheritance, fraud, and more—against several family members and related actors. After extensive discovery and a two-day deposition of the plaintiff, the defendants sought to compel the deposition of plaintiff’s counsel, asserting that plaintiff herself repeatedly pointed to counsel as the source of factual underpinnings for the pleadings.

The West Virginia high court used this case to settle a matter of first impression in the state: it formally adopted the federal Shelton standard (Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986)) to govern depositions of opposing trial counsel. Against that framework, the Court found clear legal error in the circuit court’s order and concluded that the defendants failed to show that the information they sought could not be obtained by other means, that the information would be non-privileged, and that it was crucial to the case.

Summary of the Opinion

The Supreme Court granted the petition for a writ of prohibition, stopping enforcement of the trial court’s order requiring plaintiff’s counsel to sit for a deposition. The Court:

Adopted the three-part Shelton test as the governing standard in West Virginia when a party seeks to depose opposing counsel in a pending case. The moving party must show:
1. No other means exist to obtain the information than to depose opposing counsel;
2. The information sought is relevant and non-privileged; and
3. The information is crucial to the preparation of the case.
Applied the Hoover v. Berger factors for writs of prohibition and found that multiple factors—including clear error of law—supported granting the writ.
Confirmed that amended West Virginia Rules of Civil Procedure (effective January 1, 2025) apply to pending cases where practicable (Rule 86), and noted that amended Rule 30(a) mirrors the federal rule in permitting depositions of “any person,” but that such depositions must still respect privilege and avoid abusive practices.
Held that the circuit court committed clear legal error by ordering counsel’s deposition without applying an appropriate legal standard and by rejecting the discovery commissioner’s proper reliance on Shelton.
Emphasized that the requested deposition would inevitably intrude upon attorney-client communications and counsel’s work product, and that alternative, less intrusive means to obtain the facts plainly existed.

Analysis

1) Precedents Cited and Their Influence

State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996): The Court reiterated its five-factor test governing writs of prohibition where the lower tribunal is alleged to have exceeded its legitimate powers. The third factor—clear legal error—receives substantial weight. Hoover provided the vehicle to review and correct the discovery order compelling counsel’s deposition.
State Farm Mut. Auto. Ins. Co. v. Stephens, 188 W. Va. 622, 425 S.E.2d 577 (1992): The Court reaffirmed that a writ of prohibition is available to correct clear legal error resulting from a trial court’s substantial abuse of discretion in discovery orders, squarely authorizing extraordinary relief in this context.
State ex rel. Parsons v. Zakaib, 207 W. Va. 385, 532 S.E.2d 654 (2000): Addressed the application of new or amended procedural rules to pending cases. The Court harmonized Rule 86 with Parsons, emphasizing efforts should be made to apply new rules where just and practicable. This framed the use of the 2025 amendments to the Rules of Civil Procedure.
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994), and related decisions: The Court reiterated that because the West Virginia Rules of Civil Procedure closely track the Federal Rules, federal cases carry substantial persuasive weight when interpreting them. This opened the door to adopting the federal Shelton standard.
State ex rel. United Hosp. Ctr., Inc. v. Bedell, 199 W. Va. 316, 484 S.E.2d 199 (1997), n.21: The Court previously recognized the risks of opposing counsel depositions devolving into privilege and work-product disputes—a caution that animated the Court’s adoption of a restrictive approach here.
State ex rel. Med. Assurance of W. Va., Inc. v. Recht, 213 W. Va. 457, 583 S.E.2d 80 (2003): The Court emphasized that a trial court’s discretion does not extend to applying the wrong legal standard—or none at all. This principle undergirded the finding of clear legal error where the circuit court ordered counsel’s deposition without a governing legal analysis.
Federal authorities embraced or distinguished:
- Shelton v. American Motors Corp., 805 F.2d 1323 (8th Cir. 1986): The leading federal standard restricting opposing counsel depositions to exceptional cases; now adopted in West Virginia.
- In re Subpoena Issued to Dennis Friedman, 350 F.3d 65 (2d Cir. 2003): Promotes a flexible, multi-factor approach. The West Virginia Court deemed it too malleable where privilege and work-product risks are acute, and favored the clearer Shelton framework.
- Theriot v. Parish of Jefferson, 185 F.3d 477 (5th Cir. 1999), and other federal district court cases (e.g., U.S. ex rel. May v. Purdue Pharma, American Heartland Port v. American Port Holdings, Desert Orchid Partners, Navient Solutions): These authorities reflect broad federal disfavor of deposing a party’s lawyer absent stringent showings.
- Carehouse Convalescent Hosp. v. Superior Court, 50 Cal. Rptr. 3d 129 (2006), and Cascone v. Niles Home for Children, 897 F. Supp. 1263 (W.D. Mo. 1995): The Court quoted these cases to highlight the adversarial system’s design—lawyers advocate; they do not ordinarily become witnesses—and the risk of tactical abuse in “sucker-punching” the opposing side’s “quarterback.”

2) Legal Reasoning

The Court’s reasoning proceeds in three steps: the rules framework, the controlling standard, and its application via the writ factors.

Rules framework (2025 Amendments; Rule 86; Rule 30 and Rule 26): The Court underscored that amended Rule 30(a) (effective January 1, 2025) mirrors the federal rule: any person, including a party, may be deposed without leave. The Rules retain liberal discovery (Rule 26(b)(1)) but do not explicitly shield opposing counsel from depositions. However, liberal discovery must coexist with the attorney-client privilege, the work-product doctrine, and the need to avoid abusive or harassing practices. Rule 86 and Parsons v. Zakaib guided the application of the amended rules to this pending case.
Adopting the controlling standard: Shelton: Noting the absence of an existing West Virginia standard and the high risk of privilege and work-product issues, the Court adopted Shelton's three-part test, requiring the moving party to prove all three elements before an opposing counsel deposition may proceed. This choice ensures that ordinary discovery avenues are exhausted first and that only crucial, non-privileged information is sought.
Application and clear legal error: The discovery commissioner applied Shelton and recommended against compelling counsel’s deposition. The circuit court, however, ordered the deposition without analyzing any governing legal standard—indeed rejecting the commissioner’s Shelton analysis—while limiting the deposition to “facts communicated” to counsel and “used in preparation” of the pleadings. The Supreme Court found this approach inherently invaded the attorney-client privilege and counsel’s mental impressions (core work product) and was especially problematic because ample alternative sources of information were available (e.g., other witnesses, documents, experts, and more particularized interrogatory responses). The absence of a legal standard and the intrusion into protected zones established clear legal error.
Hoover writ factors: The Court weighed the writ factors and found that four of the five supported issuance of the writ. Especially salient was the third factor (clear legal error). The Court also emphasized that once privileged information is revealed in deposition, the harm cannot be undone on appeal (“the cat would be out of the bag”), satisfying the second factor (irreparable prejudice). The first factor (no adequate alternative remedy) was met because privilege and work-product issues are not readily remediable on appeal. The fifth factor (important and novel legal issue) was also satisfied because the Court had not previously adopted a standard for opposing counsel depositions. There was no showing on the “oft-repeated error” factor.

3) Key Factual Features That Drove the Result

The plaintiff had produced and relied on extensive documents (over 10,000) and an expert report; she had been deposed for two full days. The defendants had not exhausted other avenues (e.g., additional fact witnesses identified by the discovery commissioner, precise document-based interrogatory supplementation, or targeted depositions).
At oral argument, plaintiff’s counsel conceded the ability to further supplement interrogatory responses with document-specific references, undercutting any claim that only counsel’s deposition could supply the facts.
The circuit court’s limitation to “facts communicated” to counsel and “used in preparation” of pleadings would inevitably pierce privileged communications and reveal counsel’s mental impressions, the “core” of work product.

4) Interaction with the 2025 Amendments to the West Virginia Rules of Civil Procedure

The Court confirmed that amended Rule 30(a) (effective January 1, 2025) applies to this pending matter under Rule 86 and the Parsons v. Zakaib standard. While Rule 30(a) broadly allows depositions of “any person,” the Court stressed this does not translate into unfettered permission to depose opposing counsel. Liberal discovery under Rule 26(b)(1) remains bounded by privilege, work-product protection, proportionality considerations implied by the Rules, and the need to prevent abusive practices. The decision signals that the amended rules will be applied in tandem with robust protections for privileged materials and with a view toward fair, efficient discovery.

5) Impact and Prospective Significance

This decision is a watershed for West Virginia discovery practice. Its principal impacts include:

Bright-line guidance for courts and litigants: West Virginia now joins the many jurisdictions that have expressly adopted the Shelton test. Depositions of opposing trial counsel are disfavored and available only in narrow, exceptional cases where all three Shelton prongs are satisfied.
Privilege and work-product protection reinforced: Attempts to compel “facts communicated” to counsel for pleading preparation are presumptively entangled with privilege and work-product. Courts should be skeptical of such requests and demand rigorous showings by movants.
Discovery sequencing and alternatives prioritized: Parties must exhaust less intrusive avenues—document requests, interrogatories tied to specific documents, Rule 30(b)(6) depositions, fact witness depositions, and expert discovery—before seeking to depose opposing counsel.
Trial-court process and sanctions: The Court signaled that if parties strain the bounds of discovery obligations, circuit courts should consider Rule 37 sanctions, rather than resorting to compelled depositions of counsel.
Litigation strategy recalibrated: Parties should avoid insinuating that counsel is the primary “fact source” for claims and defenses. If a party intends to assert an “advice-of-counsel” defense, they must anticipate potential privilege waivers; here, there was no waiver finding, and the Court emphasized that counsel’s deposition would have been riddled with privilege objections.

6) Practical Guidance for Practitioners

Before moving to depose opposing counsel, build a robust record:
- Show in detail the alternative discovery steps you pursued and why they were insufficient (e.g., specific interrogatories tied to Bates-stamped documents; depositions of identified fact witnesses; 30(b)(6) testimony).
- Cabin the topics to clearly non-privileged factual information, avoiding mental impressions, legal theories, and communications.
- Demonstrate why the information is not just helpful but “crucial” to your case preparation.
When opposing such a deposition:
- Identify specific alternative sources and discovery mechanisms that are available or still outstanding.
- Explain how the requested topics inescapably collide with privilege and work-product.
- Offer to supplement responses with precise, document-linked facts to alleviate the movant’s concerns.
For trial courts and discovery commissioners:
- Require movants to satisfy all three Shelton elements before allowing an opposing counsel deposition.
- Make explicit findings and apply the proper standard; avoid crafting orders that require counsel to reveal privileged communications or mental impressions.
- Consider targeted orders compelling more particularized interrogatory responses tied to documents and, where appropriate, employ Rule 37 sanctions for discovery abuses.

Complex Concepts Simplified

Writ of Prohibition: An extraordinary remedy used by an appellate court to stop a lower court from enforcing an order that exceeds its lawful authority. It is not a substitute for appeal and is granted sparingly, guided by the Hoover factors.
Attorney-Client Privilege: Protects confidential communications between a client and lawyer made for the purpose of obtaining legal advice. It encourages full and frank communication and is fiercely guarded.
Work-Product Doctrine: Shields materials prepared by or for attorneys in anticipation of litigation, especially an attorney’s mental impressions, legal theories, and strategies (often called “opinion” work product), which receive near-absolute protection.
Shelton Test (now the law in West Virginia): A party seeking to depose opposing counsel must prove:
1. There is no other way to get the information;
2. The information sought is relevant and non-privileged; and
3. The information is crucial to preparing the case.
Failure on any prong means the deposition should not proceed.
Rule 86 (Application of New Rules): New or amended procedural rules apply to pending cases where doing so is just and practicable; courts may revert to prior rules if applying new ones would be impracticable or unjust.

Conclusion

The Supreme Court’s decision in SER Mary C. Sutphin v. Poling marks a significant development in West Virginia discovery law. By formally adopting the Shelton test, the Court set a clear, stringent standard that sharply limits when a party may depose opposing trial counsel. The ruling reaffirms a strong commitment to protecting attorney-client privilege and the work-product doctrine, ensuring that counsel will not be transformed into fact witnesses absent truly exceptional circumstances. It also illustrates the Court’s expectation that parties and trial courts will use the ordinary tools of discovery—with precision and diligence—before intruding upon protected zones of advocacy.

Beyond its immediate effect—granting a writ of prohibition to halt the compelled deposition—this opinion offers durable guidance for managing discovery disputes in the era of the 2025 Civil Rules amendments. It urges courts to apply a rigorous legal standard, to preserve the integrity of the adversarial process, and to deploy sanctions under Rule 37 when discovery abuses occur. The key takeaway for litigants is straightforward: if you want to depose opposing counsel, you must first do the hard work of exhausting other avenues, policing privilege, and proving that the information is indispensable. Otherwise, the deposition will not go forward.

Case Reference: SER Mary C. Sutphin v. The Honorable Darl W. Poling, et al., No. 24-343, Supreme Court of Appeals of West Virginia (filed Mar. 21, 2025). Opinion by Justice Armstead. Writ granted.