KRISPY KRUNCHY FOODS L L C v. JENNA MARKETING L L C CASE NO. 6:20-CV-01424 LEAD United States District Court, W.D. Louisiana, LAFAYETTE DIVISION Filed June 22, 2023 Counsel Carmen M. Rodriguez, Blair B. Suire, Casey Leanne Thibodeaux, Donald W. Washington, Gary J. Russo, Jones Walker, Lafayette, LA, Jaime F. Landry, Jennifer E. Michel, Lewis Brisbois et al., Lafayette, LA, Christopher R. Lepore, Pro Hac Vice, Jeannil D. Boji, Pro Hac Vice, Perkins Coie, Chicago, IL, Joshua S. Hodas, Pro Hac Vice, Leo A. Bautista, Pro Hac Vice, Lewis Brisbois et al., Los Angeles, CA, Michael Laurence Barras, Law Office of Gabe A. Duhon, Abbeville, LA, for Krispy Krunchy Foods LLC. Charles M. Kreamer, James H. Gibson, Gibson Law Partners, Lafayette, LA, Grant J. Guillot, Adams & Reese, Baton Rouge, LA, Jean Young Rhee, Pro Hac Vice, Larry Craig Russ, Pro Hac Vice, Nathan Daniel Meyer, Pro Hac Vice, Russ August & Kabat, Los Angeles, CA, for Jenna Marketing LLC. Ayo, David J., United States Magistrate Judge REPORT AND RECOMMENDATION *1 Three motions are before the Court: KRISPY KRUNCHY FOODS, LLC'S MOTION FOR LEAVE TO AMEND COMPLAINT AND TO AMEND ANSWER, (Rec. Doc. 226), and PLAINTIFF KRISPY KRUNCHY FOODS, LLC'S MOTION FOR A PROTECTIVE ORDER PRECLUDING THE DEPOSITION OF ITS CHIEF LEGAL OFFICER JEANNE M. CULLEN, (Rec. Doc. 234) filed by plaintiff Krispy Krunchy Foods, LLC (“KKF”). Defendant Jenna Marketing, LLC (“Jenna”) opposes both motions and filed an associated MOTION TO STRIKE OR DISREGARD NEW ARGUMENTS IN REPLY OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SURREPLY, (Rec. Doc. 243). The undersigned issues the following report and recommendation pursuant to 28 U.S.C. § 636. Considering the evidence, the law, and the parties' arguments, and for the reasons explained below, the Court recommends that KKF's motion to amend, (Rec. Doc. 226), be DENIED; KKF's motion for protective order, (Rec. Doc. 234), be GRANTED IN PART and DENIED IN PART; and, accordingly, Jenna's motion to strike, (Rec. Doc. 243), be DENIED AS MOOT. Factual Background This case concerns the demise of a business relationship between KKF and Jenna. As has been explained in several prior rulings by the Court, KKF “developed, owns, and licenses a quick-service fried chicken concept to convenience stores, gas stations, and similar retail outlets.” (Rec. Doc. 85 at ¶ 12). KKF joined forces with “third-party marketers” to recruit new “customers” to purchase and sell KKF food products and to train and support customers along the way. (Rec. Doc. 85 at ¶¶ 13, 51). Defendant Jenna entered into a “New Member Agreement” (“Agreement”) in 2011, forming the entity now known as “KKF – California[,]” a Louisiana limited liability company for the purpose of conducting business in a geographic territory encompassing all vendor sites within a particular locale, loosely identified as the territory “serviced by SYSCO – Los Angeles or the successor distributor designated by KKF.” (Rec. Doc. 224 at p. 2, n. 2, citing Rec. Doc. 197-1 at p. 7). Jenna and KKF agreed to the formation of a second Louisiana LLC in 2011 named “KKF – Phoenix” to conduct business in the Phoenix territory. (Rec. Doc. 85 at ¶ 27). Although no corresponding written agreement regarding KKF – Phoenix was ever executed between the parties, that LLC was run according to the terms of the KKF – California Agreement. (Rec. Doc. 85 at ¶ 30). KKF filed the instant suit in November of 2020, seeking declaratory relief dissolving KKF – California and KKF – Phoenix and terminating the Agreement. (Rec. Doc. 1). Jenna subsequently filed suit against KKF in the United States District Court for the Central District of California, asserting claims for breach of fiduciary duty, violations of California law, breach of contract and declaratory relief related to validity, enforceability, and Jenna's rights under the Agreement. (Civ. Act. 21-CV-456 at Rec. Doc. 1). Jenna's case was eventually transferred to this Court and consolidated with KKF's first-filed suit. (Rec. Doc. 27). Although a complete recitation of every event in this case would be impractical, some relevant case events should be highlighted. *2 Date 5/11/2021 10/12/2021 11/17/2021 11/18/2021 1/3/2021 2/1/2022 3/16/2022 4/5/2022 5/23/2022 10/3/2022 10/21/2022 10/28/2022 3/20/2023 3/22/2023 3/31/2022 4/3/2023 Case Event First Amended Complaint by Jenna Second Amended Complaint by Jenna Telephone Scheduling Conference before Magistrate Judge Hanna First Scheduling Order issued First Amended Complaint by KKF Rule 12(b)(6) Motion by Jenna Motion to Compel by Jenna Joint Motion for Protective Order Second Amended Complaint by KKF Joint Motion to Continue 2/13/23 Trial Third Amended Complaint by Jenna Case Management Order entered Telephone Status Conference before Judge Ayo Second Scheduling Order issued Hearing with oral argument before Judge Joseph re: Jenna's motion for partial summary judgment Amended Scheduling Order issued Record Document No. Rec. Doc. 35 Rec. Doc. 55 Rec. Docs. 63, 64 Rec. Doc. 65 Rec. Doc. 70 Rec. Doc. 73 Rec. Doc. 77 Rec. Doc. 79 Rec. Doc. 85 Rec. Doc. 144 Rec. Doc. 153 Rec. Doc. 158 Rec. Doc. 212 Rec. Doc. 215 Rec. Doc. 221 Rec. Doc. 222 Against this backdrop, this Court now considers the pending motions, which are fully briefed and ripe for consideration. KKF's Motion for Leave to Amend KKF's first motion seeks leave of court to amend its complaint and answer pursuant to Federal Rule of Civil Procedure 15(a). (Rec. Doc. 226). Rule 15(a) permits amendment after a responsive pleading is served only with the written consent of the opposing party or leave of court. Leave to amend under Rule 15(a)(2) is to be given freely “when justice so requires.” A court may consider factors such as “undue delay, bad faith or dilatory motive..., undue prejudice to the opposing party, and futility of amendment” in determining whether leave under Rule 15(a) should be granted. In re Southmark Corp., 88 F.3d 311, 314-15 (5th Cir. 1996). Where a court has entered a scheduling order and a proposed amendment is requested after the expiration of the deadline for amendment contained therein, Federal Rule of Civil Procedure 16 applies. Pursuant to Rule 16, a scheduling order may be modified only upon a showing of good cause and with the judge's consent. Fed. R. Civ. P. 16(b)(4). Only after the movant demonstrates good cause is the court permitted to apply the more lenient standard of Rule 15. S&W Enters., LLC v. SouthTrust Bank of Alabama, NA, 315 F.3d 533, 535-36 (5th Cir. 2003). Jenna opposes KKF's motion for leave to amend, urging this Court to apply Rule 16 based on the argument that KKF's proposed amendment will necessarily require the Court to modify its scheduling order. If the Court permits KKF's proposed amendment, Jenna intends to respond to with a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Rec. Doc. 240 at p. 2). Jenna further argues that the May 31, 2023 Phase I fact discovery cutoff contained in the CMO would be unworkable in the context of KKF's amendment and Jenna's anticipated response. (Id.). As recounted above, this case has an unenviable procedural posture. Despite the filing of this suit in 2020, issues primarily involving discovery have slowed this litigation. After speaking with the parties on March 20, 2023, the Court issued a scheduling order containing, as requested by the parties, a “prospective deadline for amendment of the pleadings” of April 20, 2023. (Rec. Doc. 212 at p. 1). Pursuant to discussion with the parties during oral argument, the Court issued an “Amended Scheduling Order” on April 3, 2023, resetting the trial date to December 11, 2022 from its prior March 4, 2024 setting. (Rec. Doc. 222). As explained by the Court during that proceeding, “...at least a year, more than a year we've actually been engaged in discovery which is more than I normally think is reasonable....” (Rec. Doc. 231 at 4:25 – 5:2). The Amended Scheduling Order omitted a deadline for amendment of parties and claims. (Id. at p. 1). This Court is unable to determine whether the omission of a deadline for amendment was inadvertent or purposeful but does not find that determination to be important to the instant analysis. For the sake of this report and recommendation, this Court will assume that KKF's motion for leave to amend was timely pursuant to the last known deadline for amendment: April 20, 2023. Since KKF's motion for leave to amend was not filed after the expiration of a deadline contained in the Court's scheduling order, the proper analysis is conducted according to Rule 15. That KKF's motion for leave to amend was timely does not end this Court's Rule 15 analysis. As here, a motion for leave to amend may be timely, yet improper. *3 KKF's proposed amended complaint asserts new claims for breach of contract based on unfair competition and non-disclosure, overpayment of 10% based on unfair competition and non-disclosure, overpayment of net profits, breach of fiduciary duty, violation of the Defend Trade Secrets Act,[1] and the Louisiana Unfair Trade Practices Act.[2] The proposed amendment also restates extant claims, choosing new language to describe Jenna and its relationship to KKF. KKF also seeks new declaratory relief, asking for entry of judgment declaring that no agreement was reached between KKF and Jenna due to Jenna's lack of capacity and that KKF owes no payment to Jenna under such agreement because the entire value of the entity at issue has been distributed. (Rec. Doc. 242). Review of KKF's requested amendments reveals that all purported new claims could have and should have been asserted long before now since the facts underlying the legal theories advanced were or should have been known to KKF at or near the inception of this suit and, even under a generous view, at least upon the filing of Jenna's last amended complaint on October 21, 2022. (Rec. Doc. 153). KKF's proposed new claims under the Defend Trade Secrets Act and the Louisiana Unfair Trade Practices Act, as well as for breach of contract as to unfair competition and non-disclosure were clearly known or knowable to KKF no later than September 30, 2021, as referenced in KKF's “cease and desist” letter to Harry Markowitz citing allegations of trademark, trade dress, and non-competition violations. (Rec. Doc. 240-2). Having amended its complaint twice since authoring that letter, KKF's failure to assert these claims constitutes unreasonable and undue delay. Parish v. Frazier, 195 F.3d 761 (5th Cir. 1999) (citing Gregory v. Mitchell, 634 F.2d 199, 203 (5th Cir. 1981); Little v. Liquid Air Corp., 952 F.2d 841, 846 (5th Cir. 1992)) (“Plaintiff bears the burden of showing that delay was due to oversight, inadvertence or excusable neglect....”). KKF's proposed amendment also features new factual allegations, namely, those involving Jenna's alleged lack of capacity to contract and Jenna's role in KKF–California and KKF–Phoenix. KKF's original, first and second amended complaints all describe defendant Jenna and its individual defendant members by reference to Jenna's filings with the California Secretary of State. (See, e.g., Rec. Doc. 85 at ¶¶ 2-3). The date on which Jenna Marketing, LLC was formed as a California limited liability company was or should have been known to KKF at the time this suit was filed, considering allegations that KKF verified the identity of the defendants according to the California Secretary of State's available information. Indeed, this Court's own search of the California Secretary of State's “Business Search” web resource immediately revealed that Jenna Marketing, LLC was formed by initial filing on January 7, 2016.[3] KKF offers no explanation for its failure to include this allegation in its original or amended complaints. Moreover, the Court expressly rejected this theory of the case in its ruling on Jenna's motion for partial summary judgment. (Rec. Doc. 224 at pp. 6-9). Similarly, KKF's new proposed claim alleging overpayment under the agreement between the parties due to “mis-allocation of centralized expenses” is based on factual allegations which could have and should have been known to KKF long ago. (Rec. Doc. 242-1 at pp. 36-37). KKF's failure to plead this alleged windfall payment to Jenna may not be attributed to lack of discovery, as KKF has had access to its own financial records and to the terms of the contract before the filing of this suit. *4 Although leave to amend should be liberally granted “when justice so requires,” such relief is not automatic. Jones v. Robinson Property Group, L.P., 427 F.3d 987, 994 (5th Cir. 2005), abrogated on other grounds by Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)) (quoting Halbert v. City of Sherman, 33 F.3d 526, 529 (5th Cir. 1994)). KKF offers no excuse for its delay, other than “careful consideration of the needs of the case [and] an attempt to improve the chances for amicable resolution.” (Rec. Doc. 242 at p. 7). Whether KKF's failure to include the proposed new claims in its prior complaints was inadvertent or strategic, KKF fails to show that it has exercised due diligence in this matter. Where, as here, the movant is aware of the facts upon which its proposed amendment rests, yet fails to include them in the complaint, the court is not constrained to permit the movant to advance new theories of the case “seriatim.” Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594 (5th Cir. 1981); Wimm v. Jack Eckerd Corp., 3 F.3d 137, 140 (5th Cir. 1993). Further, this Court agrees that KKF's proposed amendments would result in undue delay and prejudice to Jenna in this case. The parties have engaged in substantial motion practice and have not, as a general matter, foregone any opportunity for court intervention in this case and this Court sees no sign that this will change. Were KKF's proposed amendment permitted, Jenna would be entitled to file a responsive motion if desired. Considering that discovery is stalled in this matter and will likely remain so as long as Rule 12 motions lie ahead, the prejudice that would result to Jenna is undue. This Court further finds that such amendment would contravene the express findings of the Court in its ruling on partial summary judgment and its effort to more efficiently move this matter toward trial. Considering the foregoing, this Court will recommend that KKF's motion for leave to amend be denied on the bases of undue delay, lack of diligence and undue prejudice. KKF's Motion for Protective Order KKF's next pending motion seeks a protective order: (1) narrowing the scope of topics about which KKF's designated deponent for its Rule 30(b)(6) deposition may be questioned; (2) quashing the notice of deposition issued as to KKF employee, Jeanne Cullen (“Cullen”); and (3) requesting clarification of applicable discovery deadlines in this case. (Rec. Doc. 241). We begin with KKF's last request. In a motion for status conference filed on May 2, 2023, Jenna asked for clarification regarding the sequence of discovery. (Rec. Doc. 235 at p. 2). Jenna takes the position that fact discovery ended on May 31, 2023 in this case under the Case Management Order (“CMO”) entered at the parties' request on October 28, 2022. (Rec. Doc. 158). Subsequently, the Court issued a second scheduling order, (Rec. Doc. 215), and an amended scheduling order, (Rec. Doc. 222). To the extent that the May 31, 2023 fact discovery deadline remained compatible with other broad deadlines contained in the Court's subsequent scheduling orders, the parties were free to continue to observe them. To the extent the May 31, 2023 fact discovery deadline became illogical or impractical in light of the Court's two subsequent scheduling orders, it was incumbent upon the parties to jointly modify the CMO, if desired. In the absence of such an agreement, what survives and governs are the Court's own scheduling orders. KKF's position that the amended scheduling order governs by its own terms evades the real issue, which is that the CMO was intended to set a series of interim deadlines in between those larger deadlines governed by the Court's scheduling order. (Rec. Doc. 241 at pp. 2, 10, 11). Although it is correct that the issuance of a new or amended scheduling order supplants prior scheduling orders, it does not, on its own, vacate the CMO entered at the parties' request. That KKF may no longer wish to collaborate on interim deadlines is a separate matter for discussion between the parties. This Court's review of the CMO indicates that, particularly in light of the extensive discovery motion practice undertaken by the parties, the May 31, 2023 Phase I – Fact Discovery deadline is unworkable. Should the parties wish to amend the CMO to align with the operative amended scheduling order now in place, the undersigned recommends the parties confer and submit a proposed amended CMO. Notwithstanding any amendment to the CMO, the parties must abide by the broader deadlines announced in the amended scheduling order. *5 We now turn to KKF's requests for relief from the depositions noticed by Jenna. (Rec. Doc. 241). As explained above, KKF's motion requests that a protective order be issued narrowing the scope of topics on which KKF's representative may be questioned in a Rule 30(b)(6) deposition and quashing the deposition noticed as to KKF in-house counsel, Jeanne Cullen. (Id.). Preliminarily, this Court will address KKF's contention that Jenna's Rule 30(b)(6) deposition notice is invalid because it fails to conform to the standard set forth in that rule. (Rec. Doc. 241 at p. 3). KKF claims Jenna issued the Rule 30(b)(6) deposition notice at issue under California's “person most knowledgeable” standard, rather than the Rule 30(b)(6) federal standard. (Id.). KKF's exhibits demonstrate it complained of this defect several times to Jenna, whereafter Jenna determined no defect existed in the notice and advised that it would stand as issued. (Rec. Doc. 241-4). Rule 30(b)(6) provides in pertinent part: In its notice or subpoena, a party may name as the deponent a public or private corporation...and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination. A subpoena must advise a nonparty organization that its duty to confer with the serving party and to designate each person who will testify. The persons designated must testify about information known or reasonably available to the organization. The deposition notice directed to KKF under the federal rules directs that [P]ursuant to Federal Rule of Civil Procedure 30(b)(6), Jenna Marketing, LLC (“Jenna”) will take the oral deposition of the person(s) most knowledgeable at Krispy Krunchy Foods, LLC (“KKF”) on March 12, 2023 at 9:00 a.m. (PT), and will continue from day to day, Saturdays, Sundays, and holidays excluded, until completed...PLEASE TAKE FURTHER NOTICE that pursuant to Rule 30(b)(6), KKF is required to designate those of its officers, directors, managing agents, or other persons to testify on its behalf to the extent of any information known or reasonably available to KKF as to the matters of examination described below. (Rec. Doc. 241-2 at pp. 1-2). KKF's argument appears to center on inclusion of the phrase “person(s) most knowledgeable” in Jenna's notice. This Court agrees that Rule 30(b)(6) does not require that the deponent designate the “person most knowledgeable” as its agent for deposition purposes. Rather, the deponent's obligation is to “make a conscientious good-faith endeavor to designate the persons having knowledge of the matter sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed...as to the relevant subject matters.” Brazos River Authority v. GE Ionics, Inc., 469 F.3d 416, 432-33 (5th Cir. 2006) (quoting Bank of New York v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 151 (S.D.N.Y. 1997) (citations omitted & emphasis added)). In this Court's view, the addition of the “person(s) most knowledgeable” expresses the practical view that a deponent should offer the testimony of an agent with the best working knowledge of the particular matters as to which he is designated. It is, however, understandable that KKF would reject the inclusion of this language, as it would appear to place a burden on the deponent to prove that the agent designated for each issue is the “most knowledgeable” or else face objections by the noticing party. In keeping with the preferred practice of modifying, rather than quashing, a subpoena where possible, this Court will recommend the “person(s) most knowledgeable” language be stricken from the Rule 30(b)(6) subpoena issued by Jenna to KKF. Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994). To the extent KKF's motion seeks to have Jenna's Rule 30(b)(6) subpoena quashed based on inclusion of the “person(s) most knowledgeable” language, this Court will recommend that the motion be denied. *6 KKF further alleges that the Rule 30(b)(6) subpoena issued by Jenna is overbroad, vague, vexatious, unduly burdensome, disproportionate, and ambiguous and should be quashed. (Rec. Doc. 241 at pp. 6-8). KKF's objections in this regard are “boilerplate” and neither its responses to Jenna nor the instant motion offer a specific showing of how each request is unduly burdensome, cumulative, or disproportionate. Repetitive, non-specific objections such as those offered by KKF do not satisfy Rule 34(b)(2)(B)'s requirement that objections to discovery be made with specificity and include supporting facts. Chevron Midstream Pipelines, LLC v. Settoon Towing, LLC, Civ. Act. No. 13-2809, 2015 WL 269051 at *3 (E.D. La. January 21, 2015) (citing St. Paul Reinsurance Co., Ltd. v. Commercial Fin. Corp., 198 F.R.D. 508, 512 (N.D. Iowa 2000) (failure to specify how each request is deficient and how the objecting party would be harmed by a required response renders boilerplate objections insufficient); Weems v. Hodnett, No. 10-cv-1452, 2011 WL 3100554 at * 1 (W.D. La. July 25, 2011) (boilerplate objections unspecified or supported are not objections warranting a court's review under the Federal Rules of Civil Procedure). Jenna points out that KKF failed to file objections to the notice, issued in January of 2023, within a reasonable time after the Rule 30(b)(6) subpoena was issued. Jenna asserts that KKF had 30 days in which to lodge any objections to such subpoena under the CMO. As referenced above, it appears KKF no longer acknowledges the interim deadlines included in the CMO, although its reasoning for this change of heart has not been disclosed to the Court. No matter the applicable deadline, after review of correspondence offered by the parties, this Court finds KKF's objections were not voiced in a reasonable time, particularly in light of the ample communication between the parties during that time period. Following KKF's receipt of the Rule 30(b)(6) notice at issue on or about January 27, 2023, KKF failed to express any objection to the noticed topics until April 25, 2023. (Rec. Doc. 241-3 at pp. 2). In the interim, correspondence by KKF gave the impression that Rob Shapiro would be designated as KKF's agent for the noticed deposition and that efforts were underway to find an agreeable date for same. (Rec. Doc. 241-4). Whether or not KKF's enrollment of new counsel played a part in the about-face response to Jenna's Rule 30(b)(6) notice, KKF's failure to voice its objections either to Jenna or on the record for three months is prejudicial to Jenna's preparation of its case and not in keeping with Rule 30(b)(6)'s purposeful requirement that the parties confer immediately before or after a notice is served. See Fed. R. Civ. P. 30(b)(6) advisory committee's note to 2020 amendment (indicating that Rule 30(b)(6)'s amendment to include the conference requirement was a specific response to issues regarding, inter alia, objections to scope of noticed topics). KKF further objects to Jenna's Rule 30(b)(6) notice on the grounds that the noticed topics would require disclosure of privileged communications in violation of the attorney-client privilege and/or attorney work-product privilege and, as such, should be prevented. Federal Rule of Civil Procedure 26(b)(3) provides that disclosure of attorney work-product—that is, any document or other tangible thing prepared for use in or in anticipation of, litigation—is generally not permitted, unless such items are otherwise discoverable under Rule 26(a)(1) and the requesting party shows “substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A). Corporate disputes often involve claims or defenses about which a litigant may have consulted an attorney. As is always true, a deponent may object to any question, the answer to which would violate attorney-client privilege or protections afforded to attorney work product. Nguyen v. Excel Corp., 197 F.3d 200, 208 (5th Cir. 1999) (explaining reliance upon counsel's advice does not open attorney-client communications to disclosure but failing to assert attorney-client privilege as to questions which may not be answered without violating such privilege does). Blanket assertions of attorney-client privilege are inadequate to support court intervention. Rather, each such objection must be made with specificity. “It is generally agreed that the recipient of a summons properly should appear before the issuing agent and claim privileges on a question-by-question and document-by-document basis.” Taylor Lohmeyer Law Firm, P.L.L.C. v. United States, 957 F.3d 505, 510 (5th Cir. 2020) (quoting U.S. v. Davis, 636 F.2d 1028, 1038-39 (5th Cir. Unit A 1981)); United States v. Malnik, 489 F.2d 682, 685 (5th Cir. 1974), cert. denied, 419 U.S. 826 (1974). “Privilege is not a defense to enforcement of a summons to testify; such claims are tested by refusing to answer specific questions after enforcement and defending subsequent contempt proceeding.” United States v. Davis, 636 F.2d at 1039 (internal citations omitted). The same logic applies to KKF's attorney-client and attorney work-product privilege objections. KKF may object on these bases in response to a specific question. A blanket assertion of such privilege does not shield a party from appearing pursuant to a lawful summons. KKF's objections to the noticed topics are repetitive and do not meet the standard for specificity that would enable a court to rule thereon. *7 Considering the foregoing analyses, this Court will recommend that the “person most knowledgeable” language be disregarded and that the notice be otherwise upheld for the reasons explained above. Lastly, KKF's motion seeks to quash a notice of deposition issued by Jenna to Cullen, KKF's former outside counsel who is now employed as its in-house counsel. (Rec. Docs. 234, 247). Jenna noticed Cullen's deposition on or about April 18, 2023 but disclosed its intent to depose Cullen at least as early as October 28, 2022, including this information in the Joint Case Management Order of that date. (Rec. Doc. 158 at p. 4). KKF asserts that the noticed deposition would be improper given Cullen's important role in this litigation. (Rec. Doc. 234 at pp. 7-10). Jenna argues that Cullen is a percipient witness and is not counsel of record in this case, making her deposition proper. (Rec. Doc. 245). Rule 26(c) permits a court to enter an order protecting a party or witness from whom discovery is sought. Upon a showing of good cause, the court may order that discovery be conducted via a different method than that requested. Depositions of opposing counsel are generally disfavored but are not prohibited as a rule. McKinney/Pearl Restaurant Partners, L.P. v. Metropolitan Life Ins. Co., 2016 WL 3033544 at *4-5 (N.D. Tex. 2016) (collecting cases). See also Theriot v. Parish of Jefferson, 185 F.3d 477, 491 (5th Cir. 1999) (“Generally, federal courts have disfavored the practice of taking the deposition of a party's attorney; instead, the practice should be employed only in limited circumstances.”); Premier Dealer Servs., Inc. v. Duhon, Civ. Act. No. 12-1498, 2013 WL 5720354, *4 (E.D. La. October 21, 2013) (“Although several district courts within the Fifth Circuit caution about the taking of in-house counsel and/or opposing counsel depositions, there is not an express prohibition thereon.”). Courts considering challenges to depositions of in-house counsel analyze three factors, as set forth in Shelton v. Am. Motors Corp., 805 F.2d 1323, 1324-26 (8th Cir. 1986), which include: (1) the information sought is not available by other means; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case. In Nguyen v. Excel Corp., 197 F.3d 200, 209 (5th Cir. 1999), the Fifth Circuit affirmed the use of the Shelton factors without expressly adopting Shelton as its standard. “The critical factor in determining whether the Shelton test applies is not the status of the lawyers as ‘trial counsel,’ but the extent of the lawyer's involvement in the pending litigation[.]” McKinney, 2016 WL 3033544 at *5 (quoting Murphy v. Adelphia Recovery Trust, 2009 WL 4755368 at * 3 (W.D. Tex.)). Where a “lawyer has knowledge of relevant facts related to the subject matter or the litigation, and is merely advising the client with respect to the lawsuit, Shelton does not apply.” Id. On the other hand, where an attorney “is actively involved in trial preparation” no deposition may be taken unless authorized under Shelton. Id. KKF offers Cullen's sworn declaration in support of its argument that she has been “extensively involved in this litigation” and therefore subject to the protective analysis of Shelton. (Rec. Docs. 234-1 at p. 9, 234-2 at pp. 2-4). Cullen states that she is the only in-house counsel employed by KKF and is “solely responsible for coordinating all aspects of KKF's legal strategy at each phase of this litigation, including, without limitation, crafting causes of actions [sic], defenses, and arguments, deposition preparation, and preparation of motions.” (Rec. Doc. 234-2 at ¶ 5). *8 Jenna argues that Cullen is the only source from which it can obtain information regarding Cullen's interactions with Markowitz and third parties such as Main Post Partners and other marketing partners. (Rec. Doc. 245 at p. 12). Jenna claims that KKF's complaint alleges, for example, that Cullen is a fact witness regarding “rude and unprofessional emails to KKF employees” sent by Markowitz. (Rec. Doc. 85 at ¶ 60). Jenna also claims that Cullen “engaged with third parties on business matters on behalf of KKF prior to the instant litigation and was an active participant in the facts and circumstances giving rise to the claims of both Jenna and KKF.” (Rec. Doc. 245 at p. 12). Finally, KKF points out that Cullen is not counsel of record for KKF in this matter. (Id.). This litigation concerns contractual negotiations and allegations of breach, of which this Court finds Cullen likely possesses unique knowledge given her role in not only legal issues, but the general business enterprise of KKF. Although Jenna should be permitted to depose Cullen regarding her involvement in such general business enterprise, including contract negotiation and allegations of breach of which she has direct knowledge, any such deposition should be limited to only those matters. Jenna should refrain from delving into matters that would necessarily require answers in violation of attorney-client privilege or the attorney work-product exception. To that end, KKF may make any reasonable objection for the purpose of preserving its attorney-client and attorney work-product privileges. In so finding, this Court hopes to enable fair discovery as to both parties, protecting both the right to relevant inquiry and the right to assert privilege or exception where appropriate. Considering the foregoing, this Court will also recommend that Jenna's pending motion to strike KKF's reply brief, (Rec. Doc. 243), be DENIED AS MOOT. Conclusion For the reasons discussed herein, the Court recommends that KKF's motion to amend, (Rec. Doc. 226), be DENIED in all respects and that KKF's motion for protective order, (Rec. Doc. 234), be GRANTED in part, directing the phrase “person most knowledgeable” be stricken from Jenna's Rule 30(b)(6) notice of deposition. In all other respects, this Court recommends that KKF's motion for protective order be DENIED. This Court further recommends that Jenna's motion to strike (Rec. Doc. 243) be DENIED AS MOOT. This Court also recommends that the parties be ordered to file any desired amended Case Management Order on which they may agree in conformity with the applicable Amended Scheduling Order within a specified time agreeable to the Court. Under the provisions of 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b), parties aggrieved by this recommendation have fourteen days from service of this report and recommendation to file specific, written objections with the Clerk of Court. A party may respond to another party's objections within fourteen days after being served with of a copy of any objections or responses to the district judge at the time of filing. Failure to file written objections to the proposed factual findings and/or the proposed legal conclusions reflected in the report and recommendation within fourteen days following the date of its service, or within the time frame authorized by Fed. R. Civ. P. 6(b), shall bar an aggrieved party from attacking either the factual findings or the legal conclusions accepted by the district court, except upon grounds of plain error. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1). THUS DONE in Chambers, Lafayette, Louisiana on this 22nd day of June, 2023. Footnotes [1] 18 U.S.C. § 1836, et seq. [2] La. R.S. 51:1431, et seq. [3] https://bizfileonline.sos.ca.gov/search/business.