Guess Who's Coming to the Deposition?
I was about to start a deposition at Stained Glass Factory located somewhere between Syracuse and Utica. The owner of the factory decided he wanted to sit in on the deposition of one of his employees. As a new associate, my knee-jerk response was to exclude the owner since he may influence the employee’s answers to my questions. I quickly decided that the owner could attend the deposition since his company was a party in the case. I created a record and explained that the witness’s boss was present in the room and asked whether the employee was concerned about her job. My instinct that the owner could be present was right, but for the wrong reason.
There is no Federal Rule of Civil Procedure that excludes non-parties from attending a deposition. While we typically think of depositions as being private proceedings, a deposition can be very public.
A deposition audience can be used as an advocate’s sword. For example, counsel could invite media reporters, aggrieved family members, or former colleagues to influence and pressure a deposition witness. Imagine that you are defending the deposition of the former CEO of a bankrupt company and it is standing room only for ex-employees that have lost their jobs and pensions. Or perhaps, the parents and siblings are sitting across the table in your deposition which involves the death of their relative in a car accident. There is nothing legally inappropriate or unfair about these audiences being at the deposition.
A protective order is the advocate’s shield. Rule 26(c)(1)(E) allows you to seek a protective order “designating the persons who may be present while the discovery is conducted.” In addition, holding the deposition in your offices will allow you to control access to the deposition. Another potential remedy for your client is to enter into a confidentiality stipulation and agreement at the onset of discovery.
What should you do when you enter a conference room and see the angry mo
b of pensioners with pitchforks and torches? Make a record. Confer with opposing counsel and, if there is no remedy, you and your client should walk out. Rule 30(d)(3) allows you and your client to adjourn the deposition to seek an order terminating or limiting the deposition because it is being conducted in bad faith or in such a manner as to unreasonably annoy, harass, or oppress the deponent. To make a compelling record you need to make yourself an eyewitness. Tell the court reporter exactly what you see. It is crucial that you provide an accurate and honest description of the audience. Set up your 30 (d)(3) motion by establishing a detailed account of what is happening. Meet with your client in the hallway and ask them if the audience will impact their answers and, if so, go back in the room and make your record. You want the judge to see that conference room in the record through the eyes of the witness. If you are videotaping the deposition, use the camera to set up your 30(d)(3) motion. Be Stanley Kramer for a minute and turn the camera to the audience, there is no rule that says the camera may only point in one direction.
While Sidney Poitier, Spencer Tracy and Katherine Hepburn may not be a party to my case, they could be coming to the deposition.
Comments (4)
Read through and enter the discussion by using the form at the endJoseph Conley - January 31, 2011 3:47 PM
This is a useful commentary. If you anticipate a problem, probably should address it in advance. I've had opponents threaten to exclude a witness if he's attended. Of course, there's no rule that makes that a remedy (for depositions), but Judges frequently get things wrong. If you're the deposing attorney, as you point out, a protective order is an option. The cases on this issue suggest that, in ruling on a motion for a protective order, a Court should be guided by Rule 615 of the FRE, which excludes non-party witnesses from watching others testify at trial.
lou natali - January 31, 2011 7:09 PM
A fine blog. Basisc rule in preparation is always advise your client and witnesses that the other party may attend the deposition. It is often startling to a witness when the defendant, also their boss, arrives at a depo.
I was pleased with the alternatives provided by the blog. When in doubt, try to freeze the situation inorder to get time to think through it.
Francis Sullivan - February 2, 2011 12:11 PM
In the Western District of Wisconsin, the magistrate recently barred a party from attending the deposition of another party. This was based on an interpretation of FRCP 30(c)(1), which states: "The examination and cross-examination of a deponent proceed as they would at trial except under the Federal Rules of Evidence, except Rules 103 and 615."
FRE 615 is the rule governing exclusion of witnesses from trial. Parties who are natural persons, representatives of non-natural-person parties, or people who are authorized by statute to be present are excepted from the rule. The magistrate read the rule to authorize him to order the party excluded.
We're encouraged here to telephone the court in advance of walking out of a deposition.
Frank Sullivan - February 2, 2011 1:56 PM
In the Western District of Wisconsin, the magistrate recently barred a
party from attending the deposition of another party. This was based on
an interpretation of FRCP 30(c)(1), which states: "The examination and
cross-examination of a deponent proceed as they would at trial except
under the Federal Rules of Evidence, except Rules 103 and 615."
FRE 615 is the rule governing exclusion of witnesses from trial.
Parties who are natural persons, representatives of non-natural-person
parties, or people who are authorized by statute to be present are
excepted from the rule. The magistrate read the rule to authorize him
to order the party excluded.
We're encouraged here to telephone the court in advance of walking out
of a deposition.