Chapter 22 Who May Attend A Deposition?

JurisdictionMaryland
CHAPTER 21 VIDEO DEPOSITIONS, AND REMOTE VIDEO DEPOSITIONS

Plaintiff's counsel noted the video deposition of one of his own expert witnesses, advising defense counsel that the expert would be unavailable at trial and that plaintiff intended to use the video in lieu of the expert's live testimony. Defense counsel responded that (a) he wanted to depose the expert without any video recording before plaintiff's counsel took the expert's video deposition, and (b) he would object to plaintiff's use of the video at trial on the ground that a trial witness was required to appear in person.

How should each issue be resolved?

Comment: See Shannon v. Fusco, 438 Md. 24, 34, 89 A. 3d 1156, 1162 (2014). MARYLAND RULE 2-419(a)(4) provides that a video deposition of an expert may be used for any purpose, even if the witness is available to testify, provided the notice of the deposition specifies that it is to be taken for use at trial. Moreover, the parties are encouraged to reach agreement on a plan for the scheduling and completion of discovery. Rule 2-401(c). However, absent an agreement to the contrary, defense counsel may depose the witness first, for discovery purposes, prior to the videotaped deposition even if the videotaped deposition is noticed first and notwithstanding objections of opposing counsel. Although there is no case law on point, common practice and a reading of the discovery rules support this proposition. "Unless the court orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery." Rule 2-401(b). The commentary to the rule observes:

[D]iscovery may be taken in any order, and parties may use discovery methods in any sequence. One party's discovery, whether by deposition or otherwise, does not delay another's, unless the court orders otherwise after, for example, a motion for protective order is filed pursuant to Rule 2-403.

Therefore, the fact that plaintiff's counsel noticed the video deposition first does not necessarily give him the right to go first. In fact, because plaintiff's counsel intends to take a de bene esse deposition to be used at trial in the witness's absence, the most reasonable approach would be to allow defense counsel to take a discovery deposition first so as to prepare for the trial deposition.

If plaintiff's counsel refuses to agree to this sequence, defense counsel may file a...

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