Chapter 23 Submission of Deposition Transcript To Witness for Review and Signature

• Jurisdiction: Maryland

CHAPTER 22 WHO MAY ATTEND A DEPOSITION?

Three prison inmates brought a civil rights action in state court against four prison guards alleging deprivation of the inmates' constitutional right to practice their religion. The suit alleged that: (i) the defendants had prevented the plaintiffs from praying communally; (ii) the plaintiffs' special dietary needs were ignored; (iii) the guards had prevented the plaintiffs from proselytizing to fellow inmates; and (iv) the guards had deprived the plaintiffs of their religious texts.

The plaintiffs noticed the video deposition of one of the guards under Rule 2-411. Three motions were filed in advance of the deposition: (i) a television station moved to intervene to have a reporter attend the deposition, or obtain a copy of the videotape immediately upon conclusion of the deposition; (ii) the plaintiffs moved for a protective order that the remaining defendant guards be excluded from the deposition; and (iii) the guard whose deposition was noticed moved that none of the plaintiffs be permitted to attend. The motions came on for hearing.

How should the court rule?

Comment: Rule 2-413.1 governs who may attend a deposition, "unless the parties agree or the Court otherwise." By rule the following persons may attend a deposition:

• The officer before whom the deposition is taken, or the officer's designee;

• A person acting under the direction in the presence of the officer;

• The party or the party's representative, if the party is not an individual;

• The party's attorneys;

• The witness;

• Counsel for the witness;

• Expert witness expected to testify on a subject matter of the deposition;

• Non-attorney staff member(s) of counsel's staff;

• An expert witness expected to testify on the subject matter of the depositon.

"Although the public traditionally has a right to attend judicial proceedings, 'pretrial depositions and interrogatories are not public components of a civil trial,' and as a result, pretrial discovery proceedings are generally 'conducted in private as a matter of modern practice.'"¹ This does not mean that the public does not have the right to inspect the fruits of deposition discovery— the transcript or videotape—at an appropriate time and in an appropriate manner, but simply that the public has no right to observe the deposition process "in real time" as it is unfolding.²

Further, a court may sometimes restrict the right of a party to observe or participate in a deposition in its own case. Rule 2-403(a)(6) authorizes the court to enter an order "that discovery be conducted with no one present except persons designated by the court" where "good cause" has been shown for the entry of an order "which justice requires to protect a party or persons from annoyance, embarrassment, oppression, or undue burden or expense." A court may even exclude a party from a deposition that it has noticed of the opposing party, although such authority should be used in only unusual cir-cumstances.³ The specific protection to be afforded the parties—including the right to exclude another party—is within the discretion of the district court and may be reversed only on a clear showing of abuse of discretion.⁴

The court's power to limit attendance during depositions is buttressed by a doctrine of constitutional dimension: No one has an absolute due process right to attend his or her own civil trial (including pre-trial depositions), Green v. North Arundel Hospital Association, Inc., 366 Md. 597, 618-19, 785 A.2d 361, 373-74 (2001); Gorman v. Sabo, 210 Md. 155, 167, 122 A.2d 475, 481 (1956). However, the involuntary exclusion of a party from civil trial is justified only under specific circumstances that comport with due process, as when the party is obstreperous and disruptive in court, Helminski v. Ayerst Labs., 766 F.2d 208, 216 (6th Cir. 1985), or the party is unable to comprehend the trial or to communicate or participate in trial in it any meaningful way, and his or her presence could have no purpose except to prejudice the opposing party.⁵ In particular, at least one Maryland case has agreed with the majority view that a convict does...