SC Lawyer, Sept. 2005, #1. Rule 30(j), Charlie McCarthy and the potted plant.

• Author: By The Hon. Gary Hill, S.C. Circuit Court Judge

South Carolina Lawyer

2005.

SC Lawyer, Sept. 2005, #1.

Rule 30(j), Charlie McCarthy and the potted plant

South Carolina LawyerSeptember 2005Rule 30(j), Charlie McCarthy and the potted plantBy The Hon. Gary Hill, S.C. Circuit Court JudgeRule 30(j) was added to the South Carolina Rules of Civil Procedure "to help eliminate conduct tending to interfere with or impede depositions." Note to 2000 Amendment. The amendment was passed to align our state rules with similar local federal rules promulgated in the 1990s to stem the widespread practice of some attorneys who defended discovery depositions by constantly interposing speaking objections or comments that suggested how their client should answer the question (e.g., "If you don't know, just say you don't know."). To combat this problem, U.S. District Judge G. Ross Anderson Jr. implemented the first significant deposition reform in this state by signing a standing order regarding conduct during depositions modeled on Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). Rule 30(j) is nearly identical to Judge Anderson's pioneering order.

The net effect of the rule has been to restore the truth-seeking function of depositions and to ensure that the "witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness's words to mold a legally convenient record." Hall, 150 F.R.D. at 528.

While critics claim Rule 30(j) has reduced the defending lawyer's role to mere ornamentation (akin to the famed "potted plant" that Brendan Sullivan, Oliver North's lawyer, assured the Senate he was not), the rule indisputably requires attorneys to better prepare their clients for depositions. The rule does not limit counsel's right to make non-speaking objections to (1) the form of the question, (2) matters covered by SCRCP 32(e)(3) or (3) assert a privilege or discovery order. See generally 8A Wright, Miller & Marcus, Federal Practice and Procedure§ 2113.

Moreover, counsel for a deponent or a party can move pursuant to SCRCP 30(d) for an order terminating or limiting the deposition if it "is being conducted in bad faith or in such a manner as unreasonably to annoy, embarrass or oppress the deponent or party." The motion can be made to the court where either the action is pending or where the deposition is being...