Scruples. Who Can Attend a Deposition?

• Author: Michael Downey
• Pages: 64-64

Scruples

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. 64

MICHAEL DOWNEY

The author is a legal ethics lawyer at Downey Law Group LLC in St. Louis, Missouri.

“We are at Nemesis’s office for the ACME

rocket sled case,” Paradox told Ethox on

the phone. “Nemesis is deposing ACME’s

design engineer. Nemesis brought an engi-

neer who consults with Oxberry—ACME’s

competitor—to observe the deposition.

“ACME’s engineer is refusing to testify

while the Oxberry consultant is present,”

Paradox continued. “Nemesis says anyone

can attend the deposition, the Oxberry con-

sultant is an expert in the case, and Nemesis

needs the consultant to help effectively de-

pose ACME’s engineer. What should I do?”

“Unfortunately,” Ethox responded, “de

-

positions are supposed to be public pro-

ceedings, part of court proceedings. So

anyone who wants to attend can normally

do so.”

“Really?” Paradox asked. “I thought

we could invoke ‘the Rule’ and exclude

witnesses.”

“Federal Rule of Evidence 615—the rule

on sequestration of witnesses, or what some

people call ‘the Rule,’—limits when poten-

tial witnesses may observe trial proceedings

in which they are expected to testify,” Ethox

answered. “Federal Rule of Evidence 615

ordinarily allows anyone to be excluded, ex-

cept for four categories of exceptions: the

parties themselves, designated representa-

tives of corporate parties, persons whose

presence is essential to the case, and those

authorized by statute to attend.”

“Then we could exclude the expert,”

Paradox said.

“No,” Ethox clarified. “Federal Rule of

Evidence 615 governs witnesses at trial. The

rule that governs depositions, Federal Rule

of Civil Procedure 30(c), specifically states

that Rule 615—along with Federal Rule of

Evidence 103, which relates to rulings on

evidence—does not apply to depositions.”

“What are you saying?” Paradox pressed.

“Can we exclude the expert or not?”

“Probably not,” Ethox answered. “You

could seek a protective order under Federal

Rule of Civil Procedure 26(c)(1), which per-

mits a court to designate who ‘may be pres-

ent while the discovery is conducted’ and

also to place depositions under seal. But to

get such a protective order, you will have

the burden to show ‘good cause,’ such as

‘annoyance, embarrassment, oppression, or

undue burden or expense.’

“The standard is pretty high,” Ethox

added. “Courts tend to allow anyone with

information relevant to a party’s claims or

defenses—including experts—to attend, un-

less there really may be some problem with

that person attending.”

“What if we are worried about witnesses

shaping their testimony so they all tell a

consistent story?” Paradox wondered.

“Courts regularly state that is not

enough,” Ethox responded. “You will like-

ly need to provide specific factual support,

not just raise broad, conclusory objections

to the observer’s attendance. And the facts

generally must be something that would

not exist in virtually every case.

“Ordinarily, courts look for evidence of

potential harm or prejudice that would oc-

cur if the observer attends, such as could

be improper dissemination of secret or

sensitive information, or intimidation of

a witness. Those are the reasons courts

most frequently exclude observers from

depositions.”

“I think the ACME engineer was primar-

ily concerned about disclosure of design

secrets,” Paradox offered. “So that would

probably work, right?”

“That may be enough,” Ethox confirmed.

“So what should I do?” Paradox asked.

“I wish Nemesis had warned me he might

be bringing a consultant to the deposition.”

“You may need to delay the deposition to

get the court’s ruling on a protective order,”

Ethox advised. “But you are right—lawyers

are often advised to tell the other parties in

advance when they may be bringing a po-

tentially controversial observer to a deposi-

tion. That allows the parties to work things

out, or seek a court order, before everyone

is inconvenienced.

“At this point,” Ethox concluded, “you

should probably speak with your client and

decide how they want to proceed.”

“Thanks,” Paradox responded, ending

the call. q

WHO CAN ATTEND A

DEPOSITION?