Vol. 5, No. 6, Pg. 37. A Kinder, Gentler Deposition.

• Author: By Justin S. Kahn

South Carolina Lawyer

1994.

Vol. 5, No. 6, Pg. 37.

A Kinder, Gentler Deposition

37A Kinder, Gentler DepositionBy Justin S. KahnDeposing Lawyer: I hand you this document to review.

Deponent: Yes, thank you.

Deposing Lawyer: The first paragraph states--

Deponent's Lawyer: Let me review it with my client--

Deposing Lawyer: What time was this collision?

Deponent: It was around--

Deponent's Lawyer: Objection--this witness cannot possibly know the answer to that question. And even if he does, it is not relevant to this lawsuit. And furthermore, calling this incident a collision is wholly improper, unfounded and unwarranted. It was merely a bump and there were no injuries.

The scenario above may or may not be an exaggeration of experiences many lawyers have had while deposing witnesses.

What rights, duties and remedies are available during a deposition? Although South Carolina state courts have not had an opportunity to address these issues, this article highlights various federal court interpretations of the rules, directions to counsel and sanctions. "Since our Rules of Civil Procedure are based on the Federal Rules, where there is no South Carolina law, we look to the construction placed on the Federal Rules of Civil Procedure." Gardner v. Newsome Chevrolet-Buick, Inc., 304 S.C. 328, 330, 404 S.E.2d 200, 201 (1991).

United States District Judge in the District of South Carolina G. Ross Anderson has created deposition guidelines for matters pending in his court. Judge Anderson's order of Dec. 16, 1993 is reprinted on p. 42, following this article.

Discovery Generally

The goal of discovery should be the expeditious discovery of relevant facts. R.E. Linder Steel Erection Co. v. U.S. Fire Ins. Co., 102 F.R.D. 39, 40 (D. Md. 1983). Depositions should proceed smoothly and produce a record as clean as if a judicial officer were present to control the interrogation of witnesses. Id. at 41.

The purpose and intention of depositions are:

[T]o find out what a witness saw, heard, or did--what a witness thinks. A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness. There is no proper need for the witness'ss own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers. ... It is the witness--not the lawyer--who is the witness. As an advocate, the lawyer is free to frame those facts in a manner favorable to the client, and also to make favorable and creative arguments of law. But the lawyer is not entitled to be creative with the facts. Rather, a lawyer must accept the facts as they develop.

Hall v. Clifton Precision, 150 F.RD. 525, 528 (E.D. Pa 1993).

Preparation

A lawyer has the right, if not the duty, to prepare a client for deposition. Once the deposition begins, however, the witness is on his or her own. Id.; see also Judge Anderson's Order. Private conferences between the witness and non-deposing counsel are only proper to consider asserting a privilege. Hall at 531. Depositions should not be opportunities for opposing counsel to speak through a witness.

The witness's lawyer should inform the witness of his or her rights before the witness is in a position to make a statement that might waive or reveal privileged information. Id. at 529-30. However, once the deposition begins, the preparation period is over and deposing counsel is entitled to pursue the chosen line of questions without inappropriate interjections by opposing counsel. Id. at 529. At trial, a witness's lawyer does not sit on the witness stand and tell the witness what to say or refrain from saying. The same should be true during depositions.

38 Instruction to the Witness

After the deposition begins, deposing counsel should instruct the witness to ask him or her, rather than the witness's own counsel, for clarifications, definitions and explanations of any words, questions or documents presented during the deposition. Hall at 531. If there is a misunderstanding about a question, deposing rather than opposing counsel is in a better position to explain. Id. at 529.

Documents

Deposing counsel should provide the witness's counsel with a copy of all documents that will be shown to the witness, either before the deposition begins or when each document is shown to the witness. Id. at 532; See also Rule 613(a), Federal Rules of Evidence (examining a witness concerning a prior statement of the witness). After the deposition begins, the witness and the witness's counsel should not have the right to privately discuss documents before answering questions--unless the discussion relates to asserting a privilege. Hall at 532.

Objections-...