More Than a Potted Plant: Five Tips for Nonparty Deponents’ Counsel

Although nonparty deponents may not have an interest in the outcome of the case, their testimony may have real consequences for them—whether in the form of professional or personal recrimination or civil or criminal liability. Nonparty deponents thus often hire their own counsel.

But how far can counsel for nonparty deponents go in protecting their clients’ interests? The Federal Rules of Civil Procedure offer little guidance beyond directing that “[t]he examination and cross-examination of a deponent [shall] proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” Fed. R. Civ. P. 30(c)(1). And though this would suggest that counsel for nonparty deponents should have no role at their clients’ depositions, it nevertheless seems obvious that counsel should be able to instruct their clients not to answer certain questions implicating privileges. It also seems reasonable that counsel should be able to ask for clarification when vague questions might lead their clients to provide inaccurate answers. On the other hand, it seems less certain that counsel or their clients have any interest in most of the reasons for standard “form objections,” such as lack of foundation or the solicitation of hearsay.

Unfortunately, the federal courts have offered little to no guidance on this issue. Counsel for nonparty deponents thus should consider the following steps to minimize disputes and protect their clients’ interests.

1. Know the law. Although this issue is unresolved in most jurisdictions, it is not unresolved in all of them. In New York state courts, for instance, counsel for a nonparty deponent has no right to object or participate in his or her client’s deposition. See, e.g., Sciara v. Surgical Assocs. Of W. N.Y., P.C., 104 A.D.3d 1256, 961 N.Y.S. 640 (20113).
2. Modify or quash as necessary. In some cases, the risk to the nonparty deponent from examination may be so significant that a motion to quash or modify the subpoena is necessary. Because deadlines under Rule 45 are often tight, these discussions should take place immediately upon the subpoena’s receipt.
3. Prepare thoroughly. Unless the jurisdiction recognizes a clear right for the nonparty deponent’s counsel to participate, or the parties so agree, counsel should assume that he or she will be unable to ask questions correcting or contextualizing the deponent’s testimony. The nonparty deponent thus should be prepared thoroughly on the underlying facts and the parties’ likely lines of questioning.
4. Meet and confer. The nonparty deponent’s counsel should contact counsel for the other parties to discuss the scope of his or her participation. If the parties cannot agree, the nonparty deponent’s counsel should consider whether one of the other parties is sufficiently aligned such that his or her counsel could assert objections and ask questions to clarify and contextualize.
5. Submit errata. The nonparty deponent’s counsel should reserve his or her client’s right to read and sign the deposition so that any errors that were not addressed (whether by oversight or otherwise) can be corrected.

Although these five steps cannot guarantee the right of a nonparty deponent’s counsel to participate in his or her deposition, they can minimize disputes and protect the witness’s interests whatever the result.

Joseph V. Schaeffer is counsel with Spilman Thomas & Battle, PLLC in Morgantown, West Virginia.

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