April 19, 2021 Scruples

Who Can Attend a Deposition?

Lawyers are often advised to tell the other parties in advance when they may be bringing a potentially controversial observer to a deposition.

Michael Downey

Download a printable PDF of this article.

“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 engineer 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 consultant is an expert in the case, and Nemesis needs the consultant to help effectively depose ACME’s engineer. What should I do?”

“Unfortunately,” Ethox responded, “depositions are supposed to be public proceedings, 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 potential 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, except for four categories of exceptions: the parties themselves, designated representatives 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 permits a court to designate who ‘may be present 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, unless 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 likely 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 occur 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 primarily 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 potentially controversial observer to a deposition. 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.

Michael Downey

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