- Know the law.
- Modify or quash as necessary.
- Prepare thoroughly.
- Meet and confer.
- Submit errata.
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.
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.