Just before a deposition the other week, my client told me he feared that the other side would bring an outsider, tangentially connected with the opposing party, to the deposition as an observer. According to my client, I couldn’t allow this. If I did, the deposition “could turn into a brawl.”
Well, the customer is always right. Although this sort of thing comes up in my practice from time to time, I had never gotten to the point of finding out whether the rules would allow me to exclude a non-party observer from a deposition. This time I looked it up, but found nothing. My plan was to ask the other lawyer to keep the observer away. If he didn’t agree, I’d postpone the deposition so that I could file a motion for a protective order. (Brawls being a bad thing at depositions, in my opinion.)
As it turned out, the observer didn’t show, and I didn’t need to test the rule (or lack thereof). Today, however, I note in the “Practice Tips” column of the March 2004 Illinois Bar Journal an article titled “The Case for Allowing Expert Assistance at Depositions,” by Leon I. Finkel and Lena Goretsky Winters. The authors note, “No rule or case law expressly disallows an expert’s presence at depositions.” If there is a reason to exclude the expert, they suggest filing a motion.
The same standard would apparently apply to any observer at a deposition. They can't be excluded absent a court order. If you think otherwise, please let me know. [Note on federal practice: At one time, a federal rule limited those attending depositions to the parties. The pertinent rule is now Fed. R. Civ. P. 26(c) (5), which allows for a motion seeking exclusion of non-party observers.]