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.]
In my jurisdiction (which I choose not to identify, with apologies), the rule is quite clear as to parties, though I haven't dealt with the issue when it comes to non-party "observers." A motion to exclude a party from a deposition will undoubtedly be denied. But I can foresee circumstances in which a non-party observer could be excluded by court order. That's assuming, of course, that counsel desiring the observer's presence was foolish enough to let opposing counsel know ahead of time that the observer was going to attend, leaving enough time for a motion for protective order to be filed.
Posted by: Chuck | March 16, 2004 at 11:05 PM
"Was foolish enough to let opposing counsel know ahead of time" . .
In Illinois, we can stop a deposition that's become abusive, harassing, etc., in order to seek a motion for a protective order. So even if you learned about something just before the deposition, you could continue the deposition. The risk is that if you lose the motion, you might have to pay the other sides' costs.
Posted by: Evan | March 17, 2004 at 05:25 AM