NCJ Number
117334
Date Published
1989
Length
10 pages
Annotation
This article shows how the two most universally accepted deposition practices -- the exclusion of a nonparty from the deposition without a protective order compelling the exclusion and an instruction to a deponent not to answer questions -- defy the law governing depositions.
Abstract
Lawyers typically insist, even to the point of refusing to proceed with the deposition, that all nonparties leave the room before the deposition begins. Rule 26(c)(5) of the Federal Rules of Civil Procedure, however, specifies that the attorney who wants to sequester deposition witnesses must move for a protective order before the deposition. Without such an order, the attorney has no right to insist that anyone, party or nonparty, be excluded from a deposition. Further, the granting of a protective order requires a showing of 'good cause.' The practice of an attorney instructing deponents not to answer questions is so well entrenched that it has generated an elaborate set of rules, all of them folklore rather than actual law. The law is that a lawyer has no right to instruct a client or any other deponent not to answer a deposition question unless the question calls for privileged information. Rule 30(c) of the Federal Rules of Civil Procedure provides that the reporter shall note all objections on the record and that 'evidence objected to shall be taken subject to the objections.'