Are Depositions Open To The Public?

Depositions are open by right to attorneys and parties as well as the witness you are deposing. Sometimes opposing counsel will ask for permission for their summer law clerks/externs or other innocuous individuals to attend. That shouldn’t be a problem.

Even though you may not like it, generally experts are allowed to attend depositions. This is so they know what testimony they may have to rebut as well as to assist attorneys in technical areas where the attorney will not have full knowledge about the subtleties of the subject matter. IT, medical doctors, engineers etc.

But what about 3rd party witnesses? If that happens and the attorneys don’t agree to exclude witnesses, you will need to get a protective order. Some attorneys will attempt to bring in third parties in attempts to intimidate your client or your witness. Object right away and, if necessary, seek a protective order on the basis of witness sequestration. If it is a surprise, get the judge on the phone.

The National Institute of Trial Advocacy discusses this issue at length in one of its invaluable guides:

Outsiders: Members of the public, including other witnesses, relatives of witnesses, members of the media, and counsel not of record in the instant case, are not excluded by any rule, but may be excluded by a protective order issued by the court. Fed.R.Civ.P. 26(c)(5).

Practice Tip: According to the language of the Rules, depositions are not closed proceedings; they are instead part of the public disposition of civil litigation, of which the trial is also a part. Nevertheless, many counsel and judges continue to believe that depositions are private, and that “outsiders” may be excluded as a matter of right. The existence of Rule 26(c)(5) should have concluded discussion on this question long ago because there would be little sense to recognizing the specific authority of the court to limit those who may attend a deposition if depositions were normally closed proceedings. As a practical matter, because most depositions take place in private conference rooms, people not formally associated with the case can be excluded by the party or counsel controlling the room through tenancy or ownership.

A related question which often arises is whether future deposition witnesses may attend depositions. In Fed.R.Civ.P. 30(c), which provides that examination and cross-examination will “proceed as permitted at the trial under…the Federal Rules of Evidence,” the language “except Rules 103 and 615” has been added. Rule 615 is the “rule on witnesses,” providing that, at the request of any party, witnesses will be excluded from the courtroom until after they testify. By specifically excluding Rule 615 from those rules applying to depositions, the authors of the new Federal Rules of Civil Procedure are recognizing that deposition witnesses may be present at other depositions, absent a protective order.

Of course, counsel can avoid many of these problems by stipulating as to who may be present at the deposition. Because the method of recording the testimony can be changed by stipulation, and because the requirement of an oath can be avoided by stipulation, even the officer and the reporter are not actually necessary. Thus, at least in theory, the parties could stipulate that the witness give the deposition by speaking in a stream-of-consciousness style into a Playschool tape recorder while standing, all alone, in a broom closet. If the public is interested in attending, however, a stipulation between the parties should not be sufficient to close the deposition.

Of course, if the deposition is being held at the offices of a party or any attorney, non-participants in the litigation may be excluded on simple trespass grounds, or admitted on simple “host-guest” principles. However, if a party obtains an order excluding or including such an observer, that order would obviously control. The more important question is whether a party wants to object to the presence of an observer. The decision should not be knee-jerk; the presence of a reporter for The New York Times may put pressure on the executive who was planning to stonewall at the deposition; therefore, the taking attorney should not be too quick to stipulate that the deposition in his own offices should be closed to outsiders perhaps some reflection on the impact of publicity from the lawsuit will compel more reasonable settlement offers.

NITA’s “Deposition Rules, The Pocket Guide to Who, What, When, Where, Why, and How”, 3rd edition by David M. Malone.

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