WHO CAN ATTEND A DEPOSITION?
Introduction:
Depositions are unique to American litigation and usually the most powerful way to develop evidence. It allows a party to examine witnesses…including the opposing party…under oath and any alteration of testimony at trial may be pointed out to the judge and jury. Often witnesses in a deposition, exhausted or intimidated by many hours of questioning, make errors that hurt their cases. See our various articles on depositions for a full description of this powerful litigation tool.
Both witnesses and parties often wish to have family or friends attend the deposition, often for moral support, often because they may be able to provide advice to the witness during the breaks. There may be strategic reasons for counsel to wish other people attend the deposition aside from the witness, the court reporter and the opposing counsel.
This article examines who is legally allowed to attend depositions.
The Basic Law:
Parties and their counsel have the right to attend a deposition and others may attend unless the court orders otherwise. See CCP §2025.420(b)(12) (any party, deponent, or other affected person or organization may move for protective order to exclude designated persons—other than the parties to the action and their officers and counsel—from the deposition).
Note the unique wording of the statute: it specified who can seek an order barring someone from the deposition; it does not specify who can attend. Thus, anyone can attend unless the court issues a protective order IF an “affected” person seeks and obtains such an order.
As a practical matter, the only people present at most depositions are the examiner, the deponent, deponent’s counsel, other parties’ counsel, the court reporter, a videographer, and an interpreter, if necessary. In some cases, a party may wish to attend, e.g., to encourage a deponent with whom the party has had critical conversations to testify truthfully.
But there are situations in which the examiner wants a nonparty, such as an expert witness or consultant, to assist on follow-up questions or suggest additional areas of inquiry, particularly if the testimony will touch on very technical points. Or someone known to a party who could influence the person testifying could be brought in an effort to either intimidate or encourage. As an example, the father of a woman engaged in a divorce proceeding could be brought into the room to support his daughter and cause some concern to the ex-husband.
If a nonparty shows up at the deposition and is not wanted by a party or attorney, can he or she be refused admittance. Can the lawyer simply refuse to proceed with the deposition until he or she leaves?
Usually, a party or counsel do not have a right to refuse to proceed with a deposition when surprised by the presence of an unexpected and unwelcome person unless that party obtains a court order so allowing. The correct tactic would be for that party or his/her counsel to immediately suspend the deposition to apply for a court order to exclude the person.
This is not that unusual. Many attorneys move to exclude expert witnesses or consultants from the deposition. Some might make a motion for an order excluding even parties from a deposition when there are a great number of them, e.g., 30–40 plaintiffs in an employment litigation case. The court will normally grant such an order if there is good cause.
General Comments:
Note that the process increases the expense of the deposition since a court appearance and possible argument will be necessary. If it can be reasonably anticipated that there may be objection, a good initial step is for counsel to contact opposing counsel, advise him or her of the intention, and ask for a stipulation that such attendance is acceptable. If refused, then some money can be saved by seeking the protective order immediately and skipping the expense of the aborted deposition. And if attendance is agreed upon, that expense is entirely eliminated.