The Federal Rules - Who You can Bring with You to a Deposition

By Daniel Johnson

One consideration during discovery is whether to request that other witnesses, besides the witness who is being deposed, be sequestered from that deposition. This is a particularly relevant consideration in construction disputes, which are often fact-intensive with dozens of witnesses and potential witnesses, from site foremen to project managers, who were involved in the project. While counsel may often agree that corporate representatives may be present at the deposition, the question is often asked: is there a rule of sequestration that is applicable to discovery?

Prior to the 1993 revisions of the Federal Rules of Civil Procedure, courts disagreed whether to automatically sequester witnesses upon a party’s request during discovery. Compare BCI Communication Systems, Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154 (N.D. Ala. 1986) (holding that defendants were not entitled, as matter of right, to invoke the rule of sequestration during oral depositions, and the burden was on the parties seeking to invoke the rule of sequestration in an oral deposition to show good cause for exclusion), and Lumpkin v. Bi-Lo, Inc., 117 F.R.D. 451 (M.D. Ga. 1987) (finding that the Federal Rule of Evidence concerning sequestration of witnesses also applied to oral depositions so as to limit the number of witnesses that could be present at a deposition).

However, since the FRCP revisions, there is no automatic witness sequestration from depositions at the request of a party under the Federal Rules. Federal Rule of Evidence 615 does state that witnesses must be excluded at a party’s request, but according to Rule 30(c) of the Federal Rules of Civil Procedure, “[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” Thus, the exclusion rule from FRE 615 only applies at trial, and while courts may retain the authority to exclude witnesses from depositions under FRCP 26(c) by issuing a protective order “designating the persons who may be present while the discovery is conducted”, witnesses are not automatically excluded from federal court depositions at the request of a party.[1]

Generally, any party or representative of a party or witness with information relevant to the claims, including expert witnesses, can attend depositions, but they may also be excluded upon a specific showing that some harm or prejudice might occur to a party or the deponent through the disclosure of secret or sensitive information learned by virtue of their attendance and disseminated thereafter. See, e.g., Mangum v. Town of Holly Springs, No. 5:07-CV-425, 2009 WL 10689440, at *2 (E.D.N.C. Feb. 17, 2009) (citing Bell, but finding that plaintiff had shown good cause for the exclusion from the deposition of an individual representative of a non-party where no plausible reason for the attendance of such representative was provided in the face of plaintiff’s contention that defendant was inflating attendance at her deposition for the purpose of intimidating her).

However, the showing that some harm or prejudice might occur must be specific, as courts have generally declined to order sequestration of individuals from depositions based on “broad and conclusory” allegations that witnesses will tailor their testimony to conform to one another. In re Terra International, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (allegation that witnesses would be inclined to protect each other “through a sense of ‘camaraderie’” was insufficient to establish good cause to sequester witnesses). “A finding of good cause must be based on a particular factual demonstration of potential harm, not on conclusory statements.” Mansor v. JPMorgan Chase Bank, N.A., No. 12-10544, 2017 WL 4159935 (D. Mass. Sept. 19, 2017).

In conclusion, absent a specific showing that their attendance will cause some harm or prejudice, key members of your client’s project team can attend the federal court deposition of another witness.

[1] The Advisory Committee Notes from the 1993 FRCP revisions further state: “Minor changes are made in [FRCP 30(c)]… aimed at reducing the number of interruptions during depositions. In addition, the revision addresses a recurring problem as to whether other potential deponents can attend a deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of the evidence rules, and others holding that witnesses may attend unless excluded by an order under Rule 26(c)(5). The revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate; and, if exclusion is ordered, consideration should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions. The revision addresses only the matter of attendance by potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the public or press.”

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