Month: March 2019

Well, this is one way to keep a witness and opposing counsel
off kilter!

One Pennsylvania attorney routinely held depositions in his
home, in the dining room, while family members and the family dog wandered
loudly throughout. Proceedings were even casually interrupted proceedings to
ask about “evening plans.” The attorney didn’t see the problem; he
claimed he just wanted to be close to his files so he’d have everything he
needed.

It’s not completely unheard of to hold a deposition inside a
home. Usually this occurs in the case of an expert witness who lives in a rural
area or who just prefers to be deposed at their home, and the depositions
almost always occur by telephone or videoconference, and when no one else is home
so there will be no interruptions or distractions.

In this case, Reid
vs. Temple University, et al., the plaintiff’s attorney noticed and took
two depositions in his home although defense counsel had offered free use of
their conference room. At that point defense counsel filed a Motion for
Protective Order to prevent plaintiff’s counsel from holding future depositions
in his home, and to compel that future depositions be held at a “suitable
professional location.” According to the opinion issued by District Judge
Harvey Bartle III:

“During the two completed
depositions it was possible to hear family members in the house when they were
speaking on the telephone or to each other. When the sounds became particularly
loud, plaintiffs’ counsel, at the request of defense counsel or the court
reporter, had to intervene to restore quiet. The ringing of the telephone with
incoming calls and announcements occurred. Family members passed through the
dining room and at times interrupted plaintiffs’ counsel about evening plans or
to ask the court reporter and defense counsel to move their cars. The movement
of people in the adjoining kitchen was visible, and noises and smells emanated
from the cooking that was taking place.

“A dog wandered throughout the
house and came and went through a dog door behind the chair where the witnesses
sat. Not surprisingly, the examination of witnesses came to a halt on a number
of occasions as a result of all this extraneous activity…. According to
plaintiffs’ counsel, he noticed the depositions for his home because he ‘wanted
to have access to his full file in case unanticipated issues arose at the
deposition.’ He characterizes defense counsel’s pending motion as ‘based on a
few trivial alleged distractions.’ … While admitting that a dog was in the
house, he remembers that one deponent ‘seemed to enjoy the dog immensely,
petting him with enthusiasm and cooing to him with affection.’ He says nothing
about all the other participants….

Citing Rule 26(c)(1) of the Federal Rules of Civil Procedure,
which protect deponents from having their testimony taken under circumstances
that constitute an “annoyance” or “undue burden,” Judge
Battle concluded:

“Depositions, absent
compelling reasons such as the illness or incapacity of a witness, should be
taken in a professional setting devoid of domestic or other distractions. While
plaintiffs’ counsel’s dining room is undoubtedly and rightly a place of
commensal conviviality and canine companionship, it is not an acceptable forum
for lawyers to examine and defend witnesses under oath….”

It’s amazing that a practicing attorney would have to be
told such a thing,

At Greater Raleigh Court Reporting, we offer complimentary conference rooms (free of distractions) or we can help you find one all over North Carolina.  To schedule online, please call us at 919-586-8011 or use our online scheduler.