This is an unpublished order dealing with the conduct of a deposition under Rule 30(c)(1). Rule 30(c) governs the conduct of a deposition. It provides:
(c) Examination and Cross-Examination; Record of the Examination; Objections; Written Questions.
(1) Examination and Cross-Examination. The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A). The testimony must be recorded by the officer personally or by a person acting in the presence and under the direction of the officer.
(2) Objections. An objection at the time of the examination—whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition—must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).
(3) Participating Through Written Questions. Instead of participating in the oral examination, a party may serve written questions in a sealed envelope on the party noticing the deposition, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.
In this case, the plaintiff wished to have his non-lawyer friend attend the deposition. The district court correctly ruled that the non-lawyer friend cannot attend the deposition. The court explained:
The Court finds that good cause exists here to enter a protective order precluding Mr. Watters from being present at Plaintiff’s deposition. As this Court noted in its 12/18/14 Order [ECF 69], Rule 30(c)(1) of the Federal Rules of Civil Procedure provides that examination of a witness at a deposition proceeds as at trial under the Federal Rules of Evidence. “[C]ourts have uniformly held that once a deposition starts, counsel has no right to confer [with his client witness] during the deposition [except to determine if a privilege should be invoked].” LM Insurance Corp. v. ACEO, Inc., 275 F.R.D. 490, 491 (N.D. Ill. 2011), and cases cited therein. If a witness cannot confer with his counsel about questions and answers once the deposition starts, then it stands to reason that the deponent may not confer with a third party for the purpose, for example, of refreshing his recollection. A deposition is intended to record under oath a witness’s own personal knowledge without the prodding or help of a third party including the witness’s counsel. The record also reveals that Mr. Watters likely would not be a mere observer at Plaintiff’s deposition. Based on previous interactions among Plaintiff, Mr. Watters and counsel for Defendant, Mr. Watters has interposed or inserted himself in oral and written communications between Plaintiff and Defendant and likely would interfere with the testimony that Defendant is entitled to obtain from Plaintiff based solely on Plaintiff’s recollection of events.
Questions on the conduct of depositions come up frequently, but it is always a good idea to check the rule.
Source: SIMKUS v. United Airlines, Dist. Court, ND Illinois 2015 – Google Scholar
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