In February 2010, a New York appellate court issued an alarming ruling that “counsel for a nonparty witness does not have a right to object during or otherwise participate in a pretrial deposition.” Thompson v. Mather, 894 N.Y.S.2d 671 (App. Div. 2010). In this medical malpractice case, the court prevented counsel for nonparty physicians from asserting objections during their pretrial depositions.
In a recent article, noted evidence and civil procedure author David Paul Horowitz explains that, while recent New York decisions somewhat erode the Thompson decision, caution is in order. See Not Sure if I can Say Something, 85 N.Y. St. Bar J. at 22 (Jan. 2013). The article, available here, reviews recent decisions that, despite Thompson, (1) permit attorneys representing a party and the nonparty deponent to interpose objections; (2) allow attorneys to interpose objections, including privilege objections, where the nonparty deponent is a party’s agent; (3) prohibit nonparty reporter’s deposition because Thompson prevents her counsel from asserting the journalist privilege; and (4) authorize the nonparty deponent’s counsel to object to disclosure of confidential, trade-secret information.
Mr. Horowitz advises that “practitioners representing non-party witnesses should check for new decisions before representing their clients at depositions.” And while Thompson interprets a New York civil procedure rule on pretrial depositions, attorneys in other states should take notice. Several states permit pretrial evidentiary depositions for some individuals, such as doctors and accountants, in lieu of personal trial attendance. And when these nonparty deponents bring counsel with them, a court’s adoption of the Thompson decision could prove fatal to privilege objections before they are ever asserted. Lawyers should certainly “check for new decisions” before representing nonparty witnesses at depositions, but they should first check out Mr. Horowitz’s article.
Thanks to Mr. Horowitz and the New York State Bar Association Journal for permission to republish the article in this post.