Upon receipt of a notice to depose your corporate client’s representative(s) under FRCP 30(b)(6) or state-rule equivalent, the entity’s lawyers scramble to identify the right employees or agents to handle the job. From time-to-time, the identification process boomerangs to the entity’s lawyer because he or she is the only remaining corporate representative with the requisite knowledge.
So, what to do? Put the lawyer up for deposition? Assert a blanket objection on attorney–client privilege grounds? Object question-by-question?
One court faced with a motion to quash a 30(b)(6) notice held that the privilege does not automatically protect the corporate attorney’s knowledge from discovery, stating that a blanket objection produces “an unworkable circumstance.” But the court offered the corporate party some relief, which serves as guidance for the rest of us. United States v. Stabl Inc., 2018 WL 3758204 (D. Neb. Aug. 8, 2018). You may read the decision here.
“The first thing we do, let’s [depose] all the lawyers.” More…
In 2010, a New York Appellate Court issued a decision prohibiting lawyers for non-party witnesses from participating in, and lodging objections, including privilege objections, at depositions. A PoP post discussed this case, Thompson v. Mather, and its progeny, which you may read here.
The so-called Thompson Rule made little practical sense, and left third-party witnesses unprotected from asserting evidentiary privilege objections to a lawyer’s questions. And, of course, disclosing privileged information in a deposition setting constitutes privilege waiver that compounds the problem.
Due to the work of several bar organizations, the New York State Assembly passed a Senate Bill (S5077) allowing third-party witnesses to assert objections during their depositions. Governor Cuomo signed the legislation into law on September 23, 2014. The statute provides:
Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, EXCEPT THAT A NON-PARTY DEPONENT’S COUNSEL MAY PARTICIPATE IN THE DEPOSITION AND MAKE OBJECTIONS ON BEHALF OF HIS OR HER CLIENT IN THE SAME MANNER AS COUNSEL FOR A PARTY. When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his OR HER own attorney. Cross-examination need not be limited to the subject matter of the examination in chief.
The statute takes effect immediately, and now third-party witnesses in New York will not have to deal with the nonsensical Thompson Rule.