Your Dog Is Too Cute for This Deposition

OK, it wasn't just about the dog, but I think its presence (and effect) was likely especially telling ....

|The Volokh Conspiracy |

From Reid v. Temple University Hospital (E.D. Pa. Feb. 14, Harvey Bartle III, J.):

Two depositions noticed by plaintiffs have already been taken in plaintiffs' counsel's dining room. According to defense counsel, the attendant conditions were totally unsatisfactory. The dining room was open to the kitchen and living room. 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….

We recognize that the party taking the deposition usually selects the place where the deposition will be conducted. Nonetheless, this practice is not without limits. Rule 26(c)(1) of the Federal Rules of Civil Procedure provides in relevant part: "The court may, for good cause, issue an order to protect a party or person from annoyance … or undue burden … including … (B) specifying terms, including time and place … for … discovery." In the court's view, the taking of depositions in the dining room of the home of plaintiffs' counsel under the circumstances gleaned from the undisputed portions of the declarations of both counsel constitutes annoyance and undue burden sufficient to establish good cause for the issuance of a protective order. It is hard to imagine that anyone could have easily concentrated on the important business at hand, including the deponent attracted to the dog….

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….

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17 responses to “Your Dog Is Too Cute for This Deposition

  1. I took the deposition of a third party witness, an elderly man, in his home in San Diego once. His home was kind of messy- we made do- but there were no house pets and the deposition went fine.

    1. A strict rule against residential depositions would be a bad idea, but courts need to be able to intervene when it gets ridiculous. It’s one thing to go to the DEPONENT’S home for a deposition due to some unique need or convenience, but the deposing lawyer’s own house?

      1. That was my thought as well – a world of difference between the deponent’s house and the lawyer’s.

  2. “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.”

    By definition, any room with a couple of lawyers in it is “a professional setting”.

    Shouldn’t the court be telling the lawyers to be professional, whatever the setting, instead of laying down broad generalizations?

    1. Two lawyers, even assuming they are both working at that moment, does not constitute a “professional setting”, anymore than a dentist holding a sharpened stick is a professional setting.
      You need the venue to be free of distractions, as well as comfortable for those attending who are trying to get something (which is costing hundreds of dollars per hour) done.

      1. Did the joke skim right past you without even pausing to wave hello? How rude of it.

    2. If one of the lawyers had not objected to the deposition, there would not have been anything for the court to rule on. The judge was simply agreeing with the defense that this was an absurd and highly unprofessional setting that undermined the deposition so much that it should be thrown out.

      1. “The judge was simply agreeing with the defense that this was an absurd and highly unprofessional setting that undermined the deposition so much that it should be thrown out.”

        Look at the sentence I quoted. Compare it to this one:
        “(plaintiffs’ counsel’s dining room) […] is not an acceptable forum for lawyers to examine and defend witnesses under oath.”

        That line needs to be in the ruling. OTOH, “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.” doesn’t need to be there.

  3. Two Samoyed puppies is an almost insurmountable distraction. Four Samoyed puppies will block purposeful activity in any venue smaller than a railroad depot.

    1. I once saw four adult Samoyeds stuffed into the back of a Kia. It looked like they were hauling Norway around.

  4. This reminds me of an old story at the first firm I where worked. One of the partners had taken someone’s deposition, who was, shall we say, rather eccentric. The person became agitated by the questioning, and exclaimed, “You lawyers are all dogs. All you understand is dog language. So from now own I am going to testify in that language.”

    And that is what the transcript showed. He answered every question in dog language:

    Q: So, Mr. Smith, where did you go to school?

    A: Woof, woof, woof, woof, woof.

    Q: And did you graduate with a degree?

    A: Woof, woof, woof, woof, woof.

    This went on for pages of transcripts. The associates were passing it around for years later.

    1. If we’re just going to do deposition stories–and why not?–my favorite involved the senior partner at the firm where I first practiced many years ago, who, in a music industry case, was deposing none other than Mick Jagger. Throughout the deposition, the partner addressed him as “Mr. Yaeger.” This was neither intentional rudeness nor a ploy to indicate to Jagger how insignificant he was: the partner was elderly and truly had never heard of Mick Jagger and had no idea who he was or how to pronounce his name.

  5. “…While plaintiffs’ counsel’s dining room is undoubtedly and rightly a place of commensal conviviality and canine companionship. . .”

    But now, there is censorship of counsel/co-counsel’s civil connubial conversations, and the concomitant cacophany. Crikey!!!”

  6. The court should appoint a special master to find out who let the dogs out.

  7. I was deposed in a quiet bar room once. Actually, a rather nice high end motel lounge. We started enjoying ourselves and someone else was picking up all the expenses. Had a whale of a headache next day.

  8. I was deposed in a quiet bar room once. Actually, a rather nice high end motel lounge. We started enjoying ourselves and someone else was picking up all the expenses. Had a whale of a headache next day.

  9. I was deposed once for an insurance settlement on an industrial fire. There were about 6 lawyers in the room and a few more on a speaker phone. The first question the main lawyer asked me was had I ever been deposed before? My answer, No, I have never been the dictator of a third world country. Total silence, finally broken by a lot of laughter.

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