The Volokh Conspiracy

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Volokh Conspiracy

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 ....


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….