As a Plaintiff’s Attorney who conducts depositions on a regular basis, one of the more frustrating issues I encounter is the non-party witness (NPW) who is represented by counsel. Sometimes the NPW brings in their own outside counsel to represent them. More commonly, the NPW has some loose affiliation with the interests of the Defendants in the case, and defense counsel tries to claim that they are also representing the NPW. Defense counsel then obstructs objects and delays, hoping to prevent me from obtaining damaging information from the NPW. These kinds of tactics usually end up in the deposition being adjourned, or a call to the judge to determine the extent to which the defense attorney will be allowed to participate, with wildly varying decisions froom the judges who have addressed the issue.
Thankfully, the Appellate Division has finally ruled on the issue. In Thompson v. Mather, the NYS Appellate Division, Fourth Department recently ruled that while an NPW is certainly entitled to whatever counsel they want, the NPW’s attorney IS NOT entitled to participate in the deposition. So they can’t object or obstruct or delay or do any of the many other things that slow, and sometimes stop a deposition dead in its tracks.
This is a boon for not just plaintiffs attorneys, but for every attorney who handles depositions. The trial judges who have to field phone calls from attorneys complaining of these tactics will be happy to hear of this decision as well. Many thanks to our good friend Eric Turkewitz, who wrote about the topic here. It seems that the scales of justice may be tipping toward common sense!
Thanks for reading,
Adam M. Gee, Esq.