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Don''t let your opponent disrupt depositions: opposing attorneys may use witness conferences, speaking objections, and errata sheets to obstruct a deposition. Here are some countermeasures.

Article Excerpt
In the last 60 years, lawyers' ability to obtain evidence during depositions has increased significantly. The discovery process has moved from an exercise of "hide the ball" toward full disclosure of relevant information, according to one legal commentator. (1) Depositions can be the most valuable part of discovery for unearthing critical case information.

Ascertaining what a nonexpert witness or defendant knows, saw, heard, did, or thought requires a one-on-one question-and-answer session. The deposing attorney is entitled to have questions answered as phrased and to create a transcript of important admissions by deponents. The ultimate goal of a deposition is to generate a clean transcript that can be used at trial for all permissible purposes, whether substantively or for impeachment.

Unfortunately, some lawyers have developed an argumentative, antagonistic approach to defending depositions that can seriously impede the flow of information from a witness. While they continue to obstruct the deposition process, courts and bar associations have moved to curb this abuse, and there are tactics attorneys can use when facing obstructive counsel. (2)

Three common forms of obstruction used during depositions are:

* conferences to frame a witness's answer or to interrupt the proceedings

* speaking objections and interjections to suggest answers or disrupt the flow of information

* errata sheets to change a witness's testimony.

Conferences

A question-and-answer session between deposing counsel and the witness should follow the Rules of Civil Procedure. Federal Rule of Civil Procedure 30(c) provides: "Examination and cross-examination of witnesses may proceed as permitted at the trial tinder the provisions of the Federal Rules of Evidence, except Rules 103 and 615."

Unnecessary interruptions for conferences or consultations are not allowed at trial and may negate a deposition's effectiveness by allowing the deponent's lawyer to act as an intermediary who interprets questions and frames answers for the deponent. (3) Yet there is no uniform federal or state rule that acknowledges the need for some forms of conferences during depositions while prohibiting others.

Deponents and their counsel may want to break for a conference for several reasons, described by one legal commentator as the good, the bad, and the ugly. The good: An attorney might ask for a conference to correct any inadvertent inaccuracies made by a nervous deponent, or to discuss whether a privilege applies to a particular question. The bad: A deponent's attorney may request a break to improperly provide answers for the deponent or to disrupt the flow of the proceedings. The ugly: An attorney may also initiate a conference if the deponent is purposely providing incorrect answers to deposing counsel. (4)

These reasons for conferences call into question which rule should govern their availability and what steps lawyers can take to ensure that their actions do not obstruct the deposition process.

Eleven years ago, in one of the most often-cited responses to the increasing use of attorney-witness conferences during...

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