Episode 84 - Does the Rule of Sequestration Apply to Depositions?

In this episode, Jim Garrity addresses one of the most widely-held misconceptions about deposition practice. He also provides practice tips when an opposing lawyer "invokes the rule" and demands that one or more of your attendees leave the deposition room, to prevent them from hearing a deponent's testimony. Garrity also shares tips from the opposite viewpoint - what to do when you're the lawyer who wants attendees excluded. As always, we've included case citations below to decisions on the topic covered in this episode. Thanks for listening! (Questions? Topics you'd like to suggest Jim cover? Email us at [email protected]).SHOW NOTESPanama City Beach Condos, Limited Partnership, etc., 2009 WL 10674351 (N. D. Florida February 3, 2009) (sanctions imposed against lawyer who frivolously argued that FRE 615 applied to depositions and required exclusion of certain people from deposition room)BCI Communications Systems, Inc. v. Bell Atlanticom Systems, Inc., et al., 112 F.R.D. 154 (N. D. Alabama September 16, 1986) (defendants not entitled as of right to invoke rule of sequestration in oral civil depositions, where only reason asserted for protective order was garden or boilerplate variety, such as risks of collusion or fabrication)Hamon Contractors, Inc. v. District Court of First Judicial District, 877 P. 2d 884 (Colo. 1994) (holding that state court evidence rule 615 does not apply to depositions, and that general rule authorizing protective orders was proper mechanism to seek exclusion of persons from depositions)Rocha v. Unknown Parties, et al., 2020 WL 6063295 (D. Arizona October 14, 2020) (rejecting application of rule of sequestration based on generic arguments that three police officers would coordinate their testimony if they sit in on each other’s depositions)Brown v. U. S. Department of Veterans Affairs, et al., 2019 WL 13137937, Case No. 18-cv-54-PB (D. New Hampshire April 16, 2019) (plaintiff allowed to have person present in deposition to provide “moral support,” although person could not participate in any way in the deposition)Howlett v. Chiropractic Center, P. C. 460 P.2d 942 (Sup. Ct. Montana March 31, 2020) (holding that state rule of evidence 615 did not apply to depositions, and also noting that plaintiff did not seek to have rule of sequestration applied to perpetuation deposition)Huber Baking Co v. Frank C. Sparks Co, et al., 81 A.2d 132 (Superior Court of Del. April 24, 1951) (motion for protective order seasonably made on day of deposition where movant had no reason to believe multiple people would attempt to sit in on deposition)Smith v. Southern Baptist Hospital of Florida, Inc., etc. et al., 564 So.2d 1115 (Fla. 1st DCA 1990) (rule of sequestration applies at trial, not to depositions, and can only be accomplished in depositions through rule authorizing protective order to protect against annoyance, embarrassment, oppression, or expense; held, nonparty doctor could sit in and observe deposition)Federal Rule of Evidence 615 (sequestration rule)Federal Rule of Civil Procedure 30(c)(1) (specifically excluding rule of sequestration from application to depositions)Federal Rule of Civil Procedure 26(c)(1)(E) (authorizing court to designate who may, and may not, attend depositions in a given case)