Almost a year and a half ago on February 11, 2011, the Fourth Department in Thompson v Mather, 70 AD3d 1436 (4th Dept. 2011) ruled “counsel for [a] non-party [witness]… is precluded from objecting during or otherwise participating in … depositions.” This broad pronouncement seemed to go to far, as the Uniform Rules For The Conduct Of Depositions specifically provide that a witness’ attorneymay participate to a certain extend beyond the mere raising of objections to questions which thereafter must be answered. The Uniform Rules For The Conduct Of Depositions 22 NYCRR §221.2 and §221.3 provide in part as follows:
§221.2 Refusal to answer when objection is made.
A deponent shall answer all questions at a deposition, except (i) to preserve a privilege or right of confidentiality, (ii) to enforce a limitation set forth in an order of a court, or (iii) when the question is plainly improper and would, if answered, cause significant prejudice to any person. An attorney shall not direct a deponent not to answer except as provided in CPLR Rule 3115 or this subdivision. …
§221.3 Communication with the deponent.[1]
An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless … the communication is made for the purpose of determining whether the question should not be answered on the grounds set forth in section 221.2 of these rules and, in such event, the reason for the communication shall be stated for the record succinctly and clearly.
Thus the attorney for a non-party witness should be permitted to participate in the deposition to the extent of consulting with the non-party witness “for the purpose of determining whether [a] question should not be answered on the grounds set forth” in 22 NYCRR §221.2 and then if appropriate, direct the non-party witness not to answer. And this is in fact what cases citing Thompson, have concluded.
Only two “reported” decisions have discussed Thompson since it was announced and both do not preclude all participation by a non-party’s attorney at a deposition. Those two cases are Sciara v. Surgical Associates of Western New York, P.C. 32 Misc.3d 904, (Erie Sup. 2011) and St. Louis v. Hrustich 35 Misc.3d 1232(A), 2012 NY Slip Op 50982(U) (Albany Sup. 2012)
In Sciara, The Court did not read Thompson for the broad proposition that its language would suggest. This Court held that
“[r]ather, Thompson should be read in light of its facts. There, the Fourth Department addressed attempts by a nonparty witness’s counsel to object to form and relevance. … Thus, the facts in Thompson do not support a conclusion that counsel for a nonparty witness is prohibited from protecting his or her client from an invasion of a privilege or plainly improper questioning causing significant prejudice if answered.
Uniform Rules §§ 221.2 and 221.3 are not limited to parties but apply to “deponents.” Thus, in the event that a question posed to a nonparty fits within the three exceptions listed in section 221.2, the nonparty’s attorney is entitled to follow the procedures set forth in sections 221.2 and 221.3.”
It is also noted that in Thompson, “plaintiff moved for an order “precluding . . . [the non-party’s] counsel from objecting … except as to privileged matters or in the event that she were to deem questioning to be abusive or harassing.”
In St. Louis, that Court added a caveat to the holding in Thompson, by saying that “[g]enerally, though a non-party witness has the right to be represented by counsel at a deposition, counsel may not object or otherwise participate in the deposition unless necessary to invoke a testimonial privilege” Thus St. Louis does not go as far as Sciara, which I feel is the correct reading of Thompson.
Thus Thompson, should be read to mean only that a non-party’s attorney should not be making objections, when the question is to be answered anyways, nor making comments on the questioning. However to the extent permitted by NYCRR §221.2 and §221.3 the non-party witness’ counsel may participate in the deposition.
[1] It is parenthetically noted that no restriction are made on the deponent initiating a communication with their attorney, even when a question is pending.
Lou and The Law 