Invoking “the Rule” at depositions

Invoking the rule at a deposition

Invoking the rule

The practice of law in the court system is subject to a multitude of rules. There are rules of civil procedure, of evidence, and of appeals, just to name a few. There is one, however, that is simply known as “the rule.”

“The rule” (more formally known as the exclusionary rule) refers to the practice whereby trial witnesses are excluded from the courtroom until it is their time to testify. The rule does not apply to witnesses who are either parties or experts, but it generally applies to all other witnesses.

Pre-trial depositions

Prior to trial, parties often take a deposition under oath of potential trial witnesses. The question frequently arises as to whether the rule can be invoked to exclude other persons from attending the deposition.

The answer varies depending upon whether the lawsuit in question is pending in state court or federal court.

State court practice

In Mississippi state court, the rule can be found in Rule 615 of the Mississippi Rules of Evidence. Rule 615 states:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney; or

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense.

(It is subpart (c) that is used to permit expert witnesses to remain in the courtroom.)

With respect to the taking of depositions, Rule 30 of the Mississippi Rules of Civil Procedure states that the examination of witnesses at a deposition “may proceed as permitted at the trial.”

Because Rule 615 is applicable “at the trial,” lawyers generally take the position that non-party/non-expert witnesses may be excluded from attending the deposition of another witness.

In my experience, most lawyers agree with this, and if it is necessary to involve a state court judge, the judge is likely to invoke the rule.

Federal court practice

Rule 615 of the Federal Rules of Evidence is almost identical to Mississippi’s Rule 615 regarding the exclusion of witnesses at trial.

Rule 30 of the Federal Rules of Civil Procedure, however, is worded differently than Mississippi’s Rule 30.

Federal Rule 30 provides that “the examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” Thus, “the rule” does not apply to a federal court deposition.

Even so, Rule 26 of the Federal Rules of Civil Procedure grants a federal district court the power to enter protective orders placing limitations on discovery, including “designating the persons who may be present while the discovery is conducted.”

Thus, although the rule does not automatically apply to a federal court deposition, the federal court has the power to invoke it for good cause.

The United States Court of Appeals with the Fifth Circuit has explained, however, that a party seeking such a protective order has the burden to “show the necessity of its issuance, which contemplates a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In re Terra Intern., Inc., 134 F.3d 302, 306 (5th Cir. 1998).

The Fifth Circuit explained: “In this case, MCC made nothing more than a conclusory allegation that a substantial majority of the fact witnesses in the underlying litigation are employees of Terra and that they will therefore be subject to Terra’s influence and will be inclined to protect each other through a sense of camaraderie.”

That was not enough to justify the protective order.

Panter Law Firm, PLLC, 7736 Old Canton Road, Suite B, Madison, MS 39110