Friday, July 28, 2006
This is an interesting development, and one that has been a long time coming: the Chief Administrative Judge has adopted a new Part 221 of the Uniform Rules for the Trial Courts which lays out bright line rules for the conduct of depositions. The new rules bar objections (except for objections to form; objections on the grounds that the person taking the deposition is disqualified from so doing; and objections to the competency of a witness-- you know, the CPLR Rule 3115 objections). So called "speaking objections" are barred: "Every objection raised during a deposition shall be stated succinctly and framed so as not to suggest an answer to the deponent and, at the request of the questioning attorney, shall include a clear statement as to any defect in form or other basis of error or irregularity. Except to the extent permitted by CPLR Rule 3115 or by this rule, during the course of the examination persons in attendance shall not make statements or comments that interfere with the questioning."
Attorneys are forbidden from directing their witness not to answer a question, "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." Of course, you could drive a truck though that last exception, but it is still a big change.
Finally, "An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or 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."
It would be pretty to think that this rule change will curb a lot of the abuses we've all seen over the years, but the reality is that even when the strike zone is codified, a strike is what the umpire calls. Still, it is helpful to have something to point to on these sorts of things-- if this new rule cuts down on the necessity of getting rulings in the middle of a depo even a little, it is a very good thing.
An aside: in New York we used to call depositions "EBTs"-- short for Examination Before Trial". "Deposition" was the federal court word, and in some milieux using it would brand you as an effete snob. (Conversely, saying "EBT" in a federal court marked you as a state court guy, someone less familiar with the subtleties of the FRCP, and a person likely to use his tie as a napkin.) This charming little distinction has been eroding for years, and these days calling a deposition an EBT is like calling a Preliminary Conference an "8-A". You don't know what an 8-A is? Man, I feel old.
Attorneys are forbidden from directing their witness not to answer a question, "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." Of course, you could drive a truck though that last exception, but it is still a big change.
Finally, "An attorney shall not interrupt the deposition for the purpose of communicating with the deponent unless all parties consent or 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."
It would be pretty to think that this rule change will curb a lot of the abuses we've all seen over the years, but the reality is that even when the strike zone is codified, a strike is what the umpire calls. Still, it is helpful to have something to point to on these sorts of things-- if this new rule cuts down on the necessity of getting rulings in the middle of a depo even a little, it is a very good thing.
An aside: in New York we used to call depositions "EBTs"-- short for Examination Before Trial". "Deposition" was the federal court word, and in some milieux using it would brand you as an effete snob. (Conversely, saying "EBT" in a federal court marked you as a state court guy, someone less familiar with the subtleties of the FRCP, and a person likely to use his tie as a napkin.) This charming little distinction has been eroding for years, and these days calling a deposition an EBT is like calling a Preliminary Conference an "8-A". You don't know what an 8-A is? Man, I feel old.
// posted by Bill @ 10:15 AM 
Post a Comment