Non-Party Depositions: Counsel for the Witness Now Has A Place At the Table

When a non-party witness is deposed, is there any place in the deposition room for the witness’ counsel? In two cases, Thompson v Mather, and Sciara v Surgical Assoc., the Fourth Department took a hard line against any participation by counsel for the witness. The court read CPLR 3113 as denying counsel any right to participate in any way, and as most definitely denying counsel any right to object on any ground, whether based on privilege or otherwise.

Effective September 23, 2014, CPLR 3113 (c) has now been amended so as to overrule this line of cases. A new sentence has been added, allowing counsel for a non-party deponent to participate in the deposition and make objections on behalf of the deponent in the same manner as counsel for a party.

The subsection now reads:
(c) Examination and cross-examination. Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a non-party deponent’s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party. When the deposition of a party is taken at the instance of an adverse party, the deponent may be cross-examined by his or her own attorney. Cross-examination need not be limited to the subject matter of the examination in chief.

The non-party witness, therefore, has the right to have counsel present, and counsel has the right to interpose objections. The next question is as to the scope of objections counsel may raise. The language of the amendment seems to limit the witness’ counsel to the objections available to a party under the Uniform Rules for the Conduct of Depositions. So, counsel for the witness may direct the witness not to answer questions which invade “a privilege or right of confidentiality . . . or [are] plainly improper and would, if answered, cause significant prejudice to any person.” The most obvious danger, especially in malpractice cases, is that the questioner might seek answers in the nature of opinion evidence. Such questions are plainly improper as to a non-party witness, and may therefore be objected to. Questions seeking legal conclusions would seem to be on the same footing.
On the other hand, the witness is by definition not a party, and there may well be substantive objections available to a party which would not be available to the witness. An example would be an objection based upon an order of the court limiting the issues for disclosure. If the parties do not object to a particular question on this basis, and the question does not invade any privilege or confidentiality or cause the witness significant prejudice, it would seem as though the witness would not have standing to object.
It must be stressed that the witness, faced with a proper question, must answer truthfully even if the truth would be against his interest. Specifically, in malpractice cases, the non-party medical witness is concerned lest his testimony be used as a basis for bringing him into the action as a defendant. Even assuming that the concern is warranted, it does not justify an objection. This was, of course, the issue underlying the cases before the Fourth Department. The Fourth Department was emphatic that this concern provides no legitimate objection to a proper question, and that conclusion would not seem to be affected by this amendment.
As to other possible objections, we must await further developments. What about objections to form? Clearly, counsel for parties may object as to form, and their failure to do so operates as a waiver of the objection. May counsel for a non-party do so? Generally, a witness with no stake in the outcome would seem to have no interest in the form of a question. On the other hand, what if the witness later becomes a defendant? Can a failure to object to form at the original deposition work a waiver later? Or, consider the case where successive questioning attorneys ask substantially identical questions, for no particular reason, needlessly prolonging the deposition. Counsel for a party witness can object, but can counsel for a non-party?