As we've previously discussed the district's local rules and longstanding practice prohibit speaking to a witness about the substance of his testimony during a deposition. Specifically, D. Del. local rule 30.6 states:
From the commencement until the conclusion of deposition questioning by an opposing party, including any recesses or continuances, counsel for the deponent shall not consult or confer with the deponent regarding the substance of the testimony already given or anticipated to be given, except for the purpose of conferring on whether to assert a privilege against testifying or on how to comply with a court order.
Normally, the application of this rule is pretty straightforward. But what if the deposition has a 3-week break? According to a new order from Judge Andrews—the rule must give way to reason.
The deposition in Genentech, Inc. v. Laurus Labs, Ltd., C.A. No. 19-78-RGA, D.I. 307 (D. Del. Aug. 10, 2021) was, as you probably guessed, remote. Plagued by technical issues, the deposition of the plaintiffs' expert was terminated after only about 2 hours on the record and was scheduled to resume approximately 3 weeks later. Id.; see also D.I. 306 (the parties' joint letter to the Court).
Plaintiff took the position that, since in the normal course they would be allowed to prepare the witness right up until the moment of his deposition, it would be unfair for him to grow stale for 3 weeks. Defendants mostly rested on the plain language of the local rule.
Judge Andrews ultimately reached a compromise between the two positions: allowing the plaintiff to discuss anything except "the two to three hours of the deposition already taken." Interestingly he cited to the Delaware Chancery and Superior Court rules in support of that position, both of which limit the prohibition on discussions with the witness to "recesses or continuances . . . of less than five calendar days.” See Superior Court Rule 30(d)(1); Court of Chancery Rule 30(d)(1); see also Genentech, C.A. No. 19-78-RGA, D.I. 307 ("I think the state court rule gives a good idea of what is reasonable").
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