We've written before about the risks of a deponent consulting with counsel during a deposition. This week, visiting Judge Wolson ordered a deposition reopened after counsel did just that:
AND NOW, this 27th day of November, 2023, upon consideration of Stragent’s Motion For Sanctions Against VCUSA Pursuant To Fed. R. Civ. P. Rule 30(d)(2) For VCUSA’s Violation Of Local Rule 30.6 And Established Law (D.I. 100), and for the reasons set forth on the record during a hearing with the Parties, it is ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as follows:
1. The Motion is GRANTED, to the extent Stragent seeks to reopen the deposition of [the deponent] to question him about his conversation with Counsel for VCUSA during the deposition, and any reasonable follow-up questions that flow from [his] answer . . . .
Stragent, LLC v. Volvo Car USA, LLC, C.A. No. 22-293-JDW, D.I. 118 (D. Del. Nov. 27, 2023).
The order does not specify exactly what counsel can ask the deponent in the re-opened deposition. Delaware law has been fairly clear that "you can't ask what was said" when this happens, due to attorney-client privilege—instead, there is a script to follow in asking about it.
The order implies that perhaps the Court found that the defendant here waived privilege. It seems to permit asking generally "about [the] conversation with Counsel." But, if that includes the substance of what was said, that would differ from what I've seen other judges in this district do.
(The Court refers to the hearing transcript, but IP/DE has already grossly exceeded its budget for buying interesting transcripts directly from court reporters this year, and the transcript has not been posted to the docket. If anyone has it and wants to forward it to us, we'll update the post! If it holds that privilege is waived, it could be a useful tool for us all in depositions going forward.)
According to the motion, the plaintiff took the deposition after the defendant submitted a declaration from the deponent on the docket. The plaintiff sought to exclude that declaration as a sanction and preclude reliance on the witnesses' testimony. Id., D.I .100 at 4. The Court denied that relief, instead ordering the deposition re-opened.
If you want to avoid issues like this, check out our deposition tips for D. Del. depositions!
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