Written by attorney Steven Irwin Milligram

New York: attorney for non-party witness does not have right to object during a pretrial deposition

The Appellate Division, Fourth Department, in Thompson v. Mather, 70 A.D.3d 1436, 894 N.Y.S.2d 671 (4th Dept. 2010), held that an attorney for a non-party witness "does not have a right to object during or otherwise to participate in a pretrial deposition In Thompson, a medical malpractice action, plaintiff's counsel subpoenaed plaintiff's non-party treating physicians to provide deposition testimony in advance of trial through videotape, which was to be presented at trial. At their non-party deposition, the physicians were represented by lawyers retained by their medical malpractice insurance carrier. During plaintiff's questioning of one of the non-party physicians, the attorney for that physician objected to several questions both as to their form (the way the question was asked) and relevance of the information sought by the question. Plaintiff's attorney objected to the participation by the non-party's attorney and, subsequently moved for an order precluding the non-party physician's attorney from objecting at the session. The Appeals Court concluded that "we agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition", based on the language of CPLR 3113(c) which provides that the examination and cross-examination of deposition witnesses "shall proceed as permitted in the trial of actions in open court." Therefore, the court concluded that the attorneys for the non-parties could not object or participate during the videotaped depositions of their client noting that it could "discern no distinction between trial testimony and pretrial videotaped deposition testimony presented at trial" It appears that the Court was persuaded to arrive at this determination by this out of court proceeding designed to preserve testimony for trial with what would transpire during the trial itself. In other words, while a non-party may be entitled to have representation present during trial testimony, that attorney has neither right nor any standing to make any objection to any question or testimony given. In this light the decision is not nearly as draconian as it seems at first blush and fits in with what may actually occur during a trial

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