Depositions generally involve a series of questions and answers between the deponent and counsel. At times, however, counsel may want to use the deposition as an opportunity to have the witness demonstrate a task or record physical characteristics of a witness. Conveniently, nearly all attorneys now carry a camera in their pocket, in the form of their mobile device. When capturing images or video during depositions, counsel must be careful not to violate a right to privacy, or cast them in an offensive manner.
In one New Jersey case, the court considered the right of a deponent to refuse to have his photograph taken at a deposition against his will. Counsel for the plaintiff had arranged to depose the defendant. During the deposition, the plaintiff requested that a photographer take photographs of the defendant. The plaintiff had intended for the photographer to photograph the full face, full body, and right and left profile of the defendant, and then use the photographs to show to potential witnesses to determine whether they had signed petitions circulated by the defendant. The defendant objected to the taking of the photographs, which he considered to be akin to “mug shots,” and further argued that they were highly intrusive.
The matter was presented to the New Jersey Superior Court, which described the case as involving two issues: 1) whether plaintiff had a right to take the photographs over the objection of defendant, and, if so, 2) whether the plaintiff had a right to distribute the photographs among potential witnesses for purposes of identification.
With regard to the first point, the court noted that the rules of procedure provide for the videotaping of depositions. The court continued that photographing a witness would not be materially different from simply taking a frame of the video, and also noted that taking photographs at a deposition would be less intrusive than doing so without the witness’ knowledge in public.
With regard to the second point, the court concluded that the use of the photograph to allow witnesses to identify the deponent is not in any way offensive or intrusive. Nevertheless, the court determined that there were limitations on the manner in which the photographs could be taken. Specifically, the court ruled that the photographs could not be made to look like mug shots, or display the deponent in a derogatory manner. The court thus allowed photographs to be taken, with the caveat that they be submitted to the court for approval if any dispute arises as to their content.
Counsel seeking to take physical evidence at a deposition should familiarize themselves with local rules regarding the permissible scope of such discovery. Counsel who go too far could violate a witness’s rights, and potentially lose the opportunity to present valuable evidence at trial.