Leave ‘Em at Home: Don’t Bring Anything to a Depo

Have you ever considered the consequences of a witness bringing her mobile phone to a deposition? May a deposing attorney ask a witness to retrieve information stored on a hand-held device during a deposition? Many lawyers may fail to anticipate the consequences of a witness bringing documents or other materials to a deposition and may overlook this issue when preparing the client. This lack of foresight can lead to unintended discovery disclosures.

Take, for instance, a witness who pulls out a document when questioned and refers to it when providing an answer. Under F.R.C.P. 612, a witness who uses a writing to refresh her recollection while testifying must produce the writing to the adverse party for inspection unless it is privileged.

These concerns are intensified in the electronic age. With the proliferation of smart phones, zealous attorneys may ask a witness during a deposition to reference her mobile device for additional information that the witness does not know off-hand, including contact information, emails, text messages, and phone records. Exploring this data can provide an edge to the party taking the deposition at the expense of the deponent.

Attorneys can avoid these issues by instructing the client during deposition preparation of the potential discovery concerns that may arise when a witness brings materials to a deposition. Accordingly, attorneys may advise the client to leave ‘em at home. In some situations, a client may be better served by showing up to a deposition empty-handed, rather than unintentionally producing documents that could impair their defense.

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  1. Good advice about the cell phone. For years, I have advised my clients not to bring any paperwork to a deposition. If there is an accompanying subpoena for documents, I handle the production of those documents at the deposition. Increasingly at depositions, opposing counsel asks for names, contact information, photographs, or other information that is stored on a phone or other mobile device. Depending on the circumstance, the request might be objectionable. Rather than stumble through that during the deposition, I now routinely tell my clients not to take their cell phones into the deposition. Any information of the phone that is properly discoverable can be provided later through responses to properly phrased interrogatories or requests for production.

  2. This is obviously not directed toward expert witnesses, but rather percipient witnesses. In that respect, I agree. Experts have a whole different list of risks and information policies that should be adhered to. After 23 years of testifying, I have my top ten rules of information disclosure.

  3. Jeannie Hardy

    Great heads up for everyone, Thanks!

  4. Jjwalk

    Well how about the defendant? Can that person while attending the plaintiffs deposition use a cell to text or etc..or is this a violation?

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