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.