Non-party depositions are likely to be significant to any litigation, commercial litigation in particular. They can also be perilous: a company executive’s sworn responses to a lawyer’s questions are recorded in a permanent record. Without guidance, the executive could unknowingly waive evidentiary privileges, reveal proprietary or protected information, or even expose him or herself—or the company—to criminal or civil liability. Deposition preparation is therefore critical.
Typically, an attorney defending a deposition will lodge objections, direct the deponent not to answer certain questions, or assert privileges or protections on behalf of the witness or the company. In the context of non-party depositions, however, this practice was called into question when the Appellate Division, Fourth Department held, in Thompson v. Mather, 70 A.D.3d 1436, 1438 (4th Dep’t 2010), that attorneys for non-party witnesses cannot participate in their clients’ depositions. In 2014, the New York State Legislature effectively abrogated the Thompson decision, amending the New York Civil Practice Law and Rules (“CPLR”) to ensure that non-party deponents once again receive the same protections as the parties themselves.
NON-PARTY DEPOSITIONS AFTER THOMPSON
In New York civil practice, although depositions are typically conducted outside the presence of the judge (usually in an attorney’s office), they nonetheless “proceed as permitted in the trial of actions in open court.” CPLR 3113(c) (McKinney 2015). Thus, deposition testimony is taken under oath and transcribed by a court reporter, and the parties’ attorneys may appear and participate by making objections and asserting legal protections.
In Thompson, however, the Fourth Department held that the CPLR does not provide the same legal protections for non-party witnesses. In that case, a cardiologist appeared as a non-party witness for a deposition in a medical malpractice action against several other physicians, and the cardiologist’s attorney objected to both the form and relevance of certain questions. The ensuing dispute ultimately came before the Fourth Department, which concluded that since a witness is not entitled to legal counsel at trial, and since a deposition must “proceed as permitted in the trial of actions in open court,” a non-party witness likewise cannot be defended by an attorney at a deposition. Thompson, 70 A.D.3d at 1438 (internal quotation marks omitted).
THE PROBLEMS WITH THOMPSON
Under Thompson, a company’s attorney became almost powerless at the non-party deposition to prevent the disclosure of proprietary information or trade secrets, or to guard against improper questioning that could make the corporation a target for a future lawsuit or criminal prosecution. In short, Thompson required attorneys to “sit by as a potted plant,” even as their clients potentially waived their legal rights and defenses. Sciara v. Surgical Assocs. of W.N.Y., P.C., 32 Misc. 3d 904, 910 (Sup. Ct., Erie Cnty. 2011) (internal quotation marks omitted).
Thompson also failed to address the situation where an attorney represents more than one party. In Alba v. New York City Transit Authority, 37 Misc. 3d 838, 841 (Sup. Ct., N.Y. Cnty. 2012), for example, the Supreme Court, New York County held that an attorney who represented both a party and a non-party witness could indeed participate in the witness’s deposition. Of course, Alba’s holding is no help to a witness whose interests conflict with the parties’ interests or who otherwise cannot be adequately represented by any of the parties’ attorneys.
Thompson also encouraged plaintiffs to delay joinder of defendants. After Thompson, a plaintiff could subpoena a potential defendant for a deposition, obtain incriminating testimony on the record while the witness’s attorney had no right to participate, and only then join the witness as a party to the action, effectively circumventing the witness’s right to an attorney.
The Fourth Department acknowledged Thompson’s flaws in Sciara v. Surgical Associates of Western New York, P.C., 104 A.D.3d 1256, 1256 (4th Dep’t 2013), but nonetheless stood by its holding in Thompson, reiterating that the CPLR “prohibits the participation of the attorney for a nonparty witness during the deposition of his or her client.” Id. at 1257.
THE LEGISLATURE’S RESPONSE
This past year, the New York State Legislature enacted Senate Bill 5077, which became effective on September 23, 2014. Under the new law, the CPLR now provides:
Examination and cross-examination of deponents shall proceed as permitted in the trial of actions in open court, except that a non-party deponent’s counsel may participate in the deposition and make objections on behalf of his or her client in the same manner as counsel for a party….
CPLR 3113(c) (McKinney 2015) (emphasis added). This amendment overrules Thompson, ensuring that non-parties will enjoy the same legal protections as parties who are deposed.
A non-party witness who is subpoenaed to testify at a deposition in a New York civil action is now entitled to the same level of legal representation available to the parties to the lawsuit. Since today’s witness may be tomorrow’s defendant, non-party deponents should take advantage of their newly minted right to have an attorney appear and participate in their deposition.