Depositions - Do Over!

By Eileen Burkhalter Smith

I have spent my fair share* talking about experiences in depositions, and specifically experiences that the Rules may not prepare us for, but I have another one for you.

What is your gut reaction to this scenario:

Your client, a defendant, is deposed by all parties in an action.  Another co-defendant is added to the action after all party depositions, and he wants to depose your client again.  What do you do?

My first reaction is :  No way.  You get one bite at the apple right? A transcript exists!

On second thought, though, I think this is wrong.  The new party gets a right to depose the parties.  And, unless other extenuating circumstances exist, I cannot think of a way to prevent this from happening.  Is it unduly burdensome on your client? Expensive? Without something else, I just don’t think it can be prevented.

Here’s another wrinkle: what if you are at that second deposition, and the plaintiff, or another party that was present for both depositions, comes up with some more questions?  Again, I don’t think this should be allowed unless based on new information, but how is it to be prevented?  After all, couldn’t the new questions be passed to the attorney for the new party?

As always, the general relationship between the parties and counsel should govern a reaction to this type of thing.  I think there is a balance, though, that needs to exist between open discovery and repeat improper questioning.

* Okay, maybe more than my fair share.  (Check out other posts : here;  here ; here ; and here .)