Taking a Deposition with a Judicial Officer Present

Among the discretion provided to district courts is the power to order that depositions be taken in the presence of a judicial officer to rule on objections and generally govern the proceedings.  This is typically strongly disfavored as the courts explain they do not have the time to babysit counsel. Nevertheless, it does happen on occasion, such as in Sedie v. United States Postal Serv., 2009 U.S. Dist. LEXIS 113206, 2009 WL 4021666 (N.D. Cal. 2009).  Counsel were not very polite, but I suspect that changed later on. 

It also may have happened locally in Kabins Family LP v. Chain Consortium, 2010 U.S. Dist. LEXIS 77001, 2010 WL 3001890 (D. Nev. July 27, 2010). Mark Kabins, M.D., was deposed but the deposition did not go well at all and a motion to compel was filed. The Magistrate Judge granted it due to numerous deposition improprieties. The opposing party then objected to the district court. What happened?

The Magistrate Judge held a hearing on the motion to compel on April 16, 2010. He was unimpressed with the explanations for Dr. Kabins’ and Mr. Gibson’s conduct at the deposition. He grew audibly impatient with counsel’s evasions and inadequate explanations at the hearing. He called the objection to one of the questions based on attorney client privilege “absolutely bogus” and “frivolous.” After counsel could not identify the legal authority to object to a question at a deposition for being “ambiguous,” the Magistrate Judge again used the word “frivolous,” and called the hearing an “absolute waste of time.” Counsel alleged there were “cases” that supported such an objection but could not cite to them, and they did not appear in counsel’s brief. The Court then stopped argumentation and granted the motion in its entirety, ordering Dr. Kabins to answer the objected-to questions at a deposition, as well as any questions that naturally flowed from them, with no time limit and under the supervision of the Magistrate Judge himself during normal business hours.

The Magistrate Judge’s ruling was upheld and the district court also expressed its dismay at the obstructions that interfered with the deposition.

I am also now aware, thanks to an astute reader, of a local state court case where this occurred.  A-09-599813-C was a wrongful death case with out-of-state counsel leading the defense.  Counsel sought to depose the decedent’s child, who was five at the time of death, concerning her claim.  During a hearing on April 5, 2013 DC Bulla’s minute order stated “Commissioner will be present at Kaylee’s deposition, and it’s EXTREMELY LIMITED to 60 to 90 minutes (she was 5 years old at the time of event); no prior restraint to Deft on the child’s deposition; counsel must give Commissioner notice of deposition, protection will be discussed at the deposition, and Commissioner expects counsel to be Kind and Professional.” 

The defense objected to this ruling. The district court affirmed at least this part of DC Bulla’s ruling. The June 14 minute order stated, in relevant part:

Defendants believe there is no basis for Discovery Commissioner Bulla’s decision to attend the deposition of Kaylee Jensen and limit the deposition to 90 minutes. … The Court would merely note that object to form is not a proper objection, and the old saying about glass houses is sometimes apropos. … Given the acrimony between counsel, the Commissioner’s decision to be present for the deposition of Kaylee Jensen is a good one. Defense counsel should be able to take a deposition of a child in 90 minutes and if there is good reason for it to go longer, the Commissioner will be there to make that call.

I do not know if the deposition ever occurred but the rulings simply serve to underscore the need to play nicely, or else.