Reporters Attending Depositions
The ongoing Caylee Anthony circus has underscored a valuable question for litigators: Can journalists attend depositions? It appears that the lawyer for the woman accused by the toddler’s mother (who is currently residing in jail) wants the grandparents deposed before reporters. The Anthony’s lawyer calls the plan “ludicrous” and plans to ask the judge to delay the depositions, if not bar the reporters from the deposition.
“Ludicrous” may be too strong an adjective, but certainly the plan is problematic. Although the public traditionally has a right to attend judicial proceedings, pretrial depositions and interrogatories are not public components of a civil trial, and as a result, pretrial discovery proceedings are generally conducted in private as a matter of modern practice. This does not mean that the public does not have the right to inspect the fruits of deposition discovery - the transcript or videotape - at an appropriate time and in an appropriate manner, but simply that the public has no right to observe the deposition process “in real time” as it is unfolding.
Not only is there no general public right to observe a civil deposition while it is occurring, the presiding court has the authority to restrict the right of a party to observe or participate in a deposition in its own case. In exercising their discretion to determine whether reporters may attend a deposition, the courts would generally engage in a fact-specific inquiry to determine if their attendance is appropriate and justified.
One issue is whether there are circumstances in which a party who has noticed the deposition of a witness or adverse party can obtain a sequestration order barring, in the former case, all adverse parties, and in the latter case, all other adverse parties, from attending. He can, upon a “strong” and “compelling” showing that the adverse parties’ testimony may be influenced, even unintentionally, if they are allowed to attend the remaining depositions. Such “strong” and “compelling” showing is not made, however, merely by making the obvious point that the testimony of one witness, if heard by a party, may influence its testimony. Rather, the movant must demonstrate that the facts of the case, and the relationships among the adverse parties, are not of a “garden variety” or “boiler plate” type, but rather, are extraordinary, and strongly argue for independent testimony that bears no palpable risk of taint.
It would seem that reporters for the Caylee Anthony case have no right to attend the grandparents’ deposition, and upon objection the motion should be denied. Once the deposition is completed, however, barring some reason to maintain its confidentiality (for example, a concern that premature disclosure of one defendant’s testimony might educate the other defendants on how to testify, or that the ability of the media to manipulate the testimony by using selective “sound bites” from the tape might prejudice further proceedings), the transcript and the video, if the deposition is videotaped, should be made available.
Note that some courts have adopted local rules or discovery guidelines that address who may attend a deposition. For example, Guideline 5(h), Appendix A, Local Rules for the United States District Court for the District of Maryland states: “Unless otherwise ordered by the Court, the following persons may, without advance notice, attend a deposition: individual parties; a representative of non-individual parties; and expert witnesses of parties. Except for the persons identified above, counsel shall notify other parties not later than five …business days before the taking of a deposition if counsel desires to have a non-party present during a deposition. If the parties are unable to agree to the attendance of this person, then the person shall not be entitled to attend the deposition unless the party desiring to have the person attend obtains a Court order permitting him/her to do so.” As always, make sure that you check the local rules.
Maryland Discovery Problems and Solutions
