| by Heather Duncan, Esq.

We think of depositions as very private proceedings, but that may not always be the case. There are statutes addressing who can be present at a deposition (parties to the action, their officers and counsel) but there are no specific California or federal statutes that dictate who cannot attend. What this means is that unless they are specifically excluded by agreement or court order, anyone can attend a deposition.

In extreme situations, inviting outsiders to attend a deposition may be used as an intimidation device or even as a way to harass the witness. For example, counsel could invite former supervisors, aggrieved family members, the media, co-workers or even former spurned lovers of the deponent. There is nothing legally wrong or inappropriate about any of these people being at the deposition.

What can you do to avoid entering into a conference room where there is the equivalent of an angry mob waiting for your client? As soon as you know of a potential problem, address the issue with opposing counsel and if a resolution cannot be reached, move for a protective order under California Code of Civil Procedure Section 2025.420, which provides:

  • Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. . .

  • The court, for good cause shown may make any order that justice requires to protect any party, deponent or other natural person or organization from unwarranted annoyance, embarrassment, or oppressions, or undue burden and expense. The protective order may include, but is not limited to one or more of the following directions:. . .(12) That designated persons, other than the parties to the action and their officers and counsel, be excluded from attending the deposition.

In the unfortunate event that your first knowledge of the undesirable attendees is when you enter a conference room, confer with opposing counsel. If there is no remedy and you do not believe the deposition can go forward, speak with your client outside of the conference room, ask them if the audience will impact their answers and, if so, go back in the room and make your record.  Then let everyone know, preferably on the record, that the deposition is adjourned pending a motion for a protective order.

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