Feroleto Law, Buffalo NY

NO RIGHT TO OBJECT FOR NON-PARTY WITNESS ATTORNEY AT DEPOSITION

In Thompson v. Mather, 70 A.D.3d 1436 (4th Dept. 2010) the Court held that an attorney for a non-party witness does not have a right to object to questions asked of his client, or otherwise participate¬†at a deposition. The Court held that CPLR 3113(c) provides that the examination and cross examination of deposition witnesses shall proceed as permitted in the trial of actions in open court. In this case counsel for the physicians correctly conceded at oral argument of plaintiff’s motion in Supreme Court that she had no right to object during were to participate in the trial of the action, she nevertheless asserted that she was entitled to object during nonparty depositions and videotaped deposition questioning. The court held that we cannot agree that there such a distinction, based on the express language of CPLR 3113 (c). The court also noted that 22 NYCRR¬†202.15 which concerns videotaped recording of civil depositions, refers only to objections by the parties during the course of the deposition in the subdivisions entitled “filing and objections”. The court therefore concluded that the plaintiff is entitled to take the videotaped deposition of the physicians in that counsel for the those physicians is precluded from objecting during or otherwise dissipating in the videotaped depositions.
The court also held that the practice in conditioning the videotaping of depositions of a nonparty witness upon the provision of general releases is repugnant to the fundamental obligation of every citizen to participate in our civil trial courts and to provide truthful trial testimony was called to the witness stand. The fact that the statute of limitations has not expired with respect to nonparty treating physician witness does not provide a basis for such a condition.