Should Counsel for a Non-Party Deponent Be a 'Potted Plant'?
13 Pages Posted: 13 Jun 2014
Date Written: June 10, 2014
It has long been the practice in New York that non-party deponents may be represented at depositions and that their counsel may object to questions counsel believes are improper. In 2010, however, the New York State Appellate Division, Fourth Department ruled in Thompson v. Mather that counsel for a non-party may not make objections during the deposition and, in effect, is a mere “potted plant” at the deposition. Under the Thompson holding counsel may not object even to protect a privilege or to strike a plainly improper question that would cause substantial prejudice if answered. Although only the Fourth Department has ruled in this manner, the case is binding on all lower courts throughout the state absent a contrary decision by another Appellate Division Department, by an overruling by the Court of Appeals, or by legislative correction. This article analyzes the practical considerations and ethical dilemmas implicated by this ruling. The article concludes that the ruling rests on an improper interpretation of the New York Civil Practice Law and Rules, flies in the face of established practice, is impractical, and raises serious ethical dilemmas for counsel representing a non-party at a deposition. The authors urge the Court of Appeals, which is set to decide this issue in the October, 2014 term, to reject the Fourth Department ruling and to hold that the important protections provided by counsel to party deponents are available to counsel for non-parties. Alternatively, the authors recommend that legislation be enacted to achieve that end.
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