Protecting the Non-Party Witness at His Deposition

WDC Journal Edition: Spring 2011
By: Justin F. Wallace, Nash, Spindler, Grimstad & McCracken, LLP

I. The Problem

Consider an incident involving multiple individuals who could be held responsible for the same loss. The plaintiff sues one of these people for damages, and subpoenas one of the others for a deposition. Instead of being asked fact questions about what the non-party saw and heard prior to and immediately after the accident, however, plaintiff’s counsel tries to lay the groundwork for a claim against the witness. The witness is not prepared for these questions. Plaintiff’s attorney takes advantage of the fact that the witness is not represented and asks harassing, repetitive, misleading, and otherwise unfair questions that can be later mischaracterized. The transcripts contain admissions that would prejudice the witness’s defense if (or when) he is named as a party.[1]

Aware of this possibility, some insurance companies regularly call attorneys for “deposition coverage” if they discover that an insured has been subpoenaed to testify in a lawsuit in which the insured may have some exposure. This could happen in an intra-family lawsuit, a lawsuit in which the witness contacts counsel or his insurer upon receipt of the subpoena, or if a defendant and the witness are insured by the same company. To be cautious, the witness’s insurer hires an attorney who meets with the witness before he is deposed to explain the relevant legal standards and to discuss how to best protect his rights.

During the deposition, plaintiff’s attorney asks an improper question, and the witness’s attorney objects to its form. Plaintiff’s counsel then states on the record that the witness’s lawyer does not represent a party in the lawsuit, and therefore does not have standing to object on any ground other than privilege.[2] Plaintiff’s attorney threatens to stop the examination and file a motion prohibiting the witness’s lawyer from interposing objections.[3] The motion will seek sanctions for the cost of re-deposing the witness at a later date.[4]

In light of this possibility, this paper analyzes how to protect the witness and his insurer from starting their defense hampered by a transcript with unfortunate and unfairly-elicited testimony.

II. Short Answer

Wisconsin case law is completely silent on whether a non-party witness’s attorney can interpose objections on the witness’s behalf. However, if the lawyer makes a proper record and explains to the court (should plaintiff bring a motion) that plaintiff is trying to use a “loophole” to preclude the witness from defending his own interests, it is unlikely that courts will allow plaintiff to use this gamesmanship to circumvent the general principle that people with an interest in a lawsuit should be allowed representation. At the same time, if the reviewing court gets the sense that the non-party witness’s lawyer is unnecessarily obstructing the proceeding instead of protecting the witness’s interests, the result could go the other way.

III. Analysis

Examination and cross-examination of deponents may proceed as permitted at trial.[5] At trial, not more than one attorney for each “side” shall examine or cross-examine a witness.[6] There is no reasonable dispute that counsel for a nonparty witness cannot participate in the examination of witnesses at trial, with the possible exception of asserting privileges on behalf of the witness. Plaintiff’s attorney has this straight-forward statutory argument to prohibit the non-party witness’s attorney from participating in the deposition, an argument which was adopted by the New York Supreme Court's Appellate Division in Thompson v. Mather:

We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition. 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.”[7]

Wisconsin law on the examination of deposition witnesses is the same as New York’s. How do Wisconsin defense attorneys avoid this same result?

First, if the non-party witness’s attorney sees this issue coming, a courtesy call to plaintiff’s attorney may help clarify whether the witness’s liability will be at issue. If plaintiff’s attorney confirms that she will object to the witness’s representation, the insurer can consider moving for a protective order asking the court’s permission for the witness to be represented at the deposition.[8] Also, this forewarning will allow defense counsel to discuss how to proceed with the client prior to the deposition.

Second, once at the deposition, counsel should make a clear record of his role at the deposition. He is representing the witness for the purposes of his deposition to make sure that all of the questions are fair. The lawyer should also indicate that he suspects that the witness may later be named as a party, and this transcript will then be available to be used against him at trial. It is only fair that the deponent be entitled to representation if plaintiff is asking him questions directed to enlarge his personal liability exposure.

Along these lines, the witness’s attorney must be extremely attentive to the content of the transcript. The difference between a reviewing court perceiving the lawyer’s participation as defending the witness or obstructing the truth will depend at least in part upon the transcript itself. Defense counsel should be particularly cognizant to not give plaintiff any salient “sound bites” to prejudice the court’s consideration.

Third, should the matter come before the court, plaintiff’s actions should be characterized as trying to exploit a “loophole” in the system to catch the witness unaware of the process. Conducting deposition examinations as they would be conducted at trial makes sense, as long as all of the actors are in the same position as they would be at trial. At trial, only named parties can be held responsible for money damages, and therefore, a nonparty witness has little to fear.[9] However, when the witness’s status changes in the interim, so does the policy reason for not prolonging the proceedings with examination by a nonparty’s counsel.[10] This argument may allow the judge some freedom to find that the statutes were not intended to lead to the result plaintiff seeks.

Fourth, plaintiff will likely question counsel’s motives by suggesting that he is trying to tailor the witness’s testimony to reduce his exposure. In Jensen v. Milwaukee Mutual Insurance Co., the court of appeals provided some support for the idea that this result is to be avoided in a Wisconsin case on res judicata grounds:

Betty appears to believe that she is entitled to testify in one fashion when she is a nonparty witness, but to tailor and adjust her testimony in a later action when she is a party witness. Betty's eyewitness testimony should remain the same regardless of whether she is testifying on behalf of Wally or in support of her own claim.[11]

However, taken to its logical conclusion, this argument obviates the need for lawyers in the first instance. Can the parties themselves not just tell the truth and let a jury apportion responsibility? The lawyer’s purpose is to avoid misleading questions or questions that could later be mischaracterized based solely on the transcript. This point should be made with a tack hammer, not a jackhammer. Judges will understand that lawyers appear at their clients’ depositions as a matter of course, and to suggest that the witness’s lawyer’s intentions are mischievous merely for wanting to do so flies in the face of the actual practice of law.

Finally, the attorney for the witness should also ask the court to take a step back from the statutory minutiae of who can participate in a deposition and to instead consider the effect of this arrangement on multi-party litigation as a whole. Should the position hold water that nonparty witnesses can be denied representation at depositions even when they will be questioned regarding their own liability with respect to a potential claim, plaintiffs should commence any multi-defendant lawsuit first against the least responsible entity against whom the claim is not frivolous.[12] Then, all of the other potentially responsible entities should be subpoenaed, deposed, denied representation, and then named as defendants in an amended complaint.[13] Is this really a fair way to conduct multi-defendant litigation? Shouldn’t all persons or entities interested in the litigation have the right to counsel to represent their interests? If not, plaintiffs' counsel will have devised a way to deprive interested parties of adequate representation. This is an outcome that must not be judicially sanctioned.

IV. Conclusion

Plaintiffs are using this strategy in Wisconsin in an attempt to get a “free shot” at nonparty witnesses. Defense lawyers retained to represent nonparty witnesses in their depositions should be aware of this possibility in order to make an adequate record if forced to choose “on the spot” between representing the deponent and risking sanctions, or not representing the deponent and risking opening the deponent up to significant difficulties should a claim subsequently be brought against him or her. While the above arguments do not guarantee that some court will not sanction a nonparty witness’s attorney for continuing to interpose objections after a warning, the alternative of abandoning the witness is not acceptable, either. Should plaintiffs continue to use this strategy, it is fair to assume that an appellate court decision will eventually clarify the proper course of action.

Liability carriers whose insureds may be subpoenaed as nonparty witnesses and later named should also be wary of this tactic. The defense of the forthcoming claim against the nonparty witness’s liability insurer will be off to a rocky start if the insured has already admitted critical facts in response to harassing, misleading, or otherwise unfair questioning while unrepresented at a prior deposition. It is far easier to make plaintiff’s counsel ask fair questions at the front end than to rehabilitate the responses afterwards. Liability carriers should also encourage insureds to notify them if served with any subpoena for evaluation, even if the insured is not yet a party.

In summation, it is important for civil defense attorneys and liability carriers to be aware that plaintiff’s counsel may try to get a “free shot” at your client/insured, and to be able to balance the arguments set forth above in your case to determine how to proceed.

[1] There is little doubt that this transcript could be used against the witness at trial. See Wis. Stat. 804.07(1) (“At the trial or upon the hearing of a motion or an interlocutory proceeding, any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were then present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof….”) (emphasis added). This provision does not distinguish between witnesses who became parties after the deposition and parties who were parties all along.

[2] While Wisconsin is silent on the matter, other states have agreed with plaintiff's position. See, e.g., Thompson v. Mather, 70 A.D.3d 1436, 894 N.Y.S.2d 671 (N.Y.A.D. 4th Dept. 2010) (“We agree with plaintiff that counsel for a nonparty witness does not have a right to object during or otherwise to participate in a pre-trial deposition.”).

[3] This motion was granted in Thompson.

[4] Wis. Stat. § 804.12(1)(c)1 allows the moving party in discovery disputes to recover “the reasonable expenses incurred in obtaining the order, including attorney fees….”

[5] See Wis. Stat. § 804.05(4)(a). The word “may” in § 804.05(4)(a) is confusing, as it appears to make this provision permissive and not mandatory. However, it is more likely sloppy drafting. There is no indication in statutory or case law that depositions “may” proceed otherwise.

[6] See Wis. Stat. § 805.10. “Side” is not defined; however, by comparison with nearby statutes and a review of the case law, the term “side” is apparently intended to refer to parties with similar interests, not to give nonparties additional rights. Compare Wis. Stat. § 805.10 with Wis. Stat. § 805.08 (explaining that the trial court “may allow peremptory challenges to the defendant or defendants on each side of the adverse interests,” suggesting that parties who do not have adverse interests are on the same side); see also In Interest of C.E.W., 124 Wis. 2d 47, 67, 368 N.W.2d 47 (1985) (“It appears that the County and the children are on the same ‘side,’ as that term is used in sec. 805.10, and that two attorneys were entitled to argue on the County's side.”) Nonparty witnesses are not on a “side."

[7] Thompson, 70 A.D.3d at 1438. The motion submitted by the Thompson plaintiffs was for an order “precluding ... Dr. Godishala's counsel from objecting at the videotaped trial testimony except as to privileged matters or in the event that she were to deem questioning to be abusive or harassing.” Id. at 1437. Although it is not clear from this excerpt, Thompson did not reach the issue of objections based on privilege.

[8] Wisconsin Stat. § 804.01(3) allows “a person from whom discovery is sought” to move the court for a protective order only permitting the discovery to go forward “on specified terms and conditions.…” The witness’s lawyer could also ask Plaintiff to release the witness prior to the deposition; if Plaintiff refuses to do so, the court may be inclined to believe that the witness does in fact need representation.

[9] This is subject to a star-crossed “defensive issue preclusion” argument. The nonparty witness can of course be put on the verdict for the purposes of a negligence comparison, if applicable. Under some circumstances, that witness may be precluded from relitigating the jury’s negligence apportionment. This issue could arise procedurally if a jury has rendered a verdict apportioning some negligence to the nonparty, and the statute of limitations has not yet run on the plaintiff’s claim against the nonparty. However, to determine whether so-called “defensive issue preclusion” would prevent the nonparty from contesting the jury’s determination, the court would apply the “fundamental fairness” test, the first element of which is whether “the party against whom preclusion is sought [could], as a matter of law, have obtained review of the judgment….” Jensen v. Milwaukee Mut. Ins. Co., 204 Wis. 2d 231, 237-38, 554 N.W.2d 232, 236 (Ct. App. 1996). Both “fundamental fairness” and this first element skew against issue preclusion in this situation. A court would also be suspicious of the plaintiff for not naming the nonparty witness as a defendant when the case was initially tried, especially if the poor fellow actually testified at trial.

[10] This is a distinction that is lost in the interplay between Wis. Stat. § 804.05(4)(a) and Wis. Stat. § 805.10.

[11] Jensen, 204 Wis. 2d at 240.

[12] A prescient defense attorney could challenge the propriety of a complaint naming only a tangential party under Wis. Stat. 802.05(2)(a), which prohibits the submission of any documents, inter alia, “for an improper purpose….” If plaintiff’s counsel serves subpoenas on the more obvious defendants soon after filing, some judges may consider the “purpose” of only naming the tangential party to be improper, especially if plaintiff’s counsel uses the approach set forth in this paper at the depositions.

[13] A California court specifically avoided this result in Monarch Healthcare v. Superior Court, 78 Cal. App. 4th 1282, 93 Cal. Rptr. 2d 619 (Cal. App. 4th Dist. 2000): “A contrary rule would give litigants a tactical incentive to deliberately delay naming a target as a party. Monarch itself was served with discovery as a nonparty but then brought in as a party once it responded.” Id. at 1290. Monarch also noted that “[d]iscovery procedures are generally less onerous for strangers to the litigation. That is because they are less likely to be represented by counsel, familiar with the issues, or able to react with alacrity before responses are due. Why ask more of them than of represented parties?” Id. at 1289-90. Turning that argument around, why should a non-party be prohibited from having counsel present at deposition when parties are allowed to do so?