I wrote previously about the absence of prohibitions against non-participant attendance at a deposition, and thus the need for a protective order pursuant to Federal Rule of Civil Procedure 26(c)(1)(E)—or its Washington State counterpart, Civil Rule 26(c)(5)—if a party seeks to limit persons who may be present. See https://www.sbwllp.com/unexpected-guests-who-may-attend-a-deposition/.
But if the non-participant is another witness in the case, then litigants in Washington State courts may also be able to invoke CR 30(c). The rule provides that “[e]xamination and cross examination of witnesses [at deposition] may proceed as permitted at the trial under the provisions of the Washington Rules of Evidence (ER).” In turn, Evidence Rule 615 provides that courts “may” exclude witnesses from hearing the testimony of other witnesses.[1] Unlike the “good cause” showing required for a protective order, “[a] motion to exclude witnesses is almost universally granted” and “[g]ood practice is to grant the motion in the absence of a compelling reason to deny it.”[2] Typically, a request to exclude a witness at trial is made by motion in limine. But these procedural questions have not been clearly addressed in Washington reported cases, and it is possible that a court could require a motion for a protective order to exclude a witness from a deposition.
In contrast, the Federal Rules preclude a party from invoking Federal Rule of Evidence 615.[3] Federal Rule of Civil Procedure 30(c)(1) provides that “[t]he examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615.” (Emphasis added.) The Advisory Committee’s Notes explain that this exception was drafted to address disagreement over whether other potential witnesses can attend a deposition. By adding the exclusion, “[t]he revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party. Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate.” Id.
Importantly, Washington ER 615 and FRE 615 only address the exclusion of certain witnesses. If a party wishes to forbid either the attendance of the type of witnesses that are explicitly excluded in ER/FRE 615, or others who are not witnesses, then a protective order likely remains necessary (as addressed in my earlier post). Furthermore, neither ER 615 nor FRE 615 preclude witnesses from reviewing deposition transcripts, or talking with other witnesses after they’ve been deposed.
[1] ER 615, however, “does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person whose presence is shown by a party to be reasonably necessary to the presentation of the party’s cause.”
[3] The difference between the Federal and the Washington rules here is significant: while the standard for excluding witnesses under Washington’s ER 615 is discretionary – it uses the word “may” – FRE 615 states that “[a]t a party’s request, the court must order witnesses excluded.” (Emphasis added.)
Sarah Gohmann Bigelow
Sarah has developed her commercial litigation experience in a variety of cases in both state and federal court. She has participated in all stages of litigation in disputes arising from business tort, contract, fiduciary duty, class action, and securities claims.