Opinion
CIVIL ACTION No: 00-2277-DJW
September 17, 2001
MEMORANDUM AND ORDER
A telephone conference was held in this matter on September 13, 2001, at which time Plaintiff orally moved to sequester certain deposition witnesses. Plaintiff appeared through counsel Patrick Reavey. Defendants appeared through counsel Michael Shultz.
Rule 30(c) of the Federal Rules of Civil Procedure was amended in 1993 to make it clear that deposition witnesses are not subject to sequestration as a matter of course. Rule 30(c) now provides in relevant part that the "examination and cross-examination of witnesses [at oral depositions] may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615." Fed.R.Civ.P. 30(c) (emphasis added). Rule 615 of the Federal Rules of Evidence provides that the Court, upon request, will "order witnesses excluded so that they cannot hear the testimony of other witnesses." The 1993 Advisory Committee Notes to Fed.R.Civ.P. 30(c) emphasize that Rule 615's exclusion from Rule 30(c) was intended to establish a general rule that "other witnesses are not automatically excluded from a deposition simply by the request of a party." Instead, exclusion of individuals from depositions requires that the Court grant a protective order pursuant to Rule 26(c). Jones v. Circle KStores, Inc., 185 F.R.D. 223, 224 (M.D. N.C. 1999).
Federal Rule of Civil Procedure 26(c) provides that upon a showing of good cause, a court "may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." That includes an order "that discovery be conducted with no one present except person designated by the court." Fed.R.Civ.P. 26(c)(5).
In light of the above, the Court will treat Plaintiff's oral motion for sequestration as a motion for protective order under Rule 26(c)(5). It is well settled that the decision whether to enter such an order lies within the court's discretion. Thomas v. Inter'l Bus. Mach., 48 F.3d 478, 482 (10th Cir 1995). It is also well settled that the party seeking a protective order has the burden to demonstrate good cause. Sentry1 Ins. v. Shivers, 164 F.R.D. 255, 256 (D. Kan, 1996). To demonstrate good causes the moving party must make "a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." Gulf Oil Co. v. Bernard, 452 U.S. 89, 102 n. 16 (1981).
Here, Plaintiff seeks to prevent the Director of Defendant Johnson County Health Department and a Johnson County Health Department employee from attending each other's depositions. Plaintiff maintains that sequestration is necessary because the case is highly factual and because the testimony of these witnesses might be affected if they are able to hear each other's testimony. Defendants argue that the Director of Defendant Johnson County Health Department should be allowed to attend the deposition as Defendant's representative.
The Court does not find that Plaintiff has established good cause to support her request for a protective over. Plaintiff has failed to make a specific showing of harm that would justify sequestration here. Virtually every case and every deposition is fact intensive and involves many disputed issues of facts. Plaintiff offers no particular facts that would lead the Court to conclude that these witnesses cannot be trusted to tell the truth or that their attendance at each other's depositions will affect their testimony.
Furthermore, if the Court were to order sequestration here, sequestration would be necessary in virtually every case. Sequestration of deponents should be the exception rather than the rule. See Jones, 185 F.R.D. at 224 (refusing to sequester deposition witnesses where one was the other's supervisor and the movant alleged collusion between the witnesses); Tuszkiewicz v. Allen Bradley Co., 170 F.R.D. 15, 16-17 (E.D. Wis. 1996) (refusing to sequester deposition witnesses where movant made only generalized statement that allowing a fact witness to listen in on the testimony of another witness would be prejudicial).
In light of the above, the Court will deny Plaintiff's oral motion for protective order regarding the sequestration of deposition witnesses