Opinion
Civil Action No. 00-2921, SECTION "M" (1)
May 13, 2002
MINUTE ENTRY
DEFENDANTS MOTION TO EXCLUDE PLAINTIFF FROM DEPOSITION OF CO-PLAINTIFF
The defendant orally made the motion in a telephone discovery conference so there is no record document assigned in the record.
DENIED
There was a telephone discovery conference in this matter on Friday, May 10, 2002. The defendant, U.S. Department of Veterans, Togo West, Secretary ("VA"), noticed the depositions of the two plaintiffs, Jacob Weisler, M.D. ("Weisler") and Max Sugar, M.D. ("Sugar"), and issued subpoenas to compel their appearance. At the start of the depositions, VA insisted that it be able to depose Weisler without Sugar being in attendance at the deposition. VA also sought to exclude Weisler when it deposed Sugar. The plaintiffs refused to absent themselves from the depositions.
Pursuant to Fed.R.Civ.P. 30(c) the "[e]xamination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615." Id.
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. The rule does not authorize exclusion of(1) a party who is a natural person. . . .
Fed.R.Evid. 615. Assuming Rule 615 applied, it would not require that one plaintiff be excluded when the other plaintiff is being deposed. The provision found in Rule 30(c) was added in 1993 and the Advisory Committee's Note states:
[T]he revision addresses a recurring problem as to whether other potential deponents can attend a deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of the evidence rules, and others holding that witnesses may attend unless excluded by an order under Rule 26(c)(5). The 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. . . .
Fed. Rule Civ. P. 30(c) Advisory Committee's Note, 1993 amendments. Pursuant to Fed.R.Civ.P. 26(c)(5), a party for good cause shown may move for a protective order that discovery be conducted with no one present except persons designated by the court. Id.
Factors that might justify exclusion of nonparties from a deposition might not be sufficient to exclude parties because of the parties' more substantial interest in being present. Under Rule 26(c)(5), it is generally recognized that a court may exclude a party from attending a deposition only in extraordinary circumstances. Furthermore, when the person to be excluded is a party to the action, the court must also consider any constitutional right to be present at the deposition.
6 James Wm. Moore, et al., Moore's Federal Practice ¶ 26.105[6] (3d ed. 1999).
VA has not presented any facts that would constitute good cause to exclude one plaintiff from the deposition of the other plaintiff, much less facts that would show extraordinary circumstances. VA also has not presented any basis for denying the plaintiffs' constitutional right to be present at depositions in this proceeding.
IT IS ORDERED that VA's motion to exclude plaintiff from deposition of co-plaintiff is DENIED.