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Saturday, July 19, 2014

Appropriate conduct at a deposition.

Am I allowed to pummel and yell at an "opponent" in deposition? If I called a Naval officer a liar, am I in trouble?

Depositions are covered by both local rules, and in Federal procedures, Rule 30 of the Federal Rules of Civil Procedure. Specific to this question, Rule 30(d)(3)(A) which reads:
(3) Motion to Terminate or Limit.

(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or the deposition is being taken. If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(image from http://molimited.com/blog/2011/06/08/depo-redo-deposition-conduct-that-results-in-a-new-deposition/)

You need to be careful about three things. First, statements made during a sworn disposition (where you are the deponent) can be used against you. You have a right to claim 5th amendment protection against making incriminating statements. This is very important in instances where you might be admitting to committing a crime. For example, it is against the UCMJ (Uniform Code of Military Justice) to commit adultery. Therefore, during a divorce proceeding, if you are asked if you cheated on your spouse (and you did), you are faced with either lying under oath (perjury and real possibility of impeachment) or incriminating yourself under the UCMJ (a criminal act). It would be appropriate to plead the 5th at that point.

Secondly, you need to be non-combative. There is reason that folks hire attorneys. One really good one is divorcing emotions from the legal procedure. When you start yelling and badgering your deponent, you have lost. Depositions are designed to get trapping impeachment evidence, not fight. Get them to say what you want then use it at trial.

Finally, generally, as the person asking the questions, you are not under oath, so the nothing you ask or do can be used against you in trial. However, some caution is appropriate to ensure you remain within the bounds of procedure (i.e. you cannot threaten or attempt to get the deponent to lie, bribe the deponent, etc.).

It is difficult to tell if you have a problem with the exchange you've described. We would need to know more about your position, the case, and the person you were deposing. This is especially true if you were enlisted and interrogating an officer. I cannot emphasize enough the need to have proper counsel when pursuing legal remedies in the government. If you would like to discuss this further, feel free to give me a ring at 703-402-2723.

Hanover Law, PC
Offices in Fairfax, VA and Washington, DC
www.hanoverlawpc.com
888 16th St., NW Ste 800
Washington, DC 20006
2751 Prosperity Ave, Ste 580
Fairfax, VA 22031
Sean R. Hanover, Esq.
Stephen Salwierak, Esq.
1-800-579-9864 admin@hanoverlawpc.com Charles Hatley, Esq.
Leigh Snyder, Esq.

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