Suspending a depo to seek a protective order

[Linda Silver Ryan]

CCP 2025.410 outlines what to do when someone in the room wishes to seek a protective order.  We have done that twice in this case.  Today the noticing attorney wanted me to make a seperate record with his statement, basically a meet and confer, addressing the defending attorney that asked for the suspension.  The witness left, and I went off the record and started  a new document.   After returnint to the room to pack up, defending counsel refused to respond and when we were done was very upset that we had even gone back on record to do anything and felt that my continuing to take counsel's statement was highly improper and he is bringing it up with the court. 

I had been asked before the depo today what the noticing attorney, my client, could do to make a statement if this were to happen again.  A Transcript of Proceedings or Staement of Counsel was  all I could come up with, feeling that I complied with the code on suspension, but also gave him the opportunity to make whatever record he wanted to present to the court after the witness walked out.

If anyone has feedback, I would sure appreciate it.  20 years and this is only the second case I've dealt with these games.  Don't want to upset the client, but certainly don't want to jeopardize my reputation as an impartial officer of the court.

 

 

[Kelli Combs (admin)]

Wow.  I've never come up with this situation in my 25 years of doing this job.  Glad it was you instead of me.  I love how Mr. So-and-so, out of frustration, wants to point the finger at you for some misconduct for making a record instead of opposing counsel.  What BS.  You have no choice; if counsel wants to make a record, you have to be there to write it.  What are you supposed to do?   Just ridiculous if you ask me.

[Mary Ann Payonk]

I'm not real up on the CA rules, but I posed this question on another board in maybe a different kind of way, and that was, Do you need agreement to go ON the record?  The answer obviously was no.  Once on the record, all counsel must agree to go off the record.  But when you walk in the door, you're the keeper of the record, not one side or the other's record.  If someone wants to go on the record, you need to go on the record so a judge can later rule on what happened.  Glad I don't encounter many of these types of things lately!

M.A.

[Bonnie Wilkins]

Well, I have to jump in here on on and off the record.  I was always told you have to agree to go off the record and once off the record all parties have to agree to go on the record.  Also with the protective order, I had an attorney say he was going to get a protective order, walked out of the room, and five minutes later after I've put everything away the other attorney decided he wanted to make a statement.  What a mess that was because now I'm off the record, have been off for five minutes, only one attorney's there and he wants to make a statement.  To me the record was closed, but i'm also afraid by not going back on the record, I'm showing partiality to my client.  I finally coaxed the other attorney back in the room and we went on the record so the statement could be made.  Yes, the attorney walked out of his own depo conference room.  

Anyways after that I looked up protective order and now carry that section with me in my case to bring out in case it ever happens again, because I am now of the belief that once an attorney says protective order, the depo is over.  

[Judy]

I was told a story by an attorney about a court reporting firm that he got sanctions against because the agency went on the record after he said "protective order," even in writing with advanced notice.  How much of the story was true?  I have no idea.  It probably is a good idea to do what Bonnie did and print it up and keep it in your case just in case.

[Linda Silver Ryan]

Thanks so much, everyone.  I'm still sorting it out and am actually going to contact the judge in the case.  I'll add a post if I get some interesting feedback from him.

 

[Michele Savoy Parente]

In Florida, once an attorney moves for a protective order, you don't write another word.  I have had exactly the situation happen where "I'm moving for protective order" is uttered, and the other attorney wants to put a statement on the record.  I could not write anything else, and he was understandably mad.  The attorney moving for protective order had been using this tactic for a few weeks, and my boss had informed us all what to do, so I knew I  had backing.  As far as a separate transcript, I suppose if opposing counsel wants to hire you on the spot to make a separate record, I can't see why he wouldn't have the right to do that.  In the heat of the  moment, though, trying to explain how he's going to have to pay a separate appearance fee and it's a separate transcript from the proceedings where the motion was made is not going to go over well.