United States: Using Multiple-Attorney Depositions After Finjan Ruling

Depositions are powerful tools for obtaining sworn out-of-court testimony for use at trial and throughout a case. Depositions are a unique part of the discovery process in that they allow attorneys to examine adverse or third-party witnesses without direct judicial supervision.

The Federal Rules Do Not Specify the Number of Attorneys Who May Question a Witness

Most depositions for cases in federal courts are carried out under Federal Rule of Civil Procedure 30, which provides general guidelines for the structure and conduct of deposing witnesses during a deposition. For example, this rule generally limits depositions to seven hours unless the court orders otherwise and provides that deponents may move to terminate a deposition if they believe that "it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses."1

However, the Federal Rules of Civil Procedure provide little guidance regarding the style of questioning that is permitted during a deposition or the tactics that attorneys may use to get the most out of their time with a witness. Notably, these rules do not limit the number of attorneys that may question a deponent during a deposition.

Because of this, some litigants may choose to question a witness using tag team tactics — having more than one attorney question the witness — to get the most out of their deposition time. However, courts are wary of this approach.

The Northern District of California Dusts Off Decades-Old Case Law and Sets a One-Attorney Rule

More than 30 years ago, in Rockwell International Inc. v. Pos-A-Traction Industries Inc., the U.S. Court of Appeals for the Ninth Circuit held that two attorneys may depose a witness where there is no evidence of actual abuse of that witness.2 The court reasoned that it "was not abuse per se to have two attorneys rather than one question" the deponent where they he had previously agreed to be deposed by two attorneys.3 In reaching this decision, the court cited another case where it held that the parties had waived their right to object to such questioning.4

Since Rockwell, few courts commented on this precedent until recently, when the U.S. District Court for the Northern District of California in Finjan Inc. v.  Cisco Systems Inc., went further and prohibited two-attorney questioning where the parties failed to agree in advance to such questioning.5 There, the defendant attempted to have two attorneys question plaintiff's expert witness—one attorney for each patent-in-suit.6

The plaintiff objected to two-attorney questioning and stopped the deposition when the second attorney attempted to question the witness. The defendant asked the court to compel continuation of the deposition in a joint discovery letter, responding that it was "not aware of any case law or rule preventing questioning by two attorneys under this circumstance."7 The defendant also noted that the plaintiff had previously allowed two attorneys to ask questions during the deposition of a different expert.8

The plaintiff countered that, while no rule prohibited two attorneys from asking questions, it is "customary in [the Northern District of California] for judges to require a single attorney to question a witness at trial,"9 also pointing out that other courts have limited witness examination to a single attorney.10 The plaintiff objected to two-attorney questioning on the grounds that they were not timely informed of the defendant's plan.11

The court reasoned that even though no written rule exists prohibiting two-attorney questioning in depositions in its jurisdiction, it is "typical practice ... for only one attorney to question a witness at a deposition."12 The court tempered its holding by explaining that certain "[c]ircumstances may warrant allowing more than one attorney to ask questions at a deposition."13

For example, the court stated that only one attorney should be permitted to question an opposing party's witness absent extenuating circumstances, such as when an expert witness is being deposed on "clearly distinct claims."14 "However," the court noted, "the distinction between issues is not so clear ... in patent cases ... and a rule that multi-attorney questioning is permitted on 'unrelated' patents is likely to instigate more disputes than it resolves."15

Other Courts Implicitly Limit the Number of Deposing Attorneys

The Finjan holding is not inconsistent with the Ninth Circuit precedent set out in Rockwell regarding multiple attorneys questioning a witness at a deposition. And though few courts have commented on multiple-attorney questioning directly, others have indicated their consistent expectation that only one attorney typically attend a deposition, let alone question the witness.

In fact, in awarding fees to prevailing parties, courts have determined fees for a second attendee at a deposition are not recoverable unless both attorneys provided a "distinct contribution."16

For example, in Goldsmith v. Bagby, the U.S. District Court for the Northern District of Alabama held that it was not reasonable to allow attorney's fees for two attorneys attending a deposition where the attorneys did not have distinct roles at that deposition.17

Likewise, in Walker v. Coughlin, the U.S. District Court for the Western District of New York noted that although "prevailing parties are not barred as a matter of law from receiving fees for sending a second attorney to depositions."18 that those attorneys bear the burden of showing "that each has a distinct responsibility in the case necessitating his presence."19 Instead of completely disallowing the second attorney's fees, the Walker court reduced the total time compensated because of "the relative lack of need demonstrated" for two-attorney questioning.20

Explanation and Justification Should Precede Multiple Attorney Questioning

For attorneys who want to employ multiple-attorney questioning — either as a strategic decision or to help young attorneys gain experience — Finjan (and Rockwell before it) indicate that it is better to ask permission than forgiveness. Attorneys who intend to question a witness with multiple attorneys should inform opposing counsel, and the court, if necessary, beforehand and explain the distinct roles of and specific need for each attorney. Otherwise, courts may disallow important deposition testimony on the front end, or force prevailing parties to eat significant portions of their costs on the back end.

Footnotes

1 Fed. R. Civ. Pro. 30(d)(3)(A).

2 See Rockwell Int'l, Inc. v. Pos-A-Traction Indus., Inc., 712 F. 2d 1324, 1325 (9th Cir. 1983).

3 Id.

4 Id. (citing Dart Indus. Co. v. Westwood Chem. Co., 649 F.2d 646 (9th Cir. 1980)).

5 See Finjan, Inc. v. Cisco Sys. Inc., No. 17-cv-00072-BLF (SVK), Dkt. 354 at *2 (N.D. Cal. Sep. 9, 2019) (Order on Joint Discovery Letter Brief Re Expert Depositions of Drs. Mitzenmacher, Jaeger, and Orso).

6 Id.

7 Id.

8 Id.

9 See e.g., Judge Breyer Guidelines for Civil Jury Trials at 11 ("There can only be one lawyer per witness per party for all purposes, including objections"); Judge White Standing Order for Depositions at 1 ("Each party should designate one attorney to conduct the principal examination of the deponent").

10 See Applied Telematics, Inc. v. Sprint Corp., No. 94-cv-4603, 1995 WL 79237, at *4-5 (E.D. Pa. Feb. 22, 1995) ("Therefore, in order to proceed in an effective manner, without harassing the witness, only one attorney at a time shall be designated as the 'voice' of counsel at a deposition" and "Only one attorney for each party shall be permitted to act as counsel during a deposition"); Cont'l Cas. Co. v. Compass Bank, No. 04-0766, 2005 WL 8158673, at *4 (S.D. Ala. Dec. 7, 2005).

11 Finjan, No. 17-cv-00072-BLF (SVK), Dkt. 354 at *2.

12 Id. 

13 Id.

14 Id.

15 Id. at *3.

16 See Goldsmith v. Bagby Elevator Co. Inc., No. CV-03-J-1018-S (N.D. Ala. Aug. 2, 2006) at *4 (citing ACLU v. Barnes, 168 F.3d 423 at 432); see also Walker v. Coughlin, 909 F. Supp. 872 (W.D.N.Y. 1995).

17 Goldsmith, No. CV-03-J-1018-S at 4.

18 Walker, 909 F. Supp. 872 at 880 (citing New York State Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983)).

19 Walker, 909 F. Supp. 872 at 880 (citing Kronfeld v. Transworld Airlines, Inc., 129 F.R.D. 598, 604 (S.D.N.Y.1990); Cf.  Williamsburg Fair Housing Committee v. Ross–Rodney Housing Corp., 599 F.Supp. 509, 518 (S.D.N.Y.1984) (explaining that plaintiffs could be compensated for multiple attorneys' presence at depositions and hearings, since plaintiffs plausibly showed that "when more than one attorney was present, each attorney made a distinct contribution by his presence or participation").

20 Walker, 909 F. Supp. 872 at 880.

Previously published in Law 360.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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