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D. Del. Deposition Practice: Let the Witness Answer

By Karen E. Keller, Andrew A. Lundgren et al.

It is well established in the District of Delaware that instructing a deponent to withhold a response is rarely permitted. Absent a genuine possibility that privileged information will be disclosed, our district judges are uniform in their disapproval of this deposition tactic. A recent decision by district judge Joseph J. Farnan, Jr., lends further support to this local practice:

"After reading the November 30th deposition transcript and viewing the [deposition] videotape, the Court finds that Defendant's counsel obstructed the questioning of [the witness] by the improper assertion of work product privilege and interposing numerous obections unsupported by the rules of evidence. The Court need not list the errors of Defendant's counsel to demonstrate the conduct of counsel, because the inappropriateness of the objections is plain from a reading of the deposition transcript."

As a sanction, the Court ordered a second deposition to be held at a time and location of plaintiff's choosing, with costs and fees for both depositions paid by defendant.

Promos Technologies Inc. v. Freescale Semiconductor Inc., C.A. No. 06-788-JJF (D. Del. Dec. 20, 2007) (Farnan, J.).

Full post as published by Delaware IP Law Blog on December 21, 2007 (boomark / email).