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Huber Baking Co. v. Frank C. Sparks Co.

Superior Court of Delaware, New Castle County

October 17, 1950

Huber Baking Co.
Frank C. Sparks Co.

LAYTON, J., sitting.

Defendants gave notice of the taking of depositions of four of Plaintiff's employees, one for July 28th and the remaining three for August 1st. Because of various adjournments to meet the convenience of counsel, it was finally agreed that all the depositions would be take on the same day. On that day Plaintiff's [45 Del. 526] counsel appeared with all four of the deponents and Defendant's counsel asked that three of them remain outside so that the other, Viscount, could be examined without the presence of the others. Plaintiff's counsel would not agree insisting that all his witnesses were privileged to remain in the room where the depositions were to be taken. Defendant's counsel refused to proceed with the depositions in this fashion and has applied for a protective order under Rule 30(b) of the Superior Court Rules which would require that the witness, Viscount, be examined separate and apart from the others.

Apparently, Defendants were particularly anxious to examine Viscount separately. He was the foreman of the building construction job on which the other three witnesses were also working when the building collapsed, resulting in injuries which are the subject of this action. Defendants insist that it was important that the testimony of the three remaining employees represent their independent recollection and not a repetition of what their foreman testified to, as might happen if they all three were present while he gave his deposition.

Plaintiff's counsel takes the position that all the witnesses were entitled to be present and hear each other's testimony. Substantially he bases his argument on the ground that Rule 30(b) was promulgated only for the protection of the deponent, not the examining party.

William Prickett, Wilmington, for plaintiff.

Page 125

Stewart Lynch, Robert H. Barnett, William Poole, Howard L. Williams, and Thomas J. Healy, Jr., all of Wilmington, for defendants.

LAYTON, Judge.

As far as can be ascertained the question presented is one of first impression. The text authorities hold almost uniformly that the Rule was designed for the protection of the deponent or a party other than the examiner on account of the right of unlimited discovery accorded by Rule 26. [1] Dyer-Smith, Federal Examinations[45 Del. 527] Before Trial, p. 43; 6 Cyc. of Federal Practice (2d Ed.) Sec. 2657; 2 Barron and Holtzoff, Federal Practice and Procedure, Sec. 715. Curiously enough, however, the conclusions of the authors of the texts just cited are at variance with the language of the Rule itself. The title of the Rule is 'Orders for the Protection of Parties and Deponents' (emphasis throughout mine). Further it reads, 'After notice is served for taking a deposition by oral examination, upon motion seasonably made by any party or by the person to be examined'. Moreover, although the conditions set forth in the Rule under which protective orders may be obtained are obviously largely for the benefit of the deponent, yet it is further provided that an order may be entered requiring that '* * * the examination shall be held with no one present except the parties to the action and their officers or counsel * * *.' This language seems designed to meet the very situation presented here. And while no less a distinguished authority on the interpretation of the Federal Rules than Professor Moore seems to be in accord with the other text authorities elsewhere mentioned (4 Moore 2023), yet, it is significant that in Volume 4 of his work on Forms, p. 338, there is this statement: 'The language of Rule 30(b) would seem to permit the party taking the deposition to move for a private hearing. This is probably the only case in which the party taking the deposition would make a motion under Rule 30(b).' [2]

While the foregoing analysis of the Rule does not conclusively demonstrate that the interpretation advanced by the learned authors elsewhere referred to is too narrow in scope, it, nevertheless, raises the very natural inquiry why, if the examining party was [45 Del. 528] not to be accorded protection under the Rule, the framers did not so state in language permitting of no doubt. Also the very obscurity of the question presented suggests the possibility that the situation here was simply not thought of in connection with Rule 30(b). This comment is, of course, purely speculative.

Moreover, if the Rule is to be given the restricted interpretation urged by Plaintiff, we are faced with the anomaly that at the trial Defendant, under our long settled practice, Pritchard v. Henderson, 3 Pennewill 128, 50 A. 217, would be entitled to request these same three witnesses to be removed from the Court Room while Viscount was testifying, yet while taking the oral depositions of the same witnesses in preparation for the same trial, he would be unable to do so. The theory underlying the right of our Courts, in a proper case, to order the removal of witnesses from the Court Room is obviously in furtherance of justice, viz: to lessen the risk of fabricating testimony or shading it in the light of other testimony. Since, under certain circumstances, a deposition may be used as substantive evidence at the trial, and in all situations for the purpose of contradicting or impeaching a witness, it seems only consistent that a Court should have the power to make the same order relative to the deposition hearing as it would at the trial. My conclusion is therefore, that the language of Rule 30(b)

Page 126

The protective order will ...

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