{"id":1147,"date":"2015-09-16T16:12:06","date_gmt":"2015-09-16T16:12:06","guid":{"rendered":"https:\/\/www.apslaw.com\/on-appeal\/?p=1147"},"modified":"2023-04-20T11:42:11","modified_gmt":"2023-04-20T15:42:11","slug":"rhode-island-supreme-court-addresses-deposition-conduct-and-instructions-not-to-answer","status":"publish","type":"post","link":"https:\/\/www.apslaw.com\/on-appeal\/depositions\/rhode-island-supreme-court-addresses-deposition-conduct-and-instructions-not-to-answer\/","title":{"rendered":"Rhode Island Supreme Court Addresses Deposition Conduct And Instructions Not To Answer"},"content":{"rendered":"

Rhode Island has long honored the late Professor Robert B. Kent\u2019s teachings on civil procedure, including his opinions concerning depositions.\u00a0 In keeping with Professor Kent\u2019s teachings, Rhode Island courts take the position that there are \u201cvery limited circumstances in which it is appropriate for counsel to instruct a deponent not to answer a question.\u201d Plante v. Stack<\/em>, 109 A.3d 846, 854 (R.I. 2015) (citing Robert B. Kent et al., 30:8 at V-48). \u00a0This position was addressed at length in the seminal case Kelvey v. Coughlin<\/em>, 625 A.2d 775 (R.I. 1993). \u00a0In that case, the Rhode Island Supreme Court held that \u201cthe only instance in which an attorney is justified in instructing a deponent not to answer is when the question calls for information that is privileged.\u201d \u00a0Id<\/em>. at 766.<\/p>\n

Notwithstanding the Court’s admonition in Kelvey<\/em>, in Plante<\/em>, plaintiffs\u2019 counsel instructed plaintiffs not to answer certain questions about their divorce, including the reasons for the divorce, the wife\u2019s current living arrangement and romantic life, and plaintiffs\u2019 discussions with their son concerning those issues. Plante<\/em>, 109 A.3d at 854.<\/p>\n

In response, the defendants moved to compel additional testimony from the plaintiffs regarding their separation and divorce, arguing that plaintiffs\u2019 counsel violated Kelvey<\/em> when he instructed the plaintiffs not to answer certain questions.\u00a0 Id<\/em>.\u00a0 The hearing justice denied defendants\u2019 motion and defendants\u2019 petitioned the Supreme Court for the issuance of a writ of certiorari.\u00a0 Id<\/em>.<\/p>\n

On certiorari,[1]<\/a> a majority of the Supreme Court determined that although the questions were of a personal nature, plaintiffs\u2019 counsel had not cited any privilege when instructing plaintiffs not to answer in violation of Kelvey<\/em>.<\/p>\n

The majority concluded that pursuant to Rule 30(d)(3), plaintiffs\u2019 counsel should have ceased the deposition and brought the matter to the attention of a Superior Court justice. \u00a0Plante<\/em>, 109 A.3d at 859; see also<\/em> id.<\/em> at 863 (Suttell, C.J., concurring in part and dissenting in part) (\u201cRule 30(d)(3) of the Superior Court Rules of Civil Procedure . . . permits a party or deponent to demand a suspension of the deposition to make a motion or obtain a ruling by telephone \u2018upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party.\u2019\u201d).<\/p>\n

Nevertheless, because plaintiffs\u2019 counsel\u2019s instructions were made toward the end of the nearly 4-hour-long deposition, a majority of the Supreme Court also concluded that defendants were not entitled to additional deposition testimony from the witness. \u00a0In doing so, the majority was particularly cautious to note that its decision should not be read as a \u201cretreat from [its] holding in Kelvey<\/em>.\u201d Id.<\/em> at 855.<\/p>\n

The Supreme Court\u2019s decision in Plante<\/em> serves not only as a reminder to trial counsel of the limited circumstances in which an instruction not to answer may be raised but also as a reminder of the prudent course of action for counsel defending a deposition in which there has been an instruction not to answer.\u00a0 Had the deposition been suspended to permit the defendants\u2019 counsel to obtain a ruling from the court regarding the instructions not to answer, counsel likely would have had a fuller opportunity to examine the witness.\u00a0 Instead, because these issues were raised through a motion to compel after the conclusion of the nearly 4-hour-long deposition, the Supreme Court concluded that no further examination was necessary.<\/p>\n

[1]<\/a> The Rhode Island Supreme Court granted the defendants\u2019 petition for issuance of a writ of certiorari, which requested review not only of the hearing justice\u2019s denial of their motion to compel but also of the hearing justice\u2019s grant of a the plaintiffs’ motion for a protective order limiting the defendants\u2019 planned neuropsychological examination of the plaintiff and order revoking the pro hac vice<\/em> admission of defense counsel.\u00a0 It is likely that the combination of these issues, and not solely the defendants\u2019 petition for review of the denial of their motion to compel, that prompted the Supreme Court to review these issues on certiorari.<\/p>\n","protected":false},"excerpt":{"rendered":"

Rhode Island has long honored the late Professor Robert B. Kent\u2019s teachings on civil procedure, including his opinions concerning depositions.\u00a0 In keeping with Professor Kent\u2019s teachings, Rhode Island courts take the position that there are \u201cvery limited circumstances in which it is…<\/p>\n","protected":false},"author":8,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[133],"tags":[134,32,135],"class_list":["post-1147","post","type-post","status-publish","format-standard","hentry","category-depositions","tag-depositions","tag-discovery","tag-instructions-not-to-answer"],"acf":[],"_links":{"self":[{"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/posts\/1147","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/users\/8"}],"replies":[{"embeddable":true,"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/comments?post=1147"}],"version-history":[{"count":0,"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/posts\/1147\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/media?parent=1147"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/categories?post=1147"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.apslaw.com\/on-appeal\/wp-json\/wp\/v2\/tags?post=1147"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}