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Editor: Colin Miller
Univ. of South Carolina School of Law

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Tuesday, December 3, 2013

The Sequester: Eastern District of Michigan Finds Rule 615 Applies to Depositions

Federal Rule of Evidence 615 provides that

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:  

(a) a party who is a natural person;  

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;  

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or  

(d) a person authorized by statute to be present.

Therefore, Rule 615 allows a party to move for the sequestration of witnesses at trial. And, as the recent opinion of the United States District Court for the Eastern District of Michigan in Ely v. Uptown Grille, LLC, 2013 WL 6183108 (E.D.Mich. 2013), makes clear, the Rule also applies to depositions.

In Ely, Audra Ely filed an instant employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, alleging that the defendants,  Uptown Grille, LLC and Ryan Adams discriminated against her based on her gender. Before depositions were conducted, Ely filed a motion for a protective order restricting her former supervisor Brandon Richardson from attending any depositions except his own. As support, she relied upon Lumpkin v. Bi–Lo, Inc., 117 F.R.D. 451, 452 (M.D. Ga 1987), which held that Rule 615 applies to depositions.

The Eastern District of Michigan found, however, that Uptown Grille had designated Richardson as its representative pursuant to Rule 615(b), meaning that he was not excludable. Ely objected that the defedants had in effect designated both Richardson and Adams as their representative. The court, however, again disagreed, noting that Adams was a named party and that, as a natural person, he was not excludable pursuant to Rule 615(a).

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/12/615-ely-v-uptown-grille-llcslip-copy-2013-wl-6183108edmich2013.html

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Comments

Huh? Does this mean you can't show the deposition transcript of "A" to "B", a witness who has not yet been deposed? What if "B" has not been supoenaed to give a deposition yet? The ramifications of this holding could be very troubling.

Posted by: Fred Moss | Dec 4, 2013 10:21:52 AM

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