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Soares v. Prospect Chartercare Sjhsri, LLC

United States District Court, D. Rhode Island

July 19, 2018

KEVIN SOARES, individually and as Parent and Next Friend of LANDON R. SOARES-TEDROW, Plaintiff,
v.
PROSPECT CHARTERCARE SJHSRI, LLC, et al., Defendants.

          ORDER

          John J. McConnell, Jr. United States District Judge.

         Twenty-five years ago, the Rhode Island Supreme Court set forth straightforward rules of conduct for counsel during depositions. Kelvey v. Coughlin, 625 A.2d 775, 777 (R.I. 1993). Those rules remain as applicable and relevant today as they were in 1993. The five Kelvey rules are:

1. Counsel for the deponent shall refrain from gratuitous comments and directing the deponent in regard to times, dates, documents, testimony, and the like.
2. Counsel shall refrain from cuing the deponent by objecting in any manner other than stating an objection for the record followed by a word or two describing the legal basis for the objection.
3. Counsel shall refrain from directing the deponent not to answer any questions submitted unless the question calls for privileged information.
4. Counsel shall refrain from dialogue on the record during the course of the deposition.
5. If counsel for any party or person given notice of the deposition believes that these conditions are not being adhered to, that counsel may call for suspension of the deposition and then immediately apply to the court in which the case is pending, or the court in which the case will be brought, for an immediate ruling and remedy. Where appropriate, sanctions should be considered.

Id.

         This Court believes that the Kelvey rules are entirely in keeping with Federal Rule of Civil Procedure 30[1] and adopts them as appropriate guidelines for conducting depositions in federal court cases.

         Plaintiff here moves to compel the deposition testimony of Defendants McGreen and Wolfgang, arguing that certain objections made by Defendants' counsel were improperly suggestive, and that Defendants' counsel inappropriately instructed the deponents not to answer certain questions.

         Suggestive Objections

         Plaintiffs motion points to several instances where Defendants' counsel posed suggestive comments during an objection, including the following:

Q. And, typically, Doctor, during your residency and your fellowship, what kind of radiograph would be ordered if there was a differential diagnosis of bowel ischemia?
DEFENDANTS' COUNSEL: Objection. If you remember back then. Not talking about what ...

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