No Disguises in Videotaped Depositions

6.21.10    By Joe Kelly    Tags

First of all, a disclaimer — this really happened. A pro se Plaintiff showed up for videotaped deposition wearing a jacket, hood, bushy wig, mustache, and beard, and large black sunglasses. The Defendant then scheduled a second deposition and asked the Court to prohibit the Plaintiff from wearing a disguise. The Plaintiff objected, stating that he believed he was being asked to participate in a pornographic video when, in Plaintiff’s view, opposing counsel asked him to remove his clothes. The Court agreed with the Defendant, ordering the Plaintiff to cooperate in the second deposition by not appearing in a disguise, mask, artificial facial hair, wig, sunglasses, or any other artificial covering of his face and head.

The Court held that a party is entitled to take the deposition of an opposing party, and to use that deposition for any purpose at trial under Fed. R. Civ. P. 32(a)(3). If the witness’ face is entirely hidden from view, the fact finder at trial is unable to evaluate his face in judging the witness’ credibility. Wearing a disguise not only violates the decorum of the courtroom, but it also impedes the fact finder’s ability to judge the demeanor and appearance of the witness.

Rather than appear without disguise for the second deposition, the Plaintiff filed another raft of motions objecting to the deposition, claiming, for example, that the bright lights of the deposition could cause snow blindness. The Court denied these motions and, when the Plaintiff failed to show up for the second scheduled deposition, dismissed the case with prejudice as a sanction under Fed. R. Civ. P. 37. As no three paragraph summary can really do justice to the Plaintiff’s positions in this case, readers are encouraged to read the Court’s opinion at Bertrand v. Yellow Transportation, Inc., et. al., 2010 WL 2196584 (M.D. Tenn. May 28, 2010).



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