Critical to any lawsuit is who gets to go first in taking depositions.  Most of the time, the party that notices the deposition first, gets priority in scheduling.

That’s why a new court decision in Connecticut will send shivers through businesses because it now allows trial lawyers and their clients to always go first.  While the rule will just apply to Connecticut employers, other states may have similar rules (or imprecise practice procedural) in place.

How could this happen, particularly when procedural court rules are designed to make sure that each party has a fair chance during a case? Well, it’s an example of how imprecise language can get twisted around; in this case, the court held that the rules preventing discovery from beginning are separate from the rules allowing depositions.

In the first in-depth written decision on the point, Waterbury Superior Court Judge Jane Scholl has concluded that a plaintiff can file a notice of deposition with the initial complaint. This tactical advantage gives the plaintiff first crack at digging up — or nailing down — key information in the case.

Scholl ruled hat the Practice Book rules “do not restrict when notices of depositions may be served,” so long as the deposition takes place at least 20 days after the case has formally begun.

The decision is not sitting well with defense lawyers. This “essentially means that a defendant can never take a plaintiff’s deposition first, which seems unfair,” said David J. Robinson, one of the attorneys working on the medical malpractice case over which Scholl is presiding.

I would not be surprised to see this issue brought up to Connecticut judges as they sit and review the procedural rules. But for businesses in Connecticut, it’s going to be an uphill battle…and its going to increase the stress in defending the case when you have to submit to a deposition without even knowing all the facts that the plaintiff might allege. (CT Law Tribune, 8/25, subscription required)