In Plante v. Stack, 109 A.3d 846 (R.I. 2015), the Rhode Island Supreme Court issued an opinion reaffirming a prior decision that attorneys may not instruct a witness not to answer a question during a deposition unless the question calls for information that is privileged. Further, during an independent medical examination, an attorney for the plaintiff may not be present, but a third-party representative, such as a nurse paralegal, may attend. 

In Plante, the plaintiff was injured in a head-on collision with the defendant who was intoxicated at the time of the accident.  The plaintiff alleged to have sustained severe and permanent injuries to his mind and body.  His parents also filed claims for the economic loss arising out of the medical bills.  In the course of discovery, the defendants’ attorney took depositions of the plaintiffs, including the parents.  The defendants’ attorney asked the plaintiff parents questions about their divorce, the reasons for their divorce, their current living arrangements, romantic life, and discussions with their son relative to those issues.  The plaintiffs’ counsel instructed his clients not to answer these questions.  In response, the defendants’ attorney moved to compel the plaintiffs to answer certain questions about their separation, divorce and romantic life.  The motion justice denied the defendants’ motion and the defendants filed a writ of certiorari with the Rhode Island Supreme Court.  

The issue of when an attorney can properly instruct his client not to answer a question at deposition was addressed by the Supreme Court in Kelvey v. Coughlin, 625 A.2d 775(R.I. 1993).  In Kelvey, the Court held that “the 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.”  Id., at 766.  In the instant case, a majority of the Supreme Court determined that although the questions were of a personal nature, plaintiffs’ counsel had not cited any privilege when instructing plaintiffs not to answer, in violation of Kelvey.  The majority concluded that pursuant to Rule 30(d)(3), the plaintiffs’ counsel should have instead ceased the deposition and brought the matter to the attention of a Superior Court justice. 

Nevertheless, because plaintiffs’ counsel’s instructions were made toward the end of the nearly 4-hour-long deposition, a majority of the Supreme Court concluded that defendants were not entitled to additional deposition testimony from the witness.  In doing so, the majority was particularly cautious to note that its decision should not be read as a retreat from its holding in Kelvey.

The Supreme Court also addressed two issues of first impression concerning independent medical examinations.  The first was whether a defendant’s expert, a neuropsychologist, could take a history from the plaintiff during an independent medical examination.  The plaintiffs’ counsel argued that the history was unnecessary as the plaintiff’s deposition testimony and reports of treating physicians were sufficient.   The Court held that the physician must be permitted to take the party’s history and to ask such question that would enable the physician to formulate an intelligent opinion regarding the plaintiff’s injuries. 

The Court also addressed the issue of whether a party’s representative could be present during an independent medical examination.  The plaintiffs requested that they be allowed to have two representatives at the examination, including an attorney and/or a nurse paralegal.  The defendants moved to preclude the representatives from attending the examination on the basis their presence could affect the testing results.  The Court noted that the presence of the attorney has the potential to disrupt or defeat the purpose of the exam but that another third-party representative, such as a nurse paralegal, can be present.  

The Supreme Court’s decision in Plante serves as important reminders about the conduct of attorneys during discovery.  If you have any questions about these developments, we welcome you to contact us.