Order Allowing Party to Wear a “Disguise, Mask and/or Costume” at Videotaped Deposition Overturned

From Bertrand v. Yellow Transp., Inc., 2010 U.S. Dist. LEXIS 52778 (M.D. Tenn. May 28, 2010):

*** Defendants ask this Court to overrule the Magistrate Judge's Order *** which refuses to prohibit Plaintiff from wearing a disguise, mask and/or costume during his videotaped deposition.... The Court can, without a doubt, state that this is an issue of first impression for this Court.

As the Magistrate Judge has noted, Plaintiff initially objected to Defendants' taking a videotaped deposition of his testimony and the Magistrate Judge ordered Plaintiff to appear for that properly-noticed deposition on October 6, 2009, at the offices of Bass, Berry and Sims in Nashville. The parties agree that Plaintiff did appear for that deposition, but he appeared "in disguise," wearing a jacket, hood, bushy afro wig, bushy mustache and beard, and large black sunglasses. Defendants argue that Plaintiff's face was completely hidden from view.

The parties dispute what requests Defendants' counsel made of Plaintiff related to his appearance and what requests Plaintiff made of Defendants' counsel. Nonetheless, it appears that Defendants' counsel "suspended" the deposition without asking Plaintiff a single question. A number of unique Motions were subsequently filed, but the issue before this Court at this time is whether to order Plaintiff to cooperate in his videotaped deposition by not appearing in a disguise.

Clearly Defendants are entitled to take the deposition of Plaintiff, an opposing party, and to use that deposition for any purpose at trial. Fed. R. Civ. P. 32(a)(3). It is essential to the proper administration of justice that dignity, order and decorum be the hallmarks of America's court proceedings. This Court would not allow a witness at trial to wear a disguise or completely cover his face. If the witness' face is entirely hidden from view, the factfinder 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 factfinder's ability to judge the demeanor and appearance of the witness. Plaintiff has failed to offer any reason why wearing a disguise and/or hiding his normal or usual appearance should outweigh the importance of the Court's decorum and factfinder's ability to judge credibility.

For these reasons, Defendants' Motion for Review (Docket No. 401) is GRANTED, the Magistrate Judge's Order *** is overruled, and Plaintiff shall appear for his videotaped deposition without disguise, mask, artificial facial hair, wig, sunglasses or any other artificial covering of his face and head. The date of this deposition shall be set by the Magistrate Judge.

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