MEMORANDUM ORDER

NORA BARRY FISCHER, District Judge.

I. BACKGROUND

This is a § 1983 case brought by Plaintiff David Wise. Mr. Wise was deposed during discovery on February 21, 2012. (Docket No. 81-5).1 A jury trial is now scheduled to commence on April 7, 2014. (Docket No. 182).

By way of background, the trial was previously set for December 9, 2013.2 (Docket No. 145). On December 5, 2013, the Court conducted a Telephonic Status Conference to address the parties' disputes regarding joint exhibits. (Docket No. 176). At this Conference, Plaintiff's counsel informed the Court and the Defendants that Mr. Wise had suffered a seizure earlier that week, and remained in critical care. (Id.). Additionally, Plaintiff's counsel suggested that trial proceed as scheduled on December 9, 2013, and that the videotape of Plaintiff's February 21, 2012 deposition be used in lieu of live testimony. (Id.). That same day, Defendants filed their "Objections to Allow Trial to Proceed Without the Presence of David Wise." (Docket No. 177).

At a Pretrial Status Conference held on December 6, 2013, the Court heard argument on Defendants' Objections. (Docket No. 180). Briefly, Defendants argued that trial should be continued, rather than conducted in Mr. Wise's absence, in light of: (1) the general preference for live testimony; (2) the potential prejudice Defendants might face if jurors speculate as to the reason for Mr. Wise's absence from trial; and (3) the fact that Defendants obtained evidence after Mr. Wise's February 21, 2012 deposition, which Defendants may have otherwise used for cross-examination purposes. (Docket Nos. 177; 180).

The Court subsequently sustained Defendants' Objections and ordered as follows with respect to the use of Mr. Wise's deposition testimony at trial:

(Docket No. 181). In accordance with this Order, counsel filed a Joint Report containing the parties' additional objections to certain portions of the February 21, 2012 deposition, based on the potential that the deposition may be introduced at trial. (Docket No. 185).3 The Court now turns to these objections, given the upcoming trial date.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 32 governs the use of depositions during trial:

FED. R. CIV. P. 32(a)(1).

Therefore, the deposition of Mr. Wise may be admitted to the extent that portions of the deposition are admissible under the Federal Rules of Evidence.4 FED. R. CIV. P. 32(a)(1)(B). Additionally, pursuant to subsection (a)(2), Mr. Wise's deposition may be used for impeachment purposes in the event that he does appear and testify at trial. FED. R. CIV. P. 32(a)(2) ("Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence."). Finally, in the event that Mr. Wise is not able to attend trial because of his health issues, the Court has discretion to find that he cannot attend because of illness or infirmity, with the effect that his deposition may be used for any purpose. FED. R. CIV. P. 32(a)(4)(C).

When a deposition is used at trial pursuant to Rule 32(a), parties may make objections to portions of the deposition's admissibility. FED. R. CIV. P. 32(b). Accordingly, parties are not limited to the objections raised during the deposition. Id. See also 8A Wright & Miller, Federal Practice and Procedure § 2151, 671-72 (3d ed. 2010). The trial court must determine, pursuant to the Federal Rules of Evidence, what portions of the deposition are admissible, applying the same rules as if the deponent was actually testifying live, during the trial. Id.

Given that Mr. Wise's deposition may be introduced during trial—either in lieu of live testimony or to impeach him on cross-examination—the Court will now rule on objections to the admissibility of any deposition testimony prior to trial. FED. R. CIV. P. 32(b). As noted, the Court must rule just as if the deposition testimony was given during trial. Id.

III. DISCUSSION/ORDERS

1. Discussion Relating to the Deposition Proceedings. During the course of the deposition, which spanned several hours, the parties took several breaks and held discussions off the record. (Dep., passim). Statements by the videographer and counsel relating to these breaks and the procedure of the deposition are not admissible at trial. See Compton v. Torch, Inc., No. 99-0549, 2000 WL 622604, *5-6 (E.D. La. 2000).

IT IS HEREBY ORDERED that the following lines be deleted from the deposition transcript:

2. Withdrawn Objections. In the parties' Joint Report, Plaintiff withdraws several objections made during the course of Mr. Wise's deposition and requests that the portions of the deposition containing his stated objections be removed. (Docket No. 185 at 1; Dep. at 13:22-24, 32:3-4, 51:21-22, 62:11-12, 72:5-6, 72:15-16, 104:1, 113:19-24, 122:14-15). Accordingly, and consistent with Plaintiff's averments in the Joint Report,

IT IS HEREBY ORDERED that the following objections made during the deposition are OVERRULED as moot, and shall be deleted from the deposition:

3. Plaintiff indicates in the Joint Report that he withdraws his objections at page 36, lines 8-18. (Docket No. 185 at 1; Dep. at 36:8-18). However, in the Court's review of the deposition, lines 12-13 contain Mr. Wise's answer. Additionally, lines 14-16 contain a question by Mr. Joyal.

IT IS HEREBY ORDERED that Plaintiff's objections made at page 36, lines 8-9 and 17-18 are OVERRULED as moot, and the following lines shall be deleted:

4. Objections to Discussions of Former Defendants. In the Joint Report, Plaintiff objects to discussions of former named Defendants Autumn Loughman, Jill Nixon, and C.O. Leer, arguing that the portions of the deposition transcript discussing these individuals are irrelevant, in that these individuals are no longer Defendants. (Docket No. 185; Dep. at 6:11-6:21, 6:22-7:6, 7:21-7:23, 9:10-10:25, 37:18-38:20, 73:13-78:21). Defendants argue that these portions of the deposition should not be extracted because they are relevant to Plaintiff's credibility and ability to remember events. (Id.). The Court agrees with Defendants. See In re Enterprise Rent-A-Car Wage & Hour Employment Practices Litig., MDL 2056, 2012 WL 2974680, *12 (W.D. Pa. July 20, 2012) (Conti, J.) (discussing use of deposition testimony to impeach a witness's credibility and recollection).

IT IS HEREBY ORDERED that Plaintiff's objections as to the following lines are OVERRULED, and that the following portions of the transcript, which contain improper5 statements by Plaintiff's counsel shall be deleted from the deposition transcript:

5. References to Substance Abuse. In the Joint Report, Plaintiff objects to several portions of the deposition that discuss Plaintiff's alleged use of marijuana and alcohol. (Docket No. 185 at 2; Dep. at 22:13-23:6, 25:20-29:13, 30:11-30:17). Defendants argue that some of these deposition segments should remain included because they are relevant for impeachment. (Docket No. 185 at 2). Consistent with this Court's ruling at the Pretrial Conference on June 13, 2013 (Docket No. 116), evidence of drug and alcohol use are inadmissible at trial—not because they are irrelevant—but because such references are properly excluded pursuant to Rule 403(b). FED. R. EVID. 403(b).6 With respect to relevance, Defendant's statements during the deposition that relate to drug and/or alcohol use are potentially relevant for impeachment purposes. Enterprise, 2012 WL 2974680, at *12. Nevertheless, the Court finds references to illegal drug use are unduly prejudicial and risk confusing the issues; therefore, they are inadmissible pursuant to Rule 403. See E.E.O.C. v. Smokin' Joe's Tobacco Shop, Inc., Civ. No. 06-1758, 2007 WL 2461745, *2-3 (E.D. Pa. Aug. 22, 2007).

IT IS HEREBY ORDERED that Plaintiff's objections as to relevance are OVERRULED. The Court further ORDERS that because references to Plaintiff's illegal drug use are inadmissible under Rule 403, the following lines be deleted from the deposition transcript:

6. Objections to Relevance. In the Joint Report, Plaintiff objects to including a statement he made at page 22, lines 6-7 regarding a 2005 accident that is contained in Plaintiff's medical records. (Docket No. 185 at 2; Dep. at 22:6-22:7). Defendants argue that this portion of Mr. Wise's deposition is relevant to show bias of Plaintiff and possibly Dr. Tobin. (Docket No. 185 at 2). The Court agrees with Defendants and finds that this statement is relevant to the credibility of Plaintiff and Dr. Tobin. Enterprise, 2012 WL 2974680, at *12. Therefore,

IT IS HEREBY ORDERED that Plaintiff's objection to page 22, lines 6-7 is OVERRULED.

7. Plaintiff objects to a discussion of a wedding in May 2005 and whether Plaintiff drank alcohol at this event, which occurs on page 67, line 12 through page 68, line 5. (Docket No. 185 at 3; Dep. at 67:12-68:5). Plaintiff argues that this discussion is irrelevant and the questioning is argumentative, while Defendants assert that Plaintiff's statements during this discussion may be relevant for impeachment. (Docket No. 185 at 3). Defendants further request that ruling be deferred until it is ascertained whether this testimony contradicts other admissible statements Plaintiff has made. (Id.).

The Court initially notes that although this portion of the deposition discusses alcohol, it does not implicate the Rule 403 issues addressed previously in relation to portions of the deposition that go into Plaintiff's alleged marijuana use.7 The Court agrees with Defendants that this portion of the deposition may be relevant for impeachment purposes. In re Enterprise, 2012 WL 2974680, at *12. The Court will, therefore, defer ruling on this objection. See FED. R. CIV. P. 32(b) (permitting the Court to rule on objections at trial).

IT IS HEREBY ORDERED that ruling on Plaintiff's objection to page 67, line 12 through page 68, line 5 is DEFERRED.

8. Plaintiff objects to a discussion on pages 73 and 74 of the deposition regarding the car accident for which Plaintiff was incarcerated, on the grounds that this discussion is irrelevant and unfairly prejudicial. (Docket No. 185 at 4, Dep. at 73:3-74:11). Upon the Court's review of the deposition, most of the portion to which Plaintiff objects contains discussion between counsel.

IT IS HEREBY ORDERED that, to the extent Mr. Wise testified in response to Mr. Joyal's question, Plaintiff's objection is OVERRULED,8 in that Plaintiff's testimony may be used for impeachment purposes. In re Enterprise, 2012 WL 2974680, at *12.

IT IS FURTHER ORDERED that the following lines, containing Plaintiff's objection and the subsequent discussion between counsel, be removed from the deposition transcript:

9. Plaintiff objects to the discussion from page 177, line 8 through page 178, line 18, arguing that the questions were previously asked and answered. (Docket No. 185 at 5, Dep. at 177:11-178:18). Defendants disagree with the objection, but raise their own objection to the relevance of page 177, lines 3-4, which contain a clarifying statement by Mr. Fisher. (Docket No. 185 at 5). Questions that have previously been asked and answered are "commonly sustained to (1) prevent opposing counsel from harassing the witness and (2) prevent cumulative presentation of evidence." Flickinger v. Toys R Us-Delaware, Inc., 492 F. App'x 217, 225 (3d Cir. 2012) (citing Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 610 (3d Cir.1995)).

Based on the Court's review of the deposition transcript,

IT IS HEREBY ORDERED that Plaintiff's objection is OVERRULED, in part, and SUSTAINED, in part. Specifically, the objection is sustained with respect to page 178, lines 8-18, and otherwise overruled. However, the Court further orders that 177:3-4 and 177:14-25, which contain only statements by counsel, should be deleted—not because they are asked-and-answered—but because statements by counsel are not evidence, and therefore inadmissible.

Accordingly,

IT IS FURTHER ORDERED that the following lines should be deleted from the deposition transcript:

10. Plaintiff objects to the questioning from page 180, line 22 through 182, line 3, arguing that this line of inquiry is irrelevant because it pertains to a dismissed claim. (Docket No. 185 at 5, Dep. at 180:22-182:3). Defendant agrees that the question related to the equal protection claim is irrelevant and should be stricken, but otherwise argues that the testimony is relevant to show bias and/or credibility. (Docket No. 185 at 5). Evidence is relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence." FED. R. EVID. 401(a). The Court notes that Plaintiff's equal protection claim was dismissed, and so testimony strictly related to that claim is no longer relevant. (Docket Nos. 74; 77). However, the Court agrees with Defendants that the questions and responses at page 180, line 22 through page 181, line 1 may still be relevant to show bias or for impeachment purposes. In re Enterprise, 2012 WL 2974680, at *12. Accordingly,

IT IS HEREBY ORDERED that Plaintiff's objection is OVERRULED with respect to 180:22-181:1, and SUSTAINED, with respect to page 181:2-182:3; and the following lines shall be deleted from the transcript:

11. Objections that Questioning Calls for Legal Conclusions. Plaintiff objects to page 182, line 5 through page 183, line 15, contending that the questions call for legal conclusions regarding "policy, practice, or custom." (Docket No, 185 at 5, Dep. at 182:5-183:15). Defendants argue that the questions are simply probing Mr. Wise's knowledge of the evidence, rather than legal conclusions. (Docket No. 185 at 5). The disputed questions ask Mr. Wise whether he has knowledge or is able to testify "that Washington County had a policy or practice or custom not to provide medical care to its inmates," and whether anyone has ever told him that such a policy exists. (Dep. at 182:5-9, 182:21-23). At Count One of his Amended Complaint, Plaintiff alleges that Washington County violated his civil rights because the County's "custom or policy" caused the individual Defendants to be "[im]properly supervised/trained in the handling of inmates with epilepsy and in the manner they conducted themselves." (Docket No. 29 at 7, ¶¶ 24-26). To establish Washington County's liability, Plaintiff must put into evidence a policy or custom that may fairly be said to represent official policy, such that the municipality deliberately chose not to take reasonable steps to address a substantial risk of serious harm to an inmate. Gallo v. Washington Cnty., 363 F. App'x 171, 173 (3d Cir. 2010) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978); City of Canton v. Harris, 489 U.S. 378, 389-90 (1989)). The questioning on page 182, therefore, relates to issues in this case. Generally, however, testimony is "not objectionable just because it embraces an ultimate issue." FED. R. EVID. 704(a). Here, the questions merely elicited testimony about Plaintiff's knowledge with regard to his claims.

In light of the above discussion,

IT IS HEREBY ORDERED that Plaintiff's objection at page 182, line 5 through page 183, line 15 is OVERRULED. The following portions of the transcript should be deleted because they contain Plaintiff's objections and discussion between counsel regarding said objections:

12. Plaintiff objects to page 187, line 10 through page 188, line 2, similarly arguing that the questions call for legal conclusions regarding the burden of proof in this case. (Docket No. 185 at 5-6; Dep. at 187:10-188:2). Additionally, Plaintiff contends that the questioning is argumentative. (Docket No. 185 at 5-6). Defendants respond that no objection was raised during the course of the deposition to this portion of the interrogation, but otherwise agree that page 187, lines 18-19 should be stricken. (Id.). Initially, the Court disagrees with Plaintiff's argument that the questions improperly call for legal conclusions because they probe Mr. Wise's knowledge about the applicable burden of proving his allegations. Next, the Court agrees that Plaintiff's objections to the questions as argumentative are untimely; no objection was made during the deposition. "A party waives any objection, whether to the form of questions or answers or to other errors that might be obviated, removed, or cured if promptly presented, by failing to note the objection at the taking of the deposition." Wright & Miller, "Conduct of Examination," 8A Fed. Prac. & Proc. Civ. § 2113 (3d ed.); FED. R. CIV. P. 32(d)(3)(B).

IT IS HEREBY ORDERED that Plaintiff's objection to page 187, line 10 through page 188, line 2 is OVERRULED. The following line, which contains a statement by Mr. Fisher in response to Mr. Joyal's question,9 shall be deleted:

13. Plaintiff objects to page 188, line 7 through page 196, line 20, asserting that this portion of the deposition contains an irrelevant discussion of a work release program. (Docket No. 185 at 6; Dep. at 188:7-196:20). Defendants respond that the testimony is relevant because it relates to several paragraphs in the Amended Complaint, and Mr. Wise's statements are further relevant for impeachment purposes. (Docket No. 185 at 6). After reviewing the deposition in conjunction with the Amended Complaint, the Court finds that this testimony is relevant. As Defendant points out, the Amended Complaint includes multiple averments relating to work release, including that Defendant King "denied [Mr.] Wise work release and other rights to which Wise was otherwise entitled," and that the Defendants' violations caused Plaintiff to lose income because he was denied work release. (Docket No. 29 at ¶¶ 17, 22, 39, 44). Moreover, Mr. Wise's testimony about the work release program is admissible for impeachment purposes. Enterprise, 2012 WL 2974680, at *12.

As such,

IT IS HEREBY ORDERED that Plaintiffs' objections at page 188, line 7 through page 196, line 20 are OVERRULED. However, the following lines shall be deleted from this portion of the transcript because they contain improper10 statements by Mr. Fisher and discussion between counsel, which are inadmissible:

14. Objections to Irrelevant Discussions Among Counsel. In the Joint Report, both parties object to portions of the deposition that contain discussion among counsel. (Docket No. 185 at 4-6; Dep. at 8:7-9:8, 42:3-43:7, 111:17-113:1, 127:6-127:22, 152:19-155:7, 160:24-161:10, 161:11-162:22, 164:18-166:25, 167:1-169:3, 169:12-170:15, 224:13-225:7, 235:4-236:3, 229:13-229:24, 236:14-236:22). As the Court further explains below, in its discussion of Hall v. Clifton Precision,11 attorneys in a deposition should conduct themselves as they would at trial. 150 F.R.D. 525 (E.D. Pa. 1993). Statements made by counsel are not evidence; therefore, they should be deleted from the deposition transcript. FED. R. CIV. P. 32.

IT IS HEREBY ORDERED that Plaintiff's objections to the following portions of the deposition are SUSTAINED. The following lines shall be deleted from the deposition transcript:

Plaintiff's objections are otherwise OVERRULED.

15. Objections Based on Attorney-Client Privilege. Plaintiff's counsel made multiple objections during the deposition based on attorney-client privilege, many of which he renewed in the Joint Report. (Docket No. 185 at 3-5, Dep. at 57:2-57:13, 58:10-59:25, 172:25-174:5, 176:19-176:22). Questions that invade the privacy of communications between attorney and client are impermissible during a deposition, FED. R. CIV. P. 30(c)(30), or at trial. See In re Processed Egg Products Antitrust Litig., 278 F.R.D. 112, 117 (E.D. Pa. 2011) (citing United States v. Amerada Hess Corp., 619 F.2d 980, 986 (3d Cir. 1980)).

The Court ORDERS that the following objections are therefore SUSTAINED, and accordingly, the questions and objections—neither of which constitute evidence, MODEL CIV. JURY INSTR. 3rd Cir. § 1.5 (2011), shall be deleted from the transcript:

16. In the Joint Report, Plaintiff also objects to questioning on pages 116 and 117 on grounds of attorney-client privilege. (Docket No. 185 at 4; Dep. at 116:17-117:12). In the Court's review of these objections, however, the questioning at issue requested yes or no responses, and did not invade the province of protected attorney-client communications. In re Processed Egg Products, 278 F.R.D at 117.

The Court ORDERS that the following objections are therefore OVERRULED, and accordingly, the objections, which do not constitute evidence, MODEL CIV. JURY INSTR. 3rd Cir. § 1.5 (2011), shall be deleted from the transcript:

17. Objections to Form. At several points during the deposition, Plaintiff objected to the form of the question posed but did not further specify his arguments as to why the form was improper in his objections, and Mr. Wise testified in response. Objections to form must sufficiently explain the objection so that the interrogator is able to revise the question and avoid the problem. 8A Federal Practice and Procedure § 2156, 681.

Therefore, the Court ORDERS that Plaintiff's objections are OVERRULED, and that the following lines, which contain the stated objections, be deleted from the deposition transcript:

18. During the deposition, Plaintiff objected at page 133, line 11, asserting that Defendant's question contradicted Plaintiff's prior testimony. (Dep. at 133:11-13). The Court's review of the transcript, however, shows that the question did not incorporate facts in contradiction to prior testimony. (Id.).

The Court ORDERS that Plaintiff's objection is OVERRULED, and that the following lines be deleted from the deposition transcript:

19. Stricken Statements. Statements made by counsel that were struck on the record shall be omitted from the deposition. Therefore, the Court ORDERS the following line be deleted from the deposition transcript:

20. Unanswered Questions. At several points during the deposition, counsel asked a question, to which Mr. Wise did not respond. Statements made by counsel—including questions and objections—do not constitute evidence. See MODEL CIV. JURY INSTR. 3rd Cir. § 1.5 (2011).

Accordingly, the Court ORDERS that the following lines be deleted from the transcript:

d. Page 56, lines 16-18;

21. Conferences. In the Joint Report, Plaintiff objects to a discussion between counsel regarding the propriety of asking a deponent what he discussed with his lawyer during lunch. (Docket No. 185 at 4, Dep. at 69:15-71:10). A review of the deposition transcript shows that after the parties returned from their lunch break, Mr. Joyal asked Mr. Wise: "Mr. Wise, during the break we had, did you and Mr. Fisher confer?" (Dep. at 69:15-16). Mr. Wise responded: "Yeah, he had lunch." (Id. at 69:18). Beyond this answer, however, counsel held a side discussion as to whether such questioning is appropriate. (Id. at 69:17-71:11).

Once a deposition has commenced, an attorney is not permitted to confer privately with the witness, unless the sole purpose of the conference was to determine whether to assert a privilege. Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 535 (M.D. Pa. 2002) ("[A]ny such conference is not covered by the attorney-client privilege and that the deposing attorney is therefore entitled to inquire about the content thereof.") (citing Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)).

For these reasons, the Court ORDERS that Plaintiff's objections are OVERRULED. However, because the discussion between counsel does not represent evidence, the Court FURTHER ORDERS that the following lines be deleted:

22. Coaching, Speaking Objections, and Discussions Between Counsel. The deposition also contains many examples of counsel coaching Mr. Wise,12 instructing him as to whether or not he should answer,13 telling him to answer if he is able,14 interpreting opposing counsel's questions,15 and supplying or clarifying Mr. Wise's answers.16

Judge Gawthrop's opinion in Hall v. Clifton Precision,17 provides the legal standards for attorney conduct during an oral deposition. Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). With respect to coaching, Hall explains that given that the purpose of a deposition is to ascertain a witness's testimony, "[t]here is no proper need for the witness's own lawyer to act as an intermediary." Id. at 528. "Once a witness has been prepared and has taken the stand, that witness is on his or her own." Id. On-the-record witness-coaching is prohibited; just as the Federal Rules of Evidence do not permit a lawyer to interrupt trial testimony to make a statement, "[s]uch behavior should likewise be prohibited at depositions, since it tends to obstruct the taking of the witness's testimony. It should go without saying that lawyers are strictly prohibited from making any comments, either on or off the record, which might suggest or limit a witness's answer to an unobjectionable question." Id. at 530-31. Statements made by counsel—including questions and objections—do not constitute evidence and therefore should be struck from the deposition transcript. See MODEL CIV. JURY INSTR. 3rd Cir. § 1.5 (2011). See also Bockelman v. BNSF Ry. Co., Civ. No. 10-1001, 2011 WL 5180382, *3 (C.D. Ill. Oct. 28, 2011).

Given this precedent,

IT IS HEREBY ORDERED that all portions of the deposition in which counsel interrupted the question-and-answer process to have discussions between themselves, to comment on the deposition, or to coach Mr. Wise, shall be removed from the deposition transcript, including the following lines:

IV. CONCLUSION

23. Trial Preparation. In the event that Plaintiff intends to rely on the February 21, 2012 deposition in lieu of live testimony at the upcoming trial, either in video or in transcript format,

IT IS HEREBY ORDERED that Plaintiff shall undertake the required editing at his expense and deliver to the Court an edited deposition transcript, incorporating the rulings contained within this Memorandum Order, no later than March 28, 2014 at 5:00 p.m. for the Court's review prior to trial.

24. In the event that the parties redepose Mr. Wise in accordance with this Court's December 6, 2013 Order [181], for the purpose of said deposition to be used at the upcoming trial, counsel are to conduct that deposition in a manner consistent with the rulings contained within this Memorandum Order, specifically with respect to the rulings contained in ¶ 22, and in accordance with Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993).