Professional Documents
Culture Documents
PREPARE FOR,
TAKE, AND USE
A DEPOSITION
BY DANIEL P. DAIN
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James Berriman is the Chief Executive Officer of Evidox Corporation in Boston, Massachusetts. He wrote Chapter
11 on Depositions and Technology. Evidox provides litigation technology support to law firms and companies.
Before founding Evidox in 2006, Mr. Berriman was a trial lawyer and Director of Litigation Technology at
Goodwin Procter LLP. He founded that firms Litigation Technology Group, which grew to include a team of 15
specialists. He coded and implemented the firms litigation case-management system, and established the firms
scanning and digitizing labs, its e-discovery review facilities, and its trial technology systems. Mr. Berriman has
provided in-courtroom electronic trial services in a number of prominent cases, including U.S. v. Martha Stewart
and Peter Bacanovic (nationwide front-page coverage), USAID v. Harvard University (largest claim ever asserted
against Harvard), Acon v. Inverness (regarding the patent that covers one-step home pregnancy test kits),
PharmaStem v. ViaCell (regarding the patent that covers preservation of umbilical cord blood and stem cells), and
Citizens National Bank v. Citizens Bank (regarding the rights to the Citizens bank name). He has written and
lectured in the area of litigation technology.
1
Mr. Dain would like to thank his colleague Dan Pasquarello, and his legal intern, Mark Andersen, a law student at Boston College, for their
assistance in the preparation of the 2008 update.
Table of Contents
Table of Cases
Index
Chapter 1
Id. at 1039. The Court then examined the Comment to Rule 4.2, which clarifies that where the represented party
is an organization, then the prohibition extends to any individuals (1) who held a managerial role, (2) whose acts
or omissions in connection with the matter could be imputed to the organization, or (3) whose statements could
be considered an evidentiary admission by the organization. Id. The Court next observed that it is impossible for
an attorney contemplating conducting an ex parte interview to know, beforehand, whether statements of the
targeted witness might be imputed to the organization. As such, adoption of a bright line rule prohibiting
communications with former employees (and, by implication, current employees) was the only way to guard
against overreaching by the investigating party. Id. at 1042.
The Seventh Circuit, in Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001),
interpreted the same ABA MODEL RULE OF PROFESSIONAL CONDUCT 4.2, but did not find that a bright line rule
was necessary. Instead, the court found that whether ex parte communications with current employees (it did not
address former employees) is appropriate should be addressed on a case by case basis by analyzing each of the
three criteria set forth in the commentary to Rule 4.2. While the decision in Weibrecht gives attorneys
considering informal discovery from current or former employees of an organizational opponent greater latitude
than the bright line prohibition adopted in AEGIS, it is not a wholly comforting decision in its failure to provide
any clear guidelines for lawyers to follow.
Courts in Massachusetts recently, interpreting the MASSACHUSETTS RULE OF PROFESSIONAL CONDUCT 4.2
(which varies from the ABA model rule), have embraced an even more permissive standard. In Messing,
Rudavasky & Weiliky v. President and Fellows of Harvard College, 764 N.E.2d 825, 833 (Mass. 2002), the
Massachusetts Supreme Judicial Court found that the ban against ex parte communications with current
employees extends only to those with managerial responsibilities who have the authority to commit the
organization to a position regarding the subject matter of representation. In Clark v. Beverly Health and
Rehabilitation Services, Inc., 797 N.E. 2d 905 (Mass. 2003), the same court held that an attorney seeking to
interview former employees need not, under Rule 4.2, notify counsel for the organizational opponent. Of course,
if the former employees have retained their own counsel, the restrictions of Rule 4.2 would still apply.
Practice Tip: Questions to Ask at the Beginning of Any Ex Parte Interview of a Former
Employee of Your Opponent
As described above, some jurisdictions do permit ex parte interviews of former employees of your
opponent under certain circumstances. Those that do permit such interviews, however, typically place
certain limits on the interviews. Here the attorney: (1) may not conduct an ex parte interview of the former
employee if the former employee has retained his or her own counsel; (2) may not inquire into privileged
communications made during the course of the former employment; and (3) may not ask questions that
may reveal trade secrets or other confidential information learned in the course of the former
employment. See, e.g., PPG Industries, Inc. v. BASF Corp., 134 F.R.D. 118 (W.D. Pa. 1990). Because of
these restrictions, it is advisable at the beginning of any ex parte interview with a former employee to ask
the following questions:
1. Are you represented by your own counsel?
2. If you believe that the answer to any question that I ask you today may reveal the substance of any
written or spoken communication between you and any lawyer for your former employee that you
had during the course of your former employment, I want you to tell me that before you answer the
particular question. Do you understand?
3. If you believe that the answer to any question that I ask you today may reveal any trade secret or
other confidential information of your former employer that you learned during the course of your
former employment, I want you to tell me that before you answer the particular question. Do you
understand?
113Failure to Disclose Information
As newly amended, Rule 37(c)(1) provides:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) or to
amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted
to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.
Under Rule 26(a), discoverable information which is subject to mandatory disclosure includes witnesses, documents
and tangible things that a party may use to its claims or defenses, unless solely for impeachment. The Advisory
Committee on Civil Rules defined the term use to include presentation in discovery. Importantly, the obligation
extends to all documents that a party intends to use in questioning a witness during a deposition, and it applies to
witnesses and documents that a party intends to use if the need arises. However, mandatory disclosure does not
expressly require disclosure of work product or specification of individual documents but merely disclosure of
documents by category and location. Intel Corp. v. VIA Tech., Inc., 204 F.R.D. 450, 452 (N.D. Cal. 2001). Further,
mandatory disclosure is inapplicable to a witness that the disclosing party does not intend to call as a witness at trial.
Gluck v. Ansett Australia Ltd., 204 F.R.D. 217, 221 (D.D.C. 2001).
Some courts have already imposed sanctions under the newly amended Rule 37(c)(1) for failure to comply with
mandatory disclosure. For example, in Biltrite Corp. v. World Road Markings, Inc., 202 F.R.D. 359 (D. Mass.
2001), the court held that the failure of the defendant to disclose the true identity and address of the corporations
president warranted sanctions. The court noted that the obvious purpose of Rule 26(a) is to give the opposing party
information as to the identification and location of persons with knowledge for purposes of being deposed. Id. at
362.
Rule 26(e) further requires the parties to make supplemental mandatory disclosure if the original disclosure was
incomplete or incorrect. In Nicholas v. Pennsylvania State University, 227 F.3d 133 (3rd Cir. 2000), the court
excluded the plaintiffs videotaped evidence that had not been timely disclosed because late disclosure would
compromise defendants pretrial discovery preparation. The court observed that Rule 37(c)(1) was amended in 2000
so that sanctions can be imposed when a party fails to comply with its duty to supplement. Id. at 148.
Thus, at the time of a discovery deposition an opposing partys failure to comply with mandatory disclosure should
result in an objection to counsels use of undisclosed documents or tangible things, unless directly related to
impeachment only.
Rule 26(b)(4)(A) allows for depositions of expert witnesses without a court order. However, the deposition may not
be taken until the attorney who has designated the expert has provided opposing counsel with the mandatory
disclosures report.
Even though most state discovery statutes are patterned in whole or in part on the Federal Rules, many states have
adopted the mandatory expert disclosure requirements of Rule 26(a)(2). Nearly all states allow for the pretrial
discovery of experts through the use of interrogatories, depositions (without a prior court order) or both.
In light of mandatory expert disclosures and depositions, with or without court order, there are still considerations
you should weigh in deciding whether an experts deposition is actually needed. The following are factors to
consider:
1. What are the total costs of the first deposition? Remember, if you take one opposing experts deposition, all
experts on both sides are likely to be deposed. You must therefore consider all experts, not just the time and
costs of the first expert.
2. Does your expert require further exploration of his or her opponents opinions? If not, the deposition may be
unnecessary and your expert is adequately prepared to respond. If so, can the explanation be obtained
through mandatory expert disclosures or written discovery?
3. Have you taken adequate steps (such as a motion to compel or in the alternative, to exclude) to guard against
the experts surprise opinions, tests, analyses, or studies at trial? Have you obtained or can you obtain an
exclusionary order from the judge based upon the scope of your opponents disclosures? If not, can you
really limit the experts testimony through a deposition? This will generally depend upon the skill and
completeness of your questioning.
4. If you can obtain an exclusionary order, do you wish one? Any such order will likely be reciprocal and you
may prefer your own experts to enjoy some flexibility.
5. Have you obtained or can you obtain sufficient impeachment material from other depositions or published
work? Often you will not reveal such material in a deposition anyway and seldom can you obtain this
material in a deposition.
6. Can you find all of the underlying data for the experts opinion without a deposition? Often the most critical
and harmful information is not the opinions themselves but the basis for the opinions, such as otherwise
inadmissible information or hearsay. Federal Rules of Evidence 703 may allow the inadmissible to be
admitted under some circumstances. See, generally, 3 J. WEINSTEIN AND M. BERGER, WEINSTEINS
EVIDENCE, 703[02] (Supp. 1983); American Universal Ins. Co. v. Falzone, 644 F.2d 65, 66 (1st Cir. 1981).
This concern alone may justify an experts deposition.
7. Is the expert likely to prepare or use extensive charts, videography, or illustrative exhibits? If so, does the
mandatory disclosure report, with reference to exhibits, provide you with sufficient insight into his or her
thinking without a deposition? Should you get some hint of the experts thoughts and preparation in advance
of trial through a thorough deposition? This allows you to respond in kind and avoid being the party with the
least impressive and convincing visuals at trial.
8. Is your opponent balking at a deposition, preferring instead to supply overly verbose expert reports or
interrogatory answers? This may mean that the expert does not support your opponents case entirely and
would admit so under cross-examination. Even more significant are commencement or continuation of
settlement negotiations conditioned upon not taking the experts deposition under the guise of avoiding
costs? Under such circumstances, the deposition may be critical before considering or finalizing any -
settlements.
9. Are there answers, analyses, or studies which your expert cannot explain? Perhaps the opposing expert is
better qualified or has done a more extensive investigation. If so, the first to depose the other has a decided
advantage in either limiting the less knowledgeable expert or exploiting and incorporating work done by the
more knowledgeable expert.
10. Will the deposition force both your opponent and his or her expert to better prepare? Noticing an experts
deposition will, like nothing else, create a flurry of intense preparation. See 112. A seasoned expert will
expect a deposition and will likely delay significant work on the case until shortly before it occurs.
11. In evaluating costs, do you need your expert to be present at the deposition? Or, do you at least need the
expert to assist with the preparation of your questioning?
12. Do you have a clear understanding with your opponent(s) concerning the experts fees? See 241. Typically
the opposing lawyer pays for deposition time, but not preparation time. The amount of the fees and amount
of paid time should be decided by written stipulation before, not after, the deposition. Do you know the
experts hourly rate or daily rate, and have you seen any published fee schedules as substantiation? If you
have agreed to pay the opposing expert, have your opponents agreed to the same terms for your experts?
13. Are you able to prevent or restrict the deposition of your expert? If so, attempt to have the court limit
questioning into known sensitive areas such as prior cases, gross income, privileged information supplied by
counsel, consultation with experts retained but not expected, to be called, etc.
By its language, a Rule 30(b)(6) notice of deposition or subpoena is limited to non-individuals such as a
corporation, partnership, association or governmental agency. The notice or subpoena to such an entity need only
describe the subject matters or topics for examination with reasonable particularity. The burden imposed by this
specific requirement is substantially the same as that imposed in responding to interrogatories or requests for
production of documents.
Once served with a Rule 30(b)(6) notice of deposition or subpoena, a number of duties are imposed upon the
responding entity, especially where that entity is a party to the litigation. Obviously, you cannot depose a
corporation itself. As a result, the corporation appears vicariously through its designee, whose responses are binding
upon the corporation. The corporation has an affirmative duty to designate one or more persons to satisfy the topics
for examination contained in the notice of deposition. Thus, the corporation must make a conscientious and good
faith effort to designate persons having knowledge of the matters sought by the examining party. See U.S. v.
Taylor, 166 F.R.D. 356 (M.D.N.C. 1996).
Because Rule 30(b)(6) imposes a duty on a corporation to select individuals to testify on its behalf, it would appear
that the organization does not have to designate or produce a specific individual, as long as the person designated is
knowledgeable concerning the subject area. Sanders v. Circle K Corp., 137 F.R.D. 292 (D. Ariz. 1991) (In sexual
harassment suit, corporation not required to designate the former employees direct supervisor as the corporate
spokesman; sanctions ordered against Plaintiff for frivolous motion to compel personal defendant employee to act
as 30(b)(6) witness). However, the examining party can notice the deposition of a specific officer, director or
managing agent of a party entity under Rule 30(b)(1). Stone v. Morton Intern, Inc., 170 F.R.D. 498, 503 (D. Utah
1997).
Practice Tip: Use of Rule 30(b)(6) Deposition Notices to Identify Sources of Electronic
Discovery
If you have received what you deem to be an inadequate response to a request for electronic
documents from an opponent that is an organization with multiple employees, you should consider
serving a Rule 30(b)(6) deposition notice aimed at the organizations efforts to identify electronic
information responsive to the document requests. You may want to include as topics:
The organizations efforts to respond to the request for electronic documents.
Who is responsible within the organization for maintaining electronic records.
The organizations electronic record retention policy.
The organizations practice for storing electronic records.
How the organizations electronic information is backed-up.
Whether individuals use different methods for storing electronic records, such as on desktops or
laptops, flash drives, or personal data assistants (PDAs).
What computers, servers, and data storage systems were searched.
What search tools were used or search words employed.
How the organization sorted electronic records identified by the search tools or search words.
How deleted electronic records are stored.
The organizations efforts to recover deleted electronic records.
The testimony you receive on these topics will then form the basis for further negotiations on electronic
document production or for a motion to compel.
Sometimes a witness designated to testify on behalf of an organization will not know the answer to a question that
properly falls within the categories listed in the Rule 30(b)(6) deposition notice. This could be for one of two
reasons: (1) the information is known or available to the organization, but its designee has not been adequately
prepared; or (2) the information is not known to the organization.
If you are taking a deposition and a Rule 30(b)(6) witness professes not to know the answer to a question, you need
to determine whether the reason fits into the first or second category. Thus, you should ask questions such as the
following:
If you wanted to find out the answer to my question, how would you do it?
Who would you talk to?
Are any of them available today? Could you call them on the phone today?
Are there any documents you would want to consult in order to answer my question?
Where are those documents?
Do you know if they were produced in response to written discovery?
If the responses to these questions reveal that the reason for the professed lack of knowledge falls within category 1
(witness not adequately prepared), then the organization has not met its responsibility under Rule 30(b)(6). The
organization may be required to reproduce the witness after further preparation or produce another witness capable
of giving binding testimony on behalf of the organization. Note, however, that where the witness is unprepared on
only a few discrete questions, courts have found that calling in an entirely new witness would be unduly
burdensome and have ordered compromises, such as submitting deposition questions to be answered in writing. See,
e.g., Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 137, 142-43 (D.D.C. 1998). Where courts have found
that the witnesss inability to answer the questions was the result of a general lack of preparation for the deposition,
courts have imposed sanctions under Rule 37 as if the party had failed to produce a witness at all. See Bank of New
York v. Meridien Biao Bank Tanzania, 171 F.R.D. 153, 151 (S.D.N.Y. 1997); Constellation NewEnergy, Inc. v.
Powerweb, Inc., No. 02-2733, 2004 U.S. Dist. LEXIS 15865 (E.D. Pa. Aug. 10, 2004) (Imposing sanctions under
Rule 37 after stating, that the 30(b)(6) witness may have been unprepared is no excuse .... We find that [the
witness] failed to appear in a meaningful way for that portion of the Rule 30(b)(6) deposition which discussed [a
particular issue of the case].).
The result is different if the Rule 30(b)(6) witnesss inability to answer a question is due to a lack of information on
the part of the organization. Organizations, like individuals, may claim a lack of institutional memory (particularly
when the relevant individuals within the organization have since left) or knowledge. See Dravo Corp. v. Liberty
Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995) (If [the organization] does not possess such knowledge so as to
prepare [its designees], then its obligations under Rule 30(b)(6) obviously cease, since the rule requires testimony
only as to matters known or reasonably available to the organization. (citing the rule)). In such a circumstance,
however, the organization may be bound by its inability to answer a question and may be precluded, absent a good
excuse, from presenting evidence at trial going to the question asked during the deposition. See Taylor, 166 F.R.D.
at 362 (I[f] a party states that it has no knowledge or position as to a set of alleged facts or areas of inquiry at a
Rule 30(b)(6) deposition, it cannot argue for a contrary position at trial without introducing evidence explaining the
reason for the change.); Rainey v. Am. Forest and Paper Assoc., 26 F. Supp. 2d 82 (D.D.C. 1998) (Unless it can
prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different
allegations that could have been made at the time of the 30(b)(6) deposition.).
During the actual deposition of a Rule 30(b)(6) designee, the scope of objections is the same as any other deponent.
If the examination goes outside the requested areas, there is some dispute as to whether an objection on that ground
would be proper. The better approach would seem to allow for these questions even though they are technically
beyond the defined areas of inquiry. See, King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995). See 715.
Before the deposition begins, the corporate party and its counsel should examine the notice of deposition to
determine whether there are objectionable categories that require an informal attempt to limit the areas of deposition
that might require a motion for a protective order under Rule 26(c). See 154 (objecting to a Rule 30(b)(6)
deposition).
The only exception set forth in Rule 30 is where the notice of deposition contains a certification, with supporting
facts, that the person to be deposed is expected to leave the United States and will be unavailable for examination in
this country unless deposed before that time.
While not every provision of Rule 30(a)(2)(A)-(C) has been adopted on a national basis, the Rules allowing for
either party to initiate depositions have. Nevertheless, some state jurisdictional rules may follow former Rule 30 as
to when the plaintiff may commence a deposition. Under the former Rule, the plaintiff was restricted from taking a
deposition until 30 days after service of the complaint on any defendant unless: (1) a defendant had commenced
discovery; (2) a deponent was leaving the district where the action was pending; or (3) upon an order of the court.
131.1 Taking Depositions When a Motion to Dismiss for Lack of Personal Jurisdiction Has
Been Filed
When the defendant has filed a motion to dismiss for lack of personal jurisdiction pending determination of that
motion, the scope of discovery properly may be limited to whether the court has jurisdiction over the defendant.
However, pending such determination, the court has jurisdiction over a defendant so as to require the defendant to
respond to discovery under Rules 26-37, although it might be jurisdiction only as to discovery related to the in
personam jurisdiction issue. Gleneagle Ship Management Co. v. Leondakos, 581 So.2d 222 (Fla. App. 2 Dist.
1991), juris. accepted, 587 So.2d 1328 (1991).
131.2 Discovery in Aid of Judgment or Execution
In limited circumstances, depositions are permitted even after judgment. Fed. R. Civ. P. 69(a) provides in part: In
aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of
record, may obtain discovery from any person, including the judgment debtor, in the manner provided by the
practice of the state in which the district court is held. See Credit Lyonnais, S.A. v. SGC Intl, Inc., 160 F.3d 428,
430 (8th Cir. 1998) (The right to conduct discovery applies both before and after judgment.); United States v.
McWhirter, 376 F.2d 102, 106 (5th Cir. 1967) (The scope of post-judgment discovery is very broad to permit a
judgment creditor to discover assets upon which execution may be made.).
A judgment creditor (or successor) may proceed under either state or federal discovery rules and can take advantage
of all permitted forms of discovery, including depositions. See, e.g., El Salto, S.A. v. PSG Co., 444 F.2d 477, 484
(9th Cir. 1971) ([A] judgment creditor proceeding under Rule 69(a) may utilize either state practice or the Federal
Rules for taking depositions.); Fuddruckers, Inc. v. KCOB I, L.L.C., 31 F. Supp. 2d 1274, 1279 (D. Kan. 1998);
Notes of Advisory Committee on 1970 Amendments (The amendment assures that, in aid of execution on a
judgment, all discovery procedures provided in the rules are available and not just discovery via the taking of a
deposition.). As the rule notes, discovery is not limited to inquiry of the judgment debtor. See British Intl Ins. Co.
v. Seguros La Republica, S.A., 200 F.R.D. 586, 589 (W.D. Tex. 2000) (Rule 69 expressly authorizes discovery
from any person, not merely the judgment debtor.).
Note that an appeal from a judgment may, depending on the jurisdiction, either automatically or via motion, stay
enforcement of a money judgment. The appeal does not, however, generally automatically stay discovery under
Fed. R. Civ. P. 69(a). See, e.g., Laborers Nat. Pension Fund v. ANB Inv. Management, 26 F. Supp. 2d 1048 (N.D.
Ill. 1998). Instead, a defendant seeking to stay Rule 69(a) discovery pending appeal may need to demonstrate to the
trial court a likelihood of success on the appeal, and a balancing of the harms if discovery proceeds pending the
appeal. See, e.g., United States v. Campbell, 73 Fed. Appx. 382, 383 (10th Cir. 2003). If the trial court does not stay
the discovery and orders compliance with the discovery requests, that decision is typically interlocutory and not
immediately appealable. See, e.g., Cent. States, Southeast & Southwest Areas Pension Fund v. Express Freight
Lines, Inc., 971 F.2d 5, 6 (7th Cir. 1992).
Voelker v. Cherry Creek School District No. 5, 840 P.2d 353 (Colo. App. 1992), revd on other grounds, 859 P.2d
805 (Colo. 1993).
(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at
any place within the district of the court by which it is issued, or at any place without the district that is within 100
miles of the place of the deposition ... specified in the subpoena or at any place within the state where a state statute
or rule of court permits service of a subpoena issued by a state court of general jurisdiction sitting in the place of the
deposition ... specified in the subpoena. When a statue of the United States provides therefor, the court upon proper
application and cause shown may authorize the service of a subpoena at any other place ....
Thus, service of the subpoena on the deponent may be made upon the deponent:
Any place within the judicial district of the court by which it is issued;
Any place within 100 miles of the place of deposition;
Any place within the state where the court issuing it sits where a state statue or rule of court permits service
of a subpoena issued by a state court of general jurisdiction;
Any place a statute of the United States authorizes service.
However, the conclusion that service can be accomplished does not mean that the proposed location for the
deposition is allowable. Rule 45(c)(3)(A)(ii) (to which Rule 45(b)(2) is expressly made subject) provides:
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
...
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the
place where that person resides, is employed or regularly transacts business in person ....
Thus, a nonparty witness (any witness other than a party or officer of a party) can be required to appear to be
deposed only at locations within 100 miles of the witnesss residence, place of employment, or place of regular
transaction of business in person. A place of transacting business in person refers to locales where it would not be a
major inconvenience to the witness to travel an additional 100 miles; it usually refers to a place where the deponent
regularly is in the course of his business. Similarly, travel of up to 100 miles from ones residence or place of
employment is presumed to be a reasonable burden. Rule 45(e) expressly provides that adequate cause for failure to
obey exists when a subpoena purports to require a nonparty to attend at a place not within the limits of Rule
45(c)(3)(A)(ii).
Note, however, that Rule 45(c)(3)(A) merely provides that the court shall quash or modify the subpoena if it calls
for attendance more than 100 miles from the nonpartys residence, place of employment, or regular transaction of
business in person on timely motion. If such a motion is not timely made, the subpoena is valid and enforceable.
Of course, if the witness will appear without a subpoena, the parties may proceed with the deposition at any location
under Rule 29. If the witness agrees to appear without a subpoena, do you need the stipulation of opposing counsel?
Probably not, but he can seek a protective order. Also, if the witness does not appear, you may be liable for
opposing counsels attorneys fees and expenses for attending. See 223.
If the deponent can be properly served, but the deposition will be held more than 100 miles from the deponents
residence, employment or place of regular transaction of business, rather than waiting to see if the deponent objects
to the subpoena, it is better to obtain a court order.
Sample: Motion for Leave to Take Deposition More Than 100 Miles From Witness's Residence,
Employment, or Place of Regular Business1
UNITED STATES DISTRICT COURT
DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
BIG BUSINESS, INC., )
)
Defendant. )
______________________________________)
JOHN D. HARMED,
By his attorney,
_______________________
Timothy P. Attorney
ATTORNEY & LAWYER, P.C.
5 Main Street
Metropolis, MA 55556
Dated: _______________
MEMORANDUM OF LAW
While motion practice varies between jurisdiction, a memorandum of law in support of the motion is generally
preferred.
See also, e.g., Reshard v. Main Line Hosp., Inc., No. 02-1787, 2003 U.S. Dist. LEXIS 6372, at *20-23 (E.D. Pa.
April 16, 2003); Silverman v. Browning, 414 F. Supp. 80, 82 (D. Conn. 1976) (granting injunctive relief prohibiting
attorney from participating in deposition until he had complied with the rules and statutes pertaining to the
admission of out-of-state attorneys); Hoechst Celanese Corp. v. National Union Fire Ins. Co., 623 A.2d 1099, 1114
(Del. Super. Ct. 1991) (holding out-of-state counsel must comply with the pro hac vice requirements before
attending deposition).
What the aforementioned cases have in common is that they each arose in the jurisdiction in which the action is
pending. Far more common, although the rules are less clear, is where counsel for each party is admitted in the
jurisdiction in which the action is pending, but one of the parties wants to depose a witness in a jurisdiction in which
some or all of the attorneys are not admitted. In such a circumstance, in order for all the lawyers to get admitted in
that jurisdiction for the sole purpose of conducting a single deposition, local counsel would have to be retained, a
new action would have to be opened, and then a motion for admission pro hac vice would have to be made. That is
a lot of process (and expense) for one or a few depositions. As a practical matter, this is almost never done.
In August 2002, the American Bar Association issued a Report of the Commission on Multi-Jurisdictional Practice.
The Report recognized that where lawyers seek to conduct a deposition in a jurisdiction where the underlying action
is not pending, the conduct of law in that jurisdiction is ancillary to a pending litigation. The Commission wrote:
It is generally recognized that work of this nature, insofar as it does not involve appearances in court by the out-of-
state lawyer, is and should be permissible. It would be exceedingly costly and inefficient for a party to retain
separate counsel in every state in which work must be performed ancillary to a pending litigation, and requiring
parties to do so would not serve any regulatory interest, since lawyers in litigation are generally supervised
adequately by the courts before which they appear. The Commission therefore recommended that the ABA Model
Rules of Professional Conduct be amended to specifically permit lawyers to provide temporary services in
jurisdictions in which they are not admitted if such services are ancillary to pending litigation in a jurisdiction in
which they are admitted and in which they have entered an appearance. For a listing of jurisdictions that have
adopted either the ABAs suggested revisions to Model Rule 5.5 or something similar, see
www.abanet.org/cpr/mjp-home.html.
Advantages
Cost savings: Take a deposition in an hour over the phone, instead of flying thousands of miles to the
deponents domicile. This savings can vastly increase available attorney hours and expenses which can be
better allocated elsewhere.
Scheduling convenience: It is far easier to schedule depositions when counsel do not have to travel;
cancellations are less likely. This may be important if trial is coming up quickly.
Less burdensome: The actual lack of face to face confrontation between questioner and deponent make it
less threatening for the witness.
Disadvantages
For critical depositions: The lack of actual face to face confrontation may be prejudicial. Getting the feel
of the witness and being able to see and pick up on physical cues which lead to more questions may be too
important to forego.
Client cannot face accuser: Sometimes it is useful to encourage a deponents honesty by having the party
attend and look them in the eye. See 350, infra. This cannot be done in a telephone deposition.
Inability to observe spontaneous reaction: Although these reactions may not make it into the record, they
can be useful.
1. When permitted
Federal Rule: Permit by stipulation, or by motion. Fed. R. Civ. P. (30)(b)(7).
State Court Rules: Vary, but few prohibit and almost all permit by stipulation.
States with no express rule: Absent express rules, most states provide that the court has general authority to
regulate the manner in which a deposition is taken. See, e.g., CAL. CODE CIV. PROC. 2019b (West 1993).
2. Grounds for taking
Telephone depositions are often requested to avoid travel, financial or other hardship by a party or attorney.
See Dunlap-McCuller v. Riese Organization, 980 F.2d 153 (2d Cir. 1992), cert. denied, 114 S. Ct. 290
(Telephonic depositions are proper where witnesses were greater than 100 miles from place of trial or out of the
country, even in the middle of trial). Several courts have held that a telephone deposition may be ordered upon
showing of any legitimate reason to hold depositions by telephone. See, e.g., Jahr v. IU Intern. Corp., 109
F.R.D. 429, 430-431 (M.D.N.C.1986).
3. Grounds for opposing
Documents: Voluminous or complex documents (such as illustrations, blueprints, etc.) may make the deposition
difficult.
Nonresident Plaintiffs: At least one court has ruled that it will not order a telephone deposition when it is used
to allow a plaintiff to avoid appearing in the forum court. Clem v. Allied Van Lines Intl, 102 F.R.D. 938
(S.D.N.Y. 1984). However, several other jurisdictions rejected this ruling. See Jahr v. IU Intern. Corp., 109
F.R.D. 429, 430-431 (M.D.N.C.1986); Anguile v. Gerhart, 1993 WL 414665 (D.N.J. 1993).
Marginal Cost Savings: Where the travel savings is marginal, the court may find that the inherent
disadvantages of the telephone deposition (e.g., in handling documents) justify denial.
Other Circumstances that result in untrustworthy or inaccurate testimony. See generally Rehau v. Colortech,
145 F.R.D. 444 (W.D. Mich. 1993) (citing Fed. R. Civ. P. 26).
4. Location of Court Reporter
Physical Presence Rule: Some states require that the court reporter must be in the physical presence of the
deponent. Va. R. Sup. Ct. 4.5(b)(7)(1993); S.C.R.CIV. PROC. 30(b)(7). Most statutes do not specify on which
end of the telephone line the reporter should be. See generally Bywaters v. Bywaters, 123 F.R.D. 175 (E.D. Pa.
1988).
Requirement of Oath May Determine: Some jurisdictions require that the oath must be administered by
someone in the actual presence of the deponent, Fed. R. Civ. P. 30(b)(7), but this does not always have to be a
court reporter. See generally Jahr v. IU Intern. Corp., 109 F.R.D. 429 (M.D.N.C.1986).
Accuracy Consideration: Having the reporter with the deponent also provides the highest assurance for
accuracy of testimony, since the reporter hears the witness better.
5. Other Factors to Remember
When you are not at the deposition, it is difficult to know whether anyone is coaching the witness. An
observer may be needed.
Documents need to be pre-identified and exchanged. This can be done prior to the deposition or by fax as
the deposition proceeds. Note that facsimile transmission may be too slow and can sometimes be unreliable.
Defense counsel should ask the Court to require the format suggested in this example whenever the government
seeks leave to take a foreign deposition. In addition, defendants counsel should, themselves, consider the
advantages of employing the technology when appropriate. It is not difficult to see that video conference
depositions make it that much easier for a defendant to obtain vital testimony that would be otherwise unavailable.
C. Habeas Corpus Proceedings
Besides criminal actions, virtual depositions can be a useful tool for processing habeas corpus petitions. As courts
try to balance prisoners rights to habeas protection against the avalanche of mostly meritless petitions, virtual
depositions promise an effective, cost efficient method of obtaining discovery. As one Fifth Circuit Judge recently
wrote:
It is probable that the explosion of technological advancement will be determinative of many of the vexing potential
problems raised by the district courts search in this troubling area of [habeas corpus] litigation. Courts are no
longer restricted to a choice between live testimony and a transcription of a deposition read to a jury by attorneys.
Tools now available, such as video depositions and video teleconferencing, may greatly impact on the fundamental
fairness of trials for an absent litigant. Latiolais v. Whitley, 93 F.3d 205, 211 (5th Cir. 1996) (J. Parker, Concurring).
Judge Parkers observation is a prophetic statement, not only for habeas proceedings, but also for the discovery
process in general. As attorneys become more familiar with the technology, they can vastly improve their access to
long-distance discovery, and with less expense.
Your notice of deposition must be in writing and must state the time and place for taking the deposition and the
name and address of each person he examined. Jou Jou Designs, Inc. v. JOJO Ligne Internationale, Inc., 821 F.
Supp. 1347 (N.D. Cal 1992) (notice addressed to name of defendants business was sufficient); Jackson v.
Woodford, No. 05cv513, 2007 WL 2023551 (S.D. Cal. July 11, 2007) (subpoena was held invalid because it failed
to specify the time and place for the deposition). If the identity of the deponent or his address is not known, you
must provide a description sufficient to identify the person or the particular class or group to which the person
belongs. If you have requested documents, you must specify the documents requested.
A sample notice of deposition which meets the requirements of Rule 30(b) follows:
NOTICE OF DEPOSITION
PLEASE TAKE NOTICE that under Fed. R. Civ. P. 30(b)(1), Plaintiff, John D. Harmed,
through his counsel, will take the deposition upon oral examination of Samuel P.
Bigshot, 20 Grand Estates Lane, Suburb, State 55557. The deposition will take
place on Tuesday, April 1, 2008, beginning at 9:30 a.m. at the offices of Attorney
& Lawyer, P.C., 8 South Street, BigCity, State 44444, before a notary public or
other officer authorized by law to administer oaths. The deposition will be
recorded by stenographic means and continue from day-to-day until completed. You
are invited to attend and cross-examine.
JOHN D. HARMED,
By his attorney,
________________________
Timothy P. Attorney
ATTORNEY & LAWYER, P.C.
5 Main Street
Metropolis, MA 55556
Dated: _______________
210.1 Opposing Date of Deposition
Although the Rules do not require it, try to coordinate dates for depositions with the schedules of opposing counsel
and the deponents. This is not only a matter of common courtesy, but of common sense. Both sides will likely take a
number of depositions, and it is far more convenient for both you and your opponent to come to some agreement
regarding deposition scheduling. If the matter is approached in a reasonable fashion, both counsel can usually reach
a satisfactory agreement.
Indeed, opposing counsel is entitled to a date that does not conflict with his other obligations and gives him time to
prepare for the deposition, provided that he does not simply remain unavailable. See C&F Packing Co. v.
Doskocil Companies, 126 F.R.D. 662 (N.D. III. 1989).
If an agreement cannot be reached, there is little alternative but to notice the deposition and proceed on that basis. If
the date chosen by an opponent is unsatisfactory to you, and you are unable to resolve the matter through discussion
with counsel, your only alternative is to move for a protective order under Rule 26(c).
Your motion for a protective order should not only specify the nature of the problem, but must include a statement
of your attempts to resolve the dispute without the need for the courts intervention. Rule 26(c) requires that a
motion be accompanied by a certification that you have in good faith either conferred or attempted to confer with
the other affected parties to resolve the dispute. Moreover, the motion should suggest alternative dates for the
deposition, which preferably should be in close proximity to the date initially noticed.
The Rules provide no specific guidelines for resolution of such a motion. As a general matter, trial courts have wide
discretion to resolve discovery disputes, but judges generally do not like to deal with these issues. If your witness
has unavoidable conflicts, the motion likely will be granted. Likewise, if you have other commitments, such as a
trial, the court will look favorably upon your motion. Where the problem is less significant, and you can rearrange
your schedule, the court is less likely to grant your motion.
_______________________
O. Posing Counsel
30 Ash Street
Metropolis, MA 55556
Dated: _______________
DECLARATIONS
Include an appropriate declaration setting forth relevant facts and your attempts to informally resolve the deposition
date prior to making motion. See Form, 137.
MEMORANDUM OF LAW
Include a memorandum of law in support of motion and the relief sought. See 151.
210.1.1 Does the Filing of a Motion for a Protective Order Automatically Stay the Deposition?
You have just filed your motion for a protective order or to quash. The deposition is scheduled to start in a week.
What do you do?
In some jurisdictions, by local rule, the deposition is automatically stayed pending a ruling by the court on the
motion. See, e.g., Local Rules of the Civil Courts of Dallas County, Texas 2.12(b); Local Rules of Civil Practice
and Procedure of the United States District Court for the District of Delaware Rule 30.2; but see Uniform Local
Rules of the United States District Courts for the Northern and Southern Districts of Mississippi (It is incumbent
upon the party seeking the protection of the court to obtain a ruling on the motion prior to the scheduled
deposition.).
In other jurisdictions, you are not off the hook just by filing the motion. See, e.g., Rice v. Cannon, No. A06A2449,
2007 WL 102148 (Ga. Ct. App. Jan. 17, 2007) (Merely filing motions for a protective order did not relieve the
[deponents] from the duty to appear at their depositions.) The case of Goodwin v. Boston, 118 F.R.D. 297 (D.
Mass. 1988) provides a good illustration of what can happen when the attorney stops paying attention after filing a
motion to quash a deposition notice. There, plaintiffs noticed a deposition and defense counsel moved to quash five
days later. By the date of the deposition, the court had not taken any action, so two of the plaintiffs took the day off
to attend the deposition and the stenographer showed up. When defense counsel and the witness did not appear,
plaintiffs counsel moved for sanctions. The court allowed the motion:
When it appears that a Court is not going to be able to decide a motion to quash or a motion for protective order
before the date set for a deposition, counsel for the movant should contact counsel for the party noticing the
deposition and attempt to reach an agreement staying the deposition until after the Court acts on the motion to
quash and/or the motion for a protective order. If agreement cannot be reached, it is incumbent on counsel for the
movant to file a motion to stay the deposition until the Court acts on the motion to quash and/or for a protective
order and to alert the clerk to the need for immediate action on the motion to stay.
Id., cited with approval in United States v. Fesman, 781 F. Supp. 511, 514 (S.D. Ohio 1991); Cahn v. Cahn, 626
A.2d 296, 300 (Conn. 1993).
The attorney in Goodwin was sanctioned for apparently doing nothing after filing the motion to quash. But what if
the attorney had followed all of the courts suggestionscalling opposing counsel in an attempt to reach an
agreement, and, if unsuccessful, petitioning the court for a stay in conjunction with a call to the clerk in the hope of
prodding quick actionand still there was no ruling on the eve of the deposition? In this circumstance, the attorney
would be faced with a conundrum: show up with a witness that you believe should not be deposed or at least not
deposed on the particular date, or do not show up and risk sanctions. The authors suggest that if you have proceeded
with diligence to protect your rights but through the inaction of the court you are left with no ruling on your motion,
you place a final call to opposing counsel and follow it up with a letter informing opposing counsel that you will not
be showing up with your witness at the deposition at the time and place noticed. At this point, if the attorney who
noticed the deposition does not call off the court reporter, and subsequently shows up expecting a witness and
counsel from the other side, the court would most likely have little sympathy for a motion for sanctions, since the
attorney could have easily avoided incurring the expenses of showing up for a deposition that the attorney had been
warned was not going forward.
Where the attorney opposing the deposition has acted with all diligence, the equities would be against the noticing
attorney who unnecessarily incurs costs before the court has ruled on the motion for a protective order or motion to
quash. See Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 78, 87 (D.D.C. 1998). By contrast, if the attorney
opposing the deposition has plenty of time to file a motion for a protective order or motion to quash, but waits until
the last minute to file the motion and then fails to show up at the deposition, courts tend to have little sympathy,
viewing the maneuver as litigation by ambush. See Barnes v. Madison, No. 02-50937, 2003 U.S. App. LEXIS
22733, at *43-44 (5th Cir. Nov. 4, 2003) (holding the attorney was not justified in not showing up for deposition
after filing motion for protective order on Friday before Mondays deposition); In re Hollar, 184 B.R. 243, 246
(Bankr. M.D.N.C. 1995) (The last-minute motion for a protective order did not excuse debtors from their
obligations to comply with the order of the court.); American Health Systems, Inc. v. Liberty Health System, Civ.
A. No. 90-3122, 1991 U.S. Dist. LEXIS 469, at *9 (E.D. Pa. Jan. 15, 1991) (denying a motion for protective order
because the defendant filed his motion on the very day of the deposition, failed to appear at the deposition, and did
not have the professional courtesy to inform the opposing party of the pending motion).
In sum, as with so much of legal practice, use common sense, communicate with opposing counsel, and before
seeking sanctions from the court, make sure you have clean hands.
210.2 Opposing Location of Deposition
Reaching an agreement on the location of a deposition may present a more difficult problem than agreeing on its
timing. If the parties all reside in the same district, depositions are usually held at counsels office. (The practice
varies from jurisdiction to jurisdiction on whether the deposition is held at the noticing or defending attorneys
office.) A dispute often arises, however, if the deponent is out-of-state and the deposing attorney tries to force him
to come into the district. Similarly, an attempt to take a video deposition at the scene of an accident or at some other
location away from counsels office may become a matter of dispute.
Disputes over the place of a deposition, like those over its timing, should be resolved by agreement between the
parties. Each attorney has a strong personal interest in cooperating with opposing counsel, because each of you will
need concessions from the other during the course of the litigation. If the matter cannot be resolved through good
faith negotiations, your only alternative is to move for a protective order under Rule 26(c).
Sample: Motion for Protective Order for Location of Deposition of Samuel P. Bigshot
BIG BUSINESS,
INC.,
By its attorney,
_______________________
O. Posing Counsel
30 Ash Street
Metropolis, MA 55556
Dated: _______________
DECLARATIONS
Motion should include appropriate declarations setting forth relevant facts for motion and informal attempts to
resolve the dispute without the courts intervention.
MEMORANDUM OF LAW
Include memorandum of points and authorities justifying the relief requested in the motion.
210.3 Opposing Deposition on Ground That Witness Lacks Relevant Information
Witnesses have sometimes sought protective orders on the ground that they have no relevant information, and
therefore permitting such depositions to proceed would be a waste of time. In such a case, the moving party has the
burden of demonstrating to the court that the proposed deponent truly has nothing to contribute. Courts tend to not
be particularly sympathetic to such motions, figuring that part of the purpose of depositions is discovering which
witnesses do have relevant information. See Van Den Eng v. Coleman Co., No. 05-MC-109, 2005 WL 3776352 (D.
Kan. Dec. 14, 2005) (the normal practice of this Court is to deny motions that seek to entirely bar the taking of a
deposition); Steadfast Ins. Co. v. Auto Marketing Network, Inc., No. 97 C 5696, 1999 WL 300231 (N.D. Ill. May
3, 1999) (We begin with the proposition that it is rare to preclude a deposition altogether, or to dictate in advance
what specific topics may be explored.)
The case of In re Deposition Subpoenas of Garlock, No. M8-85, 2006 WL 3499431 (S.D.N.Y. Dec. 5, 2006) is
instructive. There, the court observed that an order barring the taking of a deposition is most extraordinary relief.
Id. at *2. It stated:
Movants seek to create the impression that the proposed deponents know nothing of relevance and that the
deposition subpoenas are pure harassment. They attempt to do so, however, by artful drafting. They never actually
say that the deponents know nothing relevant to the pending action. Rather, they say that the deponents do not
recall ever having communicated with the Plaintiffs or having performed any work for them This is too cute for
words, and that is putting the matter kindly.
Id. See also, e.g., American High-Income Trust v. AlliedSignal, Inc., No. 02 Civ. 2506, 2006 WL 3545432
(S.D.N.Y. Dec. 8, 2006) (party seeking protective order has burden of demonstrating lack of knowledge and undue
burden). Thus, in the rare cases where a court will grant a motion for a protective order against the taking of the
deposition at all on the ground that the witness knows nothing, the moving party will have supported its motion with
affidavits establishing lack of knowledge by more than merely conclusory statements, and will make at least some
showing that the party seeking the deposition is doing so for harassment or other improper reasons or that
permitting the deposition to proceed would place an undue burden on the proposed deponent.
Note, however, that courts are more receptive to motions for protective orders regarding so-called apex depositions
of high-ranking corporate officials uninvolved in the events underlying the litigation. See section 211.2 below.
Notice of Deposition
OF ____________________
Date: ___________
Time: ___________
Place: ___________
Note that while under Rule 37(d) you can compel any party or officer, director or managing partner of a party to
appear for deposition by service of notice of deposition, only a party or officer of a party under 45(c)(3)(A)(ii) can
be compelled to appear for deposition by subpoena more than 100 miles from the place where he resides, is
employed or regularly transacts business in person.
211.1 Opposing the Taking of a Deposition of an Officer, Director or Managing Agent of a
Party
There are two principal reasons why you might wish to oppose the taking of the deposition of an individual as an
officer, director or managing agent of your client. First, your client has the obligation to produce such a person for
the deposition at such place as it is noticed, subject to obtaining a protection order. For example, under Rule 30(a)
the plaintiff and its officers, directors and managing agents generally must appear for deposition in the forum, even
if the place of business or residence is 1,000 miles away. Compare Rule 45(c)(3)(A)(ii). On the other hand, a
nonparty witness can be compelled to appear only within 100 miles from the place where that person resides, or is
employed or regularly transacts business in person. See Rule 45(c)(3)(A)(ii) and 135.1, supra.
A second reason is that the testimony of an officer, director or managing agent of a party generally is deemed to be
an admission of that party. Thus, you may have no objection to the taking of the individuals deposition or to
producing the individual at the designated location, but not as an officer, director managing or agent of your
client.
One question that comes up is whether an officer, director or managing agent of a parent or a subsidiary to a
corporate party is considered a party and therefore susceptible to depositions in the forum, regardless of its
location. Although the issue has been raised in only a few reported cases, the apparent rule is that officers, directors,
and managing agents of subsidiary corporations with no managerial control or oversight over their parent
corporations are not considered parties, while those at the parent to a party subsidiary are considered parties.
In In re Johnson and Johnson, 59 F.R.D. 174 (D. Del. 1973), an American party sought sanctions for the failure of
officers of the opposing partys corporate subsidiary to appear for depositions noticed to take place in the litigation
forum. The court denied the motion finding that the officers of the subsidiary, who lived and worked in Connecticut
and Norway, were not party officers and could not be compelled to travel for their depositions. The court stated
that it found no authority which permits a corporate veil to be pierced for the purpose of Rule 45. The Court
declines to take this novel approach. Id. at 178. Similarly, in Ronald A. Katz Technology Licensing, L.P. v. Verizon
Communications, Inc., No. CIV.A. 01-5627, 2002 WL 31356302 (E.D. Pa. October 16, 2002), the court refused to
compel the depositions of officers of a partys subsidiaries. The court reasoned that there is no reason to believe
that either of these two gentlemen exercise any managerial control over [the parent party]. While they may be
managing agents of a [party] subsidiary, this does not give them any direct relationship with the [party]. Id. at *6.
By contrast, in Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444, 445 (W.D. Mich. 1993), a party wanted to depose in
the forum officers of the other partys parent corporation located in Europe. The court compelled the depositions
reasoning that these foreign-based officers did exercise control over the subsidiary party; however, the court stated
that due to their distance from the forum, the witnesses could insist on being deposed telephonically, rather than
having to travel to the United States. Id. at 446-47.
211.2 Corporate Officers
Under the Rules, officers of a corporation are not immune from being subjected to the deposition process. However,
Apex depositions (depositions of corporate officers at the apex of the corporate hierarchy) entail tremendous
potential for abuse and harassment, as well as coercing settlement. Crown Cent. Petroleum Corp. v. Garcia, 904
S.W.2d 125, 128 (Tex. 1995). In the absence of the exhaustion of less intrusive methods of discovery, courts are
likely to grant a motion for protective order prohibiting depositions of senior officers who possess little or no
relevant information. Liberty Mutual Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282 (1992).
The federal decisions in this area have tended to concentrate upon prior discovery efforts before subjecting a
corporate executive to the rigors of deposition. For example, in Salter v. Upjohn, 593 F.2d 649 (5th Cir. 1979), a
protective order conditionally prohibiting the deposition of Upjohns president was upheld since the plaintiff
attempted to depose the president prior to deposing any lower level employees. The protective order left the plaintiff
with the ability to take the deposition if the testimony of other more knowledgeable employees proved to be
unsatisfactory.
In Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.R.I. 1985), the plaintiff attempted to depose Lee Iacocca,
Chryslers president and chairman. The court noted that because Iacocca is a singularly unique and important
individual who can be easily subjected to unwarranted harassment and abuse, he has a right to be protected, and
the courts have a duty to recognize his vulnerability. Id. at 366. In light of Iacoccas declaration claiming ignorance
of the facts sought, the court required the plaintiff to first propound written interrogatories, while reserving the
option to order a deposition if warranted by the interrogatory answers.
A similar approach was taken by the court in Baine v. General Motors Corp., 141 F.R.D. 332 (M.D. Ala. 1991),
where the plaintiff sought to depose a vice president on issues related to a faulty restraint system. In granting a
protective order, the court found that the deposition would be unduly burdensome without first establishing that the
information could not be obtained by less intrusive discovery. Plaintiff was required to depose lower level
employees and to serve written interrogatories to the high-level executive to determine whether his knowledge was
superior to those employees. See also Travelers Rental Co., Inc. v. Ford Motor Co., 116 F.R.D. 140 (D. Mass.
1987); Armstrong Cork Co. v. Niagara Mohawk Power Corp., 16 F.R.D. 389 (S.D.N.Y. 1954) (court refused
deposition notice of nine officers and six directors with no personal knowledge); Marisco v. Sears Holding, No. 06-
10235, 2007 WL 1006168 (E.D. Mich. Mar. 29, 2007) (stating that proponent of deposition of high-level decision
makers who are removed from the daily subjects at issue in the litigation, have burden of demonstrating that
proposed deponents have unique personal knowledge of the subject matter); Cardenas v. Prudential Ins. Co., No.
99-1421, 2003 WL 21293757 (D. Minn. May 16, 2003 ([C]ourts frequently restrict efforts to depose senior
executives where the party seeking the deposition can obtain the same information through a less intrusive means,
or where the party has not established that the executive has some unique knowledge pertinent to the issues in the
case.).
The potential for discovery abuse through apex depositions has not escaped the attention of the state courts. In
Liberty Mutual Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282, 1289 (1992), the court addressed the problem by
stating:
[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate
management, and that official moves for a protective order to prohibit the deposition, the trial court should first
determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of
discoverable information. If not, as will presumably often be the case in the instance of a large national or
international corporation, the trial court should issue the protective order and first require the plaintiff to obtain the
necessary discovery through less intrusive methods. These would include interrogatories directed to the high-level
official to explore the state of his or her knowledge or involvement in plaintiffs case; the deposition of lower level
employees with appropriate knowledge and involvement in the subject matter of the litigation; and the
organizational deposition of the corporation itself, which will require the corporation to produce for deposition the
most qualified officer or employee to testify on its behalf as to the specified matters to be raised at the deposition ....
Should these avenues be exhausted, and the plaintiff make a colorable showing of good cause that the high-level
official possesses necessary information to the case, the trial court may then lift the protective order and allow the
deposition to proceed.
See also, Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995); Monsanto Co. v. May, 889
S.W.2d 274 (Tex. 1994); Broadband Communications Incorporated v. Home Box Office, Inc., 549 N.Y.S.2d 402
(A.D.1, 1990).
If you represent a corporation receiving an Apex deposition notice, you should determine whether:
The corporate officer has any first-hand knowledge concerning the case;
Depositions of lower-level officers or employees were already taken and whether this officers knowledge, if
any, is superior or merely duplicative of the other employees knowledge;
Other employees may be better suited to provide the information sought by deposition;
Less intrusive and burdensome discovery has already been conducted.
After exploring these foundational issues, contact opposing counsel in order to extract a withdrawal of the
deposition notice and reach an agreement as to how the requesting party can obtain the information through other
means. If you cannot reach an informal resolution of the deposition, you will probably be forced to file a motion for
a protective order under Rule 26(c). Your motion should not only provide a factual statement as to why the
deposition is inappropriate, but a certification concerning your attempts to resolve the dispute prior to bringing a
motion.
Sample: Motion for Protective Order Prohibiting Deposition of Samuel P. Bigshot
________________________
O. Posing Counsel
30 Ash Street
Metropolis, MA 55556
Dated: _______________
DECLARATIONS
The motion should include a declaration of the witness attesting to lack of personal knowledge and your declaration
as to state of prior discovery and informal attempts to resolve the disputed deposition.
MEMORANDUM OF LAW
Include a memorandum of points and authorities supporting the protective order. See 153.1.
211.3 Deposing Party Attorneys
There are no per se rules against noticing and taking the deposition of attorneys for opposing parties. See Fed. R.
Civ. P. 30(a)(1) (A Party may take the testimony of any person, including a party, by deposition (emphasis
added)); Prevue Pet Prods., Inc. v. Avian Adventures, 200 F.R.D. 413, 418 (N.D. Ill. 2001) (The Federal Rules of
Civil Procedure do not create a blanket immunity that exempts attorneys from ever being deposed.); Walker v.
United Parcel Services, 87 F.R.D. 360, 361 (E.D. Pa. 1980) (It is clear that no special privilege or immunity
shields a person from deposition simply because he or she is an attorney, or even an attorney for a party to the
suit.). In particular, a party may examine an attorney for an opposing party regarding facts learned through non-
legal, non-litigation responsibilities, including corporate, business, managerial, public relations, advertising,
scientific, and research and development responsibilities. United States v. Philip Morris, Inc., 209 F.R.D. 13, 17
(D.D.C. 2002). Should the deposition questioning get into areas protected by the attorney-client privilege or the
attorney work product doctrine, counsel defending the deposition should instruct the witness not to answer; disputes
as to the propriety of such an instruction may be resolved after the fact through a motion to compel testimony. See
Hunt Intl Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D. Ill. 1983) (The more appropriate method is to
allow the deposition to be taken and permit the attorney to claim privilege in the face of certain questions, if
necessary.); Shiner v. American Stock Exchange, 28 F.R.D. 34, 34-35 (S.D.N.Y. 1961) (It seems that plaintiffs
motion is premature. It is better to wait until specific questions are asked and either answered or objected to before
the court rules.). See 761.
However, when the attorney representing the opposing party in connection with litigation has been noticed for
deposition, the risk of abuse is apparent. We view the increasing practice of taking opposing counsels deposition
as a negative development in the area of litigation, and one that should be employed only in limited circumstances.
Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Concerns with permitting litigation
counsel to be deposed include a chilling effect on communications between client and attorney if the attorney is
readily subject to being deposed, interference with time that should otherwise be devoted to preparing a case for
trial, imposition of additional time and cost to the litigation process, and risk of disqualification if the attorney is
transformed into a witness. Apart from these practical concerns, courts also seem to be concerned with the practice
on another level: Taking the deposition of opposing counsel disrupts the adversarial system and lowers the
standards of the profession Id.; see also Advance Sys., Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D.
200, 201 (E.D. Wis. 1989); Kerr v. Able Sanitary and Environmental Servs., Inc., 295 N.J. Super. Ct. App. Div.
147, 155 (1996) ([W]e are mindful that attorney depositions frequently interfere with the adversarial process by
inviting delay, disruption, harassment, and perhaps even disqualification of the attorney from further representation
of the client in the underlying litigation.).
Thus, where the deposition notice is of litigation counsel, then the notice itself constitutes good cause for obtaining
a Rule 26(c), Fed. R. Civ. P., protective order, shifting the burden to the party noticing the deposition to establish
the propriety and need for such a deposition. Advance Sys., 124 F.R.D. at 201. To meet this burden, many courts
have applied the Shelton Test and required the party noticing the deposition to establish as a precondition to
proceeding with the deposition: (1) no other means exist to obtain the information than to depose opposing
counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the
preparation of the case. Shelton, 805 F.2d at 1327. See, e.g., Niagara Mohawk Power Corp. v. Stone & Webster
Engineering Corp., 125 F.R.D. 578, 593 (N.D.N.Y. 1989) (The law on this issue seems to be moving toward a
position where courts generally will permit the deposition of opposing counsel only upon a showing of substantial
need and only after alternate discovery avenues have been exhausted or proven impractical.); Dunkin Donuts, Inc.
v. Mandorico, Inc., 181 F.R.D. 208, 210 (D.P.R. 1998) (Numerous federal courts have adopted [the Shelton
test].).
This heightened protection for litigation counsel extends to both outside counsel handling the litigation and in-house
counsel managing the litigation. Epling v. UCB Films, Inc., 204 F.R.D. 691, 694 (D. Kan. 2001) (granting motion
for protective order to prevent deposition of in-house lawyer, noting that the fact that the in-house attorney was not
counsel of record in the lawsuit was not determinative, but concluding that the attorney has acted as a legal
advisor to Defendants in connection with this litigation and that he is responsible for managing the lawsuits, and
hence the protective order was merited).
Date: ___________
Time: ___________
Place: ___________
Remember that your opponent will scrutinize your Rule 30(b)(6) deposition notice, looking for ambiguities in your
designation. See 154, 212.1. You may decide that you wish to designate subject areas for the deposition in
general terms, such as all facts supporting claims of damages, or all facts supporting the allegations of
comparative negligence.
Generally, however, in cases involving complex or technical matters, it is worth your time to develop narrowly
drafted subject areas. You do not want to find out at the deposition that the designated witnesses do not have
knowledge of the specific areas in which you are most interested. If you know or can ascertain those areas, do so
before the deposition and include them in your notice. The notice can also include general catch-all descriptions to
protect you from being too narrow and missing the opportunity to make a broader scope inquiry. For example, if
you are involved in a case involving engineering or construction standards, your 30(b)(6) designations should
include a list of all of the specific areas under investigation, such as:
1. The origin of and authority for the construction standards, specifications, and plans for the [project, building,
road, etc.].
2. Specifications, engineering criteria, design and construction standards and legal requirements for [concerned
aspect of the construction project].
3. Change order numbers [__________], including the reasons for such changes and any documentation
relating to such changes, including plans, as built drawings, billings, correspondence, etc.
4. Specifications, engineering criteria, design and construction standards and legal requirements for inspection,
testing, approval, and documentation of approval for [concerned aspect of construction project].
5. All federal, state, and local regulations, legal or engineering standards or requirements applicable to
[concerned aspect of construction project].
Such narrowly drafted subject areas should be coupled with general catch-all requests, such as:
(1) All other facts relating to the completion of the project.
(2) All facts supporting your contention of [waiver, payment, unavoidable circumstances, etc.].
(3) All other rules, guidelines, regulations, contractual requirements, or specifications pertaining to the
project.
The Rules do not require one person to be designated to address all aspects of your 30(b)(6) notice. This is
particularly true where the target of your deposition is a large organization. If several individuals appear as the
designees, make sure that during the depositions the record clearly shows what subject areas each witness is
responding to. This ensures that at trial other witnesses (allegedly more familiar with or in charge of that subject) do
not disavow testimony which you believed under the rule would be binding upon the organization.
Upon receipt of such a notice of deposition, the adverse party must designate one or more individuals to testify in its
behalf as deponent for each subject defined in the notice as to matters known or reasonably available to it.
Of course, upon receipt of a 30(b)(6) notice of deposition, a party cannot simply refuse to designate a person or wait
for the deposition to object to certain subject matter designations. Rather, the correct procedure is to file a motion
for a protective order under Rule 26(c). Equal Employment Opportunity Commission v. Thruston Motor Lines, Inc.,
124 F.R.D. 110 (M.D.N.C. 1989).
Similarly, the selection of the designee lies solely with the noticed party; the noticing party cannot require a specific
person to be designated. Cleveland v. Palmby, 75 F.R.D. 654 (W.D. Okla. 1977). In Booker v. Mass. Dept of Pub.
Health, 246 F.R.D. 387 (D. Mass. 2007), the noticed corporation put forward a witness who lacked personal
knowledge and had not been adequately prepared on the noticed deposition topics. The court found that the party
taking the depositions remedy was for the corporation to either produce a new witness or to properly prepare the
first designated witness. However, ultimately, it was up to the corporation to pick its own witness. The noticing
party, may not impose [its] belief on [the organization] as to whom to designate as a 30(b)(6) witness. Id. at 389.
A Rule 30(b)(6) designation that was held sufficient called:
for a person knowledgeable about claims processing and claims records, and general file keeping storage and
retrieval system of defendant.
Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 125 (M.D.N.C. 1989), affd, 907 F.2d 1138 (4th Cir. 1990);
see also Mitsui & Co. (U.S.A.) Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62 (D.P.RR. 1987). With
such a generalized description, the deposing party would find it difficult to object if the deponent produced had
merely general overview knowledge.
212.1 Objecting to a Rule 30(b)(6) Deposition
A Rule 30(b)(6) deposition, especially where the entity is a corporate party, is an effective tool to obtain and
simplify discovery. Due to the obligations imposed upon the responding corporate entity, the procedure also carries
with it the potential for substantial abuse.
If you receive a Rule 30(b)(6) notice of deposition (which may include a request for production of documents),
discuss with your client the full scope of information reasonably available for each area on which examination is
requested. A clear understanding of the designated matters is the first step in preparing for a Rule 30(b)(6)
deposition. In doing so, you should determine:
Are the areas for examination described with sufficient particularity so that they are understandable? While
some topic areas may be sufficiently clear, others may not.
Do they include areas for examination that seek information arguably irrelevant to the litigation?
Are the areas for examination sufficiently narrow so that an unreasonable burden is not imposed upon your
client in responding?
If your answer to any of these questions is no, you should contact the opposing counsel in an attempt to clarify,
narrow or eliminate any areas of examination of concern to either you or your client. In the event that your efforts to
resolve your concerns with your adversary are not fruitful, consider filing a motion for a protective order under Rule
26(c). If you proceed with the Rule 30(b)(6) deposition, without first having filed a motion for protective order, the
court may find a waiver to any objections on the face of the notice of deposition or subpoena.
Sample: Motion for Protective Order to Limit or Modify Notice of Deposition Under Fed. R. Civ.
P. 30(b)(6)
DECLARATION
Include declaration setting forth factual information for motion and all good faith attempts to resolve informally
without judicial intervention.
MEMORANDUM OF LAW
Your motion should include a memorandum of points and authorities in support of the requested relief.
212.2 Outline for Beginning a Deposition of a Witness Designated by Organization Under
Rule 30(b)(6)
Because an organization that has received a notice of deposition or subpoena under Rule 30(b)(6) may designate
more than one witness to give testimony on its behalf, it is important to begin such depositions by asking each
witness about which examination topics the witness has been designated. If the witness does not know, some of the
questions below can be asked on the record of the organizations counsel.
1. Do you appear today consenting to be designated as a witness to give testimony on behalf of [organization]?
2. Are you also appearing today in your personal capacity?
3. [Mark deposition notice as exhibit.] Please take a look at Exhibit __. I draw your attention to the list of
examination topics attached to the deposition notice. About which of these topics are you being put forward
to give testimony on behalf of [organization]?
4. Do you understand the testimony you will be giving in your capacity as designee for [organization] will be
considered the testimony of [organization] with respect to the topics on which you have been designated?
5. As the designee of [organization], do you also understand that you have an obligation to give responses to
my questions that are binding on [organization]?
6. What did you do to prepare to testify about each of the topics?
7. Who else within [organization] has knowledge of these topics?
8. If there are any questions today that the answer to which would be within the knowledge of [organization],
but which you are unable to answer, are there other officers, directors, or other agents of [organization] with
whom you could consult today?
Rule 34 allows a party a minimum of 30 days to respond to a request for production. A notice of deposition need
only give reasonable notice of a time to appear and as few as five business days may be sufficient.
Can you avoid the 30-day minimum requirements of Rule 34 by noticing a deposition under Rule 30(b)(5)? The
Rule would suggest that a 30-day notice would be required in order to comply with the procedural requirements of
Rule 34. However, there is no clear answer. Leading commentators suggest that the drafters of the Rules intended to
allow parties to use the shorter time period under Rule 30 but that the language of the Rule suggests otherwise. See
8 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE, Civil 2108 at 396. There is no compelling case law
either way on the issue. For practical purposes the answer may depend on the volume of the request. If the
documents are few and are closely related to the deposition to be taken, the reasonable notice requirements of
Rule 30(b) may apply rather than the 30-day notice requirements of Rule 34. See Advisory Committee Notes to
1970 Amendments which state that the intent is to abolish restrictions on obtaining documents from a party. Where
large numbers of documents are sought, it would seem the time provisions of Rule 34 should apply.
A notice of deposition combined with a request for production of documents should be in the following form:
Sample: Notice of Deposition and Request for Documents
[CASE CAPTION] Case No.___________
Notice of Deposition
OF ______________ AND
REQUEST FOR
PRODUCTION OF
DOCUMENTS AT
DEPOSITION
Date: ___________
Time: ___________
Place: ___________
Rule 30(b)(5) provides that the request for production in a Notice of Deposition of a party is made in compliance
with Rule 34 .... Hence, a response to a request probably should be made in accordance with Rule 34. It is unclear
whether, if the deposition is scheduled more than 30 days in the future, a response must be made within 30 days.
Similarly, it is unclear whether a written response must be made, or whether an oral response on the record during
the deposition will suffice. The authors suggest a conservative approach: if the deposition is within 30 days after
service, either file written objections prior to the deposition, or at the beginning of the deposition orally state the
objections.
213.3 Rule 45 Subpoena Duces Tecum Cannot Be Used to Circumvent the 30-Day Party
Document Production Time Frame
Federal Rule of Civil Procedure 34 provides 30 days for a party to produce documents in response to a properly
served document request. Sometimes a party finds itself in need of documents from the opposing party in less than
30 days. Can the party use the more liberal timing rules of a Rule 45 subpoena duces tecum to secure documents
from a party in less than 30 days? Generally, no. Rather, if circumstances dictate the need for a quicker turnaround
on a document production, the party should first call opposing counsel to try to reach an accommodation, and,
should that not be productive, seek a shorter time frame from the court under Rule 34(b).
In addressing the question, some courts simply hold that a Rule 45 subpoena is never appropriately served on a
party. For example, in Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996), the court denied a motion to
compel the production of documents requested via a Rule 45 subpoena on a party, noting that, Rule 45, to the
extent it concerns discovery, is still directed at non-parties and that Rule 34 governs the discovery of documents in
the possession or control of the parties themselves. See also Alper v. United States,190 F.R.D. 281, 283 (D. Mass.
2000) (Rule 45 could not be used to secure documents from a partys expert witness since such documents are
considered to be in the possession or control of the party and hence Rule 34 is the appropriate mechanism to
secure their production); Littman v. Walgreen Eastern Co., No. Civ. A 96-30018, 1998 WL 812399, *1 (D. Mass.
1998) (finding that a Rule 45 subpoena is unnecessary to take the deposition of a party or of an officer, director,
or managing agent of a party); Contardo v. Merrill Lynch, Pierce, Fenner & Smith, 119 F.R.D. 622, 624 (D. Mass.
1988) (In sum, a party cannot secure documents from an opposing party by serving a deposition subpoena duces
tecum on an employee of the opposing party commanding production of the partys documents at the deposition
unless the provisions of Rule 34, F.R.Civ.P., are followed.).
Other courts accept that a Rule 45 subpoena can be served on parties, but cannot be used as a mechanism to
circumvent the timing requirements of Rule 34. This was the holding in Joiner v. Choicepoint Services, Inc., No.
1:05CV321, 2006 WL 2669370 (W.D.N.C. Sept. 15, 2006). The court stated that:
Plaintiff correctly states that this district has held that a subpoena duces tecum can be served upon both a party and
non-party under Rule 45. However, use of a subpoena duces tecum under Rule 45 to bypass the requirements of
Rule 34s guidelines on document disclosure is unthinkable.
Id. at *5. See also Hardin v. Belmont Textile Machinery Co., No. 3:05CV492, 2007 WL 2300795, *2 (W.D.N.C.
2007); McLean v. Prudential S.S. Co., 36 F.R.D. 421 (E.D. Va. 1965).
214 Checklist for Setting Up the Deposition of a Party
Clear date with opposing counsel (if possible).
Arrange reporter.
Arrange location.
Serve notice of deposition:
With request for documents;
30(b)(6) designation.
SMALLCO, INC.,
By its attorney,
_____________________
I.M. Protective, Esq.
10 Elm Street
Metropolis, MA 55556
Dated: _______________
[CAPTION]
_______________________________________________________________
You are hereby commanded to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above-entitled case.
1. Location: Thompson & Thompson
558 17th Street, Suite 2900
Denver, Colorado 80202
2. Date/Time: August 28, 20__
9:00 a.m.
You are also commanded to bring with you the following document(s) or object(s)
now in your custody or control:
1. Any documents describing the role, purpose, functions, activities, expertise
of Lorton Engineering with respect to _________________ during the period
January 1, 20__ to October 12, 20____, including any printed materials
distributed by Lorton Engineering describing its role, purpose, functions,
activities, expertise and the benefits thereof to clients.
2. Any literature published by Lorton Engineering, 20__-20__, concerning its
role, purpose, functions, activities, insofar as facility inspections, and
observations, review, approval and commenting on plans and specifications.
________________________________
Tom P. Thompson
Thompson & Thompson
558 17th Street, Suite 2900
Denver, Colorado 80201
303-296-8234
ATTORNEYS FOR DEFENDANT
________________________ By:___________________________
Clerk/Deputy
RETURN OF SERVICE
State of _________________
County of _______________
I am over the age of 18 years and am not interested in nor a party to this
case.
For subpoenaing a corporation versus specific employees of the company, see 28 Fed. Proc., L.Ed. 65:183.
[CAPTION]
_______________________________________________________________
ACCEPTANCE OF SERVICE
_______________________________________________________________
I, Genevieve L. Newton, accept service and acknowledge receipt of the attached
subpoena duces tecum, which requires that I appear for deposition on October 27,
2001, at 9:00 a.m. at the offices of [insert counsel name and address]. I waive
all requirements under Rule 46 of the Federal Rules of Civil Procedure for service
of the subpoena duces tecum.
Dated:_______________________________
________________________________
Genevieve L. Newton
A nonparty witness may only be required to appear for deposition at a place within 100 miles from the place where
he resides, is employed or transacts business in person, or is served, unless the court orders some other convenient
place. Rule 45(d)(2). (See Chapter 1 for a discussion of place of deposition for parties.) Compare this federal rule
with state court rules, which sometimes restrict the venue of a deposition to the county where the deponent resides
or does business. Of course, a state court subpoena must be served within the geographic boundaries of the state.
When the nonparty witness is abroad, you may have problems in arranging service. Keep in mind that the various
special statutes pertaining to discovery and process in foreign countries may be applicable. See 930, infra. Indeed,
you might be authorized to serve a subpoena on the nonparty witness by mail. Cf., Philip v. Monarch Knitting
Machinery Corp., 565 N.Y.S. 2d 21 (N.Y.A.D. 1991)
Finally, there is the category of expert that initially consulted with a dismissed party, but was subsequently retained
as a consultant by another party, presumably to suppress an unfavorable opinion at trial. It would appear that these
experts are subject to depositions as to information, including facts and opinions, acquired by the expert prior to the
experts later retention by another party. See, House v. Combined Ins. Co. of America, 168 F.R.D. 236 (N.D. Iowa
1996); Rocky Mountain Natural Gas v. Cooper Industries, 166 F.R.D. 481, 483 (D.Colo. 1996) (refusing to allow a
party to buy the right to suppress otherwise discoverable information.)
Anker v. G.D. Searle & Co., 126 F.R.D. 515 (M.D.N.C. 1989) contains an excellent discussion of the right of a
party to subpoena and depose an expert, who has not been hired by either party, in an area relevant to the civil
action. See also Annotation, Right of Independent Expert to Refuse to Testify as to Expert Opinion, 50 A.L.R. 4th
680 (1986).
1) Plaintiffs counsel will be responsible for administering the oath to the deponents.
2) Defendants counsel will record the depositions with three (3) separate recording devices; plaintiffs counsel may
make separate recordings.
3) Defendants counsel shall provide the necessary equipment, including blank tapes and log or index forms, at
defendants expense.
5) The defendant shall place one tape in an appropriately labeled, sealed envelope and file this tape with the clerk of
the court; another tape shall be made available to plaintiffs counsel, and a third tape shall be retained by the
defendant.
6) Defendants counsel shall make a log index of the proceedings and an exhibit list.
7) Defendants counsel shall certify the correctness and completeness of the recordings submitted to plaintiffs
counsel and the court.
8) Should the equipment fail so that portions of the tape are of such poor quality as to render the use of the tape
unfair to the interest of any party, then no part of the tape shall be utilized by either.
9) Defendants counsel shall have one tape transcribed. This tape shall be submitted to counsel for the plaintiff. If
counsel for plaintiff believes the transcription to be substantially inaccurate, counsel for plaintiff shall so advise
counsel for defendant by letter which contains a written transcription of the language in dispute and a transcription
of that which counsel for the plaintiff contends is accurate. Both parties may submit a tape and a transcription to the
court for review, if necessary. The deposition will not be submitted to the witnesses for corrections and signatures
until the parties have agreed to a transcript, or the court has resolved the dispute. If there is no dispute between
counsel after such dispute is resolved, the transcript shall be submitted to the deponent for good faith corrections
and signatures.
10) If the deponent fails to make corrections and/or sign the transcript within thirty (30) days of submission, the
transcript may be presumed to be accurate and trustworthy.
11) If a dispute arises as to any questions made by the deponent, upon motion by either party, the court shall review
the tape placed with the court and resolve the conflicts.
12) The original transcript may be used in the same manner as any transcript of a deposition taken by stenographic
means may be used pursuant to the Federal Rules of Civil Procedure.
This type of order in most instances eliminates any benefits to an audiotaped deposition.
Sample: Notice for Recording Deposition by Videotape
[CASE CAPTION] CASE NO:
NOTICE OF INTENT TO
RECORD DEPOSITION
BY [VIDEOTAPE]
[AUDIOTAPE]
(Fed. R. Civ. P. 30(b)(3))
Date: ___________
Time: ___________
Place: ___________
[CAPTION]
STIPULATION FOR VIDEOTAPED
DEPOSITION OF LUCY LARSEN
Joseph E. Good, attorney for plaintiff, and Thomas E. Lawrence, attorney for
defendant, stipulate and agree as follows:
1. Plaintiff shall take the deposition of Dr. Thomas on oral examination before
(notary public or camera operator), at (address), in the City and County of
Denver, State of Colorado, on March 16, 20_____, at 9:30 a.m., as noticed by
plaintiff.
2. The plaintiffs deposition shall be recorded by videotape pursuant to the
following conditions:
a. The deposition will begin with a statement on camera of the date, time,
and place at which the recording is being made, the title of the case, the
identification of counsel at the deposition, and the name and business
address of the video operator.
b. The person being deposed shall be sworn as a witness on camera either by
the video operator or the reporter. Such oath shall be effective without
regard to whether the officer is otherwise authorized to administer oaths.
c. The video operator shall not stop the video recorder after the deposition
commences until it concludes, except, however, that any party may request
such cessation, which request will be honored unless another party objects,
and the deposition officer may change the tape at pre-scheduled intervals.
Each time the tape is stopped or started, the deposition officer shall
announce the time on the record.
d. If the deposition requires the use of more than one tape, the end of each
tape and the beginning of the next shall be announced orally on the video
record by the deposition officer.
3. After the conclusion of the deposition, counsel for defendant will safeguard
the master tapes by retaining them in his possession and control and will
provide counsel for the plaintiff with certified copies of the master tapes
at the expense of the plaintiff.
Dated July 26, 20__.
________________________________________
[Attorney for Plaintiff]
________________________________________
[Attorney for Defendant]
Sample: Order for Recording Deposition on Oral Examination by Videotape
[CAPTION]
ORDER FOR RECORDING DEPOSITION
ON ORAL EXAMINATION BY VIDEOTAPE
This matter coming on for hearing upon Plaintiffs motion pursuant to Fed. R. Civ.
P. 30(b)(4), for an order directing the taking of an oral deposition of defendant
Lucy Larsen by means of videotape and good cause for the issuance of the order
having been shown; therefore,
IT IS ORDERED that plaintiff shall take the deposition of defendant Lucy Larsen by
videotape at 557 Seventeenth Street, Denver, Colorado, where the accident
described by plaintiff in his complaint occurred. Such deposition is to be for the
purpose of showing the manner in which defendant Larsen operated the machine
immediately prior to and at the time of the alleged accident. The taking of such
deposition shall be subject to the following qualifications:
a. Defendant shall not be requested to actually touch or operate the machine in
question.
b. Defendant shall be furnished with a suitable pointer to show the manner in
which she operated the machine on the date of the accident or can use any
other means agreed to by counsel.
c. The camera operator and the person making the sound recording, if other than
the camera operator, shall take an oath to accurately and in a trustworthy
manner photograph and record the proceeding.
d. The camera operator shall photograph and record in sound all of the
proceedings requested by either counsel and shall certify the correctness
and completeness of the videotape and sound recording in the manner a
stenographic reporter certifies the typed record of a deposition.
e. The original videotaped deposition shall be immediately filed with the Clerk
of this Court to be preserved as exhibits are preserved by the Clerk. [Or:
The original videotaped deposition shall be held by camera operator and that
operator shall permit the parties to the action to hear or to view the tape
and will furnish a copy of the videotape recording to any party making a
request upon the receipt of payment of the reasonable cost of making that
copy of the tape.]
f. The deposition shall be taken at a time agreed on by counsel, but in any
event not later than [30] days from the filing of this order.
DATED: August 10, 20__.
BY THE COURT:
________________________________________
Higgam P. Higgins
United States District Court
[CAPTION]
__________________________________________________________
BY THE COURT:
________________________________
United States District Judge
But, the subtle distinction between reimbursing a witness for time spent versus inducing a witness to give testimony
was highlighted in Golden Door Jewelry Creations v. Lloyds Underwriters Non-Marine Assn, 865 F. Supp. 1516
(S.D. Fla. 1994). There, the court found that payments of $95,000 and $25,000 to two different witnesses to testify
at depositions were prohibited inducements. The court may have been swayed by the size of the payments and the
fact that the witnesses apparently were unwilling to testify absent the payments. Two points of note. First, the court
found that implicit in 18 U.S.C. 201(c)(2), the inducement must be for false testimony, and hence since there was
no allegation that the two witnesses had not testified truthfully, there was no violation of the anti-bribery statute.
Yet, the court still found the payments prohibited by law because of their coercive nature. Second, the court did
state, payments made to fact witnesses as actual expenses as permitted by law will not be disturbed or set aside.
The Courts opinion today pertains only to payments made to fact witnesses for the purpose of obtaining their
testimony in a case. Id. at 1526, n.11.
An interesting case is Addamax Corp. v. Open Software Foundation, Inc., 151 F.R.D. 504 (D. Mass. 1993). A non-
party witness signed an affidavit. Counsel for one of the parties then served a subpoena duces tecum that the witness
viewed to be overbroad and harassing. Id. at 510. Counsel followed up the subpoena by calling the witness and
offering to withdraw the subpoena if the witness would sign a second affidavit recanting the sworn statements in the
first affidavit. The court did not look favorably on the lawyers conduct:
[The attorneys] conduct is troubling and, at a minimum, gives the appearance of heavy-handedness in a quid pro
quo deal with a non-party witness in the case. At its worst, the conduct evidences a specific intent to pressure a
witness to change testimony given under oath by offering to withdraw a subpoena duces tecum which the witness at
least viewed as extremely burdensome and costly.
Id. The court found that under the old Model Code of Professional Responsibility DR 7-109(C), the offer to
withdraw the subpoena was not strictly compensation offered contingent on testimony, and hence the rule of
ethics was not applicable. It would have been interesting if the court had been applying the ABA Model Rules of
Professional Conduct Rule 3.4(b)s prohibition on inducements that are prohibited by law. Nevertheless, the court
referred the attorney to the local Board of Bar Overseers for investigation.
One can imagine other hypothetical scenarios where inducements are offered in connection with cooperation (or,
again, lack of cooperation with the other side). Here is a hypothetical: Party A sues Party B and Party C. Counsel
for Party A and Party B get together and work out a settlement agreement under which Party A agrees to release
Party B from all claims in exchange for testimony against Party C. Improper inducement? What if the lawsuit
against Parties B and C had not yet been filed, but Party A approaches Party B and offers a release from potential
claims in exchange for testimony against Party C? With little guidance from the courts in these circumstances, the
authors counsel caution if you are considering making such an arrangement in order to secure testimony.
This provision allows the parties to design their own deposition procedures. Rather than immediately filing a motion
when a dispute arises, consider trying to negotiate a stipulation with opposing counsel to establish mutually
agreeable deposition procedures.
[CAPTION]
STIPULATION PURSUANT TO RULE 29
IT IS STIPULATED AND AGREED to by and between the attorneys for each of the
parties hereto, pursuant to Fed. R. Civ. P. 29, that the oral deposition of
Lawrence Larson, whose address is 649 Meadow Lane, Aspen, Colorado, will be taken
at 10:00 oclock a.m. on February 28, 20__ at 1167 Blake Street, Denver, Colorado,
before Thomas P. Parlington.
IT IS FURTHER STIPULATED AND AGREED to by and between the attorneys for the
parties hereto, that the deposition will be upon oral examination, that it will
continue from day to day until completed, and that a written transcript will be
produced after the deposition [and that, in addition, a tape recording of the
deposition will be made by (name of tape recording firm).
DATED:_____________________, 20________.
_______________________________________
Robert F. Good
GOOD & BAD, P.C.
1167 Blake Street
Denver, Colorado 80201
Telephone: (303)111-2222
ATTORNEY FOR PLAINTIFF
_______________________________________
Elton J. Jones
1430 Teton Road
Denver, Colorado 80222
Telephone: (303) 983-1111
ATTORNEY FOR DEFENDANT
270 Discovery Conferences
The discovery conference was intended to provide a litigant with an avenue for redress, other than by specifically
defined motions, for threatened discovery abuses. The concept behind discovery conferences is that they would
force the parties to attempt to create a mutually agreeable discovery plan, subject to judicial review, and by which
schedules and limitations upon discovery would be made.
Unless expressly provided otherwise, under Rule 26(d) discovery is stayed until the mandatory conference between
all parties under Rule 26(f) has been completed. This conference entails a discussion of the applicable claims and
defenses in the matter and the possibility of settlement, and it further requires a discussion of what discovery will be
contemplated, when the discovery should be completed, and what limitations there should be to discovery, if any.
Rule 26(f) requires that all parties meet as soon as practicable and under no circumstances later than 14 days before
a Rule 16(b) scheduling conference. The exact timing of this meeting will depend upon your own local rules, but in
general should be scheduled to precede the scheduling conference, which in turn is to be scheduled to occur within
certain time limits from the date of service of the complaint or the filing of an answer. See 131.
Your own jurisdiction may not adopt the mandatory discovery planning conference set forth in Rule 26(f).
Moreover, many courts, by local rules, have adopted similar early meetings of counsel where the litigants are
required to present a joint statement to the court setting forth a proposed plan for and schedule of discovery, along
with any limitations on discovery that the parties believe are necessary.
It is important to note that the requirements set forth in Rule 26(f) are much more in-depth than was needed in the
discovery conference under former Rule 26(f). A new Federal Form 35 is designed to assist the parties in their
mandatory joint report to the court.
[CAPTION]
DISCOVERY ORDER
THIS MATTER coming on for hearing upon the motion of the defendant pursuant to
Fed. R. Civ. P. 26(f) for a discovery conference, the conference having been held
and the Court having considered the issues herein, the parties respective
proposed plans and schedule of discovery as well as their proposed limitations on
discovery, and the Court being fully advised,
ORDERED, that the parties shall serve their interrogatories and requests for
production, if any:
1. First set, by April 23, 20____.
2. Second set, by July 27, 20____.
The first set of interrogatories and request for production of documents shall
consist of not more than 60 interrogatories (each subpart counting as one), and
the second set shall consist of not more than 20 interrogatories.
ORDERED, that each party is limited to the following depositions:
A. Plaintiff.
1. Tom Smith 6 hours in the forum city or in Los Angeles, California.
Defendant may choose the location and shall make the deponent available at
his cost, subject to possible taxation of costs at the conclusion hereof.
2. Larry Loper 4 hours in the forum city or in Phoenix, Arizona.
3. Jason Jumper 4 hours in the forum city.
B. Defendant.
1.
2.
3.
The time limits are exclusive of recesses. Defending counsels statements on the
record shall be limited to objections, with a short statement of the grounds
therefor, instruction of witness not to answer a question if the objection is
based upon privi1ege; announcing recesses in order to apply to this Court for
orders, and similar such statements. Counsel are specifically directed that the
course of a deposition is not the appropriate time for mutual discourse.
BY THE COURT:
_______________________________________
United States District Judge
Several points should be noted. First, a motion for protective order can be made either by a party or by a nonparty
who is the target of the discovery. It should be keyed to specific grounds such as to protect against annoyance,
embarrassment, oppression, or undue burden or expense, or to protect trade secrets or other confidential
information.
Second, the motion for a protective order should be made in advance of the deposition. Once the deposition has
started, your only alternative is to move to terminate or limit examination pursuant to Rule 30(d) pending the filing
of and ruling upon a motion for a protective order. Such a motion is appropriate if you had no reason to anticipate
that objectionable persons would try to attend the deposition. See Lewis R. Pyle Memorial Hospital v. Superior
Court, 717 P.2d 872 (Ariz. 1986). Where you know in advance that objectionable persons will be present, the better
procedure is to move for the protective order before the deposition convenes.
Rule 26(c)(E) requires a showing of good cause and places the burden of establishing good cause on the moving
party. Dunlap v. Reading Co., 30 F.R.D. 129 (E.D. Pa. 1962); Frideres v. Schlitz, 150 F.R.D. 153, 156 (S.D. Iowa
1993) (child abuse case allowing sister to be sequestered during siblings testimony. Hardship must be proven to
grant sequestration); Wright v. Patrolmens Benev. Assn, 72 F.R.D. 161, 164 (S.D.N.Y. 1976) (protective order
barring deposition will not be granted on the grounds that information might be available from other sources).
Although the circumstances in each case will vary, good cause should include the following:
To prevent the testimony of subsequent witnesses from being tainted by what they have heard from earlier
witnessesto prevent the conscious or unconscious shaping of testimony by one witness to match that of
another witness. See United States v. Leggett, 326 F.2d 613 (4th Cir. 1964), cert. denied, 377 U.S. 955
(1964); Dunlap v. Reading Co., 30 F.R.D. 129 (E.D. Pa. 1962).
To protect the parties justifiable needs for privacy.
To protect confidential information from being disclosed. See Rule 26(c)(7); Marshwood Co. v. Jamie Mills,
10 F.R.D. 386 (D. Ohio 1950).
To prevent a witness from becoming harassed, or unnecessarily distracted or nervous.
See also Skidmore v. Northwest Engineering Co., 90 F.R.D. 75, 76 (S.D. Fla. 1981) (experts are generally exempt
from exclusion at depositions where their presence is essential to the presentation of the partys case); Avirgan v.
Hull, 118 F.R.D. 252, 256 (D.D.C. 1987); Kerschbaumer v. Bell, 112 F.R.D. 426 (D.D.C. 1986).
A few courts have granted protective orders simply to ensure that deponents testify only to matters within their
independent recollections and without any influence from statements made by other witnesses. See, e.g., Beacon v.
R.M. Jones Apartment Rentals, 79 F.R.D. 141, 142 (N.D. Ohio 1978); In re Levine, 101 B.R. 260, 262
(Bankr.D.Colo. 1989).
Keep in mind, however, that in bringing a motion for a protective order to limit attendance at a deposition, the
burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory statements. In re Terra Intl, 134 F.3d 302,
306 (5th Cir. 1998) (emphasis added), quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978).
The petitioner corporation in Terra asked for a writ of mandamus invalidating a magistrates protective order that
prohibited its employees from attending depositions collectively in a products liability suit. In overturning the
district court and vacating the magistrates order, the 5th Circuit held that where a motion for a protective order is
not supported by affidavits or other evidence demonstrating exceptional circumstances, but rather it is merely
alleged that employees might feel a sense of camaraderie or feel pressure from [the employer] that might taint their
testimony, the movant did not meet its burden. Id. at 305-306.
If you move to exclude persons from a deposition, you may also want to include a request that the deponent and/or
other persons attending the deposition not discuss the testimony given in the deposition with persons excluded, and
that the transcript be kept confidential. If witnesses or counsel are free to pass on your questions to future
deponents, or to share the transcript, there would be little purpose in excluding them in the first place. See Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1373 (5th Cir. 1981); United States v. Johnson, 578 F.2d 1352, 1355
(10th Cir. 1978), cert. denied, 439 U.S. 931 (1978). Where the excluded person is a party, however, the courts have
disagreed as to whether counsel can be prohibited from talking about the earlier deposition with his client. Cf.
Potashnick v. Port City Const. Co., 609 F.2d 1101, 1119 (5th Cir. 1980); Stocker Hinge Mfg. Co. v. Darnel
Industries, Inc., 377 N.E.2d 1125, 1133-1134 (Ill. App. 1978), with, Thompson v. Atlantic Building Corp., 107 A.2d
784, 785 (D.C. Mun Ct. 1954). See generally Annotation, Prejudiced Effect of Courts Direction or Caution to
Party-Witness Not to Discuss Case with Anyone, Including his Counsel, During Recess or the Like, 46 A.L.R.2d
517 (1956).
Sample: Motion for a Protective Order to Exclude Spectators From Deposition
Dated: _______________
DECLARATIONS
Your motion should include a declaration(s) setting forth dispute on attendance by nonparties, reasons for
exclusion, and good faith efforts to resolve the issue before filing a motion.
MEMORANDUM OF LAW
Include a memorandum of points and authorities in support of requested relief.
322 Rule 615 as Parallel Authority for Excluding Spectators From a Deposition
Rule 615 of the Federal Rules of Evidence provides parallel authority for the exclusion of nonparty witnesses from
a deposition. It provides:
At the request of a party the court shall order witnesses excluded so they cannot hear the testimony of other
witnesses .... This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or
employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the presentation of his cause.
See Annotation, Exclusion of Witnesses Under Rule 615 of Federal Rules of Evidence, 48 A.L.R. Fed. 484 (1980); 6
WIGMORE ON EVIDENCE, Chap. 63, 1837-1842 (Chadbaum Rev. 1976). By its terms, Fed. R. Evid. 615 does not
apply to depositions. However, some courts have looked to Rule 30(c), which requires that Examination and cross-
examination of witnesses [in depositions] may proceed as permitted at the trial under the provisions of the Federal
Rules of Evidence. They have reasoned that the purposes underlying Fed. R. Evid. 615, i.e., to discourage and
expose fabrication, inaccuracy and collusion, apply equally to depositions. See, e.g., Skidmore v. Northwest
Engineering Co., 90 F.R.D. 75, 76 (S.D. Fla. 1981); Naismith v. Professional Golfers Assoc., 85 F.R.D. 552, 567
(N.D. Ga. 1979); Lumpkin v. Bi-Lo, Inc. 117 F.R.D. 451, 453 (M.D. Ga. 1987). But see, BCI Communication
Systems, Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154, 158 (N.D. Ala. 1986); see also Notes of Advisory
Committee on Proposed Rule 615.
It is unclear whether under Rule 615 precluding the exclusion of an officer or employee of a party which is not a
natural person designated as its representative by its attorney requires that the same officer or employee be
designated for all depositions or throughout the hearing. In other words, can a party change its designated officer or
employee? Logically, there would seem no reason why the representative must be the same person throughout all
pretrial and trial proceedings. On the other hand, the Rule 615 designation should not be allowed to become a means
to effectively negate the intent and purpose of Rule 615. See In re Shell Oil Refinery, 136 F.R.D. 615 (E.D. La.
1991). See 335.
See also Milsen Co. v. Southland Corp., 16 F.R.Serv.2d 110 (N.D. Ill. 1972); Swiers v. P & C Food Markets, Inc.,
464 N.Y.S.2d 39 (App. Div. 1983); Beacon v. R.M. Jones Apartment Rentals, 79 F.R.D. 141 (N.D. Ohio 1978)
(where the court entered a sequestration order excluding defendants from attending other depositions).
In Naatz v. Queensbury Cent. School Dist., 563 N.Y.S.2d 194 (N.Y.A.D. 3d Dept. 1990), the Court recognized that
parties and nonparties can be excluded from depositions in the interest of preserving [plaintiffs] right to the
spontaneous, uncolored testimony of each witness.
In summary, the Court should consider excluding even a party from a deposition, if:
(a) The Court finds that there is a substantial likelihood of the partys misconduct during the deposition
interfering therewith, including psychological intimidation of the deponent.
(b) The Court finds that the facts in issue which will be testified to by one person and thereafter by a party are
so important, and the line between what helps or harms each party is so fine, that there is a risk that the
subsequent party deponents testimony may be unintentionally influenced by the first deponent.
Media counsel will have an advantage when they can demonstrate: (1) a high degree of public interest in the subject
matter of the litigation; (2) the absence of any likely harm because of substantial prior coverage in the press; or (3)
a proclivity on the part of the movant to seek or to participate in publicity. Of course, since the burden on any
motion will be on the party seeking to prohibit access, a particularized showing of harm based upon testimony
likely to be elicited at the deposition should be required in the first instance.
See also McCarthy v. Barnett Bank of Polk County, 876 F.2d 89 (11th Cir. 1989). For general considerations, see
Culinary Foods v. Raychem Corp., 151 F.R.D. 297 (N.D. Ill. 1993) (injury to reputation does not constitute good
cause); Aetna Casualty & Sur Co. v. Hyman Constr. Co., 155 F.R.D. 113, 115 (E.D. Pa. 1994) (good cause must
be shown for court to bar stipulation from release to public).
Notwithstanding this language, courts have found certain circumstances justifying the issuance of a protective order
excluding witnesses. See United States v. International Business Machines Corp., 67 F.R.D. 40 (S.D.N.Y. 1975)
(confidentiality recognized as to trade secrets, to the same extent as evidence limited to in camera inspection);
United States v. United Fruit Co., 410 F.2d 553 (5th Cir. 1969), cert. denied, 396 U.S. 820 (confidential
information). The most recent case addressing this subject puts these exceptions in doubt. In U.S. v. Microsoft
Corp., No. Civ. A. 98-1233 (D.D.C., August 11, 1998), the District of Columbia held that the plain language of 15
U.S.C. 30 mandated the relief sought by interveners: The New York Times Company, ZDTV, ZDNET, and the
Seattle Times (to observe and attend the deposition of Microsoft CEO Bill Gates), despite credible claims by
Microsoft that trade secrets may be lost as a result.
DECLARATIONS
Include declaration(s) setting forth the dispute, the importance of unbiased/independent recollection, the danger
poised by attendance and the good faith efforts and discussions with opposing counsel before filing the motion.
MEMORANDUM OF LAW
Include a memorandum of points and authorities in support of the relief sought. See 331.
413 Reviewing Prior Discovery and All Factual Information at Your Disposal
The more you know about the facts at issue in your case, the better your deposition questioning will be. As the
witness answers your questions, you will more readily understand how his testimony fits into the big picture, and
whether it is consistent or inconsistent with other information that you have. You will also be far more effective in
your follow-up questions.
By the time you start depositions, you should have completed as many interviews of your client, representatives of
your client, and other cooperative witnesses as possible. You should also have reviewed every relevant document at
your disposal. In essence, you must try to become as knowledgeable about the facts as the witness you intend to
depose. Often the witness will not have conducted the same thorough review and, as a result, will be at a significant
disadvantage. You should also review the transcripts of all the depositions that have been completed in the case so
far to learn what other witnesses have said about the witness for whose deposition you are preparing.
Often you will have a list or summary of all of the documents involved in the case, and perhaps all interrogatory
answers in your computer base. Particularly as to documents, it provides an easy way to pull up the documents
that you may want to review with the deponent. For example, a typical document base will include fields for date,
author, recipients, source and summary. Thus, you can quickly pull up the documents which your witness authored
or received, or which the author provided to you (source), or on other key points. See Chapter 11. This ability to
retrieve and analyze your information prior to depositions will be of tremendous help in the preparation for the
deposition. You can also utilize the computer, if your database is sufficient, to search for every document in which
the witnesss name appears. The Internet can also be an immensely useful resource while preparing to take a
deposition. If the witness works for an organization, look to see if the organization has its own website. Review
media sources available on the Internet that address the organization or the witness him or herself. If the witness is
quoted in a source that you have found on the Internet, print the source out, then plan to mark it as an exhibit during
the deposition and ask the witness to confirm the quote and his or her present agreement with it.
414 Preparing a Chronology of Key Fact Events, a Cast of Characters, and Witness Files
Once you have begun to understand the facts at issue in your case, prepare a chronology of key events as well as a
cast of characters. Your chronology will serve as an outline to organize facts and as a handy reference guide.
Similarly, a cast of characters can provide invaluable assistance when your case is complicated or involves a
number of different individuals. This cast of characters should list all persons involved with a brief summary of
their connection with the subject in dispute. Recognize that these documents will be revised and expanded
constantly as discovery progresses. By the time trial approaches, they will be of invaluable assistance to you.
Also consider establishing witness files early during your preparation. In each, include copies of documents relating
to that witness, any interview memoranda pertaining to that witness, discovery answers pertaining to the witness,
and a list of subject areas for possible examination. As both formal and informal discovery progress, you should add
to your witness files and each will become more and more complete. By the time you are ready to take depositions,
you will find these files invaluable for your preparation. The chronology of key events will be particularly helpful to
you in keeping the facts organized during the course of the deposition.
That chronology puts all of the key relevant facts into an organized form. It will force you to focus on the events on
which the deponent should be examined and will assist you in defining the interrelationship of events. In preparing
the chronology, particularly when it is based upon documents, consider including key language from the document,
as well as key statements from earlier depositions or statements of witnesses.
415 Discussing the Upcoming Deposition With Your Client and Cooperative Witnesses
Take the time to speak with your client and other cooperative witnesses about upcoming depositions. They will
often offer insights about the deponents which will help guide your preparation. In addition, their knowledge of the
facts will help you to better understand your case. Where appropriate, take the time to explain your legal theories to
these individuals. It may help them in revealing relevant facts. At the least, it will further involve your client or your
witnesses in the preparation of the case and may make them feel more comfortable with the litigation. This can pay
dividends, both in terms of client relations and your effectiveness at trial.
One tip that can be useful in preparing to take a deposition is to ask your client, or other individuals familiar with
the witness for whose deposition you are preparing, to write a list of the five or ten questions that definitely should
be asked. If you are part of a team of lawyers working on a particular case, ask each member of the team for his or
her list of five or ten must-ask questions.
Lorton v. Samuelson
Numerical Deposition List
Exh. # Date Description
1 Nov. 20, 89 Letter, Smith to Thompson re re-quest for adequate assurances
Lorton v. Samuelson
Chronological Deposition Exhibit List
Date Exh. # Description
Nov. 3, 89 5 Letter, Smith to Thompson re
proposed purchase
Practice Tip: Preparing the Witness for Questions that Seek to Establish a Foundation
for Discovering Witness Preparation Materials Through Federal Rule of Evidence 612
Courts have interpreted Federal Rule of Evidence 612 as requiring the production of any document
that was used during deposition preparation to refresh a deponents recollection. Further, while courts
have recognized that the selection of which documents to show a witness during deposition preparation
reflects the attorneys mental impressions and hence is protected by the work product doctrine, that
protection may be trumped when the documents are used to refresh recollection. For a good discussion
of the intersection between Federal Rule of Evidence 612 and the work product doctrine, see Nutramax
Labs., Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998) (finding that the policy of protecting
attorney mental impressions that may be evident from the selection of documents to use in witness
preparation is trumped by Rule 612).
The obligation to produce documents used to refresh a witnesss recollection creates a conundrum for
the attorney preparing a witness for a deposition. What if there are a few documents that worry youyou
want your witness prepared to answer questions about them, but you do not want to flag them for your
opponent as being important? In short, the challenge is to figure out how to comply with the obligations of
Rule 612 without revealing your mental impressions.
Since it is incumbent on the attorney taking the deposition to lay a foundation through the deposition
examination for discovering which documents were used to refresh recollection, the challenge of Rule
612 for the attorney defending the deposition is met through witness preparation. There are a few rules of
thumb and tricks of the trade.
First, while some courts have found that Rule 612 does not require the production of core work
product, as a matter of caution, avoid showing the witness documents that you created for use in the
deposition process, such as case chronologies and mock questions and answers. You should not feel
inhibited to use such work product documents as a basis for your witness preparation, as long as the
witness is your client, since your conversations with the witness will be protected by the attorney-client
privilege, but just do not show the witness the documents from which you are working. See, generally, In
re Atlantic Financial Management Securities Litigation, 121 F.R.D. 141 (D. Mass. 1988) (noting that core
work product deserves the strongest protection, but that factual work product, e.g., summaries of facts,
benefits from a lower level of protection from disclosure under Rule 612).
Second, if the entire universe of documents is relatively modest, show the witness all of them and then
prepare the witness to answer, if asked, that the witness cannot distinguish which out of all the
documents reviewed did or did not refresh recollection. As a result of this answer, you may be required to
produce the entire set of documents shown to the witness, but the examining attorney will have gained no
insight into your mental processes since the documents used to refresh recollection is coextensive with all
the documents in the case. See, e.g., International Insurance Co. v. Montrose Chemical Corp. of
California, 231 Cal. App.3d 1367 (1991) ([The witness] used the documents to refresh his memory with
regard to his testimony and [the party] therefore became obligated to produce them. No further
foundation was required and, in this context, there was no need (and there was no way) to establish
which of several documents actually refreshed [the witnesss] memory on a particular point.); but see,
e.g., Jos. Schlitz Brewing, Co. v. Muller & Phipps (Hawaii), Ltd., 85 F.R.D. 118 (W.D. Mo. 1980) (where
witness testified that he had looked at large correspondence file in preparation for his deposition, but
had provided no further specificity, Rule 612 did not require production of the whole file). This approach
obviously does not work in high document volume cases where it is simply impractical to show the
witness every document in the case.
Third, in voluminous document cases where you are worried about a few documents, you will need to
establish the witnesss independent memory before showing the document to the witness. Talk through
the issues that the documents in question raise and only after you have established that the witness has
a recollection independent from the document should you show the document to the witness. Then you
need to prepare the witness not to identify the document in question as one used to refresh recollection.
Interview the witness concerning his knowledge of the subject areas on which he may be examined and
cross-examined.
Discuss how to answer the tough questions accurately and effectively.
Ascertain from the witness what knowledge he has that he believes is adverse.
During the course of your preparation, make sure that you do not show your witness anything which you do not
want the opposition to see and which thereby might become discoverable. See Federal Rule of Evidence 612.
Employees will usually feel pressured to give testimony favorable to the employer at the time of the deposition. But
such loyalties may fade quickly if the employee leaves the company. It is imperative that counsel use the greatest
degree of circumspection when preparing such witnesses for the deposition.
437 Timing
Where possible, consider conducting your preparation over several sessions. Trying to cram all of the preparation
into a single session may be counterproductivethe witness will either stop listening or fall victim to information
overload and lose much of the benefit of your counsel. Conducting the preparation over two or more sessions gives
the witness time to digest the information which you have given to him.
The first session may come just after the deposition has been noticed. You might want to discuss the nature of the
deposition process and the basic rules of procedure. You might also want to use that session as an opportunity to go
over the facts and to make sure that all of the relevant documents have been identified. By the end of the session,
you may have achieved two objectives: your witness may be sufficiently comfortable with the process that he does
not fear it, and you will have increased your knowledge of the case.
In a follow-up session, you may want to spend more time talking about substantive issues and also focus upon
techniques for answering questions. This may be the occasion to conduct a practice examination, possibly using a
videotape. You should also spend time reemphasizing the most important points from the first preparation session.
Just before the deposition, consider meeting with your witness a third time. This is the time to emphasize the key
points or to raise any additional thoughts you might have. If necessary, use it as an occasion to build your witnesss
confidence. A nervous witness will usually be less effective then one who is self-assured.
440 Hints for Handling the Tricky Examiner and Tricky Questions
Be cognizant of a witnesss understandable anxiety of facing the skillful or tricky examiner in unfamiliar
surroundings. While simply relating the truth is the witnesss best weapon, that may not be enough if the opposing
attorney extracts unintended and often inaccurate admissions. As part of your preparation with the witness, consider
discussing some of the techniques used by examining attorneys. A few of these are:
The Use of Leading Questions
A leading question suggests the desired answer and is often responded to by a yes or no answer. An effective
cross-examiner will use leading questions to pin down a witnesss testimony since it forces the witness to
adopt the examiners question into the answer itself. Leading questions can often be used to extract
unintended admissions. The use of a leading question is generally an appropriate form of examination and you
should inform the witness to answer the question as yes or no. However, if the question is loaded, inform
your witness that you will object. Unless there is a sufficient basis for instructing the witness not to answer the
question, he or she will have to respond in some manner.
While preparing the witness on how to handle leading questions, inform him or her that merely because the
question is phrased isnt it true or thats correct does not mean that it is true or correct. The witness must
carefully listen to the question, as well as to any of your objections, to analyze the question objectively. If the
question contains a statement that is not completely true, the witness can safely deny it. The witness should also
demand an explanation of any terminology contained within the question itself which the witness does not
understand. If you have a very competent and intelligent witness, you can utilize narrative responses beyond
the simple yes or no format. This will not only serve to disrupt the pace of the examination, but may also
dissuade the examiner from utilizing that approach.
In the event that the examiner attempts to force a yes or no answer, the witness should respond either that he
or she does not feel capable of doing so, or provide a narrative response which has the same effect.
Summarizing Testimony
Examining attorneys often want to confirm their understanding of previous testimony or documents by
summarizing and asking the deponent to confirm the accuracy of the summary. Sometimes this technique is
appropriate and fair. Other times it is not because the examiner has subtly changed the witnesss earlier
testimony. If the witness believes that the summary accurately reflects his earlier testimony, he should affirm it.
(Often he would be better off responding that the summary appears to be generally accurate, but that his earlier
testimony is more accurate.) If, however, he feels the summary is inaccurate in any way he should reject it
without saying more. The examiner can choose whether to ask why or to correct the summary.
Questions Calling for Approximations
Sometimes the examiner will ask whether a statement is substantially true. In most cases, you should object
and your witness should be advised to carefully consider whether he is able to respond. Note that the witness is
not required to speculate; he is only required to recount his own knowledge. If the witness feels compelled to
agree, he should consider restating the summary in terms of his own.
Using Compound Questions
The examiner may ask a compound question, sometimes by mistake and sometimes by design. Advise your
witness that you will object and that he need not feel compelled to answer such improper questions. If the
examiner attempts to force the witness to answer the question, the witness is certainly entitled to ask the
examiner which question the examiner wishes to be answered and then answer only that portion of the
compound question.
Questions Containing an Assumption of Fact
The examiner may ask the witness to assume facts which cannot be verified by the witness being deposed.
Such questions are generally improper and unnecessary in the context of a deposition. Object for the record and
advise your witness that he does not have to endorse any fact beyond the scope of his knowledge.
Questions Using the Words Never and Always
A witness should always be careful about questions involving the terms never or always, or any other
absolutes of that kind. Witnesses can easily be tricked by questions involving absolutes. Although there may be
exceptions, few of us could say with total confidence that we have never done something or that we have always
done something. If the examiner follows up on such an absolute statement, the odds are good that he is aware of
at least one example where the witness has done something. The never question is merely a way to set the
witness up for impeachment.
For example:
Q. Have you ever failed to wear your seat belt when driving your car?
A. Never.
Q. Are you sure about that?
A. Absolutely.
If the point is important, you should be fearful that your witness is being set up. The examiner may have
another credible witness who will swear that there were occasions when your witness did not wear his seat belt.
A properly counseled witness would have couched his response in the conditional: I cant recall any such -
occasions.
A conditional response to a question calling for an absolute can be more truthful than an absolute response.
Unless the witness is absolutely sure of his answer, he should be advised to treat absolute questions with
extreme caution. Few of us are 100 percent sure about anything. A witness can be impeached for mistakenly
saying never but he cannot be impeached for saying that he does not recall ever doing something.
The witness should also be cautioned about questions such as is that all you know about [the subject].
Unless the prior testimony has truly been exhaustive, the witness should be advised to qualify his answer, either
by adding additional information if he recalls it or by saying that this is all he can recall at the moment.
Depositions can go on for hours and your witness can easily forget what has been covered during the interim.
Moreover, a review of documents at a later time may elicit additional knowledge.
Questions Which Call for Speculation
Another type of tricky or self-serving question is one which calls for speculation. Examiners will often try to
elicit helpful testimony by asking a witness Isnt it possible that .... This type of question is often misleading
and it is arguably improper. Almost anything is possible in this world but possibilities are rarely relevant as
factual testimony. Unless your witness is being deposed as an expert, he does not have to respond to this self-
serving type of question. Advise him that you will object. Often the correct answer is, I dont know.
Another version of this technique is to ask the witness Do you always or If it were important to you,
would you . These questions are designed to set up future impeachment or to lead the fact finder to draw a
conclusion based upon circumstantial evidence. If the witness is sure that his conduct never varies, which would
be unusual, he could answer the question yes. If not, the proper response is a qualified answer or to reply that he
does not know.
Questions Which Call for Precise Recall
The witness should be cautioned about questions which ask for recall of precise words used or exact recall of
details. Rarely will a witness be able to recall precise details and he should be advised that no one expects or
requires it. The witness should respond by giving his best recollection and should feel compelled to do no more
than that.
The Badgering Examiner
An examiner who is hostile or otherwise badgers a witness may succeed in eliciting helpful, albeit inaccurate,
testimony. You should reassure your witness that you will not allow such tactics to go on in a deposition and
that you will stop it if it occurs. You must also caution your witness not to get angry at the questions posed or to
do anything else which might cause your witness to lose his focus.
The Rule which you may invoke if an examiner is acting unreasonably in badgering a witness is Rule 30(d).
The Rule permits any party or the deponent to demand that the deposition be suspended for the time necessary
to file a Rule 30(d) motion to seek the courts order terminating the deposition or limiting the scope or manner
in which the deposition is being taken.
Such a motion requires a showing that the examiner was acting in bad faith or in some other unreasonable or
oppressive manner. The basis for such a motion will typically be the transcript of the deposition. Therefore,
remember that if the witness is being badgered, harassed, or yelled at, you should make a record of the
examiners voice tone, gestures, threats, laughter, etc. You should also invoke the Rule and state that it appears
the deposition is being taken in an improper way or for an improper purpose and that you are suspending the
deposition to make the appropriate motion.
The Rule does not require that the harassed witness be your client. Any time any witness is being improperly
examined, the Rule permits that witness or any objecting party to suspend the deposition.
Withholding Documents
Often, an examiner will ask a witness questions concerning a transaction, meeting, or letter when the answer
to the question can be found in documents which have previously been produced and reviewed by the examiner.
They may or may not be documents with which the witness is familiar. These questions sometimes amount to
nothing more than a memory test. If neither you nor your witness is familiar with the documents, the examiner
can trick the witness into misstatements of fact by withholding the documents at the time he asks the questions.
This is another reason for you to be familiar with all of the documents before the deposition occurs so that you
can ask the witness whether he wishes to review the letter, meeting minutes, contract. etc., before answering.
A variation on this type of tricky examination is only allowing the witness to partially review a document
before answering the question or only providing part of a multi-page document for the witness to review.
Sometimes the witness will be shown drafts of documents or minutes, or documents where handwritten
notations or changes are omitted. Again, you must know the documents in order to make the proper objection.
First, you are permitted to instruct the witness that documents do exist which may aid in his recollection and
that he has the right to review any document which will help with his recollection prior to answering. Second,
insist that the witness be allowed access to the document and ample time to review it prior to answering. Third,
you should make certain that any documents which the witness does review are described on the record by
number, date, or other description, along with, obviously, any omissions or deletions. If the examiner persists in
requiring an answer without revealing the documents or permitting sufficient opportunity for review, you should
so note on the record. Thereafter, the witness is likely to give an answer which will be noncommittal and
unlikely to be given undue weight at trial.
Inaccurate Instructions
Sometimes opposing counsel will give instructions to the witness which you believe are incorrect or which
are contrary to instructions that you gave at the time you prepared the witness for deposition. At the time of the
deposition, the opposing attorney might state: you are required to sign the deposition, or you can change your
answers without penalty after you read the deposition, or if you answer a question, we can all assume that you
understood it. Such instructions or statements must be corrected on the record by either disputing the
accuracy of the statement or reinstructing the witness in the proper fashion.
It may be necessary for you to adjourn the deposition briefly for purposes of holding a short conference with
your witness or client to clear up any confusion he may have as to which instructions to follow. You do not want
your client or witness to give more credence to the perhaps more official-sounding instructions given during the
actual deposition than to your instructions given earlier in less formal surroundings.
Improper Use Of Legal Work Product
Sometimes an examiner will display pleadings or statements contained in non-verified discovery responses
and ask the witness about them. Why did you plead waiver as an affirmative defense? The problems with such
questions are obvious. They invade work product and ask the witness to bind himself to something he never
wrote (and maybe never saw). In addition, the witness (unless he is an attorney) is unfamiliar with the
terminology, and correct definitions would have to be a part of proper foundation for the question. The examiner
can ask about the facts surrounding the alleged waiver, but you should not permit him to refer to a legal
document or pleading and then ask an overly broad question containing legal conclusions or to probe possible
work product or privileged information.
Practice Tip: Can You Designate a Witness Who Is Not Affiliated With the Organization?
What if there are no good candidates from within the organization to designate to answer questions
that will be binding on the organization? Perhaps all the witnesses with personal knowledge have left the
organization or perhaps the witnesses with some personal knowledge are either inarticulate or, worse,
like to talk way too much and appear largely unpreparable? There is no prohibition against designating a
witness who is not, or is no longer, affiliated with the organization. Thus, if you think that a former
employee with particular knowledge of the noticed topics would make a good witness, by all means, you
can ask that individual if he or she would be agreeable to appearing on behalf of the organization (of
course, you may first want to confirm that the former employee left on good terms). Even if the individual
outside the organization has no direct knowledge of the noticed topics, if you think the individual would
make a good spokesperson for the organization, you can designate the person. But there are a couple of
caveats. First, regardless of who the individual is, the individuals answers will be binding on the
organization, so make sure to properly prepare the witness. Second, designating an unaffiliated person to
testify on behalf of the organization raises privilege issues, namely would your communications with the
individual be privileged? The authors are not aware of any case law on point, but the individuals
acceptance of the role of Rule 30(b)(6) designee probably would imbue in the individual status as the
client organization for purposes of cloaking witness preparation in the protections of the attorney-client
privilege.
Id. at *3. Of course, when the organization designates its own counsel as its Rule 30(b)(6) designee, the need to
parse between underlying facts and attorney-client privileged communications (and the work product doctrine,
which would protect the witnesss mental impressions) becomes all the more important and challenging.
490 Outline for Deposing Plaintiff in a Land Use Case to Establish Lack of
Standing
I. Deposition Objectives
(1) Establish distance and obstructions between plaintiffs residence and site of potential development.
(2) Determine whether there are any impediments to plaintiff proceeding, such as zoning deficiencies in
plaintiffs property.
(3) Establish plaintiff had opportunity to participate in administrative process.
(4) Determine whether plaintiff even understands substance of administrative decision being challenged.
(5) Identify and pin down alleged grievances.
II. Background and Location
(6) Name, brief educational background, brief work history
(7) Where do you live? Please locate on Zoning Map, mark with an H for home, and initial.
a. Do you own or rent your residence? Do you live with anyone else?
b. How long have you lived there?
c. Describe the neighborhood that you are in. What is directly across the street from you? Scale, use?
(8) In which zoning district do you live?
(9) Are you located within the same zoning district as the proposed development?
(10) Do you know if residential uses are permitted in the zoning district in which you live?
(11) Do you know if your home complies with all applicable zoning regulations?
(12) Have you ever measured the distance you live from the proposed development? Estimate? How long does it
take you to walk there from your home?
(13) Are you an abutter to the proposed development? Are you an abutter to an abutter to the proposed
development?
(14) Do you own any other property in the municipality? Where is it?
(15) Do you own an automobile? Do you drive in the municipality? How often? What purposes? Do you drive
to the area of the proposed development? How often?
(16) Have you ever driven directly from your home to the proposed development? If so, how long did it take you
to drive? If not, how long would you estimate it would take you with no traffic? With normal rush hour
traffic?
(17) Can you see the site of the proposed development from your home? What kinds of structures are between
your home and the site of proposed development?
(18) Are you on the same plain as the site of the proposed development, or is there some elevation difference?
(19) Have you ever been able to see from your home any lights from any of the buildings immediately adjacent
to the site of the proposed development?
(20) Have you ever been able to hear from your home any noises from any of the buildings immediately adjacent
to the site of the proposed development?
(21) Has any building immediately adjacent to the site of the proposed development ever cast a shadow that fell
across your property?
(22) How many times in the past year have you been at the site of the proposed development?
(23) Where do you currently work? Please describe on the Zoning Map.
(24) Please describe the path you take on your commute to work. What is your mode of transportation?
(25) How is it that you came to be a plaintiff in this lawsuit? What was your motivation for joining the lawsuit?
(26) What is the relief that you would like to achieve from your lawsuit?
(27) Have you agreed to pay for any of the expenses for this lawsuit?
(28) Identify other lawsuits in which you have been a plaintiff?
(29) Identify other administrative decisions that you have appealed/challenged?
(30) Have you ever been deposed before? In what context? By whom?
(31) Have you ever written any articles or letters to the editor that have been published about any development
issues in the municipality?
(32) Describe how you participated in drafting the complaint.
(33) Walk through the allegations in the complaint.
III. Ability to Participate in the Political Process
(34) I want to ask you about your involvement in development and housing issues in the community. What
organizations do you belong to whose mission relates at all to development, housing, or traffic issues in the
community?
(35) How many members? Mission? Your position? Who does it purport to represent? Decision-making
process? Has it taken a position on the proposed development?
(36) What public bodies have you appeared before relating to development, housing, or traffic issues in the
municipality? Have you appeared before local planning boards?
(37) What letters have you written to any public official in the past year on development/permitting issues?
(38) Describe how you participate in the appointment of the members of the local Planning Board. Campaign for
any of them?
(39) Do you know any members of the Planning Board personally? Do you consider any of them to be your
friends?
IV. Communications
(40) Identify all communications with the other named plaintiffs regarding this lawsuit, or any development or
permitting at the locus.
a. Do you personally know the other plaintiffs?
b. Are you a member of any organizations with any of the other plaintiffs?
c. Do you know how the other named plaintiffs joined?
d. What conversations have you had with the other named plaintiffs about the proposed project?
e. Do you know what impacts each of them claim?
f. Have you talked to any of the other plaintiffs about their depositions?
(41) Identify all communications with anyone from the municipality, including the Planning Board, regarding
development or permitting at the locus.
(42) Identify all communications with anyone from the developer regarding development or permitting at the
locus.
(43) Identify all communications with the media, including any letters to the editor, regarding development or
permitting at the locus.
(44) Identify all communications with any organization regarding development or permitting at the locus.
V. Due Diligence
(45) What is your understanding as to what is allowed by the zoning decision you are appealing? What did you
do to make that investigation?
(46) In what ways did you participate in the process leading up to the Planning Board decision that you are
challenging? Attend any of the hearings?
(47) What do you understand the developer wants to build at the locus? Basis? How did you investigate?
(48) Putting the Planning Board Decision aside, do you know what could be developed at the locus as of right
now, in other words, without permission from the Planning Board under the applicable zoning laws?
(49) Have you studied the proposed design?
(50) Do you know how many stories are in the building that the developer would like to build? Do you know its
zoning height? Do you know the front or side setback? Do you know the lot size, size of footprint, or the
floor area ratio?
(51) Have you performed any studies of the potential impact from any proposals for the location? Have you
studied or hired a consultant to study the impact from traffic, noise, wind, shadows?
(52) Have you investigated what the potential impacts would be from different build scenarios without special
permits for the site?
VI. Grievances from Building that the Developer would like to Build
(53) Please list all your grievances from the Decision of the Planning Board. Have I exhausted your list?
(54) Please list all your grievances from the building the developer would like to build at the locus. Have I
exhausted your list?
(55) Lets go through them one by one. Please articulate facts in support of each grievance. In what way is each
grievance special and different for you as opposed to the neighborhood as a whole?
(56) [Consider]:
a. Traffic
b. Noise
c. Shadows
d. Wind
e. Architecture
f. Aesthetics
g. Character of the neighborhood
h. Safety
(57) Please compare each of these impacts to the structures and uses permitted within the district under current
zoning.
(58) Is there anything about the proposed development that you think would be beneficial? Anything that you
see as an improvement over what is there now?
Most attorneys would not dream of letting their client attend a deposition without counsel. However, an attorney
who is in the process of withdrawing from a clients case (for whatever reason) may be under the mistaken
impression that a deposition cannot be held without counsel of record present. The holding in Fisher shows this is
not the case. As such, counsel in the process of withdrawing from the representation of a deponent should take
affirmative steps to either reschedule the deposition or obtain a protective order.
The deposition is taken pursuant to notice (stipulation) (order of court) at the offices of __________. The date is
__________, and the time is __________.
The deposition is taken by myself, __________, as attorney for the plaintiff. Will each person present please
identify themselves and state their relationship to this civil action or the parties.
This is also the time to state all stipulations or court orders applicable to the recording of the deposition by audio or
videotape.
If your video deposition is governed by the amended Federal Rules of Civil Procedure, you should note the new
provision under Rule 30(b)(4), which prescribes a mandatory statement by the officer (reporter) recording the
deposition. The statement must include the officers name and address, the depositions date, time, and place, the
name of the deponent, the administration of oath, and the identification of persons present. In addition, for non-
stenographic depositions, all identifying items must be repeated at the beginning of each new recording unit or use
of new recording medium. Finally, the officer must make a statement at the conclusion of the deposition that the
deposition is complete. All matters and stipulations must be made part of the record concerning custody of the
transcript or recording. When such a statement is made, be sure to take into account the amended provisions of Rule
30(f)(1) and (2).
As you proceed with your examination, keep in mind that a video deposition will record your demeanor as well as
your words. Make sure that your pace, mannerisms and tone follow your courtroom techniques, and not your more
informal deposition manner. The defending attorney must likewise be careful about his appearance and conduct and
that of his witness.
If you plan to use the videotape at trial, consider having your witness review potential exhibits before the deposition
or during recesses. You should also have your exhibits organized and premarked. You do not want long silent
stretches of deposition video as you fumble for exhibits or the witness reviews unfamiliar documents. As at trial, try
to present the witness in a manner which will keep the trier of fact attentive.
Objections during a video deposition present special considerations. If the objecting attorney follows his normal
habit of objecting after the question but before the answer, editing of a videotape and preparation of the deposition
testimony for trial becomes more difficult. Here, more than ever, the objecting attorney should not speak over the
witness. If this happens, everythingquestion, answer, and objectionshould be repeated.
All attorneys should consider anew that all objections are preserved except as to form. Unnecessary, interrupting
objections should be avoided. Also, since in most cases the videotape will be edited according to the courts pretrial
rulings on objections (see 1055), it is a good idea to restate any important question after the objection. Then,
depending upon the ruling, only the objection need be edited.
While a primary reason for taking a video deposition is the increased impact of the witnesss testimony at trial, keep
in mind that if that impact is overdone, the video may not be admitted. For example, Marsee v. United States
Tobacco Co., 866 F.2d. 319, 321 (10th Cir. 1989), involved a claim against a manufacturer of chewing tobacco
brought by the mother of an oral cancer victim. The trial court refused to admit the plaintiffs videotaped testimony
of another severely disfigured, post-surgical oral cancer patient. Applying FED R. EVID 403, the trial court held that
the videotapes probative value on the issue of causation of the decedents oral cancer was low, whereas the
prejudicial effect of the video deposition on the jury might be great.
When you conclude your examination, you should state who the next examiner is, particularly if the camera stays on
the witness.
516.1 Procedures for Audio Visual Depositions Under the Uniform Audio Visual Deposition
Act
While the Uniform Audio Visual Deposition Act has been adopted only by a few states, its provisions provide
guidance in jurisdictions, including the federal courts, as to the procedures to be followed:
1. Notice
The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition must state
that the deposition will be recorded by audio-visual means.
2. Procedure
The following procedure must be observed in recording an audiovisual deposition:
(1) (Opening of Deposition.) The deposition must begin with an oral or written statement on camera which
includes:
i) The operators name and business address;
ii) The name and business address of the operators employer;
iii) The date, time, and place of the deposition;
iv) The caption of the case;
v) The name of the witness;
vi) The party on whose behalf the deposition is being taken; and
vii) Any stipulations by the parties.
(2) (Counsel.) Counsel shall identify themselves on camera.
(3) (Oath.) The oath must be administered to the witness on camera.
(4) (Multiple Units.) If the length of a deposition requires the use of more than one recording unit, the end of
each unit and the beginning of each succeeding unit must be announced on camera.
(5) (Closing of Deposition.) At the conclusion of a deposition, a statement must be made on camera that the
deposition is concluded. A statement may be made on camera setting forth any stipulation made by counsel
concerning the custody of the audio-visual recording and exhibits or other pertinent matters.
(6) (Index.) Depositions must be indexed by a time generator or other method specified pursuant to Section 6.
(7) (Objections.) An objection must be made as in the case of stenographic depositions.
(8) (Editing.) If the court issues an editing order, the original audio-visual recording must not be altered.
(9) (Filing.) Unless otherwise stipulated by the parties, the original audio-visual recording of a deposition, any
copy edited pursuant to an order of the court, and exhibits must be filed forthwith with the clerk of the court.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of
the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which
might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is
made at the taking of the deposition.
(Emphasis added). Put another way, if you are taking the deposition and ask a question that contains some defect
that, if the defect were pointed out by the defending attorney, you could fix, then the defending attorney has an
obligation to so notify you, or any objection to that defect is waived. What is surprising about the rules of civil
procedure when put this way is they are there for the benefit of the attorney taking the deposition. The rules also
reveal a lesson that every lawyer should keep in mind when taking a deposition: when the lawyer defending the
deposition does object to a question, take a moment to reflect on the objection to determine whether there is indeed
a defect that you should fix.
So what defects are we talking about? The rules tell us types of defects that cannot normally be cured at the time of
the deposition, such as competency, relevancy, or materiality. Hearsay is generally considered another example.
This makes sense. If you ask a question and the lawyer defending the deposition says, I object on relevancy
grounds, your response is going to be, I disagree, the question is relevant, please answer the question. In other
words, absent direction by the court, a relevancy defect cannot be fixed at the time of the deposition. It can,
however, be dealt with at the time of trial. If the deposition is being read into the record or otherwise used with a
witness, after the question is asked that may contain a relevancy defect, the attorney who defended the deposition
can state a relevancy objection. The judge can then rule at trial. If the objection is sustained, the answer is skipped;
if the objection is overruled, then the answer is there in the transcript to be read aloud.
The most common type of defect that can be cured at the time of a deposition is a question with an improper form.
For example, if a non-adverse witness is being deposed and the question is leading, then there may be a defect in the
question since leading questions are not normally allowed with non-adverse witnesses. Here, if the attorney
defending the deposition points out this problem, then the attorney taking the deposition has the opportunity to fix
the defect by asking the same question but in a non-leading manner.
Another type of defect that typically can be cured at the time of a deposition is a question with an improper
foundation. For example, if the question is Tell me what happened at the June 12 meeting? and no foundation has
been laid that there was a meeting on June 12, then the question lacks foundation. An objection at the time of the
deposition would permit the attorney taking the deposition to lay a proper foundation: Was there a meeting? What
was its date? Who attended?
Only when you feel that you fully understand how the rules of civil procedure work should you consider changing
them via stipulation.
Parties often stipulate to reserving all objections except those as to the form of the question until the time of trial.
Since under the rules, form objections already must be made during the deposition or waived, how does this
stipulation vary the rules of civil procedure? It does so by reserving until trial those objections that (1) are not form
objections, but (2) otherwise address defects that could have been cured at the time of the deposition. The primary
objections that fit within this category are objections that go to a questions foundation. In other words, when you
stipulate that all objections except those as to the form of a question are reserved until the time of trial, what you are
really doing is varying the rules of civil procedure by deferring foundation objections until trial.
Is that a good idea? Before agreeing to this stipulation, both the lawyer taking the deposition and the lawyer
defending the deposition should ponder whether it is to his or her benefit to reserve foundation objections until the
time of trial. There is no bright line rule here; the answer depends on the dynamics of each deposition. If you are
taking the deposition, generally it is to your advantage to have the lawyer defending the deposition point out
questions that lack foundation because you have the opportunity to fix the question. If the objection is reserved until
the time of trial, you risk asking a question without proper foundation, getting an excellent answer, and then having
the objection made and sustained at the time of trial, resulting in the answer being excluded. On the other hand, if
you believe that you are reasonably cognizant of foundation to begin with and you want to minimize opportunities
for the attorney defending the deposition to disrupt the flow of the deposition, then you might want to consider
agreeing to reserve foundation objections until the time of trial. If you are defending the deposition, it is generally to
your benefit to reserve objections until the time of trial since you will have the transcript before trial and can take as
much time as you need plotting which questions you will object to at trial. On the other hand, if you have a witness
about whom you are concerned will too easily adopt predicates to questions that have not been established, then you
may want to be able to use your foundation objections to discipline your witness.
Of course, if the parties cannot agree to stipulations, then the rules govern. Note that you should always consult the
local rules before considering any stipulations. Some local rules place limits on parties ability to vary the rules of
civil procedure through stipulations. See, e.g., Local Rule 14(a) (D. R.I.). Compare Los Angeles Trust Deed &
Mortgage Exchange v. Securities and Exchange Comm., 264 F.2d 199, 212-13 (9th Cir. 1959).
Stipulations regarding reading and signing depositions.
Under Rule 30(e), the witness and the parties may waive the examination and reading of the transcript by the
witness, and the parties may waive the signing of the transcript by the witness. If you anticipate that you might use
the deposition to impeach the witness at trial, it is more effective to be able to show that after testifying, the witness
reviewed the transcript and reaffirmed his testimony by signing it. On the other hand, if the witness reviews the
transcript, he may make changes to testimony that was very favorable to you. Sometimes circumstances make it
difficult for the witness to be available to review the transcript. However, there is rarely benefit to formally waiving
the signature; if the witness is unavailable to review and sign the deposition, the transcript will be filed by the
reporter without signature. In any event, often it is better to defer consideration of such a stipulation until after the
deposition is concludedafter you know the testimony.
A note about the usual stipulations.
All too frequently, one attorney at a deposition will ask the other to agree to the usual stipulations. The problem is
there are no usual stipulations. See, e.g., United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 473 n.8 (E.D. Cal.
1994) (Moreover, the allusion to standard tests is reminiscent of the usual stipulations given in civil deposition
discovery. Everyone purports to know without asking the content of the usual stipulations until a dispute arises;
the ephemeral nature of the parties understanding is then quite apparent).
Certainly, in some jurisdictions, there are frequently-used stipulations, but you should never assume that if opposing
counsel asks if you will agree to the usual stipulations that opposing counsel has in mind the same stipulations
that you may consider usual. Further, if the transcript records only that the parties have agreed to the usual
stipulations, there is no guarantee that the court will understand that phrase in the same way as the attorneys. See,
e.g., Garcia v. Co-Con, Inc., 629 P.2d 1235 (N.M. Ct. App. 1980) (If the representative did not understand the
phrase, the usual stipulations to be equivalent to it is stipulated and agreed that the doctor waives his signature,
then what did he understand the phrase to mean? He certainly acquiesced to that statement thus, he is bound by that
acquiescence.) (Andrews, J., dissenting).
When confronted with a request to agree to the usual stipulations, politely ask opposing counsel to spell them out
and then consider each part of the proposed stipulations on its merits one by one. Once there is a clear meeting of
the minds between counsel, then the actual agreement should be recited for the record.
Other stipulations that you may want to consider.
Because Rule 29 is so broad, the parties can stipulate as to procedures to handle just about any kind of contingency
the parties expect may arise during a deposition. For example, where there are multiple attorneys, a helpful
stipulation is that an objection made by one party will be deemed to have been made by all, unless otherwise
indicated. This stipulation streamlines the deposition by avoiding multiple attorneys enunciating the same objection.
Timing of recesses and length of deposition day (if problems are anticipated); see 541 and 542.
Handling of deposition exhibits (reporter attaching to original transcript or holding until all depositions are
concluded).
Manner of making objections.
Correction and signing procedure; see 561.
In cases where you anticipate a substantial number or objections or misunderstandings, you may consider offering a
comprehensive list of stipulations. Such a list would minimize argument and speed the proceedings. Here is a
sample list, which can be converted into a written stipulation and entered into the record, or read at the beginning of
the deposition and agreed to orally by counsel:
1. At the beginning of the deposition, deposing counsel shall instruct the witness to ask deposing counsel,
rather than the witnesss own counsel, for clarifications, definitions, or explanations of any words, questions,
or documents presented during the course of the deposition. The witness shall abide by these instructions.
2. All objections, except those which would be waived if not made at the deposition under Federal Rules of
Civil Procedure 32(d)(3)(B), and those necessary to assert a privilege, to enforce a limitation on evidence
directed by the court, or to present a motion pursuant to Federal Rules of Civil Procedure 30(d), shall be
preserved. Therefore, those objections need not and shall not be made during the course of depositions.
3. Counsel shall not direct or request that a witness not answer a question, unless that counsel has objected to
the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by
the court.
4. Counsel shall not make objections or statements that might suggest an answer to a witness. Counsels
statements when making objections should be succinct and verbally economical, stating the basis of the
objection and nothing more.
5. Counsel and their witness-clients shall not engage in private, off-the-record conferences during depositions
or during breaks or recesses, except for the purpose of deciding whether to assert a privilege.
6. Any conferences which occur pursuant to, or in violation of, guideline (5) are a proper subject for inquiry by
deposing counsel to ascertain whether there has been any witness-coaching and, if so, what was said.
7. Any conferences which occur pursuant to, or in violation of, guideline (5) shall be noted on the record by the
counsel who participated in the conference. The purpose and outcome of the conference shall also be noted
on the record.
8. Deposing counsel shall provide to the witnesss counsel a copy of all documents shown to the witness during
the deposition. The copies shall be provided either before the deposition begins or contemporaneously with
the showing of each document to the witness. The witness and the witnesss counsel do not have the right to
discuss documents privately before the witness answers questions about them.
By stipulating to guidelines such as these before the deposition takes place, deposing counsel accomplishes several
things. First, by establishing what is expected of the witness, these stipulations encourage the witness to be
cooperative. Second, it provides for an orderly process for objections, but relieves deponents counsel from the
obligation to interrupt the proceedings every time there is an inartfully asked question. Finally, since the stipulations
have been memorialized, they provide an effective weapon against disruptive deponents and deponents counsel
should a Rule 37 request become necessary.
542 Recesses
There are no rules governing the length or frequency of recesses and the matter is generally determined by
agreement of counsel. Although practices vary, many attorneys call for a recess of 10 to 15 minutes every one and a
half to two hours. One person to consider on this issue is your court reporter. If the deposition is moving fast and
furiously, your court reporter will appreciate more frequent breaks. Another is the witness. Few attorneys will deny
a witnesss request to take a short break.
It is inappropriate for opposing counsel to request or take repeated recesses during your examination. Likewise, it is
generally improper to request a recess prior to an answer to a pending question or during a specific line of
questioning. Both scenarios tend to defeat a major goal of any depositionindependent fact finding. If such a
request is made, object and request that the answer be given prior to the recess or agree to take a recess upon the
completion of that segment of your examination. If opposing counsel persists in demanding a recess, you will
probably be left with no other alternative other than noting your objection. Nevertheless, abuse by opposing counsel
in demanding recesses, when coupled with private conferences to coach the witness, may well represent conduct
that is ultimately sanctionable under Rule 37. See Armstrong v. Hussmann Corp., 163 F.R.D. 299, 303 (E.D. Mo.
1995); Frazier v. S.E. PA. Transp. Authority, 161 F.R.D. 309 (E.D. Pa. 1995); Hall v. Clifton Precision, 150 F.R.D.
525, 528-529 (E.D. Pa. 1993) (conferences between witness and lawyer are prohibited during recesses). But see,
Odone v. Croda International Plc., 170 F.R.D. 66, (D.D.C. 1997) (deponents recess consultation with counsel after
completion of direct examination permissible). See also 637 and 833.
A few attorneys and witnesses have a practice of being slow to return from a recess. If there are limits on your time
for taking the deposition, consider objecting and noting the time that the recess commenced and ended on the
record. Better yet, ask the reporter to note the times. If there is a dispute later, you will be able to show that your
actual deposition time was limited by the prolonged recesses. This is particularly important when the deponents
attorney appears to be prolonging the deposition, perhaps with an objective of cutting it off before completed. Note
that the Advisory Committee Notes to Federal Rule of Civil Procedure 30(d)(2) state: Paragraph (2) imposes a
presumptive durational limitation of one day of seven hours for any deposition [taken in a case governed by the
Federal Rules]. This limitation contemplates that there will be reasonable breaks during the day for lunch and
other reasons, and that the only time to be counted is the time occupied by the actual deposition.
On occasion, a witness will ask to correct or change his testimony after returning from a recess. If he does, there is
little to be gained by refusing the request. If the change is material, you may want to inquire as to the reason for the
change. Arguably, the witnesss discussions with counsel are not privileged if they affect his testimony.
Similarly, after each recess, you may want to inquire of the witness as to whether there is anything that he wants to
add or change in his testimony. This involves a strategic decision: do you want to open the door to corrections at
this time (when possibly you can tie them to the witnesss conference with his attorney), or would you prefer to
have any corrections made during cross-examination by the defending attorney? You may want the examination to
read:
We have just concluded a ten-minute recess. During that recess did you have an opportunity to consult with
your lawyer?
Did you consult with your lawyer?
Do you at this time want to change any of your earlier testimony? [If he does, inquire into reasons and
sources of changes.]
Generally, as the examiner, you should avoid recesses in the middle of examination on a specific subject area
(unless you have extensive material to cover). You need a certain flow to your questions, and you should avoid any
midpoint repreparation of the witness. By taking a recess at the commencement of each new major subject matter,
you can avoid these interruptions. For example, do not start examination of a subject that you anticipate will take 30
minutes, 10 minutes before a normal break time. Call recesses yourself so as to avoid interferences at inopportune
times.
If you anticipate that the defending attorney will seek recesses at inopportune times, try to stipulate in advance as to
when recesses or the next recess will be taken, and be sure to schedule a sufficient number so emergency recesses
arent added.
542.1 Recesses Under Rule 30(d) and Rule 37(a)(1)
Rule 30(d) provides that at any time during the taking of a deposition, any party or the deponent can move to
terminate or limit the examination upon a showing that the examination is being conducted in bad faith or in such a
manner as to unreasonably annoy, embarrass or oppress the deponent or party. The Rule further explicitly provides
that upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time
necessary to make the motion.
Procedurally, if you conclude that requisite grounds exist and you wish to seek to terminate or limit the
examination, you should simply state that the deposition is suspended pending your filing a motion. (In most
districts, it is desirable to have earlier, on the record, sought to persuade the offending party to cease his improper
conduct, as well as to have made a record of the offending conduct. Most districts require an effort by the parties to
resolve differences before seeking court assistance.) The deposition should thereupon be suspended. Note, this
remedy is available to all parties and the deponents. Note further that the motion can be filed in the court wherein
the action is pending or the court in the district where the deposition is being taken.
Of course, to obtain an order you must prove that the examination is being conducted in bad faith or in such manner
as to unreasonably annoy, embarrass, or oppress the deponent or party. In most instances, the record will be your
proofthe wrongful actions being verbal expressions (regrettably the record, if not a videotape, has no inflection).
However, if the improper conduct consists of gestures, tones, etc., try to describe them for the record as they occur;
consider having a witness present other than the reporter and deponent.
Once the court rules, the deposition continues or terminates in accordance with the ruling.
If you adjourn the deposition to file a Rule 30(d) motion, you must proceed expeditiously to file the motion. Some
judges (or magistrates to whom discovery disputes have been assigned) will hear such motions orally by phone or
by a forthwith hearing. E.g., Local Rule Standing Order 6(b)(J) (E.D.N.Y.).
Rule 37(a)(J) provides the remedies for the failure of a deponent to answer a question propounded in deposition.
(An evasive or incomplete answer is treated as a failure to answer.) Specifically, in the first instance, the remedy is
an order compelling an answer. In addition, the prevailing party on the motion may recover attorneys fees and costs
of making or opposing the motion, if the court finds the losing partys position was substantially unjustified. If the
order is then disobeyed, Rule 37(b) defines a spectrum of remedies the court may impose.
Once the exhibit is marked, a typical question to the witness might be:
Mr. Jones, I hand to you what has been marked for identification as Exhibit __________, a letter dated
__________, from __________ to __________ (consisting of __________ pages). Can you identify Exhibit
_________?
You and the witness should never refer to an exhibit as this document, as the record may become confused as to
which document is referred to. If the witness refers to this document, simply follow up with, Are you referring to
Exhibit ______?
Similarly, do not refer to documents in the deposition that are not exhibitsthe record is then incomplete, as it does
not include the document referred to. An objection should be made by the defending attorney, as it usually is a
curable objection.
By far, the most common problem in having a clean transcript is multiple persons talking at the same time. Be sure
the examiner finishes his question before an objection is asserted or an answer is given. Be sure the objection is
made before, not during, the answer. Taking turns is contrary to our normal mode of conversation, but essential to
a clean record.
STATEMENT OF CHANGES
The witness, W. H. Jones, states that he wishes to make the following changes in
his testimony as originally given:
10 5 No Incorrect answer
given.
_________________________
Signature of Witness
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
_________________________
Notary Public
Notary forms differ from state to state. The transcript is not actually changed: rather, the correction sheets are
attached by the reporter to the original of the transcript. The fact that changes are made may be used to impeach or
attack the credibility of the witness at trial.
Sometimes the lawyer for the witness or the examining lawyer may conclude that the reporter made an error in
transcription. If so, the lawyer should request the reporter to review his notes to check the accuracy of the
transcription. Corrections of the reporters errors by the reporter can be made in the transcription itself, or by a
separate sheet if the reporter concludes no error, but the attorney remains convinced that a motion to correct can be
filed with the court. All errors or irregularities in the manner in which the testimony is transcribed are waived unless
a motion to suppress is promptly made. Rule 32(d)(4).
If the deponent fails to review and sign the transcript upon request and during the time period allowed, the
deposition officer certifies the transcript under Rule 30(f)(1). The deposition officer then files it with the court or
sends it in the proscribed manner to the attorney arranging for the deposition and who is therefore responsible for its
safety. The transcript may then be used, if signed and corrected, subject to a motion to suppress under Rule
32(d)(4).
561.2 Corrections to a Rule 30(b)(6) Deposition
A Rule 30(b)(6) designee deponent must testify in response to questions as to matters known or reasonably
available to the organization. In reviewing the transcript for possible corrections, what is the obligation of the
deponent? Must he circulate the transcript among all persons within his organization who possibly have knowledge
of the subject matters?
Probably not. If the deponent made reasonable inquiry within the organization about the subject matter of the
designations, it seems unreasonable to require a multitude of people to review the transcript. On the other hand, if
there is information in response to a question that the deponent knows the organization had, but did not know it
himself, there may be an obligation on the part of the deponent to obtain input in making corrections. Perhaps the
key is reasonableness.
561.3 Corrections by the Deposing Attorney
Sometimes the deposing attorney believes that the deposition transcript contains errorsi.e., it does not state what
was actually stated during the course of the deposition. These errors might range from an incorrect date, to a yes
instead of a no. The perceived error may be in the recording or transcription of a question, or may be in the
answer.
Of course, the deponent can correct any answer. In other words, if the deponent thought the question was ABCDE,
but in the transcript it comes out ABCDZ, the deponent can correct his answer to ABCDZ, and explain that he had
understood the question to be ABCDE. See Gaw v. State By and Through Dept. of Transp., 798 P.2d 1130 (Utah
App. 1990) cert. denied (1991).
But, can the questioner amend the deposition? There is no formal procedure, but the authors suggest the following:
If you perceive an error in the reporters transcription, ask the reporter to check the transcript against his original
recording. (Preferably, notice of this should be given to opposing counsel.) If the reporter finds an error, the reporter
should issue a corrected transcript, and the witnesss review and correction procedure starts a new.
If the reporter finds no error in the transcript, but the reporter in fact remembers the question/answer, and concludes
he incorrectly recorded the words, probably an amended transcript can be issued. Similarly, if counsel for both
parties (and the witness) agree to an error, the reporter should accept the stipulated correction.
561.4 Reopening a Deposition for Examination With Respect to Corrections/Amendments to
the Deposition Transcript
If the corrections made by the deponent to the deposition are either substantive in nature or substantial in quantity,
the examining party may want to examine the new answers as well as the reasons for the changes. Since Rule
30(a)(2)(A)(ii) requires a court order to redepose a witness, you cannot simply serve a new notice of deposition. In a
motion for another deposition, point out that the witness has made radical changes in his or her prior testimony after
you had concluded your right of cross-examination. If the changes were sufficiently egregious, request that the costs
of the second deposition, including attorney fees, be borne by the opposing side.
Sample: Motion for Order to Re-Open Deposition of Samuel P. Bigshot
JOHN D. HARMED,
By his attorney,
______________________
ATTORNEY & LAWYER, P.C.
5 Main Street
Metropolis, MA 55556
Dated: _______________
DECLARATIONS
The motion should include an appropriate declaration identifying the witnesss prior testimony and the nature of the
changes. Include, too, a copy of the transcript and errata sheet and why a second deposition is required.
MEMORANDUM OF LAW
Include points and authorities in support of the motion. See 561.
A delay in signing depositions will not normally be a ground at trial for objecting to the deposition. Such an
objection is normal1y waived if a motion to suppress is not filed prior to trial. See Motel 6, Inc. v. Dowling, 595
So.2d 260 (Fla. App. 1992).
563 Indexing
Unless the deposition is short, it will be of little value unless you can quickly locate needed testimony. For that
reason, you should prepare or have prepared a deposition summary which will help direct you to relevant testimony.
There is no set practice regarding who should prepare the summary or what should be in it. Some lawyers, including
the authors, prepare their own summaries so they will be sure that they have focused in on the important points.
These summaries are often short because you can leave out information that is not important to you. Other attorneys
have legal assistants prepare the summaries. Often, these summaries are lengthy and attempt to catalog every point
made in the deposition. As such, they often provide a substitute for reading the actual transcript. You will have to
decide which style works best for you.
Here is a sample of a deposition summary using the shorter approach:
Sample: Deposition Summary
SUMMARY OF DEPOSITION
OF THOMAS P. THOMPSON
January 10, 20__
Page Subject Comments
11-13 Background Corporate division counsel of
corporation, education and
prior work experience. (Note:
Specialist in securities work.)
16-20 Reporting Reports to Anderson (along
relationship with five others)
who reports to Smith.
20-24 Involvement in First involved Jan. 1987 when
subject transac- requested by Anderson to review
tion drafts and advise Benson.
20-26 Responsibilities a. Identify key elements or
re transaction transaction
prior to 12/8/___ b. Discuss key elements with
staff group.
c. Document key elements and
staff input.
d. Obtain approval of documents
by management.
More and more court reporters are preparing their transcripts on personal computers. If yours does, consider getting
a copy of the transcript on a floppy disk. If you have the appropriate software, such as Discovery ZX, ZY Index,
Summation or AskSam, you can search the transcript to find relevant testimony at lightning speed, much like you
can find legal cases using Lexis or Westlaw. While this may not eliminate the need for a deposition summary, you
will find having a copy of the transcript on disk an invaluable help in finding testimony quickly. If you do not have
a computer, some court reporters will provide you with a key word index, which can be useful at times. In most
cases, you provide the reporter with the key words to index. For example, an index to all uses of the word exhibit
will help lead you to testimony regarding key documents.
Here is a sample of a key word index:
Word Page
Smith 7
15
22
May 2, 1987 7
12
14
Jones letter to Smith 27
33
Exhibit 29 62
Most such indexing also includes a certain number of words (for example, five) before and/or after the indexed
word. If computer word or phrase searches are going to be used, the examiner should be sure to use those words in
the examination, for example, Exhibit 29, not this letter.
Another form of summarizing depositions is as follows:
SUMMARY OF DEPOSITION
OF THOMAS R. LARKIN
Larkin v. Thorson
Page/Line Testimony
2/9 - 4/7 Thomas R. Larkin, 273 Lake Ridge Road, Littleton, Colorado.
Space engineer since August 20___; worked for Thorson September 20___-July 20___.
The deposition summary entries may also be regrouped in terms of issues, events, etc. Thus, it may be desirable to
have a summary chronologically consistent with the deposition transcript, but it may also be helpful to have it
reorganized in terms of information by topic, issue, etc. Particularly through the use of a computer, each entry can
be labeled by a particular entry or subject and reorganization and resort becomes a matter of mechanics. For
example:
Sample: Issues/Subject Deposition Summary
Jones v. Smith, Civil Action No. 92CV483.
Issues/Subject Summary
Deposition of Jonathon Johns,
November 18, 20__
When you encounter an attorney who employs these tactics, a thorough knowledge of the Rules and any local
standing rules or orders for the conduct of depositions will be your best defense. If your examination is interrupted
by improper objections, statements or conduct, you should promptly advise counsel that his or her conduct is
governed by the Rules and request that he or she cease the disruptive conduct. You may request that counsel state
on the record whether he or she believes his or her conduct would be acceptable in court. If it clearly is not, counsel
will probably be hesitant to make such a statement for fear of subsequent court review.
If you cannot convince opposing counsel to cease the improper conduct, consider suspending the deposition and
seeking an order from the court, including sanctions, under Rules 26, 30, and 37(a)(4). In seeking this order,
consider requesting that the order include a provision defining the appropriate conduct during the deposition. See,
e.g., Ethicon Endo-Surgery v. U.S. Surgical Corp., 160 F.R.D. 98 (S.D. Ohio 1995).
Another effective, although expensive, alternative is to request the court to appoint a special master or magistrate to
preside at the depositions. See Shapiro v. Freeman, 38 F.R.D. 308, 311-12 (S.D.N.Y. 1965); Shelton v. American
Motors Corp., 805 F.2d 1323, 1325 (8th Cir. 1986). Sometimes this becomes an economical means of controlling
your adversary, since it should effectively eliminate most objection pretexts and allow the deposition to be
concluded more quickly than without a judicial officer present. Examples of counsels conduct which would justify
the appointment of a master are found in Ralston Purina Co. v. McFarland, 550 F.2d 967, 972 (4th Cir. 1977);
United States v. National Medical Enterprises, Inc., 792 F.2d 906, 909-910 (9th Cir. 1986); Unique Concepts, Inc.
v. Brown, 115 F.R.D. 292, 294 (S.D.N.Y. 1987).
Sometimes you can indirectly enlist the aid of the witness in overcoming the improper interference of defending
counsel. For example, after a series of improper objections, commentaries, etc., you might say: I had fully
anticipated completing this deposition today. Now, because half of the time is being used for defending counsels
objections, commentary, etc., it appears the deposition will take two days. Sometimes that will cause the witness to
place some pressure on the defending attorney to moderate his conduct.
By giving this kind of instruction, you may coerce opposing counsel into refraining from making narrative
objections. If he does not, you have made a better record to take before the court. Remember that some defending
attorneys will push you as far as they believe they can before you move for sanctions. Your only alternative is to
make it clear that you will not tolerate such improper behavior. Be prepared to go to court if necessary.
This, added to the powerful weapon of Rule 37, should be enough to encourage counsel to maintain decorum and
respect for proceedings, both before the court, and in discovery. But are they enough?
In recent years it is not uncommon to be exposed to Rambo litigation where the opposing counsel constantly
interrupts the witness and you, interposes frivolous objections, takes repeated recesses with the witness, suggests
answers to the witness, cuts short the witnesss answers and instructs the witness, without basis, not to answer
certain questions. This conduct is often coupled with a lack of civility wherein your opponent launches into personal
attacks directed at you or perhaps the witness. Schultz v. Talley, 152 F.R.D. 181, 182 (W.D. Mo. 1993); Frazier v.
S.E. PA. Transp. Authority, 161 F.R.D. 309, 316 Note 8. (E.D. Pa. 1995). How you deal with these situations will
depend a great deal upon your jurisdictional rules, and also upon the circumstances of the deposition.
Before the deposition begins, you should have a thorough knowledge of all local rules, standing orders or decisions
applicable to your jurisdiction that set forth the guidelines for appropriate behavior during the deposition.
In addition, if your case has already been assigned to a judge, prior to the commencement of the deposition, you
should determine how the court prefers to handle discovery problems. Will the judge entertain requests for
immediate relief, i.e., telephonic intervention, or will the court expect that the deposition will be adjourned for the
purposes of bringing a timely motion?
If your adversary has a reputation for abusive and obstructive conduct, can you arrange to have the deposition
videotaped or, potentially, have the deposition taken in the courthouse, itself? It obviously requires the cooperation
of both the judge and the clerk of the court, and is probably unavailable to most practitioners. However, the mere
proximity of the court to the deposition room often curbs and eliminates obstreperous behavior.
In the event that your informal attempts to resolve these issues are unsuccessful, you will probably be left with no
recourse but to seek appropriate relief from the court, with a request for sanctions, to end this type of conduct.
Every successful motion requires the development of a clear record for the court. In order to develop a clear record,
you should:
(1) Call attention to the improprieties of opposing counsel as they occur. In doing so, make sure you follow
appropriate deposition behavior.
(2) Make sure that each question is not objectionable, and is clear, concise, and as specific as possible.
(3) Request that the attorney ceases to make speaking objections or other inappropriate objections.
(4) Request that the attorney limit his or her comments to the making of an objection with a short statement
thereof, an instruction not to answer with a short ground therefore, request for a recess or a request for a
clarification where appropriate.
(5) Do not respond to any personal attacks other than to note them for the record.
(6) Do not engage in the same or similar conduct as that being practiced by your opposing counsel. This will
enable the court to better understand who the culprit is.
When you have developed a sufficient record for a motion, it is suggested that you recess or adjourn the deposition
for the purposes of filing a motion with the court requesting, amongst other things, for an order directing the
attorney to desist with his or her improper behavior, having a master or special referee appointed to preside over the
depositions, a request for reimbursements for costs of the transcript as well as attorneys fees incurred as a result of
the bad faith tactics and conduct of the other side.
In recent years, the courts have recognized that such improper conduct can severely prejudice not only the other
side, but can poison the entire system. For example, in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993),
the court punished such tactics by noting:
A deposition is meant to be a question-and-answer between the deposing lawyer and the witness. There is no proper
need for the witnesss own lawyer to act as an intermediary, interrupting questions, deciding which questions the
witness should answer, and helping the witness formulate answers. The witness comes to the deposition to testify,
not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witnesss words to mold a
legally convenient record. It is the witnessnot the lawyerwho is the witness. 150 F.R.D. at 528.
Along these same lines, various courts have taken very strident advances in an effort to control such obnoxious,
intimidating or abusive conduct by attorneys at depositions. See Armstrong v. Hussmann Corp., 163 F.R.D. 299,
303 (E.D. Mo. 1995) (court held deponents attorneys jointly and severally liable for deposing counsels attorneys
fees due to their repeated inappropriate interruptions of the deposition); Ethicon Endo-Surgery v. U.S. Surgical
Corp., 160 F.R.D. 98, 100 (S.D. Ohio 1995) (deponent ordered to submit to second deposition due to attorneys
inappropriate conduct; no monetary sanctions awarded due to fact that attorneys for both parties behaved
improperly); Van Pilsum v. Iowa State Univ. of Science and Technology, 152 F.R.D. 179, 181 (S.D. Iowa 1993)
(redeposition of witness ordered before special master, with costs born personally by offending attorney whose
groundless objections and colloquy filled more than 20 percent of the first deposition transcript). Some courts have
resorted to more creative sanctions for inappropriate conduct by counsel in a deposition. See, e.g., R.E. Linder Steel
Erection Co., Inc. v. U.S. Fire Ins. Co., 102 F.R.D. 39, 40 (D. Md. 1983) (issued order that in light of counsel for
both sides inappropriate conduct to date, on a going forward basis, court would impose $5 fine on the offending
attorney for each line of deposition transcript containing inappropriate argument, ad hominen attack, or other
extraneous remarks.); Cholfin v. Gordon, Civ. Action No. 943623 (Mass. Super. Ct. Mar. 22, 1995) (after
reviewing deposition transcript, court ordered that offending attorney is prohibited from attending any further
depositions upon oral examination in this action unless she is accompanied by another member of the bar who,
alone, shall be permitted to make appropriate objections during the depositions course).
Not only have courts resorted to the issuance of large monetary sanctions to discourage such conduct, see, e.g.,
Fischer v. Alhadeff, 131 F.R.D. 188, 192 (W.D. Wash. 1990) (sanctions in excess of $30,000), courts have also
entered orders of dismissal as a result of such unconscionable conduct. See Castillo v. St. Paul Fire & Marine
Insurance Co., 938 F.2d 776, 779 (7th Cir. 1991); Digital Equipment Corp. v. Systems Industries, Inc., 108 F.R.D.
742, 744 (E. Mass. 1986) (protective order granted where counsel, referring to improper threat to depose plaintiffs
president, stated on the record of another corporate officers deposition, Well, youve just guaranteed that were
going to waste one of his afternoons, also).
Several states have determined that this conduct should be remedied through the disciplinary system, ranging from
censure to barring an attorney from appearing in the states court. See, e.g., Schiff v. Departmental Disciplinary
Committee, 599 N.Y.S. 2d 243 (A.D. 1 1993) (censure upheld where counsel made vulgar, obscene and sexist
remarks at deposition); Paramount Communications v. QVC Network, 637 A.2d 34, 56 (Del. 1993) (court issued an
order to show cause to nationally known nonresident attorney as to why he should not be prohibited from appearing
in states court for abusive, uncivil and obstructionist conduct at deposition).
A number of jurisdictions have adopted formalized codes of professional conduct with an eye towards eliminating
or curbing abusive discovery conduct. See, e.g., Proposed Standards for Professional Conduct in the Seventh
Federal Judicial Circuit, 143 F.R.D. 448 (1992); Standing Orders of the Court on Effective Discovery in Civil
Cases, 102 F.R.D. 339 (E.D.N.Y. 1984).
Moreover, some courts have, by standing order, specific rules concerning discovery and deposition practice. The
United States District Court for the Western District of Washington, Courts guidelines, provide, inter alia:
(b) Objections. The only objections that should be raised at the deposition are those involving a privilege against
disclosure, or some matter that may be remedied if presented at the time (such as the form of the question or the
responses of the answer), or that the question seeks information beyond the scope of discovery. Objections on other
grounds are unnecessary and should be avoided. All objections should be concise and must not suggest answers to,
or otherwise coach, the deponent. Argumentative interruptions will not be permitted.
(c) Directions Not to Answer. Directions to the deponent not to answer are improper. Advice not to answer may be
appropriate ....
(d) Responsiveness. Witnesses will be expected to answer all questions directly and without evasion, to the extent
to their testimonial knowledge, unless they choose to follow advice of counsel not to answer.
(e) Private Consultation. Private conferences between deponents and their attorneys during the actual taking of
deposition are improper, except for the purposes determining whether a privilege should be asserted. Unless
prohibited by the court for good cause shown, such conferences may, however, be held during normal recesses and
adjournments.
(f) Conduct of Examining Counsel. Examining counsel will refrain from asking questions he or she knows to be
beyond the legitimate scope of discovery, and from undue repetition.
(g) Courtroom Standard. All counsel and parties should conduct themselves in depositions with the same courtesy
and respect for the rules that are required in the courtroom during trial.
JOHN D. HARMED,
By his attorney,
________________________
ATTORNEY & LAWYER, P.C.
5 Main Street
Metropolis, MA 55556
Dated: _______________
DECLARATIONS
Your motion should include a declaration(s) setting forth the precise dispute, why the questions merit an answer, the
improper conduct of the opposing counsel and your efforts to avoid the motion. Attach pertinent portions of the
transcript to illustrate the problem for the court.
MEMORANDUM OF LAW
Include an appropriate memorandum of law in support of the relief sought, including sanctions. See 644.
INTERROGATORIES TO
_______________________
In most state jurisdictions, the disclosure rules are similar. See, e.g., Illinois Supreme Court Rule 213(g) requiring
that party disclose all opinion witnesses, including their qualifications, subject matter of testimony, opinions and the
bases thereof.
While this note makes clear that counsel may assist in the preparation of an experts report, the Rule does not
prohibit discovery into the assistance provided by counsel to the expert in the preparation of the report. Securing a
draft expert report initially written by counsel or procuring deposition testimony that counsel was heavily involved
in the preparation of, while not a basis for striking the report, can be used to undermine the credibility of the
conclusions in the report before the trier of fact.
Thus, as part of your expert discovery game plan, you may want to request copies of preliminary drafts of the
experts report, particularly any with written comments by counsel, as well as asking the expert during his or her
deposition about counsels role in the preparation of the report. But, again, keep in mind that if you endeavor to seek
discovery of counsels involvement in the preparation of your opponents expert reports, you will likely see similar
discovery requests in return. It may be safest before either sides experts begin their analysis to talk with opposing
counsel about ground rules for drafts and work product.
622.1A In-House Experts
Sometimes, the best, or at least most appropriate, expert to testify on a particular trial issue happens to be an
employee of your client. Whether to work with a client-expert is a strategic decision involving balancing the benefits
of a particular individuals expertise versus the risk of losing the veneer of impartiality that the trier of fact may
perceive from a non-party expert witness.
The retention of an in-house expert does, however, create tensions between the attorney-client privilege and Rule
26(b) disclosure obligations discussed in the preceding section. This tension was not fully explored in Clark v. Gen.
Motors Corp., 1975 U.S. Dist. LEXIS 12095 (D. Mass. 1975), a case that permitted liberal discovery from a
testifying in-house expert. In that case, defense counsel instructed the witness-expert not to answer questions falling
within the area of the witnesss expertise. Plaintiff moved to compel. The court granted the motion, stating that, we
hold that where the expert is also an employee, whether he is to be called as a witness or not, he is subject to being
deposed on any and all relevant matters. Id. at *18. Because defense counsel had cut off all examination, the court
in Clark was not presented with some of the nuances of this issue. What are some of the permutations? If the in-
house expert communicates early drafts of his or her opinion to counsel, that is probably discoverable. If the in-
house expert communicates underlying facts of which the individual has personal knowledge to counsel, those
underlying facts would be discoverable, although any commentary about those facts provided to counsel likely
would be privileged. Facts communicated by counsel to the in-house expert for the purpose of permitting the
individual to form an expert opinion would probably be discoverable. Legal advice communicated by counsel to the
in-house expert related to the litigation, but not necessarily to permit the individual to form an expert opinion, likely
would be privileged.
A slightly different wrinkle is where the employee of the client is consulted without an intention of calling the
individual to testify on the subject of the consultation and then the other side notices the deposition of the employee
and asks questions about that consultation. In general, these employees are afforded the protections of Rule
26(b)(4)(B) and the attorney-client privilege. See In re Shell Oil Refinery, 132 F.R.D. 437, 441-42 (E.D. La. 1990);
Eli Lilly & Co. v. Commissioner of Revenue, No. 6702-08, 1997 Minn. Tax LEXIS 26 (Minn. Tax Ct. Apr. 24,
1997); see also James R. Pielemeier, Discovery of Non-Testifying In-House Experts Under Federal Rule of Civil
Procedure 26, 58 IND. L. J. 597 (Fall, 1983).
Interestingly, Fed. R. Civ. P. 26(a)(2)(B) draws a distinction between a witness who is retained or specially
employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve
giving expert testimony and a party employee-witness who may be designated to give expert testimony but whose
regular employment does not involve giving such testimony. Under the rule, a written report is required of the
former, but not of the latter.
622.2A Asking Expert Opinion Questions of Lay Witnesses
A somewhat different issue is how to deal with questions to a lay fact witness asking for what amounts to expert
opinion. The majority rule appears to be that the defending attorney should object to the questions, but permit the
witness to answer. See, e.g., Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 1998 WL 2829 (S.D.N.Y. Jan.
6, 1998) (Insofar as [defending] counsel instructed [the witness] not to answer certain questions because the
questions called for expert opinion, these instructions were in error). If the deposing party then tries to introduce
the answers into evidence at trial, the defending party should then move to exclude the testimony or to strike those
portions of the deposition transcript that contain the improper expert opinion testimony. See, e.g., Freedom Wireless,
Inc. v. Boston Communications Group, Inc., No. 00-12234-EFH, 2005 U.S. Dist. LEXIS 8190 (D. Mass. May 2,
2005) (striking lay opinion testimony from deposition transcript offered to the jury).
Some courts have blessed instructions not to answer questions that call for lay opinion testimony under a broad
reading of Fed. R. Civ. P. 30(d)(4) or its equivalent, but admonished counsel who did not then follow the rule and
immediately suspend the deposition for purposes of seeking court intervention. See, e.g., Dean Foods Co. v.
Pappathanasi, No. 01-2595 BLS (Mass. Super. Ct. June 8, 2004).
636A Scientific, Technical or Specialized Knowledge Under Federal Rule of Evidence 702
Once you have determined the experts understanding of the facts and the basis for his opinions, you need to
determine whether he has used any scientific, technical or specialized knowledge to analyze those facts or generate
support for his opinions. For example, in a tire blowout case, the expert may have used tire separation testing
methods and techniques to determine whether the facts occurred in the manner claimed. The methods and techniques
used by various experts to test a theory for the plaintiff or defendant has become the source of tremendous pre-trial
motion controversy. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under Daubert, in
preparing to depose the expert witness, your question preparation should include an analysis of whether the experts
opinions or any analysis of the facts are based on reliable methods and techniques in his field. You should not
dismiss the possibility that the experts opinion may be based on a flawed analysis or unaccepted methods, i.e. so-
called junk science. At the experts deposition, if you have not carefully explored the validity of his methods, then
you have nothing on which to base a motion in limine to exclude a harmful, but invalid, expert opinion concerning
your case. The party proffering an experts opinions and conclusions has the burden of showing that the experts
evidence is the result of reasonably reliable methods and techniques. The trial judges who preside in the federal
courts and in many state courts are the gatekeepers who decide whether to admit or exclude novel expert
testimony or opinions. The trial judges decision to admit or exclude an expert opinion, because the opinion is not
scientifically based, is only reversible on appeal upon a showing of an abuse of discretion. General Electric Co. v.
Joiner, 522 U.S. 136 (1997). Under Joiner, if your deposition questioning of the opposing expert convinces the trial
judge to exclude the experts testimony, your opponent will have a tremendous burden on appeal to reverse such a
ruling.
The design of your questions concerning the validity and reliability of an experts opinions and conclusions should
originate from the ruling in Frye v US, 293 F. 1013 (D.C. Cir. l923), a United States Supreme Court decision in
which the general acceptance test for determining the admissibility of an experts use of novel or pseudoscientific
evidence was adopted. Under Frye, the attorney deposing the expert witness wants to discover whether the experts
theories, data, methods and principles are generally accepted by other experts in the same scientific field. Today, the
attorney deposing the expert witness should be mindful that many state jurisdictions apply the Fyre standard to the
admissibility of novel expert witness testimony. E.g. Arizona: Logerquist v. McVey, 1 P.3d 133 (2000); California:
People v. Leahy, 882 P.2d 321 (l994); Colorado: Brooks v. People, 975 P.2d 1105 (1999); Illinois: People v. Miller,
670 N.E.2d 721 (IL Sup. Ct. l996); New York: People v. Wernick, 674 N.E.2d 322 (N.Y. l996).
Interestingly, in Donaldson v. Central Ill. Pu. Serv. Co., 767 N.E.2d 314(Ill. 2002), the Illinois Supreme Court
recently held that under Frye the general acceptance standard for scientific evidence does not require that a
majority of experts in the field support the scientific technique proffered. There, the parents of children with
neuroblastoma, a rare form of cancer, filed a negligence suit against the owner of a coal glasification plant. The
plaintiffs called expert witnesses in the field of epidemiology who relied upon the scientific technique of
extrapolation to support their opinion that exposure to coal tar from the plant had caused the cancer. The defendant
objected that the extrapolation method was not generally accepted in the scientific community. Affirming the
admission into evidence of this testimony, the Donaldson Court explained that the general acceptance standard
does not mean universal acceptance of methodologies by a consensus or even a majority of experts. The relationship
between coal tar and neuroblastoma has simply not been the subject of extensive study, the Court found, due to the
rarity of the disease and ethical considerations of exposing humans to coal tar for research purposes. The Donaldson
Court concluded that the experts called by plaintiffs extrapolated from similar, yet not identical, scientific studies
and theories and that extrapolation from other studies and theories is sufficiently established to have gained general
acceptance in these limited circumstances.
Under Frye, you should always ask the opposing expert the preliminary question: Are your opinions and conclusions
based on theories or methods that have been generally accepted by others in your field? If the expert does not know
the answer, then the opposing attorney cannot use the experts testimony to lay the foundation to admit the experts
opinion testimony at trial. You will have won the deposition. If the expert answers Yes, then you should be
prepared to force him to identify each source for his statement and the basis on which he has made that statement.
After Frye, the Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) clarified and
strengthened the criteria required to admit expert opinion testimony based on scientific matters. The Daubert Court
held that the general acceptance test enunciated in Frye had been supplanted by the Federal Rules of Evidence.
Later, in Kumho Tire Co. v Carmichael, 119 S. Ct. 1167 (1999), the Court announced that the Daubert criteria for
the admissibility of scientific expert opinion testimony also applied to the opinions of non-scientific expert
testimony. In response to Daubert and its progeny, Federal Rule of Evidence 702 governing the admissibility of
expert testimony has been amended, effective December 1, 2000. Under Rule 702, a new standard is firmly in place
by which the federal courts shall determine the admissibility of all, not only novel, evidence used by an expert in
support of his opinions and conclusions. Essentially, the new standard establishes a two-pronged analysis for expert
scientific or technical evidence: 1) is the reasoning and methodology underlying the experts theory or opinion
reliable; and 2) is the proposed evidence relevant to the facts of the case? Accordingly, the attorney deposing an
expert witness would be well served to ask the expert questions which could determine the admissibility of the
experts testimony at trial.
In many instances, when an expert witness is disclosed, the opposing partys attorney concedes that the testimony, if
accepted, would assist the trier of fact to understand the evidence or to determine a fact in issue. You should not
make this concession. The proliferation of junk science and expert inflation is well-documented. Too often, an
attorney accepts the experts methods and techniques simply because he looks well-qualified on paper. This is true
for defense experts as well as plaintiffs experts. You will be well served to make a Daubert type inquiry of the
opposing partys expert.
Under Daubert, your outline for analyzing the experts methods and techniques should include the following areas
of inquiry:
Have the experts methods or techniques ever been tested?
Have the methods or techniques used by the expert ever been the subject of a peer review process by
colleagues in the same field?
Have the experts methods or technique been published in a peer reviewed journal or text?
Does the experts technique or method have a known or potential rate of error?
Do standards exist for the techniques or methods used?
Are the experts techniques or methods generally accepted in the field?
Your inquiry on the methods and techniques used by the expert should be flexible. The Daubert court made it clear
that the factors identified above are not exhaustive. The advisory opinions to Federal Rule of Evidence 702 provide
other excellent areas of inquiry which may be relevant to your deposition questions depending on the nature and
type of expert evidence being offered.
If you have read and researched the opposing experts allegedly scientific methods and techniques, and perhaps
consulted with your own expert regarding the acceptance of these methods and techniques in the field, then you may
be successful in laying the foundation to later exclude the experts use of these methods and techniques at trial as the
basis for his opinion and even exclude the entire opinion.
For the expert witness who does identify a text as authoritative, you must be prepared to question him regarding the
basis for his opinion that the text is authoritative. Has he used the text as a reference in the past? Why is it
recognized as authoritative? What makes a specific text authoritative when compared to other texts? You should
also consider questioning the expert using a Daubert analysis. If the text is not accepted under the Daubert criteria,
then a trial judge is not likely to accept the experts testimony that the text is authoritative.
Of course, opposing counsel will have disclosed the allegedly authoritative text to you in pre-deposition discovery.
You should obtain each text, article or other document that the opposing party has identified before the deposition.
The footnotes to the article can be invaluable. Often, the author of the article has cited to other journal articles by
leading authors in the same field about the same inquiry. Undoubtedly, you will find dispute among authors about
opinions which can be drawn about particular findings. For example, in the field of obstetrics, much has been
written lately regarding nucleated red blood cell (NRBCs) counts in newborn infants and the ability to rely upon
NRBCs to calculate the timing of a brain damaging insult to the newborn during labor and delivery. A review of the
published literature in the field quickly reveals the use of different total counts and ranges of times which are being
used to assess when the damage occurred. If you confront the expert with differing studies and literature, then he
may not be able to explain why the materials that he relies upon as authoritative are any more trustworthy or
accepted than other materials.
You must also be prepared to ask the expert whether he acknowledges any of the texts or other documents that you
intend to use in your case-in-chief as authoritative. If you represent the plaintiff, then you probably have disclosed
through your expert authoritative texts, etc., that you intend to use. Presumably your expert has rendered the opinion
at his deposition that the text is authoritative; otherwise, you will not be in a position to meet your foundational
burden at trial with the text before use in front of the jury. Obviously, the opposing expert will have read the text or
other document that you intend to offer. When the expert refuses to acknowledge a text as authoritative, you should
be prepared to ask each reason for the refusal. Remember the deposition can give you advance warning of how the
opposition intends to deal with your authoritative evidence. If you represent the plaintiff, then you may have also
obtained time to declare rebuttal witnesses or opinions. If so, you may wish to confront the opposing expert with
texts or other materials and declare them as authoritative rebuttal evidence. This type of preparation can be
extremely disarming to the opposing expert. He will not have had an opportunity to ponder his response to your
authoritative texts.
You may choose to interrogate the expert about each of the opinions previously disclosed. If you have followed a
well-prepared outline for the deposition, then the validity of the opinions should be obvious to you. You will know
whether the expert has built a credible foundation on which to support his opinions using his qualifications, the
factual evidence, scientific methods and techniques and authoritative texts. If the foundation is incredible, the
opinions will crumble. Having followed a well-prepared outline and strategy, you should complete the experts
deposition and have understanding and control of his opinion testimony.
638.1A Support for Your Experts Opinions
You may also want to try to get the expert to buy into opinions offered by your expert that are not directly
contradicted by your opponents experts opinions. Walk through your experts written report and find out what your
opponents expert agrees with. Ask the expert to agree:
That your expert is qualified to offer the opinions he or she has offered, or that your expert is well respected
in the field.
That certain treatises relied upon by your expert are authoritative.
That methodologies followed by your expert are valid.
In fact, you may want to walk through the Daubert factors with your opponents expert:
You would agree that the methodology [followed by my expert] has been tested.
You agree that that methodology has been peer reviewed.
You agree that that methodology has been published in a peer reviewed journal.
You agree that the rate of error in the methodology [followed by my expert] is within acceptable norms.
You agree that the methodology [followed by my expert] is generally accepted in the field.
Another thing to consider is whether your opponent has disclosed multiple experts each of whom has submitted an
expert report. If so, you may want to attempt to get each expert to critique aspects of your opponents other expert
reports.
The new standard, limiting the scope of discovery to information relevant to the claim or defense of any party, has
changed six decades of federal case law. The old standardrelevant to the subject matter involved in the pending
actionis abolished. The committee notes to the amended Rule make clear that the standard is intended to limit
discovery to matters raised in the pleadings. The parties may not engage in fishing expeditions as previously
sanctioned in Hickman v. Taylor, 329 U.S. 495 (1946). Nor may the parties use discovery to develop claims or
defenses which are not identified in the pleadings. Notes of Advisory Committee to 2000 Amendment; see also
Laurenzano v. LeHigh Valley Hosp., Inc., 2001 WL 849713 (E. D. Pa., 2001) at 2.
However, under the amended Rule one court has attempted to maintain broad latitude in the scope of relevant
discovery stating:
[relevance] is broadly construed, and a request for discovery should be considered relevant if there is any
possibility that the information sought may be relevant to the claim or defense of any party.When the discovery
sought appears relevant on its face, the party resisting the discovery has the burden of establishing the lack of
relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by
discovery would outweigh the ordinary presumption in favor of broad disclosure. Carolina Indus. Prods., Inc. v.
Learjet Inc., 2001 WL 1155297 at 2 (D. Kan. 2001).
King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). It is unclear to what special protections the court
was referring. It appears that the court meant that the organization is relieved of its obligation to present a prepared
witness on questions outside the scope of the noticed topics, but to the extent that the witness can answer the
questions, the answers remain binding on the organization. But then in Detoy v. City & County of San Francisco,
196 F.R.D. 362, 366-67 (N.D. Cal. 2000), another federal court purported to embrace the reasoning in King (calling
the holding accurate and logical), yet then commented, [p]rior to trial, counsel may request from the trial judge
jury instructions that such answers were merely the answers or opinions of individual fact witnesses, not admissions
of the party. Thus, apparently contrary to King, the court in Detoy would find answers to questions beyond the
scope of the deposition notice admissible but not binding on the organization, instead treating them as answers of
the witness as an individual.
Neither holding is entirely satisfactory. Parties seeking to depose an organization are required to identify in advance
of the deposition the topics of examination in part to provide the organization the opportunity to formulate the
organizations official (and hence binding) position on the noticed topics. A Rule 30(b)(6) witness presented with a
question beyond the scope of the deposition notice may be able to provide an answer based on personal observation,
but not necessarily the official answer of the organization, which may be different. Thus, any such answer to a
question outside the scope of the notice should not be binding on the organization.
Nor, however, should responses to questions beyond the scope of the deposition notice necessarily be considered
the personal answers of the individual designated by the organization under Rule 30(b)(6). If the deposing party
wants the deponents personal answers to questions, the deposing party can separately notice the deposition of the
individual. In that case, the parties may agree to have the individual appear in a dual capacity, answering questions
both for the organization, and, where appropriate, in his or her personal capacity. But absent agreement, if the
deposing party wants the personal answers of a witness, the deposing party should notice a separate deposition.
So in practice, here is how it should work. A question is posed that is arguably outside the scope of the notice. The
defending attorney objects, stating that the question is outside the scope of the deposition notice (if asked for the
objections basis). The examining attorney should then think about his or her question to consider whether such an
objection might be sustained at the time of trial. If the examining attorney thinks there is little risk in the objection
being sustained, the examining attorney should insist on an answer to the question. At trial, if the objection is
overturned, the answer will come in as binding on the organization; if the objection is sustained, then the answer
will not come in. On the other hand, if the examining attorney thinks that the defending attorney might be right, that
the question might legitimately be beyond the scope of the notice, then the examining attorney should (a) try to
reframe the question in such a way that it would fall within the noticed topics, (b) ask if the witness is agreeable to
answering the question in his or her personal capacity (unless the parties have already agreed that the Rule 30(b)(6)
and personal depositions will dual track at the same time), or (c) ask for an answer, knowing that it may be
inadmissible, but using it for discovery purposes in the search for other sources of admissible evidence.
Practice Tip: Are Objections to Questions as Beyond the Scope of a Rule 30(b)(6) Notice
Waived if Not Asserted During the Deposition?
As discussed elsewhere in this book, when depositions are taken in accordance with the Federal Rules
(and the rules of most states), an objection is waived if, had it been stated at the time of the deposition,
the interrogating attorney could have reframed the question so as to cure any defect in the question. On
the other hand, there is no need to state an objection to a question the appropriateness of which cannot
be resolved at the time of the deposition, such as whether the question calls for hearsay or information
irrelevant to the case. It is not entirely clear into which category to place questions that are arguably
beyond the scope of a Rule 30(b)(6) notice. If you ask a question that is arguably beyond the scope of the
notice, and that is pointed out to you, you could reframe the question to make it clearly fall within one of
the noticed topics (which would indicate that the objection must be stated or waived). That, however, is
not always possible and the parties are left with a dispute that can only be decided by the judge (and
hence no waiver if the objection is not stated). Since the law is unclear on this point, it is probably safer to
state the objection at the time of the deposition.
720 Objecting to the Deposition Procedure
Objections to the deposition procedure must be made at the time the objectionable procedure occurs or when it
reasonably could have been discovered. If an objection is not made seasonably, it may be deemed waived.
Procedural objections include objections regarding the notice of the deposition, qualifications of the reporter, and
completion and return of the deposition. There is no special language which must be used. It is sufficient to state the
fact that you are objecting and the reason for your objection.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of
the questions or answers, in the oath or affirmation, or in the conduct of the parties, and errors of any kind which
might be obviated, removed or cured if promptly presented, are waived unless seasonable objection thereto is made
at the taking of the deposition.
The Rule continues the basic philosophy that an objection is waived unless promptly made, if the objection is one
which might be cured by the examining attorney.
As the defending attorney, you should consider making all objections that you would make at trial, even if the
objection is one that is not waived if not made during the trial. First, this eliminates the need to determine whether a
particular objection is waived if not made. Second, it keeps you alert in your defending role. Third, when your
opponent offers a portion of the deposition at trial, your, objections are already made, and there is less chance that
you will forget the grounds for an objection. In following this strategy, however, keep in mind that at trial you
normally would not object to every improper question.
A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling
disclosure or discovery as follows:
...
(2) Motion.
...
(B) If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other
entity fails to make a designation under Rule 30(b)(6) or 31(a) ... the discovering party may move for an order
compelling an answer .... The motion must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make the discovery in an effort to secure the information or
material without court action. When taking a deposition on oral examination, the proponent of the question may
complete or adjourn the examination before applying for an order.
...
(4) Expenses and Sanctions.
(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the
court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the
motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable
expenses incurred in making the motion, including attorneys fees, unless the court finds that the motion was filed
without the movants first making a good faith effort to obtain the disclosure or discovery without court action, or
that the opposing partys nondisclosure, response or objection was substantially justified, or that other
circumstances make an award of expenses unjust.
Accordingly, in making any motion to compel further answers and for a request for costs and attorneys fees, you
must make an informal good faith attempt to resolve the dispute. However, if you have reached the point where it is
even necessary to make such a motion, your attempts to resolve the matter will probably be unsuccessful. Therefore,
carefully document your attempts for purposes of your motion.
Sample: Motion to Compel Answers at Deposition
JOHN D. HARMED,
By his attorney,
________________________
ATTORNEY & LAWYER, P.C.
5 Main Street
Metropolis, MA 55556
Dated: _______________
DECLARATIONS
Your declaration should include the factual basis of the disputeincluding a copy of the transcript, if possible, why
the inquiry was proper, and the instruction(s) was notas well as your attempt to informally resolve the dispute
before the filing of the motion.
MEMORANDUM OF LAW
The motion should include a memorandum of points and authorities supporting the relief sought. See 740.
755 Objections to Questions Outside the Scope of the Rule 30(b)(6) Designated Subject
Matters
As discussed in 715, if you are defending a Rule 30(b)(6) deposition, you should object to any questions that you
believe fall outside the scope of the topics identified in the deposition notice. You must then permit the witness to
answer the question unless you have a different basis on which to give an instruction not to answer.
(1) Counsel may inquire into the identity of any persons with whom a deponent conferred in preparation for his or
her deposition. F.R.C.P. 26(b)(1).
(2) Such inquiry may not, however, include questions which tend to elicit specific questions posed to the witness by
any counsel involved in this litigation, the generalized inquiry pursued by counsel, the facts to which counsel
appeared to attach significance, or any other matter that reveals counsels mental impressions concerning the case.
(3) Any party challenging the production of documents reviewed by a witness in preparation for a deposition must
file a motion for protective order pursuant to Rule 30(d). Counsel is further advised that the rule in the Fifth Circuit
under In re International System and Controls Corp., 693 F.2d 1235 (5th Cir. 1982) is that even where work-
product immunity protects the documents themselves, the underlying facts are discoverable. Hinsaw at 153.
Id. at 251; see also Henson v. Citizens Bank of Irving, 549 S.W.2d 446, 447 (Tex. Civ. App. Eastland 1977).
See generally F. Fendler, Waive the Fifth or Lose the Case: Total Preclusion Orders and The Civil Defendants
Dilemma, 39 SYRACUSE L. REV. 1161 (1988).
While courts have imposed harsh sanctions on the party asserting the privilege, the risk of the assertion does also
pose a dilemma for the party seeking the discovery. If the other side asserts the privilege, the discovering party may
not learn information vital to the case, yet a court in most circumstances may be unwilling to impose the draconian
sanctions contemplated by some of the cases cited above. Thus, consistent with good discovery practice, where a
Fifth Amendment issue fairly can be anticipated, it behooves both parties to discuss a compromise solution. Here
are some options:
A. Immunity: Pursuant to the federal use immunity provisions, 18 U.S.C. 6001-6005 (1998), a court has the
authority to confer-use immunity for any testimony given at a deposition. However, a motion of this type
typically requires the consent or nonobjection of the prosecutor. Moreover, courts will strictly construe a grant
of immunity in a prior criminally related matter that is then used by a civil opponent at a later date. See, e.g.,
Pillsbury Co. v. Conboy, 459 U.S. 248, 260 (1983) (Use immunity was intended to immunize and exclude from
a subsequent criminal trial only that information to which the government expressly has surrendered future use).
See also Daly v. Superior Court, 19 Cal.3d 132, 148, 137 Cal. Rptr. 14, 24 (Cal. 1977).
B. Stay-of-Proceedings Pending Running of Statute of Limitations: A court may stay the proceedings of a case
until the statute of limitations on the applicable criminal statutes have run. United States v. Talco Contractors,
Inc., 153 F.R.D. 501, 516 (W.D.N.Y. 1994).
C. Protective Order: The court has the authority to issue a protective order barring the disclosure of the deposition
outside the litigation. Rule 26(e). Martindale v. Intl Tel. and Tel., 594 F.2d 291 (2d Cir. 1979). However, the
protection afforded by a protective order is not as extensive as the Fifth Amendment because,
no matter how broad its reach, [it] provides no guarantee that compelled testimony will not some way find its way
into [third party] hands-for use in a subsequent criminal prosecution.... [and] a Rule 26(c) protective order may be
overturned or modified based on improvidence, extraordinary circumstances or compelling need....
Andover Data Services v. Statistical Tab. Corp., 876 F.2d 1080, 1083 (2d Cir. 1989). See also, United States v.
Talco Contractors, Inc., 153 F.R.D. 501, 505-506 (W.D.N.Y. 1994). But see DeLeo v. Wacholvia Bank, No.
2D06-580, 2007 WL 101214 (Fla. App. Div. Jan. 17, 2007) (court affirmed witnesss right to refuse to answer
questions after invoking his Fifth Amendment privilege despite party seeking discoverys suggestion that the
court issue a protective order preventing disclosure of the witnesss answers; court noted limitations of
protective orders to assure that testimony will never reach prosecutors office).
D. Preclusion: The deponents testimony may be barred as to all noncollateral matters at trial, United States v. One
Parcel of Real Property Commonly Known as 901 N.E. Lakewood Drive, Newport, Ore., 780 F. Supp. 715, 721-
22 (D. Or. 1991), even where the deponent seeks to waive the privilege at the eleventh hour before trial. SEC v.
Drexel Burnham Lambert, 837 F. Supp. 587, 602 (S.D.N.Y. 1993). See also, F. Fendler, Waive the Fifth or
Lose the Case: Total Preclusion Orders and The Civil Defendants Dilemma, 39 Syracuse L. Rev. 1161 (1988);
Andover Data Services v. Statistical Tab. Corp., 876 F.2d 1080 (2d Cir. 1989). This motion may be made under
certain circumstances prior to trial in the form of a protective order. See, Pacers, Inc. v. Superior Court, 162
Cal. App. 3d 686, 208 Cal. Rptr. 743 (1984).
E. Waiver: Once the privilege is waived, a witness cannot refuse to fill in the details, Rogers v. United States, 340
U.S. 367, 373, 71 S. Ct. 438, 422, 95 L. Ed. 341 (1951), unless those answers further incriminate the witness. In
re Master Key Litigation, 507 F.2d 292, 294 (9th Cir. 1974). See also, E.F. Hutton & Co. v. Jupiter Dev. Corp.,
91 F.R.D. 110, 116 (S.D.N.Y. 1981).
***
Plaintiffs counsel may inquire into the substance of Hansons knowledge concerning matters relevant to the subject
matter of the litigation. However, plaintiffs counsel may not ask questions that tend to elicit the questions posed to
Hanson by Victors attorney, the general line of inquiry pursued by her, the facts to which Victors attorney
appeared to attach significance or any other matter that reveals Victors attorneys mental impressions, theories,
conclusions or opinions concerning the case. Id.
Indeed, the cases relied upon seem to apply the principle to communications of an attorney to any nonparty witness.
See Ford v. Philips Electronics Instruments Co., 82 F.R.D. 359, 360 (E.D. Pa. 1979); Phoenix Nat. Corp. Inc. v.
Bowater United Kingdom Paper Ltd., 98 F.R.D. 669, 671 (N.D. Ga. 1983); United States v. International Business
Machines Corp., 79 F.R.D. 378, 379-380 (S.D.N.Y. 1978). Presumably, however, the witness himself has the right
to waive the privilege.
The amended Rule codifies a large body of case law which limited objections at depositions. Recently, in Miller v.
Waseca Medical Center, 205 F.R.D. 537 (2002), the court addressed the new amendment. The defendants argued
that the plaintiffs counsel made personal remarks and ad hominem attacks on defense counsel, all of which intruded
upon the course of the deposition.
The Miller court held that a party object and instruct a witness not to answer under limited circumstances and
warning that a party does so at its own peril if it is wrong on the merits of the objection. Id. at 538-9.
Whether intentional or not, opposing counsels questions may be confusing, misleading or otherwise improper. In
most cases, your objections should be short and to the point: Objection, leading question, Objection, hearsay,
Objection, assumes facts not in evidence, or Objection, lack of foundation. If the examining attorney asks for a
further explanation of your objection, provide a sufficient explanation to make a full record of your grounds for
objecting. Failure to provide an explanation may be grounds for overruling the objection at trialparticularly if it is
a curable objection. On the other hand, in order to expedite the deposition (and minimize the disruptive effect of
objections on the flow of the examination), the examiner should have the right to limit the objection to the simple
statement of objection.
Often the witness will answer a question before you have had time to consider it. If you conclude that the question
was objectionable, move to strike the answer, state the reason and note that the deponent answered so quickly that
there was insufficient time between question and answer to interpose the objection. This should be sufficient to
preserve your objection unless it was based on privilege and your opponent can claim waiver. If necessary, move
for a protective order with respect to your objection.
Consider making any objection that you would normally make if the testimony were offered at trial, even though
under the Rules all objections except those which are curable may be reserved until trial. See Chapter 7. This
procedure serves several purposes. First, it will help keep you alert during what otherwise might be several hours of
uninteresting testimony and thus ready to deal with those few trick questions which are slipped in. Second, your
witness will be reassured that you are defending himhe is not standing alone. Third, if the deposition is offered at
trial, you will have already preserved any objections you might have wanted to assert. Too often a portion of a
deposition is quickly offered at trial, and the defending attorney fails to make appropriate objections because he
does not have adequate time to consider the matter.
This does not mean that you should make every conceivable objection merely to place it in the record. Little
purpose is served by making minor technical objections such as to leading questions concerning background
information. Make objections for a specific reasonnot merely to enforce strict compliance with the rules on
unimportant points.
It is not proper to make numerous objections simply to attempt to interrupt the flow of the examiner. Such tactics
are not only unethical, they may be counterproductive. For one, they may cause your witness to become confused or
lose his train of thought. For another, if the deposition is offered at trial, your excessive objections may have an
adverse impact upon the trier of fact. Moreover, your witness must be prepared to stand on his own when he
testifies at trial.
Do not argue objections with opposing counselit is rarely fruitful. You usually will not convince him, nor him
you. It may interrupt the examining attorneys train of thought, but it is more likely to interrupt your witnesss train
of thought and concentration.
831.1 Objection Strategy
The decision as to whether to object must be based upon a specific strategy. At trial it is unlikely that you will
object to technically objectionable questions. Rather, you object when a purpose will be accomplished by your
objection. Similarly, in a deposition, whether you should object should be based upon a consideration of what is
best for you and your case and whether an objection will help accomplish your goal. Some factors to consider in
deciding whether or not to object:
It keeps you alert and attentive in what might be a boring circumstance.
It shows the deponent that you are supporting him and he is not standing alone against the examiner.
It is easier to make the objections during the course of the testimony instead of during the heat of trial when
the deposition may be offered.
It disrupts the examiners flowan appropriate objective so long as it is done for other primary reasons and
within the bounds of professionalism.
Objections ensure that the record is clear and clean (protected).
Is the objection necessary to keep out harmful evidence?
Consider the impact of objections upon your witness: does it confuse him, give him a welcome respite,
disrupt his thought processes, etc.?
What exactly do you want to accomplish?
832 Demeanor
Id. at 646.
Answer only if you know This comment, often not even accompanied by the word objection falls within a
category of seemingly non-controversial (who could argue that a witness should answer if he or she does not
know?) remarks often made by defending counsel during depositions to hint to witnesses how to respond. This is
evident because the most common answer following an answer only if you know remark is I dont know. Not
surprisingly, where a pattern of such conduct is evident from a transcript, courts have imposed sanctions. See, e.g.,
City of New York v. Coastal Oil New York, Inc., 2000 WL 97247, *2 (S.D.N.Y. Jan. 28, 2000) (Review of the
entire transcript also shows that defense counsel often made objections which had the appearance of coaching the
witness by continually reminding the witness by stating, if you know, or if you remember.); Learning
International, Inc. v. Competence Assurance Systems Inc., 1990 WL 204163, *2-3 (S.D.N.Y. Dec. 13, 1990)
([Counsel] also objected in such a way as to suggest to witnesses that they should withhold information of which
they were not absolutely certain but which could have led to the discovery of admissible evidence. [Such objections
included:] You dont have to speculate. Answer only if you know).
You can answer, but only if you understand the question This is another of the seemingly non-controversial
remarks frequently stated during depositions, yet usually unaccompanied by the word objection. The intent,
however, is typically to break the questioners rhythm and to suggest to the witness how to be evasive in answering
the question. The court in Hall v. Clifton Precision, 150 F.R.D. 525, 530 (E.D. Pa. 1993) first noted that objections
are frequently interposed [improperly] for the purpose of disrupting the rhythm of a deposition, then stated:
I also note that a favorite objection or interjection of lawyers is, I dont understand the question; therefore the
witness doesnt understand the question. This is not a proper objection. If the witness needs clarification, the
witness may ask the deposing lawyer for a clarification. A lawyers purported lack of understanding is not a proper
reason to interrupt a deposition. In addition, counsel are not permitted to state on the record their interpretations of
questions, since those interpretations are irrelevant and often suggestive of a particular desired answer.
Id. at 530 n.10. See also Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla.
1999) (If the witness is confused about a question, or if a question seems awkward or vague to the witness, the
witness may ask the deposing counsel to clarify the question. Surely they are intelligent enough to know when
they do not understand a question). Apart from the suggestive nature of such interjections, courts have also decried
the prolonging effect of transcripts littered with such statements. Thus, in discussing abusive deposition tactics
generally, the court in McDonough v. Keniston, 185 F.R.D. 22, 23 (D.N.H. 1998), noted that, Multiple and/or
unnecessary objections, statements such as if you remember, if you understand, etc., prolong depositions.
You are mischaracterizing his testimony This is a tricky area for attorneys defending a deposition. In order
to follow-up on earlier testimony, questions frequently begin with the predicate, You testified before that This
is a buzz-phrase for defending counsel to listen-up. Whether what follows in the question is an accurate summary of
prior testimony or not, defending counsel is likely to object that the question mischaracterized the previous
testimony. The real objection here is foundation. If the summary of prior testimony in the predicate to the pending
question is not accurate, then the question lacks foundation. As discussed earlier, if the deposition is proceeding
under the Federal Rules of Civil Procedure, then it would be appropriate to object to the question as one containing
a defect that can be cured at the time of the question (because the examining attorney can rephrase the predicate).
However, if all objections except those as to form have been reserved to trial, then no foundation objection is
needed here. Thus, while a question containing a summary of prior testimony may invite a proper foundation
objection, courts will not condone anything other than a concisely stated objection, on the view that if the predicate
to the question does mischaracterize the earlier testimony, the witness is capable of saying so. See, e.g., City of New
York v. Coastal Oil New York, Inc., 2000 WL 97247, *7 (S.D.N.Y. Jan. 28, 2000) (ordering the re-opening of
deposition and that offending counsel pay for costs after counsel repeatedly instructed witness not to answer
questions, including on the ground that the examiner was mischaracterizing [the witnesss] testimony); Armstrong
v. Hussmann Corp., 163 F.R.D. 299, 302 & n.14 (E.D. Mo. 1995) (finding it was improper for defending counsel to
object to a question as mischaracterizing previous testimony and then stating on the record what the prior testimony
was, thereby signaling to the witness to answer the pending question consistently with the lawyers objection).
I am sure counselor would not want this witness to guess or speculate There is no rule that an examiner
may not ask a witness to guess or speculate. The objection likely grows out of the evidentiary rule of witness
competence. A fact witness may only testify at trial as to what the witness has personal knowledge. Therefore, a
deposition answer based on a guess or speculation likely would not be admissible at trial. Yet, the rules permit
inquiry into areas that would not be admissible at trial, as long as the questions appear reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). A good practice when faced with such an
objection is to state clearly that you want the guess or speculation, then inquire into the process through which, or
the basis on which, the guess or speculation was made. You may indeed learn that the witness does have personal
knowledge of the matter of the inquiry, or you may discover other avenues (witnesses, documents) for further
discovery.
The document speaks for itself This is a common objection stated when a question asks for a witnesss
understanding or interpretation of a document. Lawyers understandably get quite nervous when questions get into
the content of documents, particularly when causes of action or defenses turn on the meaning of documents. Yet the
objection is really no more than a relevance objection, and courts are hesitant to permit defending counsel to be the
one to decide whether parole evidence would be permissible at trial. See, e.g., Collins v. Intl Dairy Queen, Inc.,
1998 WL 293314, *2 (M.D. Ga. June 4, 1998) (With respect to relevant documents, it is not a valid objection in
the deposition of a witness who has or may have some relevant knowledge concerning the document or its subject
matter, that the document speaks for itself. The questioning attorney ordinarily is entitled to inquire of a witness
concerning his or her relevant knowledge concerning the contents and subject matter of a document).
(Cutting witness off) I think youve now answered the question Every good witness preparation session
includes the advice to the witness to stop talking once the question is fully and truthfully (yet concisely) answered.
Invariably, however, witnesses ramble and go beyond the question asked. The inclination when defending a
deposition is to cut such witnesses off. If done with frequency during a deposition, courts have imposed sanctions.
See, e.g., Cholfin v. Gordon, 1995 WL 809916, *10 (Mass. Super. Ct. Mar. 22, 1995). Better to wait until a break to
remind the witness of the ground rules in answering questions.
The fact that there is no judge in the room to prevent private conferences does not mean that such conferences
should or may occur. The underlying reason for preventing private conferences is still present: they tend, at the very
least, to give the appearance of obstructing the truth.
These rules also apply during recesses. Once the deposition has begun, the preparation period is over and the
deposing lawyer is entitled to pursue the chosen line of inquiry without interjection by the witnesss counsel.
Private conferences are barred during the deposition, and the fortuitous occurrence of a coffee break, lunch break,
or evening recess is no reason to change the rules. Otherwise the same problems would persist. A clever lawyer or
witness who finds that a deposition is going in an undesired or unanticipated direction could simply insist on a short
recess to discuss the unanticipated yet desired answers, thereby circumventing the prohibition on private
conferences. Therefore, I hold that conferences between witness and lawyer are prohibited both during the
deposition and during recesses.
FN7./To the extent that such conferences do occur, in violation of this Opinion and Order, I am of the view that
these conferences are not covered by the attorney-client privilege, at least as to what is said by the lawyer to the
witness. Therefore, any such conferences are fair game for inquiry by the deposing attorney to ascertain whether
there has been any coaching and, if so, what.
Id. at 528-29. Since 1993, a number of jurisdictions, both federal and state, have followed Hall v. Clifton
Precisions lead. See, e.g., Collins v. Intl Dairy Queen, Inc., 1998 WL 293314 (M.D. Ga. June 4, 1998) (citing Hall
and holding that, [t]he witness and his or her counsel do not have the right to discuss documents privately before
the witness answers questions about them); In re Matter of Anonymous Member of the South Carolina Bar, 552
S.E. 2d 10, 16 (S.C. 2001) (Once a deposition begins, an attorney and a client may have an off-the-record
conference only when deciding whether to assert a privilege or a newly-produced document. Conferences called
to assist a client in framing an answer, to calm down a nervous client, or to interrupt the flow of a deposition are
improper and warrant sanctions); In re PSE&G Shareholder Litigation, 726 A.2d 994 (N.J. Super. Ct. 1998)
(prohibiting conferences during breaks including lunch recess, but permitting conferences at the conclusion of
each day of a multi-day deposition).
Not all jurisdictions to have considered the question have taken such a hard line. The leading case criticizing the
breadth of the Hall v. Clifton Precision holding is In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D.
Nev. 1998). There the District Court for the District of Nevada wrote:
[T]his Court is of the opinion that the Hall decision goes too far and its strict adherence could violate the right to
counsel. The Hall decision effectively precludes counsel and his witness from speaking to each other once a
deposition has begun, until it is finished. If they so much as speak to each other, opposing counsel then has the right
to inquire into everything that was said. It is one thing to preclude attorney-coaching of witnesses. It is quite
another to deny someone the right to counsel.
If [breaks] are requested by the deponent or deponents counsel, and the interrogating attorney is in the middle of a
question, or is following a line of questions which should be completed, the break should be delayed until a
question is answered or a line of questions has been given a reasonable time to be pursued. So long as attorneys
do not demand a break in the questions, or demand a conference between questions and answers, the Court is
confident that the search for truth will adequately prevail.
Id. at 620-21. The reasoning in In re: Stratosphere Corp. Securities Litigation seems to provide a fair balance
between protecting the truth-seeking functions of depositions while still giving counsel defending depositions
proper leeway.
Because of the variation in rules among jurisdictions, before defending a deposition in a particular jurisdiction, you
should look up the applicable rules of attorney-deponent conferences.
In two recent cases the court has decided that the seven hour rule must be flexible and may not be used as a strict
time limit. In Sabre v. First Dominion Capital, 201 WL 1590544 (S.D.N.Y., Dec. 2001), the court was confronted
with a witness who had substantial knowledge in his individual capacity and as a designated Rule 30(b)(6)
corporate representative. Sabre held that two independent seven-hour periods apply noting that a Rule 30(b)(6)
deposition is substantially different from a deposition of an individual. Id. at 1. The court reasoned:
Any entity that wanted to limit the testimony of an individual could accomplish that goal by designating the
individual as a 30(b)(6) witness; under defendants interpretation, every minute spent conducting the 30(b)(6)
deposition would be deducted from the time available to probe the witnesss individual knowledge. Conversely,
defendants interpretation would also permit any entity to curtail 30(b)(6) examinations by designating as a 30(b)(6)
witness a person who previously testified for six hours as an individual and has only one hour left on his or her
presumptive seven-hour clock. An interpretation that would lead to such absurd results must be rejected. Id.
The Sabre court went on to observe that its ruling does not mean attorneys have carte blanche to depose a witness
for seven hours as an individual and seven hours as a corporate representative. In many cases when dealing with
closely held corporations, the knowledge of an individual also constitutes the substantive and complete knowledge
of the entity. Id. at 2.
In Miller v. Waseca Medical Center, 205 F.R.D. 537 (D. Minn., 2002), the defendants complained that the witness
was evasive and answered yes or no questions with long narrative replies which exhausted the seven hour time
allotted. Recognizing its duty to enforce the new Rule, the Miller court held that additional time was needed for a
fair examination of the witness under the circumstances. The court admonished the parties to refrain from repetition
and unnecessary colloquy and to answer questions directly. Id. at 538.
The Advisory Committee notes recognize that reasonable breaks are necessary during a deposition and that the
parties should not become preoccupied with timing. Factors that justify longer depositions include questioning:
About events that occurred over a long period of time
About numerous or lengthy documents that the deponent has not read
About previously unproduced documents which were requested
By multiple attorneys in multiparty litigation so long as the questioning is not duplicative
Full exploration of an expert witnesss theories and techniques
The Rule clearly contemplates that depositions be conducted in an efficient and organized manner. The examiner
must have a well-organized outline to his questioning and a well-defined strategy for obtaining the testimony that he
needs for his case. The days of deposition marathons are over.
The Rule also clearly contemplates that when there are multiple parties to the case, that if one attorney conducts a
seven hour deposition of a witness, then another attorney shall not be deprived of ample time to examine the
witness. However, under Rule 26(b)(2), the questioning cannot be redundant or duplicative. The time limits force
the attorneys to interrogate the witness with relevant questions, learn what the witness has to offer on the merits of
the controversy and conclude the deposition.
Similarly, the defending attorney may interrupt to clarify the answer of the witness. This too may or may not be
improper, depending upon the examining attorneys attitude. Generally, if the witness made an obvious error, e.g., a
date, it usually is better to correct it immediately rather than hours later. On the other hand, technically you may
make corrections only by cross-examination. However, in the courtroom correction of obvious errors is permitted,
and so too in depositions.
835.3 Conferences With the Witness and Recesses
See 542. As defending counsel you should be particularly alert to the witness becoming fatigued. Depositions are
not intended to be trial-by-exhaustion, and you should call for recesses to avoid a witness testifying while fatigued.
Rarely would anyone object to a ten-minute recess after every hour of testimony. More frequent recesses may be
appropriate, depending on the reasonable needs of the particular witness.
Use the recesses to refresh the witness. Usually the witness should walk around, and not just sit. Physical activity
relaxes and rests the mind. Similarly, use the time to build the witnesss confidence (or, in some instances, to deflate
his ego). If necessary, remind the witness of the basic rules of being deposed, and of the big picture. However, do
not use the time to discuss details. Keep his mind clear, dont reload it with detail.
Conferences should be held with the witness after a question but before the answer only in very limited situations.
For example, if either you or the witness perceive that a question propounded might call for privileged testimony, a
conference might be justified to discuss a non-privileged response, or whether an objection must be asserted.
835.4 Defending the Witness
In most situations, the witness, particularly if unprepared, is a poor match for a competent examiner. Add the
disparity created by training, experience and preparation of the examiner to the psychological concern about a
deposition that many witnesses exhibit, and the potential for incorrect testimony is substantial.
Hence, an important role for you is that the witness identify with you as his defender or supporter. Often this role is
only in the imagination of the witness, but it is still important. The role may be created by your relationship with and
demeanor toward the examiner before and during the examination, the tone of your objections, your comments
during recesses, etc. When the examiner is an aggressive or obnoxious lawyer, create the impression with your
witness that he is not standing alone.
835.5 Maintaining a Clear Record
Among your many tasks during the course of defending a deposition is to be sure the record is clear, unless you
conclude that a confusing record would be more in your clients interest. Generally, you have no obligation to
correct the examiners mistakes.
The best approach to a clean transcript is to recognize that it is not video, and gestures will not be recorded:
If the witness answers a question by nodding yes or no, request that he verbalize the answer, or note for the
record that the witness answered yes or no.
If the witness refers to a size by pointing to something, ask him to verbalize it into standard measures.
If the witness begins his answer before the question is concluded, ask him to pause before answering. Check
that the reporter has the question and the answer.
If the witness refers to this document, clarify by stating that the witness is referring to Exhibit
____________.
A few other hints are equally important:
Be sure the witness allows the examiner to complete the question before answering, and vice versa. The
reporter cannot record two people talking at once.
Be sure the examiner and the witness do not use unintelligible words.
Sometimes the bad-faith examiner so exceeds the scope of propriety in his examination that action must be taken
beyond instructing the witness not to answerit is necessary to seek to terminate the deposition because of the bad
faith of the examiner.
For example sometimes the mere asking of the questioneven if the witness refuses to answer itmay cause the
witnesss testimony thereafter to be unreliable. For example, in some instances questions about the deponents sex
life, about particular details of an accident; details about the death of a loved one, etc. may have a major mental
impact on the witness. If such questions are asked in bad faith, it may be grounds not only under Rule 26(e)(4) for a
protective order precluding examination into the areas, but also for an order under 26(c)(1) terminating the
examination. Obviously, such a remedy is appropriate only in extreme circumstances. See, Hearst/ABC-Viacom
Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 59, 62-63 (E.D. Pa. 1992) (length of deposition
alone is not determinative of bad faith). That said, the defender cannot terminate the deposition; he can only recess
the proceedings so as to provide time to seek an order of termination.
Sample: Motion to Terminate Deposition for Bad Faith
Dated: _______________
DECLARATIONS
Your motion should include declaration(s) setting forth the basis of the motion, i.e., inappropriate questions, over
objections, harassment of witness; relevant portions of transcript, if available, and your good faith efforts to resolve
the dispute prior to filing the motion.
MEMORANDUM OF LAW
Your motion should include a memorandum of points and authorities in support of the requested relief.
836 Deposition Related Sanctions
Rule 30(d)(2) allows for sanctions on a person who impedes, delays or frustrates the fair examination. The main
sanctionable activities include, among other actions, coaching the witness, extraneous colloquies by counsel,
interruptions, excessive recesses, speaking objections and improper instructions not to answer. Courts may levy
costs for this conduct, including attorneys fees, on the person acting in such manner. As such, these sanctions can
be levied against the attorney as well as the deponent.
Defending attorneys are advised to take reasonable steps to ensure your deponent is not engaging in any
obstructionist tactics. Likewise, deposing attorneys should be on the lookout for these tactics and, where
appropriate, terminate the deposition under Rule 30(d)(3) and move to compel further responses and for the
imposition of sanctions.
Using Rule 30(g), parties may also recover costs via sanctions for the failure of a deponent or their representative to
attend the deposition. These costs include attorneys fees. In addition, under Rule 37(b)(2), a court has the
discretion to levy such an extreme sanction as dismissal of the entire claim for discovery violations.
Sanctions may also result for refusal to answer questions or evasive and unresponsive tactics and the subsequent
filing of a motion to compel answers. These sanctions are discussed further in 635.
PETITION TO
PERPETUATE
TESTIMONY OF
_________________
VERIFICATION
Since the Rules require a verified petition, your petition should contain the appropriate declaration attesting to the
facts in the petition.
NOTICE OF DEPOSITION
OF ____________________
Date: ___________
Time: ___________
Place: ___________
JOHN D. HARMED,
By his attorney,
_________________________
ATTORNEY & LAWYER, P.C.
5 Main Street
Metropolis, MA 55556
Dated: _______________
DECLARATIONS
Your motion should contain declaration(s) that set forth relevant and admissible facts justifying the need to take the
deposition in the event of further proceedings.
MEMORANDUM OF LAW
The motion should set forth relevant law in support of the relief sought.
[CAPTION]
_______________________________
Clerk of the District Court
City and County of Denver
In some cases, it may be desirable to employ a local court reporter who is familiar with local procedures. However,
given the fact that the deposition must be transcribed in English, and in full compliance with rules of the forum
court, serious consideration should be given to transporting your usual reporter to the foreign locale.
It is rare that this procedure will be satisfactory; not only has the examiner not heard the testimony, he has no
opportunity for followup questions. However, when it is concluded that attendance at the deposition is not otherwise
necessary, and limited objective facts are needed, the procedure is economical, particularly if the deposition is a
distant location. Participation in the deposition by telephone under Rule 30(b)(7), however, may be nearly as
economical and far more effective.
1011 Using a Deposition Taken in the Same Civil Action in Which It Is Sought to be Used
The typical situation is for one party to seek to use a deposition taken in that civil action. The following subsections
will deal with variations of this typical situation you may encounter.
1011.1 Using a Deposition Taken Prior to the Substitution of Parties
Rule 32(a) states that the right to use a deposition at trial is not affected by the substitution of parties pursuant to
Rule 25. This portion of Rule 32 was meant to cover a variety of situations in which the parties change. On the one
hand, it binds a representative or successor in interest of a party when that party has died. But it equally allows the
representative or successor to make use of an earlier taken deposition. Indeed, by its terms, Rule 32(a)(2) allows the
deposition of a party to be used against another person who has been substituted for the original party. See 4A
MOORES FEDERAL PRACTICE 32.07, at 32-38 ([t]hus, if the defendant has taken the deposition of the plaintiff and
subsequently the plaintiff assigns his claim to A, who is substituted for the original plaintiff, the defendant may use
the deposition of the original plaintiff as evidence of admissions against A.).
1011.2 Using a Deposition Taken Prior to the Joinder of Additional Parties
In many cases, additional parties are joined in litigation after depositions have been taken. Rule 32(a), however,
provides for use of depositions only against a party who was present or represented at the taking of the deposition
or who had reasonable notice thereof. See, e.g., Application of Royal Bank of Canada, 33 F.R.D. 296 (S.D.N.Y.
1963); Withers v. Mobile Gas Service Corp., 567 So.2d 253, 254 (Ala. 1990). Thus, to satisfy the Rule while using
a deposition is taken, counsel should be sure that the joined party either:
Had its interests adequately represented at the deposition, including the opportunity to cross-examine; or
Is given the opportunity to object to any questions asked, and to undertake a cross-examination.
The interests of the joined party may have been adequately represented at the deposition in a variety of situations.
For example, the joined partys predecessor in interest may have been a party to the action, represented by the same
lawyer as the joined party.
Similarly, a joined party can be given the opportunity to make objections by several means. For example, the parties
involved may stipulate that all of the joined partys objections are reserved for trial, or that the joined party may
insert objections into the deposition by amendment to the transcript. (Such stipulations, reduced to writing, are
probably within the scope of Rule 29, which governs stipulations regarding discovery procedure. You would be
safer, however, to incorporate the stipulation into a court order. Absent a stipulation, upon application, the court
should enter an order to the same effect.)
The joined party can be afforded the right of cross-examination by reopening the deposition.
If you have taken the deposition of the added party prior to joining him as a party, you should be able to use the
deposition at trial, even though his presence was as a nonparty. Codeiro v. Levasseau, 112 F.R.D. 209, 211 (D.R.I.
1986) (use of a deposition at trial is most appropriate vis-a-vis one who is a party at the time of trial, irrespective of
his former status). See Annotation, Admissibility in Evidence of Deposition as Against One Not a Party at the Time
of its Taking, 4 A.L.R.3d 1075 (1965). If you anticipate the need to use a deposition at trial and intend to offer it
against a party who was added after the deposition took place, consider the following alternatives:
Obtain a written stipulation from the additional party, under Rule 29, that the deposition may be used at trial.
Move for an order of court allowing use against the new party, with the stipulation that if the new party
wishes cross-examination, the deposition will be reopened.
Take a second deposition of the deponent, thereby allowing the new party to cross-examine.
If you are not able to secure a stipulation from the new party, take steps to have the matter resolved by the court
well in advance of trial.
1011.3 Using a Deposition When a Subsequent Deposition of the Deponent Has Been Taken
Unless the parties stipulate, under Rule 30(a)(2), a party must obtain leave of court in order to take the deposition of
a person who has already been deposed in the case. The principles upon which the court determines whether to
grant leave are defined in Rule 26(b)(2).
Clearly, multiple depositions can be taken of the same person in appropriate circumstances. Often, for example,
after the deposition of a witness is taken in the ordinary course of discovery, it becomes apparent that the witness
will not be available for trial because of illness, absence, or otherwise. A second deposition may then be taken of the
deponent for the express purpose of offering the deposition at trial in lieu of live testimony. If two depositions are
taken, however, which one may be used at trialor can both be used?
In Gracia v. Lee, 976 F.2d 1344 (10th Cir. 1992), a medical malpractice action, the plaintiff took the deposition of
the defendant doctor in the regular course of discovery. Thereafter, the defendants attorney took the doctors
deposition for use at trial because of the doctors ill health. At trial, the defendant offered the second deposition,
which was admitted in evidence. The plaintiff then sought to offer excerpts from the first deposition, which
apparently were adverse to the defendant and contrary to his second deposition. The trial court sustained the
defendants objections to admission of the first deposition, and was affirmed on appeal, based on the following
analysis:
While a deposition of a party may be used against him for any purpose under Rule 32(a)(2), admission of the
deposition into evidence is not mandated. For example, it was held unfairly prejudicial to the defendant for the
plaintiff to use excerpts from the first deposition to attack the doctor at trialin absentiaafter the plaintiff had
elected not to use them at the preservation deposition, when the doctor would have had an opportunity to address,
on videotape, those excerpts for the benefit of the jury.
Several lessons can be learned from Gracia: Rule 32(a)(2) does not mandate admission of an adverse partys
depositionsthe court has discretion in extraordinary circumstances. Second, if you know your opponent is taking
a deposition for use at trial in lieu of personal testimony, and you have previously deposed that person, you should
treat the taking of the second deposition as if it were trialuse the first deposition as if the second deposition were
testimony in trial.
If the witness is on the stand, either deposition may be used to impeach the witness, since both are prior statements
under Fed. R. Evid. 801(d), and both are depositions under Fed. R. Civ. P. 32. Hence, the general rule is if two
depositions have been taken of a single person, both depositions may be used unless, in the courts discretion,
fairness requires a different result.
1011.4 Using a Corrected Deposition
Both the original and the corrected version of the deposition may be used at trial. Podell v. Citicorp Diners Club,
Inc., 112 F.3d 98, 103 (2d Cir. 1997). If a witness has made an important change to his testimony in accordance
with Rule 30(e), you can expect an argument at trial over whether the corrected or the original version constitutes
the witnesss sworn testimony for purposes of impeachment or use as substantive evidence. Although both the
original and the corrected version should be allowed, some courts do not follow this practice or at least regulate the
order in which the original and corrected versions may be used.
The whole issue can be largely eliminated if, at the time you are taking the deposition and discussing deposition
procedures with the witness, you also advise him that although he has the right to make changes to the deposition,
both the original and the changes will be admissible against him. If the witness acknowledges his understanding of
that fact and no objection to the statement is made by opposing counsel, you may use the acknowledgment during
your cross-examination. You may also use the acknowledgment and opposing counsels silence to bolster your
argument that both versions of the deposition are admissible.
Conversely, in preparing your witness for deposition, you should emphasize the importance of truthfulness and
accuracy in the original testimony, given the consequences of significant written changes later. Also, make certain
that you are involved in the process whereby your client makes any changes to the deposition. Do not make the
mistake of allowing your client or witnesses to send changes directly to the court reporter for inclusion in the record
without proper review and advice from you concerning the need for and consequences of such changes.
For further discussion, see 1021.3 (use of adverse party depositions to impeach or contradict) and 1054
(introducing additional parts of deposition)
1011.5 Using an Unsigned Deposition
Normally, in some jurisdictions, for a deposition to be used it must be completed, tendered to the witness for
review and signature, and filed in accordance with the rules. (This procedure was followed in the federal courts until
the 1993 amendment to Rule 30(e) became effective; for further discussion, see 561.5.) Whether each of these
requirements must be satisfied, however, depends upon the particular use to be made of the deposition.
For example, if the deponent is sworn, the transcripteven though not signed or completed and thus inadmissible
as a deposition at trialmay be admissible as affidavit. Microsoft Corp. v. Very Competitive Computer Products
Corp., 671 F. Supp. 1250, at 1254 n. 2 (N.D. Cal. 1987). Therefore, a sworn but incomplete, unsigned deposition
may meet the evidentiary requirement for summary judgment under Fed. R. Civ. P. 56(e) if the testimony is made
on personal knowledge and sets forth facts admissible under the Rules of Evidence. See In re Sunset Bay Associates,
944 F.2d 1503, 1509 (9th Cir. 1991); Tormo v. Yormark, 398 F. Supp. 1159, 1168 (D.N.J. 1975).
1011.6 Using a Deposition Not Fulfilling the Procedural Requirements
The procedural requirements for a deposition are discussed in Chapter 3, 4 and 5. Most of these requirementssuch
as reasonable notice, opportunity to make corrections, and statements of reason for changesare waived if not
timely made. See, e.g., Cox v. Commonwealth Oil Co., 31 F.R.D. 583, 584 (S.D.Tex. 1962); Hodge v. Borden, 417
P.2d 75, 80 (Idaho 1966). Thus the proper fulfillment of these procedures are rarely an issue at trial. Moreover,
procedural irregularities may be irrelevant when the deposition is to be used for nonsubstantive evidentiary purposes
such as impeachment or refreshing recollection. See Appel v. Sentry Life Insurance Co., 739 P.2d 1380, 1382-1383
(Colo. 1987).
A person designated to testify under Rule 30(b)(6) or 31(a) will be deemed a party for the purposes of Rule
32(a)(2). See also Rule 37. If the party is not an individual, anyone who, at the time the deposition was taken, was
an officer, director, or managing agent of the party will be deemed a party.
The term managing agent is unclear in the context of todays business world. Courts have held that a managing
agent must be more than a mere employee; he must have been vested with authority to exercise discretion in dealing
with corporate matters and his interests must be identified with those of the business. See, e.g., Krauss v. Erie Ry.
Co., 16 F.R.D. 126 (S.D.N.Y. 1954); Annotation, Who is a Managing Agent of a Corporate Party (to Civil
Litigation) Whose Discovery-Deposition may be Taken under Federal Rules of Civil Procedure or State
Counterparts, 98 A.L.R. 2d 622 (1964). The distinction between a mere employee and a managing agent, however,
may have been rendered somewhat moot by the broadening of Rule 32(a)(1) because it apparently allows, under
Fed. R. Evid. 801(d)(2), the use of admissions made by an employee during the course of his deposition so long as
those admissions relate to matters within the scope of his employment and were made while the employee was still
an employee. 4A MOORES FEDERAL PRACTICE 32.04 at 32-22.
An adverse party, as that term is used in Rule 32, refers to a party whose interests are adverse in fact, even though
that party may be nominally aligned as a co-party or may be the subject of cross-claims. Id., 32.04 at 32-18, 32-19.
For example, co-defendants may be adverse to each other, depending upon the nature of the claims asserted, just as
a third-party defendant is adverse to the defendant third-party plaintiff. However, a plaintiff may or may not be
adverse to a third-party defendant.
The statements in a deposition of an expert hired by a party may be deemed admissions under Fed. R. Evid.
801(d)(2)(c). Thus, even if, after his deposition, a witness is withdrawn as an expert, one court has held that his
deposition may be offered into evidence as an admission of the party that hired him. Collins v. Wayne, 621 F.2d 777
(5th Cir. 1980).
1021.2 Using the Deposition of an Adverse Party for Any Purpose
Rule 32(a)(2) provides that a deposition of a party or an officer, director, or managing agent of a party, or a person
designated by a party, may be used by an adverse party for any purpose. Normally, those uses are simply 1)
contradicting or impeaching the testimony of the deponent as a witness, or 2) as substantive testimony in lieu of the
deponent testifying. However, possible uses also include refreshing present recollection. The deposition of a party
may be offered as substantive evidence by an adverse party even if the party is available in the courtroom. Stauffer
v. Karabin, 30 Col. App. 357, 366, 492 P.2d 862, 866 (Colo. App. Ct. 1961); see, Pingatore v. Montgomery Ward
and Co., 419 F.2d 1138, 1142 (6th Cir. 1969), cert. denied, 398 U.S. 928 (1970) (error to limit use to
impeachment); Pursche v. Atlas Scraper & Engg Co., 300 F.2d 467, 488 (9th Cir. 1961), cert denied, 371 U.S. 911
(1962).
Automatic admissibility of depositions as substantive evidence in not a universal concept. For example, in the case
of Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir. 1999), a wrongful discharge case, the trial court
refused to admit plaintiffs offer of defendants deposition as substantive evidence, making it available for
impeachment purposes only. The trial court reasoned that the deposition testimony was inappropriate on this basis,
since the defendant was available to testify. On appeal, the Tenth Circuit Court of Appeals held that while Fed. R.
Civ. P. 32 did, indeed, require admittance of the deposition regardless of availability of the witness, the trial court
had the discretion to limit its use, and that discretion would not be questioned absent a showing of prejudice to the
plaintiff. Since the trial court allowed plaintiff to use the deposition for impeachment, and plaintiff failed to use the
deposition for that purpose, she was deemed not to have been prejudiced by the trial courts action.
Over the years, other circuits have made similar holdings. See, e.g., Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d
958, 963 n.3 (5th Cir. 1969); Community Counselling Service, Inc. v. Reilly, 317 F.2d 239, 243 (4th Cir. 1963);
Klepal v. Pennsylvania Railroad Co., 229 F.2d 610 (2d Cir. 1956). In light of these decisions, a party should obtain
a ruling on the admissibility of depositions before trial.
1021.3 Using the Deposition of an Adverse Party to Impeach or Contradict the Adverse Partys
Testimony
Rule 32(a)(1) states that a deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of the deponent as a witness. (Note also that Fed. R. Evid. 607 provides that the credibility of a witness
may be attacked by any party, including the party calling the witness.) This is perhaps the most common use for
depositions. They are effective vehicles to reign in an opposing witness, either through impeachment or the threat of
impeachment. Once a witness is deposed, his testimony at trial will not often vary from the testimony he gave in
deposition. If it does, the deposition comes into play.
In 1980, Rule 32(a) was amended to authorize the use of depositions not only to impeach, but for any other
purpose permitted by the Federal Rules of Evidence. One example of how this amendment may be significant
derives from Fed. R. Evid. 801(d)(1), which allows a prior inconsistent statement of a witness to be offered as
substantive evidence, that is, to contradict rather than simply to impeach the witness. When you want the witnesss
earlier statement to be believed, you may offer it as substantive evidence rather than merely to show that the witness
has changed his testimony. Your argument to the fact-finder would be that not only should the witnesss testimony
at trial not be believedbecause he has been impeachedbut that his earlier inconsistent statement was truthful
and should be believed.
A second situation in which the any other purpose language may be significant comes from Fed. R. Evid.
801(d)(2), which classifies an admission by a party opponent as not hearsay. Under that evidentiary provision, the
following constitute statements by a party which are not considered hearsay and thus may be offered as substantive
evidence:
Statements made by a party (in either an individual or a representative capacity).
Statements in which the party has manifested an adoption or belief in the statements truth.
Statements made by a person authorized to make statements concerning a subject.
Statements by a partys agent or employee, concerning a matter within the scope of his agency or
employment, made during the existence of the relationship.
Statements made by a co-conspirator during the course and in furtherance of the conspiracy.
The interrelationship of this evidentiary provision and the broad referral in Rule 32( a) to the Rules of Evidence
suggests that a wide range of deposition testimony may be used against a partynot only to impeach his testimony,
but also as substantive evidence. See 4A MOORES FEDERAL PRACTICE 132.02 at 32-12. This is potentially
significant because the definition of a party in Fed. R. Evid. 801 (d)(2) is far broader than that contained in Rule
32(a)(2), which allows depositions to be used against a party for any purpose. Apparently, the intent of the drafters
of the 1980 amendment to Rule 32(a) was to make the Federal Rules of Evidence a parallel source of authority for
the use of depositions at trial, even if its provisions are sometimes broader than those contained in Rule 32.
Both the original and corrected version of a deposition are admissible in connection with impeaching or
contradicting a witnesss testimony. For example, if you have deposed an adverse party and obtained helpful
testimony which is then corrected to eliminate its helpfulness, at trial, if the witness testifies as he did in his
amended deposition, you may impeach that witness with the original deposition transcript. See, Hodge v. Borden,
417 P.2d 75 (Idaho 1966). Either you or your opponent may then bring out the fact of and reasons for the
corrections.
1021.4 Using the Deposition of an Adverse Party as Substantive Evidence
There are no limits on the use of a deposition of an adverse party as substantive testimony so long as the procedural
requirements of Rule 32 are met and the testimony is admissible under the Rules of Evidence.
1021.5 Using the Deposition of an Adverse Party to Refresh His Recollection
On occasion a witness may draw a blank during the course of his testimony at trial and may be unable to testify
about events which he covered during an earlier deposition. If you are unable to refresh his recollection through the
use of documents or leading questions, you may ask him to review portions of his deposition for the same purpose.
See Fed. R. Evid. 612 (governing writings used to refresh memory).
If the witness still is unable to recall the earlier events after referring to his deposition transcript, you may offer the
deposition into evidence pursuant to Fed. R. Evid. 804(b) and Rule 32(a) because the witness, although present, is
deemed unavailable. (Fed. R. Evid. 804(a)(3) declares a witness unavailable when he testifies to a lack of memory
of the subject matter of an earlier statement.) Fed. R. Evid. 804(b) states that if the witness is unavailable, his prior
testimony in the same or a different proceeding may be admissible. This provision (in addition to the specific
grounds set forth in Rule 32) has been recognized as a basis for admitting deposition testimony. See United States v.
Intl Business Machines, 90 F.R.D. 377, 383-384 (S.D.N.Y. 1981). In such a case the testimony of the declarant in a
deposition is not hearsay if the party against whom the testimony is offered had an opportunity to develop the
testimony by examination. Thus, if the witness at trial simply cannot remember the events he testified to in his
deposition, Fed. R. Evid. 804 provides the vehicle for offering the witnesss deposition testimony into evidence. See
also, Fed. R. Evid. 803(5); McNamara and Sorensen, Deposition Traps and Tactics, 12 LITIGATION 48 (1985).
On the other hand, you may simply want to refresh the witnesss memory with his deposition. The following is an
example of how to do so.
First, establish that the witness once knew the information but can no longer remember it:
Q. What items were in the back seat of the car when you arrived?
A. I do not recall.
Q. Did you see the items in the back seat when you arrived?
A. Yes.
Q. Prior to today did you know what items were in the back seat of the car?
A. Yes.
Q. Today do you have any memory of what those items were?
A. No.
Second, establish that the deposition would refresh the witnesss memory:
Q. Do you recall that your deposition was taken on [date]?
A. Yes.
Q. At your deposition, did you know what items were in the back seat?
A. Yes.
Q. Would the transcript of that deposition refresh your recollection as to what was in the back seat?
A. Yes.
Alternatively, ask the witness what would refresh his memory:
Q. Is there anything that would refresh your recollection as to what was in the back seat of the car?
A. Yes, the transcript of my deposition.
Third, refresh the witnesss recollection:
Q. I hand you the transcript of your deposition taken on [date]. Please read page [number] to yourself.
[Pause] Is your memory now refreshed as to the items that were in the back seat of the car on [date]?
A. Yes.
Q. Please tell the jury the items that were on the back seat of the car when you arrived on [date].
No doubt there will be a continuing increase in the usage of the exceptional circumstances provision of Rule
32(a)(3)(E) to allow a deposition to be used as substantive evidence without the unavailability prerequisites of
32(a)(2)(E). If you intend to offer a deposition under Rule 32(a)(3)(E), try to obtain a ruling prior to trial, if
possible. Consider factors that might persuade the court that exceptional circumstances exist:
The reason the witness would be burdened by attending trial, and the nature of that burden (for example, the
effect of his absence from employment, interference with prior plans, or economic hardship).
Whether the witnesss testimony is in fact in issue. If the credibility of the witness is not in issue, it is less
likely that the court will find oral testimony of the witness in open court is needed for justice.
Whether the offered deposition is a videotape or a transcript. Obviously, a videotape is much closer to open
court testimony than a transcript. On the other hand, if it is a trial to the court, the judge may be attracted by
the opportunity to speed read the transcript in chambers.
Whether the trial is to the court or to a jury. Most judges feel that it is less important for them to hear
witnesses live than it is for a jury.
[Name]
[Address and phone number]
Attorney for [party]
[Name of court]
[Name], )
Plaintiff )
) PLAINTIFFS DESIGNATION
vs ) OF PORTIONS OF DEPOSITION
) OF [NAME] OFFERED
[Name], ) INTO EVIDENCE
Defendant )
)
Plaintiff offers the following portions of the deposition of [name] into evidence:
from to
1. Page 1, line 1 page 3, line 13
2. Page 17, line 23 page 19, line 4
3. Page 57, line 14 page 86, line 22
The judge may then read the transcript at his leisure. He may ask the attorneys to note which objections made
during the deposition are renewed, and what reserved objections are now made. His rulings should be on the record.
An alternative followed by some courts is to have the offering party highlight in yellow the portions of the transcript
the offers, and then allow the adverse party to highlight his supplemental designations in blue. Some judges, even in
a trial to the court, have the depositions read aloud.
If depositions are to be read aloud, some courts want to rule on objections in advance, and some want to rule only
on objections made liveduring the course of the reading. Some judges want the reading to be in the sequence
appearing in the deposition, whether offered by plaintiff or by defendant; others want the offering party to read his
designated portions, and then the other party to read his additional portions. If you are the defending party, you
probably will want your offered portions to be read in sequence so they will proceed in a desired order or context.
If the portion to be read is short, the offering attorney may simply read the questions and testimony directly from the
transcript (skipping objections on which the court has already ruled, and colloquy of counsel). If the portion is more
than a few minutes long, it is better to have a person take the stand as if he were the deposed witness; you read the
question and the witness reads the answer exactly as it appears in the transcript. Unless objections have been ruled
on in advance, opposing counsel may object (unless the objection has been or is now waived) just as if the reader
were the witness.
It is important that you read the questions with the same type of emphasis you would if the deponent were on the
stand. Similarly, the person reading the answers should do so in a tone simulating that of the witness. (Indeed, some
attorneys hire a drama student or actor to read the answers, hopefully with more flair than the typical reader.) The
reading of depositions can be terribly boring to a jury, and a monotone questioner or answerer can quickly destroy
the impact you anticipated from the deposition. On the other hand, undue emphasis can also be objectionable. In any
event, the reader should practice prior to the reading.
Before reading the deposition, secure approval from the court to change the deposition exhibit numbers to
correspond to the trial exhibit numbers.
1032.1 Using Summaries of Deposition Testimony
Rather than read to the jury verbatim portions of the deposition transcript, counsel may prefer to read a summary of
deposition testimony, which may be allowed by the court. In the case of In re Air Crash Disaster, 720 F. Supp.
1493, 1503 (D. Colo. 1989), the court required the offering party to prepare the summary and submit it to opposing
counsel. Presumably, any disputes as to the accuracy of the summary were resolved by the court. See also,
Oostendorp v. Khanna, 937 F.2d 1177, 1180 (7th Cir. 1991), cert. denied, 502 U.S. 1064 (1982).
1035 Laying the Foundation for Using the Deposition of an Unavailable Witness
The party offering the deposition has the burden of establishing that the deponent is unavailable and thus meets one
of the grounds in Rule 32(a)(3). The simplest way of doing so is to obtain the stipulation of opposing counsel.
However, if you cannot obtain a stipulation, several alternative courses of action are available.
To prove the witness is dead, present:
A death certificate, under Fed. R. Evid. 902
Testimony of a person having personal knowledge that the witness is dead
An obituary or other death notice under Fed. R. Evid. 902
To prove that the witness is more than 100 miles from the place of trial, provide:
An affidavit of the witness (preferably executed immediately prior to or at the time of trial) that he will
be more than 100 miles from the place of trial at the time of trial
Testimony that a long-distance call was placed to a designated number (at a location more than 100 miles
from trial) and the person answering identified himself as the witness (and made certain statements
indicating he was in fact the witness)
Testimony of a person having personal knowledge of the witnesss place of business and residence
A first class or certified letter, delivered to the addressee only (see 39 U.S.C. 5010)
Testimony of the witness in the deposition that at time of trial he will be in a distant location
(If necessary,) testimony that party offering the deposition did not procure the absence of the witness.
To prove that the witness is unable to attend or testify because of age, illness, infirmity or imprisonment,
present:
An affidavit of the witness
An affidavit or testimony of a person (such as doctor or close relative) with personal knowledge of the
extenuating circumstances
To prove that the party offering the deposition has been unable to procure the attendance of the witness by
subpoena, provide:
The subpoena, with affidavit form showing no return of service (see Rule 4(g), which suggests affidavit
is prima facie evidence)
An affidavit of unsuccessful efforts to locate the witness for service
(If necessary,) an affidavit or testimony of process server of inability to serve subpoena, and efforts made
Generally, the deposition of a witness who is more than 100 miles from the courthouse but still within the district
(and hence subject to the subpoena power) may be used. United States v. Intl Business Machines, 90 F.R.D. 377,
382-383 (S.D.N.Y. 1981). However, if the witness testifies as a part of the partys case, he cannot generally
thereafter be deemed unavailable. Id.
You should attempt to obtain a ruling on the use of depositions prior to trial. Most judges are reasonably flexible
and do not require strict proof. Proof is usually offered outside the presence of the jury. See Annotation, Sufficient of
Efforts to Procure Missing Witnesss Attendance to Justify Admission of His former Testimony-State Cases, 3
A.L.R. 4th 87 (1981).
The grounds for admission of a deposition under Rule 32(a)(3) may be established through counsels statements to
the court; sworn testimony or an affidavit is not automatically required as proof. See Sikyta v. Arrow Stage Lines,
Inc., 470 N.W.2d 724 (Neb. 1991), and federal cases cited therein. But see Maresh v. State, 489 N.W.2d 298 (Neb.
1992).
Assuming you are using a deposition to impeach, ask permission from the judge to open the original deposition
(have the original deposition or the impeaching document at your fingertips), approach the witness, and leave the
deposition in front of him. Return to the podium and using your personal copy of the deposition establish the nature
of the impeachment document by saying, Ive placed in front of you your deposition taken on June 2, 1992, in my
office. Do you recall having your deposition taken at that time?
Next, if applicable, confirm that the prior statement was made under oath. Then refer the witness (and, indirectly,
opposing counsel) to the page which contains the impeaching statement: I direct your attention to page 13, line 13
of your deposition, sir. When the witness has situated himself, ask him about his prior testimony in a manner
which compels him to answer yes or no Its true, is it not, that at your deposition I asked you, What color was the
light? and you answered, The light was green?
Counsel should not paraphrase the deposition dialogue but rather quote the question and answer directly from the
deposition or prior statement. The dialogue should be stated in its entirety so as to prevent an objection.
Likewise the impeaching question and answer should not be taken out of context or be misleading. If the question is
asked so that a yes or no answer is demanded, no other answer is responsive. If the witness tries to wiggle his way
out of the impeachment by saying But that isnt what I meant, the attorney may object to the answer as
nonresponsive and insist on a yes or no.
It is imperative that the attorney control the examination by reading the impeaching dialogue himself and not give
the witness an opportunity to give a non-responsive, evasive answer.
Once the witness has been impeached the lawyer must make a tactical decision how to proceed. The lawyer may
want to move to another area completely and force opposing counsel to rehabilitate his witness: or the lawyer may
wish to allow the witness to explain the contradiction, betting on the witness becoming hopelessly entangled in his
web of deception.
One final thought. Most attorneys think of impeaching and refreshing only in the traditional sense of impeaching an
adverse witness and refreshing a friendly witness. Consequently, attorneys become flustered when they are called
upon to impeach their own witness or refresh the recollection of a hostile witness.
This problem can be avoided if one thinks of impeaching and refreshing as mere trial techniques or strokes in a
tennis match. A tennis player can hit a forehand crosscourt for a winner (impeaching an adverse witness) or hit an
easily returnable forehand volley right at the racket of the other player (impeaching your own witness).
Nancy E. Rice, Playing Court Tennis, Impeaching, Refreshing, 15, No. 11 The Docket 1 (Feb. 1992). Its all in
how the shot is executed.
1051.3 Other Methods of Impeachment
An alternative and less traditional method of impeachment by deposition is to be more combative, for example:
Q. You stated a few minutes ago that you never drink before driving?
***
Q. But thats not what you said at your deposition, is it?
[If the witness admits the inconsistency, finish the question by asking]
Q. What you stated at your deposition was that you have occasionally been known to drink a bit before
driving?
If at any point the witness attempts to explain the inconsistency, the judge will probably permit the witness to do so.
If the inconsistent statement is admitted by the witness, it is not necessary to read the deposition into the record.
Occasionally, judges used to the more traditional method of impeachment (1051.2, supra) may prefer that cross-
examination proceed in that manner.
It may be noted that in this instance, it may be tactically unwise to ask the witness if he or she knew that he or she
was under oath when the deposition was taken; you have already implicitly accredited the deposition testimony as
the truth.
James Berriman
CEO, Evidox Corporation
The text of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters is reprinted
below. Counsel should note that each signatory to the conventions may or may not have opted out of particular
articles or portions thereof, and it is counsels responsibility to confirm which countries are current signatories to the
Convention, and which portions are in effect.
Article 1
In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of
the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request,
to obtain evidence, or to perform some other judicial act.
A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or
contemplated.
The expression other judicial act does not cover the service of judicial documents or the issuance of any process
by which judgments or orders are executed or enforced, or orders for provisional or protective measures.
Article 2
A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming
from a judicial authority of another Contracting State and to transmit them to the authority competent to execute
them. Each State shall organize the Central Authority in accordance with its own law.
Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other
authority of that State.
Article 3
A Letter of Request shall specify
(a) the authority requesting its execution and the authority requested to execute it, if known to the requesting
authority;
(b) the names and addresses of the parties to the proceedings and their representatives, if any;
(c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard
thereto;
(d) the evidence to be obtained or other judicial act to be performed.
Where appropriate, the Letter shall specify, inter alia
(e) the names and addresses of the persons to be examined;
(f) the questions to be put to the persons to be examined or a statement of the subject-matter about which they
are to be examined;
(g) the documents or other property, real or personal, to be inspected;
(h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;
(i) any special method or procedure to be followed under Article 9.
A Letter may also mention any information necessary for the application of Article 11.
No legalization or other like formality may be required.
Article 4
A Letter of Request shall be in the language of the authority requested to execute it or be accompanied by a
translation into that language.
Nevertheless, a Contracting State shall accept a Letter in either English or French, or a translation into one of these
languages, unless it has made the reservation authorized by Article 33.
A Contracting State which has more than one official language and cannot, for reasons of internal law, accept
Letters in one of these languages for the whole of its territory, shall, by declaration, specify the language in which
the Letter or translation thereof shall be expressed for execution in the specified parts of its territory. In case of
failure to comply with this declaration, without justifiable excuse, the costs of translation into the required language
shall be borne by the State of origin.
A Contracting State may, by declaration, specify the language or languages other than those referred to in the
preceding paragraphs, in which a Letter may be sent to its Central Authority.
Any translation accompanying a Letter shall be certified as correct, either by a diplomatic officer or consular agent
or by a sworn translator or by any other person so authorized in either State.
Article 5
If the Central Authority considers that the request does not comply with the provisions of the present Convention, it
shall promptly inform the authority of the State of origin which transmitted the Letter of Request, specifying the
objections to the Letter.
Article 6
If the authority to whom a Letter of Request has been transmitted is not competent to execute it, the Letter shall be
sent forthwith to the authority in the same State which is competent to execute it in accordance with the provisions
of its own law.
Article 7
The requesting authority shall, if it so desires, be informed of the time when, and the place where, the proceedings
will take place, in order that the parties concerned, and their representatives, if any, may be present. This
information shall be sent directly to the parties or their representatives when the authority of the State of origin so
requests.
Article 8
A Contracting State may declare that members of the judicial personnel of the requesting authority of another
Contracting State may be present at the execution of a Letter of Request. Prior authorization by the competent
authority designated by the declaring State may be required.
Article 9
The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures
to be followed.
However, it will follow a request of the requesting authority that a special method or procedure be followed, unless
this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its
internal practice and procedure or by reason of practical difficulties.
A Letter of Request shall be executed expeditiously.
Article 10
In executing a Letter of Request the requested authority shall apply the appropriate measures of compulsion in the
instances and to the same extent as are provided by its internal law for the execution of orders issued by the
authorities of its own country or of requests made by parties in internal proceedings.
Article 11
In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a
privilege or duty to refuse to give the evidence
(a) under the law of the State of execution; or
(b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the
instance of the requested authority, has been otherwise confirmed to that authority by the requesting
authority.
A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of
States other than the State of origin and the State of execution, to the extent specified in that declaration.
Article 12
The execution of a Letter of Request may be refused only to the extent that
(a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or
(b) the State addressed considers that its sovereignty or security would be prejudiced thereby.
Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive
jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.
Article 13
The documents establishing the execution of the Letter of Request shall be sent by the requested authority to the
requesting authority by the same channel which was used by the latter.
In every instance where the Letter is not executed in whole or in part, the requesting authority shall be informed
immediately through the same channel and advised of the reasons.
Article 14
The execution of the Letter of Request shall not give rise to any reimbursement of taxes or costs of any nature.
Nevertheless, the State of execution has the right to require the State of origin to reimburse the fees paid to experts
and interpreters and the costs occasioned by the use of a special procedure requested by the State of origin under
Article 9, paragraph 2.
The requested authority whose law obliges the parties themselves to secure evidence, and which is not able itself to
execute the Letter, may, after having obtained the consent of the requesting authority, appoint a suitable person to do
so. When seeking this consent the requested authority shall indicate the approximate costs which would result from
this procedure. If the requesting authority gives its consent, it shall reimburse any costs incurred; without such
consent the requesting authority shall not be liable for the costs.
Article 15
In a civil or commercial matter, a diplomatic officer or consular agent of a Contracting State may, in the territory of
another Contracting State and within the area where he exercises his functions, take the evidence without
compulsion of nationals of a State which he represents in aid of proceedings commenced in the courts of a State
which he represents.
A Contracting State may declare that evidence may be taken by a diplomatic officer or consular agent only if
permission to that effect is given upon application made by him or on his behalf to the appropriate authority
designated by the declaring State.
Article 16
A diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and
within the area where he exercises his functions, also take the evidence, without compulsion, of nationals of the
State in which he exercises his functions or of a third State, in aid of proceedings commenced in the courts of a State
which he represents, if
(a) a competent authority designated by the State in which he exercises his functions has given its permission
either generally or in the particular case; and
(b) he complies with the conditions which the competent authority has specified in the permission.
A Contracting State may declare that evidence may be taken under this Article without its prior permission.
Article 17
In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without
compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of
another Contracting State if
(a) a competent authority designated by the State where the evidence is to be taken has given its permission
either generally or in the particular case; and
(b) he complies with the conditions which the competent authority has specified in the permission.
A Contracting State may declare that evidence may be taken under this Article without its prior permission.
Article 18
A Contracting State may declare that a diplomatic officer, consular agent or commissioner authorized to take
evidence under Articles 15, 16 or 17, may apply to the competent authority designated by the declaring State for
appropriate assistance to obtain the evidence by compulsion. The declaration may contain such conditions as the
declaring State may see fit to impose.
If the authority grants the application, it shall apply any measures of compulsion which are appropriate and are
prescribed by its law for use in internal proceedings.
Article 19
The competent authority, in giving the permission referred to in Articles 15, 16 or 17, or in granting the application
referred to in Article 18, may lay down such conditions as it deems fit, inter alia, as to the time and place of the
taking of the evidence. Similarly it may require that it be given reasonable advance notice of the time, date and place
of the taking of the evidence; in such a case a representative of the authority shall be entitled to be present at the
taking of the evidence.
Article 20
In the taking of evidence under any Article of this Chapter persons concerned may be legally represented.
Article 21
Where a diplomatic officer, consular agent or commissioner is authorized under Articles 15, 16 or 17 to take
evidence
(a) he may take all kinds of evidence which are not incompatible with the law of the State where the evidence is
taken or contrary to any permission granted pursuant to the above Articles, and shall have power within such
limits to administer an oath or take an affirmation;
(b) a request to a person to appear or to give evidence shall, unless the recipient is a national of the State where
the action is pending, be drawn up in the language of the place where the evidence is taken or be
accompanied by a translation into such language;
(c) the request shall inform the person that he may be legally represented and, in any State that has not filed a
declaration under Article 18, shall also inform him that he is not compelled to appear or to give evidence;
(d) the evidence may be taken in the manner provided by the law applicable to the court in which the action is
pending provided that such manner is not forbidden by the law of the State where the evidence is taken;
(e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence
contained in Article 11.
Article 22
The fact that an attempt to take evidence under the procedure laid down in this Chapter has failed, owing to the
refusal of a person to give evidence, shall not prevent an application being subsequently made to take the evidence
in accordance with Chapter I.
Article 23
A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of
Request issued for the purpose of obtaining pretrial discovery of documents as known in Common Law countries.
Article 24
A Contracting State may designate other authorities in addition to the Central Authority and shall determine the
extent of their competence. However, Letters of Request may in all cases be sent to the Central Authority.
Federal States shall be free to designate more than one Central Authority.
Article 25
A Contracting State which has more than one legal system may designate the authorities of one of such systems,
which shall have exclusive competence to execute Letters of Request pursuant to this Convention.
Article 26
A Contracting State, if required to do so because of constitutional limitations, may request the reimbursement by the
State of origin of fees and costs, in connection with the execution of Letters of Request, for the service of process
necessary to compel the appearance of a person to give evidence, the costs of attendance of such persons, and the
cost of any transcript of the evidence.
Where a State has made a request pursuant to the above paragraph, any other Contracting State may request from
that State the reimbursement of similar fees and costs.
Article 27
The provisions of the present Convention shall not prevent a Contracting State from
(a) declaring that Letters of Request may be transmitted to its judicial authorities through channels other than
those provided for in Article 2;
(b) permitting, by internal law or practice, any act provided for in this Convention to be performed upon less
restrictive conditions;
(c) permitting, by internal law or practice, methods of taking evidence other than those provided for in this
Convention.
Article 28
The present Convention shall not prevent an agreement between any two or more Contracting States to derogate
from
(a) the provisions of Article 2 with respect to methods of transmitting Letters of Request;
(b) the provisions of Article 4 with respect to the languages which may be used;
(c) the provisions of Article 8 with respect to the presence of judicial personnel at the execution of Letters;
(d) the provisions of Article 11 with respect to the privileges and duties of witnesses to refuse to give evidence;
(e) the provisions of Article 13 with respect to the methods of returning executed Letters to the requesting
authority;
(f) the provisions of Article 14 with respect to fees and costs;
(g) the provisions of Chapter II.
Article 29
Between Parties to the present Convention who are also Parties to one or both of the Conventions on Civil Procedure
signed at the Hague on the 17th of July 1905 [99 British Foreign and State Papers 990] and the 1st of March 1954
[286 UNTS 265], this Convention shall replace Articles 8-16 of the earlier Conventions.
Article 30
The present Convention shall not affect the application of Article 23 of the Convention of 1905, or of Article 24 of
the Convention of 1954.
Article 31
Supplementary Agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally
applicable to the present Convention unless the Parties have otherwise agreed.
Article 32
Without prejudice to the provisions of Articles 29 and 31, the present Convention shall not derogate from
conventions containing provisions on the matters covered by this Convention to which the Contracting States are, or
shall become Parties.
Article 33
A State may, at the time of signature, ratification or accession exclude, in whole or in part, the application of the
provisions of paragraph 2 of Article 4 and of Chapter II. No other reservation shall be permitted.
Each Contracting State may at any time withdraw a reservation it has made; the reservation shall cease to have effect
on the sixtieth day after notification of the withdrawal.
When a State has made a reservation, any other State affected thereby may apply the same rule against the reserving
State.
Article 34
A State may at any time withdraw or modify a declaration.
Article 35
A Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a later date,
inform the Ministry of Foreign Affairs of the Netherlands of the designation of authorities, pursuant to Articles 2, 8,
24 and 25.
A Contracting State shall likewise inform the Ministry, where appropriate, of the following
(a) the designation of the authorities to whom notice must be given, whose permission may be required, and
whose assistance may be invoked in the taking of evidence by diplomatic officers and consular agents,
pursuant to Articles 15, 16 and 18 respectively;
(b) the designation of the authorities whose permission may be required in the taking of evidence by
commissioners pursuant to Article 17 and of those who may grant the assistance provided for in Article 18;
(c) declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27;
(d) any withdrawal or modification of the above designations and declarations;
(e) the withdrawal of any reservation.
Article 36
Any difficulties which may arise between Contracting States in connection with the operation of this Convention
shall be settled through diplomatic channels.
Article 37
The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague
Conference on Private International Law.
It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Article 38
The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of
ratification referred to in the second paragraph of Article 37.
The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after
the deposit of its instrument of ratification.
Article 39
Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a
Member of this Conference or of the United Nations or of a specialized agency of that Organization, or a Party to
the Statute of the International Court of Justice may accede to the present Convention after it has entered into force
in accordance with the first paragraph of Article 38.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument
of accession.
The accession will have effect only as regards the relations between the acceding State and such Contracting States
as will have declared their acceptance of the accession.
Such declaration shall be deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall
forward, through diplomatic channels, a certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the State that has declared its acceptance of
the accession on the sixtieth day after the deposit of the declaration of acceptance.
Article 40
Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to
all the territories for the international relations of which it is responsible, or to one or more of them. Such a
declaration shall take effect on the date of entry into force of the Convention for the State concerned.
At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the
notification indicated in the preceding paragraph.
Article 41
The present Convention shall remain in force for five years from the date of its entry into force in accordance with
the first paragraph of Article 38, even for States which have ratified it or acceded to it subsequently.
If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before
the end of the five year period.
It may be limited to certain territories to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in
force for the other Contracting States.
Article 42
The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 37, and to the
States which have acceded in accordance with Article 39, of the following
(a) the signatures and ratifications referred to in Article 37;
(b) the date on which the present Convention enters into force in accordance with the first paragraph of Article
38;
(c) the accessions referred to in Article 39 and the dates on which they take effect;
(d) the extensions referred to in Article 40 and the dates on which they take effect;
(e) the designations, reservations and declarations referred to in Articles 33 and 35;
(f) the denunciations referred to in the third paragraph of Article 41.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed the present Convention.
DONE at The Hague, on the 18th day of March 1970, in the English and French languages, both texts being equally
authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of
which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Eleventh
Session of the Hague Conference on Private International Law.
A
Adams v. Bellsouth Telecomms., Inc., 138.1
Addamax Corp. v. Open Software Foundation, Inc., 244
Adkins v. Mid-America Growers, Inc., 121
Advance Sys., Inc. of Green Bay v. APV Baker PMC, Inc., 211.3
Aerotech Resources, Inc. v. Dodson Aviation, Inc., 240
Aetna Casualty & Sur Co. v. Hyman Constr. Co., 332
Ager v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 225
Alexander v. Fed. Bureau of Investigation, 124, 210.1.1
All West Pet Supply Co. v. Hill's Pet Products Div., Colgate-Palmolive Co., 639A
Allen v. Chicago Transit Authority, 765
Allender v. Raytheon Aircraft Co., 221
Allgeier v. U.S., 1023
Alper v. United States, 213.3
Al-Rowaishan Establishment Universal Trading & Agencies, Ltd. v. Beatrice Foods Co., 762.1
Amco Engineering Co. v. Bud Radio, Inc., 751
American Hangar, Inc. v. Basic Line, Inc., 240, 410, 740
American Health Systems, Inc. v. Liberty Health System, 210.1.1
American High-Income Trust v. AlliedSignal, Inc., 2.10.3
American Tel. and Tel. Co. v. Grady, 310
American Universal Ins. Co. v. Falzone, 123
Andover Data Services v. Statistical Tab. Corp., 763
Anguile v. Gerhart, 142
Anker v. G.D. Searle & Co., 225
Appel v. Sentry Life Insurance Co., 1011.6
Archer Daniels Midland Co. v. AON Risk Services, Inc., 138
Armstrong Cork Co. v. Niagara Mohawk Power Corp., 211.2
Armstrong v. Hussmann Corp., 542, 630, 634, 740, 753, 832.4
Avirgan v. Hull, 332
Axelson, Inc. v. McIlhany, 639.2A
B
Babets v. Secretary of the Executive Office of Human Services, 765
Bahamas Agricultural Industries, Ltd. v. Riley Stoker Corp., 731
Baine v. General Motors Corp., 211.2
Baird v. Koerner, 636
Baird v. Larson, 241
Bank of New York v. Meridien Biao Bank Tanzania, 124, 454
Barber v. Ruth, 240
Barlow v. Esseite Pendaflex Corp., 561
Barnes v. Madison, 210.1.1
BCI Communication Systems, Inc. v. Bell Atlanticom Systems, Inc., 322
BDT Products, Inc. v. Lexmark International, Inc., 240
Beacon v. R.M. Jones Apartment Rentals, 321, 331
Bellany v. Molitor, 1022.1
Berkey Photo, Inc. v. Eastman Kodak Co., 762.1
Berry v. Crown Equipment Corp., 631A
Betts v. United Airlines, Inc., 832.4
Bieganek v. Wilson, 242
Biltrite Corp. v. World Road Markings, Inc., 113
Blackthorne v. Posner, 561
Bobrosky v. Vickers, 1023
Bogan v. Northwestern Mutual Life Ins. Co., 141, 210
Bogosian v. Gulf Oil Corp., 622A
Bohannon v. Honda Motor Co. Ltd., 762.1, 835.2
Bon Air Hotel, Inc. v. Time, Inc., 211
Booker v. Mass. Dept of Pub. Health, 212
Borase v. M/A COM, Inc., 761.1
Boring v. Keller, 639A
Boucher v. U.S. Suzuki Motor Corp., 635A
Bouygues Telecom S.A. v. Tekelec, Inc., 125
Braswell v. United States, 763
Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 622.2A
British Int'l Ins. Co. v. Seguros La Republica, S.A., 131.2
Broadband Communications Incorporated v. Home Box Office, Inc., 211.2
Brooks v. People, 636A
Brown v. Best Foods, A Division of CPC Intern., Inc., 620A
Burlington City Board of Education v. O.S. Mineral Products Co., Inc., 141
Burlington Industries v. Exxon Corp., 636, 761.2
Buycks-Roberson v. Citibank Federal Sav. Bank, 124, 211
Bywaters v. Bywaters, 142, 232
C
C&F Packing Co. v. Doskocil Companies, 210.1
C.P.C. Partnership Bardot Plastics, Inc. v. P.T.R., Inc., 565
Cafes v. LTV Aerospace Corp., 221
Cahn v. Cahn, 210.1.1
Caldwell v. Wheeler, 560
Calzaturficio S.C.A.R.P.A s.p.a. v. Fabiano Shoe Co., 637
Cape Wind Associates v. Donelan, 763
Cardenas v. Prudential Ins. Co., 211.2
Carolina Indus. Prods., Inc. v. Learjet Inc., 710
Castillo v. St. Paul Fire & Marine Insurance Co., 634
Castle v. Sangamo Weston, Inc., 762.1
Cent. States, Southeast & Southwest Areas Pension Fund v. Express Freight Lines, Inc., 131.2
Centennial Mgmt. Servs. v. Axa Re Vie, 244
Cherry Creek School Dist. No. 5 v. Voelker, 141
Cholfin v. Gordon, 634, 832.4
City of New York v. Coastal Oil New York, Inc., 832.4
Clark v. Beverly Health and Rehabilitation Services, Inc., 112
Clark v. Gen. Motors Corp., 622.1A
Clem v. Allied Van Lines Int'l, 142
Cleveland v. North America Van Lines, Inc., 240
Cleveland v. Palmby, 212
Clone Component Distributors of America, Inc. State of Texas, 232
Coates v. Johnson and Johnson, 740
Codeiro v. Levasseau, 1011.2
Coletti v. Cudd Pressure Control, 1010, 1021.2
Collins v. Int'l Dairy Queen, Inc., 832.4, 833
Collins v. Wayne, 1021.1
Comeaux v. T.L. James & Co., 1023
Community Counselling Service, Inc. v. Reilly, 1021.2
Connolly Data Systems, Inc. v. Victor Technology, Inc., 764
Constantino v. Herzog, 637A
Constellation NewEnergy, Inc. v. Powerweb, Inc., 124
Container Technology Corp. v. J. Gadsden Pty., Ltd., 765
Contardo v. Merrill Lynch, Pierce, Fenner & Smith, 213.3
Continental Federal Savings and Loan Ass'n v. Delta Corp. of America, 138, 231.1
Cootes Drive LLC v. Internet Law Library, Inc., 221
Cordle v. Allied Chemical Corp., 731
Cotter v. Shearson Lehman Hutton, Inc., 980
Cox v. Commonwealth Oil Co., 1011.6
Crawford Fitting Co. v. J.T. Gibbons, Inc., 240
Credit Lyonnais, S.A. v. SGC Int'l, Inc., 131.2
Crowe v. Nivison, 225
Crown Cent. Petroleum Corp. v. Garcia, 211.2
Culinary Foods v. Raychem Corp., 332
Cutchin v. State, 762.3
D
Daigle Maine Medical Center. Inc., 554
Dallas v. Marion Power Shovel Co., 639.1A
Daly v. Superior Court, 763
Darling v. Charleston Community Hospital, 637A
Daubert v. Merrill Dow Pharmaceuticals, Inc., 636A
David Tunick, Inc. v. Kornfeld, 639A
De Jesus v. Ridder, 1031
Dean Foods Co. v. Pappathanasi, 622.2A
DeLeo v. Wacholvia Bank, 763
DeLoach v. Philip Morris Companies, Inc., 561
Delozier v. First Nat'l. Bank of Gatlinburg, 223
Derderian v. Polaroid Corp., 762.1
Detoy v. City & County of San Francisco, 715
DiCecci v. Dillard House, Inc., 240
Digital Equipment Corp. v. Systems Industries, Inc., 634
DiPalma v. Medical Mavin, Ltd., 761.3
Diversified Industries Inc. v. California Sierra Financial Services, 761.1
Dixon v. Bowen, 950
Donaldson v. Central Ill. Pu. Serv. Co., 636A
Dravo Corp. v. Liberty Mut. Ins. Co., 124, 211
Duff v. Lobdell-Emery Mfg. Co., 561
Dunkin' Donuts, Inc. v. Mandorico, Inc., 211.3
Dunlap v. Reading Co., 321
Dunlap-McCuller v. Riese Organization, 142
Duplan Corp. v. Derring Milliken, Inc., 761.3
Durflinger v. Artiles, 225
E
E.F. Hutton & Co. v. Jupiter Dev. Corp., 763
Edwards v. Gordon & Co., 711
El Salto, S.A. v. PSG Co., 131.2
Elgas v. Colorado Belle Corp., 620A
Eli Lilly & Co. v. Commissioner of Revenue, 622.1A
Ellsberg v. Mitchell, 765
Elwell v. Conair, Inc., 561
El-Yafi v. 360 East 72nd Owners Corp., 832.4
Epling v. UCB Films, Inc., 211.3
Equal Employment Opportunity Commission v. Thruston Motor Lines, Inc., 212
Erstad v. Curtis Bay Towing Co., 561
Ethicon Endo-Surgery v. U.S. Surgical Corp., 630, 620, 634
F
Federal Deposit Insurance Corp. v. Butcher, 124
Ferko v. NASCAR, 761.3
Fiber Systems International, Inc. v. Roehrs, 141
First Chicago Int'l v. United Exch. Co., Ltd., 761.1
Fischer v. Alhadeff, 634
Fisher v. Goord, 513
Fisher v. State Farm Ins. Companies, 240
Ford v. Philips Electronics Instruments Co., 764
Frazier v. S.E. PA. Transp. Authority, 542, 632, 634
Freedom Newspapers, Inc. v. Egly, 925.1, 925.2
Freedom Wireless, Inc. v. Boston Communications Group, Inc., 622.2A
Frideres v. Schlitz, 321
Frye v US, 636A
Fuddruckers, Inc. v. KCOB I, L.L.C., 131.2
G
GMAC Bank v. HTFC Corp., 615.1, 635
Galella v. Onassis, 331
Galjour v. General American Tank Car Corp., 242
Gall v. Jamison, 762.1
Gannett Co. v. DePasquale, 310
Garcia v. Co-Con, Inc., 522
Gaw v. State By and Through Dept. of Transp., 561.3
General Electric Co. v. Joiner, 636A
Georgia-Pacific Plywood Co. v. U.S. Plywood Corp., 761.1
Gerdes v. United States, 764
Gibbs v. National R.R. Passenger Corp., 138
Gleneagle Ship Management Co. v. Leondakos, 131.1
Gluck v. Ansett Australia Ltd., 113
Golden Door Jewelry Creations v. Lloyds Underwriters Non-Marine Ass'n, 244
Goldwater v. Postmaster General of U.S., 241
Goodwin v. Boston, 210.1.1
Gorie v. Gorie, 925.1, 925.2
Gracia v. Lee, 1011.3
Green Construction Co. v. The Kansas Power & Light Co., 240
Greenway v. International Paper, 561
Gwich'in Steering Committee v. State, 765
H
Hall v. Clifton Precision, 410, 542, 634, 832.4, 833
Hall v. Sykes, 620A
Hampton v. Pennsylvania Railroad Co., 740
Hardin v. Belmont Textile Machinery Co., 213.3
Harrell v. State, 144.2
Harry F. Ortlip Co. v. George Hyman Construction Co., 980
Hartman v. U.S., 1022.1
Hasbro, Inc. v. Serafino, 213.3
Haviland & Co. v. Montgomery Ward & Co., 138
Hawthorne Partners v. AT&T Technologies, Inc., 561
Hearst/ABC-Viacom Entertainment Services v. Goodway Marketing, Inc., 740, 835.5
Henson v. Citizens Bank of Irving, 763
Herald Association, Inc. v. Judicial Conduct Board, 310
Hercules, Inc. v. Exxon Corp., 761.1, 761.3
Herman v. Marine Midland Bank, 225
Heron Interact, Inc. v. Guidelines, Inc., 762.1
Hickey v. U.S., 639.1A
Hickman v. Taylor, 710
Hill v. Lamulle, 240
Hirschfield v. Securities and Exchange Comm., 636
Hisaw v. Unisys Corp., 762
Hodge v. Borden, 1011.6, 1021.3
Hoechst Celanese Corp. v. National Union Fire Ins. Co., 138.1
Hose v. Chicago and North Western Transp. Co., 241
House v. Combined Ins. Co. of America, 225
Houser v. Snap-On Tools Corp., 731
Huff v. Marine Tank Testing Corp., 1023
Humphrys, Hutcheson & Moseley v. Donovan, 636
Hunt Int'l Resources Corp. v. Binstein, 211.3
I
IDS Life Insurance Company v. SunAmerica, Inc., 761.6
Iheme v. Simmons, 1021.1
Ikerd v. Lapworth, 1012.1, 1051.1
Imposition of Sanctions in Alt v. Cline, 639.1A
In Mulvey v. Chrysler Corp., 211.2
In re "Agent Orange" Project Liability Litigation, 566
In re Air Crash Disaster at Sioux City, 636
In re Air Crash Disaster at Stapleton Int'l Airport, 622A
In re Air Crash Disaster, 1022.1, 1032.1
In re Ampicillin Antitrust Litigation, 761.2
In re Anthracite Coal Antitrust Litigation, 762, 763
In re Atlantic Financial Management Securities Litigation, 430
In re Comair Air Disaster Litigation, 762.1
In re Coordinated Pretrial Proceedings in Petroleum Antitrust Litigation, 764
In re Corrugated Container Anti-Trust Litigation, 763
In re Cumins, 311
In re Deposition Subpoenas of Garlock, 2.10.3
In re Digital Equipment Corp., 921
In re Hollar, 210.1.1
In re Johnson and Johnson, 211.1
In re International System and Controls Corp., 762
In re Levine, 321
In re Linerboard Antitrust Litigation, 454.1
In re LTV Securities Litigation, 636
In re Master Key Litigation, 763, 765
In re Matter of Anonymous Member of the South Carolina Bar, 833
In re Norplant Contraceptive Products Liability Litigation, 125
In re Paoli RR PCB Litigation, 631A
In re PSE&G Shareholder Litigation, 833
In re Shell Oil Refinery, 322, 335, 622.1A
In re State Comm'n. of Investigation Subpoena No. 5441, 761.3
In re Stratosphere Corp. Securities Litigation, 637, 833
In re Sunset Bay Associates, 1011.5
In re Terra Int'l, 321
In re The One Bancorp Securities Litigation, 635
In re Tutu Water Wells Contamination CERCLA Litigation, 125
Int'l Unions of Electrical, Radio and Machine Workers v. Westinghouse Electric Corp., 740
Intel Corp. v. VIA Tech., Inc., 113
Intermedics, Inc. v. Ventritex, Inc., 622A
International Insurance Co. v. Montrose Chemical Corp. of California, 430
Inverness Medical Switzerland GMBH v. Acon Labs., Inc., 454.1
J
Jackson v. Woodford, 210
Jahr v. IU Intern. Corp., 138, 142
James Julian, Inc. v. Raytheon Co., 762.1
Joiner v. Choicepoint Services, Inc., 213.3
Jones v. Clinton, 438.2
Jones v. Hirschfeld, 951
Jos. Schlitz Brewing, Co. v. Muller & Phipps (Hawaii), Ltd., 430
Jou Jou Designs, Inc. v. JOJO Ligne Internationale, Inc., 210
K
Kallen v. Nexus Corp., 141
Kastigar v. United States, 763
Keogh v. Pearson, 740
Kerr v. Able Sanitary and Environmental Servs., Inc., 211.3
Kerschbaumer v. Bell, 321
Kinan v. City of Brocton Mass., 565
King v. Pratt & Whitney, 124, 715
Kiraly v. Berkel, Inc., 835.2
Kirschner v. Broadhead, 731
Klepal v. Pennsylvania Railroad Co., 1021.2
Krauss v. Erie Ry. Co., 1021.1
Kumho Tire Co. v Carmichael, 636A
L
Laborers Nat. Pension Fund v. ANB Inv. Management, 131.2
Laird v. Illinois Central Gulf Railroad Co., 1000
Lake Superior Paper Indus. v. County of St. Louis, 311
Lapenna v. Upjohn Co., 124
Latiolais v. Whitley, 144.2
Laurenzano v. LeHigh Valley Hosp., Inc., 710
Lawson v. G. D. Searle & Co., 637A
Learning International, Inc. v. Competence Assurance Systems Inc., 832.4
Ledden v. Kuzma, 310
Lewis R. Pyle Memorial Hosp. v. Superior Court, 310, 321
Liberty Mutual Ins. Co. v. Superior Court, 211.2
Lier v. Saint Mary's Medical Center, 145
Littlejohn v. Bic Corp., 332
Littman v. Walgreen Eastern Co., 213.3
Logerquist v. McVey, 636A
Los Angeles Trust Deed & Mortgage Exchange v. Securities and Exchange Comm., 522
Lugtig v. Thomas, 561
Lumpkin v. Bi-Lo, Inc., 322
Luqtig v. Thomas, 1053
M
M & C Corp. v. Erwin Behr Gmbh & Co., 138
M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 121
Magee v. Paul Revere Life Ins. Co., 241
Mansmith v. Hameeduddin, 240
Maresh v. State, 1035
Marisco v. Sears Holding, 211.2
Marisol A. v. Giuliani, 951
Marker v. Union Fidelity Life Ins. Co., 212
Marmo v. Tyson Fresh Meats, Inc., 240
Marroco v. General Motors Corp., 623A
Marsee v. United States Tobacco Co., 516, 1033
Marshwood Co. v. Jamie Mills, Inc., 321, 333
Martin v. City of Indianapolis, 753
Martindale v. Int'l Tel. and Tel., 763
McBride v. Merrell Dow Pharmaceuticals, Inc., 711
McCarthy v. Barnett Bank of Polk County, 332
McDonough v. Keniston, 832.4
McHale v. Westcott, 241
McLean v. Prudential S.S. Co., 213.3
McNerney v. Archer Daniels Midland Co., 241
Melton v. McCormick, 560
Memphis Publishing Company v. City of Memphis, 310
Messing, Rudavasky & Weiliky v. President and Fellows of Harvard College, 112
Microsoft Corp. v. Very Competitive Computer Products Corp., 1011.5
Miller v. Universal City Studios, Inc., 321
Miller v. Waseca Medical Center, 831, 834
Milsen Co. v. Southland Corp., 331
Mitsui & Co. (U.S.A.) Inc. v. Puerto Rico Water Resources Authority, 212
Monsanto Co. v. May, 211.2
Moore v. Ashland Chemical, 631A
Morgan v. United Parcel Serv. of Am., Inc., 121
Morrison v. Reichhold Chemical, Inc., 240
Motel 6, Inc. v. Dowling, 561.4
Movan v. Pittsburg Des Moines Steel Co., 639.1A
Mudd v. U.S., 764
Murphy v. Board of Educ. of Rochester City School Dist., 221
N
N.L.R.B. v. Sears, Roebuck & Co., 765
Naatz v. Queensbury Cent. School Dist., 331
Naismith v. Professional Golfers Assoc., 322
Namoury v. Tibbetts, 734
National Acceptance Co. v. Doede, 223
Nationwide Mutual Insurance Co. v. Dunkin, 1022.1
New Mexico Savings & Loan Assn. v. United States Fidelity and Guaranty Co., 1036
New York State Ass'n for Retarded Children, Inc. v. Carey, 753
Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 211.3
Nicholas v. Pennsylvania State University, 113
Nilssen v. Osram Sylvania, Inc., 240
North Carolina Electric Membership Corp. v. Carolina Power & Light Co., 636
Northern States Power Co. v. Westinghouse Elec. Corp., 310
Nutmeg Insurance Co. v. Atwell, Vogel & Sterling, 740
Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 762.1, 835.2
O
Odone v. Croda International Plc., 542
Oklahoma v. Tyson Foods, Inc., 141
Okubo v. Reynolds, 940
On the House Syndication, Inc. v. Federal Express Corp., 121
Oostendorp v. Khanna, 1032.1
Oriental Commercial & Shipping Co., Ltd. v. Rosseel, N.V., 980
P
Pacers, Inc. v. Superior Court, 763
Page v. DiMaggio Plumbing & Heating, 762.3
Paige v. Consumer Programs Inc., 220
Palm Beach Newspapers, Inc. v. Burk, 310
Paparelli v. Prudential Ins. Co., 715, 740
Paramount Communications v. QVC Network, 634
Patel v. Gayes, 620A
Pavlinko v. Yale-New Haven Hosp., 763
People ex. rel. Kraushaar Bros. & Co. v. Thorpe, 639.1A
People v. Avila, 544
People v. Leahy, 636A
People v. Miller, 636A
People v. United States Dept. of Agriculture, 950
People v. Wernick, 636A
Perry v. Leeke, 764
Peterson v. United States, 762
Peterson v. Willie, 225
Philip v. Monarch Knitting Machinery Corp., 222
Phillips v. Bradshaw, 141
Phoenix Nat. Corp. Inc. v. Bowater United Kingdom Paper Ltd., 764
Pillsbury Co. v. Conboy, 763
Pingatore v. Montgomery Ward and Co., 1021.2
Pittston Co. v. Allianz Ins. Co., 762.3
Podell v. Citicorp Diners Club, Inc., 1011.4
Posr v. Roadarmel, 141
Potashnick v. Port City Const. Co., 321
PPG Industries, Inc. v. BASF Corp., 112
Prasad v. MML Investors Servs., Inc., 243
Prevue Pet Prods., Inc. v. Avian Adventures, 211.3
Procter & Gamble Co. v. Bankers Trust Co., 310
Public Service Electric and Gas Comp. v. AEGIS, 112
Pursche v. Atlas Scraper & Eng'g Co., 1021.2
Q
Quantachrome Corp. v. Micromeritics Instrument Corp., 832.4
R
R.E. Linder Steel Erection Co., Inc. v. U.S. Fire Ins. Co., 634
Rainey v. Am. Forest and Paper Assoc., 124
Ralston Purina Co. v. McFarland, 630
Rapoca Energy Co. L.P., v. AMCI Export Corp., 138
Redvanly v. Nynex Corp., 762.1
Rehau, Inc. v. Colortech, Inc., 142, 211.1
Renaud v. Hernandez, 1022.1
Reshard v. Main Line Hosp., Inc., 138.1
Resolution Trust Corp. v. Heiserman, 762.1, 835.2
Rhee v. Witco Chemical Corp., 241
Rice v. Cannon, 210.1.1
Rice's Toyota World, Inc. v. Southeast Toyota Distributors Inc., 566
Riddell Sports, Inc. v. Brooks, 740
Rios v. Bigler, 561
Roberts v. Homelite Div. of Textron, Inc., 141, 835.2
Rockwell Int'l, Inc. v. Pos-A-Traction Indus., Inc., 311
Rocky Mountain Natural Gas v. Cooper Industries, 225
Rodriguez v. Pacificare of Texas, Inc., 1012.3
Rogers v. Roth, 1031
Rogers v. United States, 763
Rolscreen Co. v. Pella Products of St. Louis, Inc., 133
Ronald A. Katz Technology Licensing, L.P. v. Verizon Communications, Inc., 211.1
Rosenblum v. Warner & Sons, Inc., 241
Rule v. International Association, 1012.1
S
S&A Painting Co. v. O.W.B. Corp., 762.1
S.A. Healy Co. v. Milwaukee Metro Sewerage Dist., 241
Sabre v. First Dominion Capital, 834
Salas v. U.S., 620A
Salter v. Upjohn, 211.2
Sanders v. Circle K Corp., 124
Sanford Bros. Boats, Inc. v. Vidrine, 1021.2
Schiff v. Departmental Disciplinary Committee, 634
Schneider v. Revici, 637A
Schuchman v. W.R. Stackable, 637A
Schultz v. Talley, 634
Seattle Times Co. v. Rhinehart, 310, 332
SEC v. Drexel Burnham Lambert, 763
SEC v. Morelli, 211
SEC v. Parkersberg Wireless Ltd. Liab. Co., 561
SEC v. TheStreet.com, 310
Sedco Int'l, S.A. v. Cory, 636
Shapiro v. Freeman, 630
Sharjah Investment Co. v. P.C. Telemart, Inc., 310
Shelton v. American Motors Corp., 211.3, 630
Shiner v. American Stock Exchange, 211.3
Shulton, Inc. v. Optel Gorp., 222
Sikyta v. Arrow Stage Lines, Inc., 1035
Silverman v. Browning, 138.1
Six v. Henry, 635
Skidmore v. Northwest Engineering Co., 321, 322
Sky Valley, LP v. ATX Sky Valley, Ltd., 761.3
Smelser v. Northfolk Southern RR Co., 631A
Smith v. Logansport Community School Corporation, 832.4
Smith v. Shoe Show of Rocky Mount, Inc., 138
Smith v. State Farm Fire & Casualty Co., 620A
Smith v. Tenet Healthsystem SL, Inc., 240
Soden v. Freitliner Corp., 635A
Sony Electronics, Inc. v. Soundview Technologies, Inc., 454.1
Sporck v. Peil, 762.1
Spraglin v. MHK Assoc., 141
Sprague Electric Co. v. Cornell-Dubilier Electric Corp., 132
Sprint Communication Co. v. TheGlobe.Com, Inc., 454.1
State Farm Fire & Casualty Co. v. Superior Court, 762.3
State v. Hill, 141
State v. Keairns, 1022.1
Stauffer v. Karabin, 1021.2
Steadfast Ins. Co. v. Auto Marketing Network, Inc., 2.10.3
Stewart v. Colonial Western Agency, Inc., 410
Stocker Hinge Mfg. Co. v. Darnel Industries, Inc., 321
Stokes v. Lorain Journal Co., 700
Stone v. Morton Intern, Inc., 124
Stroud v. Dorr-Oliver, 1010
Sugarhill Records Ltd. v. Motown Record Corp., 211
Sullivan v. Glock, Inc., 620A
Summit Technology, Inc. v. Nidek Co., LTD, 240
Sunrich Food Group, Inc. v. Pacific Food of Oregon, 240
Swiers v. P & C Food Markets, Inc., 331
T
T.J. Morris Co. v. Dykes, 1023
Tagupa v. Odo, 544
Tatman v. Collins, 145, 1000, 1022.1
Techna-Quip, Inc. v. Perfection Gear, Inc., 331
Tennessee Bank v. Federal Deposit Insurance Corp., 740
Thompson v. Atlantic Building Corp., 321
Tilton v. Capital Cities/ABC, Inc., 240
Times Newspapers Ltd. (of Great Britain) v. McDonnell Douglas Corp., 332
Tingley Systems, Inc. v. CSC Consulting, Inc., 561
Tomingas v. Douglas Aircraft Co., 211
Tormo v. Yormark, 1011.5
Transcontinental Energy Corp. v. Pacific Energy Resources, 1022.1
TransWorld Airlines, Inc. v. Hughes, 761.3
Travelers Rental Co., Inc. v. Ford Motor Co., 211.2
U
U.S. v. Cuthbertson, 765
U.S. v. McKeeve, 144.2
U.S. v. Medjuck, 144.2
U.S. v. Microsoft Corp., 334
U.S. v. Omene, et al., 144.2
U.S. v. Taylor, 124, 454
U.S. v. Tolliver, et al., 144.2
UAW v. National Caucus of Labor Committees, 231.1
Undraitis v. Luka, 138
Unique Concepts, Inc. v. Brown, 630
United National Records, Inc. v. MCA, Inc., 636
United States v. Callahan, 1012.3
United States v. Campbell, 131.2
United States v. Cannon, 145
United States v. Davis, 243
United States v. Dickinson, 761.4
United States v. Fesman, 210.1.1
United States v. Garrett, 321
United States v. Hargro, 231
United States v. Int'l Business Machines, 1021.5, 1022.1, 1035
United States v. International Business Machines Corp., 334, 764
United States v. Johnson, 321
United States v. Leggett, 321
United States v. Liquid Sugars, Inc., 522
United States v. Mackey, 636
United States v. McWhirter, 131.2
United States v. National Medical Enterprises, Inc., 630
United States v. Northside Realty Associates, Inc., 950
United States v. One Parcel of Real Property Commonly Known as 901 N.E. Lakewood Drive, Newport, Ore., 763
United States v. Philip Morris, Inc., 211.3
United States v. Reynolds, 765
United States v. Salim, 1012.3, 1012.6
United States v. Talco Contractors, Inc., 763
United States v. Tramunti, 763
United States v. United Fruit Co., 334
United States v. Willis, 636
United Steel Workers v. American Manufacturing Co., 765
Upjohn Co. v. United States, 761.1
Usiak v. New York Tank Barge Co., 1053
V
Van Den Eng v. Coleman Co., 2.10.3
Van Pilsum v. Iowa State Univ. of Science and Technology, 630, 632, 634
Voelker v. Cherry Creek School District No. 5, 135
W
Wallace Products, Inc. v. Falco Products, Inc., 220
Walker v. United Parcel Services, 211.3
Washington State Department of Transportation v. Washington Natural Gas Company, Pacificorp, 240
Weibrecht v. Southern Illinois Transfer, Inc., 112
Weseloh-Hurtig v. Hepker, 141
West v. West, 223, 242
Westmoreland v. CBS, Inc., 231.1
Wheeling Pittsburg Steel Corp. v. Underwriters Laboratories, Inc., 762.1
Wiley v. Brown, 561
Williams v. Electronic Control Systems, Inc., 350
Withers v. Mobile Gas Service Corp., 1011.2
Wreath v. United States, 620A
Wright v. Patrolmen's Benev. Ass'n, 321
Y
Yates v. Elmer, 240
Z
Zenith Radio Corp. v. Matsushita Electric Industrial Co., 333
Index
A
E-Discovery, 1113
Embarrassing questions, 751
Employees and organizational opponent, 112.5
Engineer, sample outline in product case 473.8
Ethical rules
fact witnesses, 243
inducements, 244
Evasive witnesses, 615.1
Evidence. See also Demonstrative evidence
depositions as, 1020
exhibits as, 550, 611
facts and, 412
Federal Rules of Evidence 401 and, 710
trial and, use of depositions at, 710, 1012, 1021, 1021.2, 1022.1, 1031
Examination outlines, see Outlines, samples
Examining attorneys
attorney-client privilege and, 761, 761.1
documents and, 824
objections and, 753, 831
privileged information and, 760
Excluding corporate partys representative from deposition, 335
Exclusionary orders, attendance at depositions and, 310, 321, 331. See also Court orders
Exhibits
concluding deposition and, 553
copies of, 418, 511, 514
court reporters and, 513
as evidence, 550, 611
lists of, 514
marking of, 513, 514, 515, 520, 546
opposing counsel and, 514, 611
preparation of, 418
stipulations and, 551, 562
transcripts and, 562
Expert witnesses. See also Witnesses
attendance at depositions and, 123
court orders and, 639A
Federal Rules of Civil Procedure 26(b)(4) and, 225, 241, 639A
Federal Rules of Evidence 702 and, 631A, 636A
Federal Rules of Evidence 703 and, 635A
Federal Rules of Evidence 803 and, 637A
fees of, 241, 639A
impeachment of, 632A
in-house, 622.1A
interrogatories and, 639A
learned treatises and, 637A
medical negligence, defense expert outline, 642A
objections and, 225, 734.1
opinions of, 635A, 638A, 638.1A
outline for introductory examination, sample, 630A
preparation of report, 632.1A
preparation to take depositions of, 456, 600A, 650A
qualifications of, 631A
speculation and, 440
stipulations and, 639A
subpoenas and, 241
work product privilege and, 622A, 639A
Extent of discovery methods, 621A
Facts
chronology of, preparation of, 414
evidence and, 412
legal issues and, 412
reviewing of, 422
Fact witnesses, 243, 350. See also Key witnesses; Witnesses
Failure to disclose information, 113
Federal Rules of Civil Procedure 4, 933
Federal Rules of Civil Procedure 4(d), 911
Federal Rules of Civil Procedure 6, 210
Federal Rules of Civil Procedure 14, 220
Federal Rules of Civil Procedure 17(c), 911
Federal Rules of Civil Procedure 26(b)
defending of depositions and, 631
privileged information and, 710
scope of depositions and, 125, 710, 711
Federal Rules of Civil Procedure 26(b)(1)
limitations on depositions and, 125, 715
taking of depositions and, 125
Federal Rules of Civil Procedure 26(b)(2), 712, 1011.3
Federal Rules of Civil Procedure 26(b)(3), 762
Federal Rules of Civil Procedure 26(b)(4)
costs of depositions and, 241
expert witnesses and, 123, 225, 241, 639A
Federal Rules of Civil Procedure 26(c)
corporate officers and, 211.2
location of depositions 210.2
motions to exclude persons from depositions and, 321
notice of depositions and, 421
out-of-state (or district) depositions and, 921
press and, 332
protective orders and, 124, 125, 138, 211.2, 211.3, 221, 321, 332, 340, 561.3, 565, 710, 711, 970
public and, 332
scope of depositions and,711
sequence of depositions and, 133
timing of depositions and, 131, 210.1
Federal Rules of Civil Procedure 26(c)(7), 333
Federal Rules of Civil Procedure 26(d), 132
Federal Rules of Civil Procedure 26(e), 564
Federal Rules of Civil Procedure 26(f), 270
Federal Rules of Civil Procedure 27
appeals and, depositions pending, 910, 912, 913
civil actions and, depositions before commencement of, 910, 911, 913
Federal Rules of Civil Procedure 27(a)(2), 911
Federal Rules of Civil Procedure 28(b), 934
Federal Rules of Civil Procedure 29
defending of depositions and, 631
nonparty witnesses and, 323
stipulations and, 260, 522, 931
timing of depositions and, 131
Federal Rules of Civil Procedure 30, transcripts and, 240, 560, 561, 562
Federal Rules of Civil Procedure 30(a), 131
Federal Rules of Civil Procedure 30(a)(1), party attorneys, 211.3
Federal Rules of Civil Procedure 30(b), notice of depositions and, 123, 210, 212, 213, 421, 454, 535
Federal Rules of Civil Procedure 30(b)(4)
audio depositions and, 143
court reporters and, 140
video depositions and, 231.1
Federal Rules of Civil Procedure 30(b)(5), 213
Federal Rules of Civil Procedure 30(b)(6)
adverse witnesses and, 212
attorney-client privilege and, 454.1
corporate officers and, 124
corporations and, 124
government agencies and, 124
examinations, 715
introductory examinations and, 100, 133, 535
non-party witnesses and, 220, 224
partnerships and, 124
subpoenas and, 124, 224, 535
witnesses designated by organization and, 212.2, 715
witnesses not affiliated with organization and, 454
Federal Rules of Civil Procedure 30(b)(7), telephone depositions and, 142, 232, 516, 960, 961
Federal Rules of Civil Procedure 30(c)
deposition examinations and, 620
instructions not to answer
questions and, 740
leading questions and, 611
written questions and, depositions upon, 961
Federal Rules of Civil Procedure 30(d)
defending of depositions and, 630
length of deposition and, 834
motions to terminate or limit examination and, 740
recesses and, 832
suspending of depositions and, 340, 440, 715
Federal Rules of Civil Procedure 31, 960
Federal Rules of Civil Procedure 32
joinder of parties and, 1011.2
objections and, 730, 731, 732, 821
subsequent deposition of deponent and, 1011.3
substitution of parties and, 1011.1
trial and, use of depositions at, 1000 et seq.
types of depositions used of at trial, 1010 et seq.
Federal Rules of Civil Procedure 32(a), 913
Federal Rules of Civil Procedure 32(a)(2), 1011.3, 1021.1
Federal Rules of Civil Procedure 32(d)(1), 721
Federal Rules of Civil Procedure 32(d)(2), 721
Federal Rules of Civil Procedure 32(d)(3)(B), 515
Federal Rules of Civil Procedure 32(d)(4), 561.1
Federal Rules of Civil Procedure 34, documents and, 213, 824
Federal Rules of Civil Procedure 37, 123, 743
Federal Rules of Civil Procedure 37(a)(2), 766
Federal Rules of Civil Procedure 37(d), 211
Federal Rules of Civil Procedure 45
nonparty witnesses and, 137, 152.2
out-of-state (or district) depositions and, 137, 922
subpoenas and, 137, 222, 933
subpoenas duces tecum and, 221, 421
Federal Rules of Civil Procedure 69(a)
deposing defendant-judgment debtor, 495
post-judgment discovery, 131.2
Federal Rules of Evidence 401, 710
Federal Rules of Evidence 402, 524.4
Federal Rules of Evidence 501, 760
Federal Rules of Evidence 602, 732
Federal Rules of Evidence 603
oaths and, 521
witnesses and, 521, 732
Federal Rules of Evidence 604, 544
Federal Rules of Evidence 607, 1022.2
Federal Rules of Evidence 611(c), leading questions and, 530, 731
Federal Rules of Evidence 612
witnesses and, 713
work product privilege and, 762.1
Federal Rules of Evidence 615, nonparty witnesses and, 322, 330
Federal Rules of Evidence 702, expert witnesses and, 631A, 636A
Federal Rules of Evidence 703, 635A
Federal Rules of Evidence 801, 1022.2
Federal Rules of Evidence 803, 637A
Federal Rules of Evidence 804, 1021.5
Files of witnesses, preparation of, 414
Foreign countries, depositions in. See also Location of depositions; Out-of-district depositions
court reporters and, 931, 934
Federal Rules of Civil Procedure 28(b) and, 934
Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters and, 932
interpreters and translators and, 931
key witnesses and, 930
law of jurisdiction and, 932
statutes regarding, 221, 933, 940
stipulations and, 931, 932
subpoenas and, 933
Forgetful witnesses, 615.2, 842, 843, 1021.5, 1022.3. See also Refreshing recollections; Witnesses
Form of answer, 432.2
Friendly witnesses. See also Witnesses and Independent witnesses
acceptance of service and, 223
advantages and disadvantages to depositions of, 122
cross-examination of, 850
defending of depositions and, 810
discussing depositions with, 415
narrative testimony of, 841
preparation for depositions and, 452
Good cause
civil actions and, depositions before commencement of, 911
defined, 321
protective orders and, 321
Government agencies. See also Government officers and employees
Federal Rules of Civil Procedure 30(b)(6) and, 123
notice of depositions and, 212
subpoenas and, 224
Government officers and employees, 950. See also Government agencies
Guardians, appointment of, 911
Oaths
court reporters and, 232, 521
Federal Rules of Evidence 603 and, 521
interpreters and translators and, 544
witnesses and, 520, 521, 732
Objecting
to hypothetical questions, 734
to notice of deposition requesting production of documents, 213.1
to summaries of evidence, 733
Objections
amendment to Rule 30(c), 735
attorney-client privilege and, 761, 761.1, 761.2, 761.3, 761.4, 766
checklist regarding, 770
coaching, 832.4
confidential information and, 700
corporate officers and, 211.2
court reporters and, 721
defending of depositions and, 630, 631, 632, 633, 721, 730, 731, 821, 830, 831, 832, 860
documents and, 922
embarrassing questions and, 751
examining attorneys and, 753, 831
expert witnesses and, 225, 734.1
Federal Rules of Civil Procedure 30(b)(6) and, 754
Federal Rules of Civil Procedure 32 and, 730, 731, 732, 821
form of and response to, 771
harassment and, 751
leading questions and, 731
location of depositions and, 210.2
multiple attorneys, 753
nonparty witnesses and, 752
notice of depositions and, 721
personal information and, 700
privileged information and, 700, 760
questioning of witnesses and, 730, 731, 1042
recesses and, 542
requests for production of documents and, 723
Rule 30(b)(6) deposition and, 154
stipulations and, 522
strategy and, 831.1
subpoenas and, 221
subpoenas duces tecum and, 221, 421
timing of, 720, 721, 722, 730, 731, 732, 821, 1040, 1041
timing of depositions and, 210.1
trial and, use of depositions at, 1040-1043
video depositions and, 141, 1033
waiver of, 720, 730, 731, 732, 1041, 1042
work product privilege and, 762, 762.1, 762.2
Observation memos, contents of, 552
Officers of parties. See Directors, managing agents, and officers of parties
Off the record, 541
Open-ended questions, 612
Opposing counsel
attorney-client privilege and, 761.4
audio depositions and, 143, 231
confer with privately, 630
corporate officers and, 211.2
court orders and, 823
directors, managing agents, and officers of parties and, 211, 454
discussing depositions with, 139, 416
exhibits and, 513, 611
instructions not to answer questions and, 633, 761.4
interpreters and translators and, 544
narrative objections and, 632
preparation and, 419
protective orders and, 340
recesses and, 542
stipulations and, 260, 631, 711, 742, 823, 922, 1011.2, 1035
telephone depositions and, 232, 516
video depositions and, 141, 231
witnesses and, 431
Opposing depositions
lacking relevant information, 210.3
under Rule 30(b)(6), 212.1
Opposing taking deposition of officer, 211.1
Order
appointing interpreter, sample, 234
discovery conference, sample, 270
for recording deposition by videotape, sample, 231
Outlines, samples
Generally, 639.3A
Accident reconstructionist - auto negligence, 643A
Architect - premises liability, 644A
Creating an outline, 419.1
Defendant - auto case, 473.2
Defendant citys superintendent of streets - premises liability case, 473.6
Defendant-judgment debtor, 495
Defendant owner or occupier - premises liability case, 473.5
Defendant physician - medical malpractice case, 473.7
Defendant design engineer - product liability case, 473.8
Electronic Record-Keeper, 1110
Expert engineer - product liability case, 641A
Expert Environmental Professional - disposal site remediation, 646A
Eyewitness - automobile liability case, 473.3
Injured plaintiff - damages, 480.1
Liability witness, 470 et seq.
Medical negligence defense expert, 642A
Plaintiff - auto case, 473.1
Plaintiff - land use case to establish lack of standing, 490
Plaintiff - premises liability case, 473.4
Plaintiff - residential mold case, 473.9
Real Estate Appraiser, 645A
Treating physician, 480.2
Witness designated by organization, 212.2
Out-of-district depositions, 920. See also Out-of-state depositions
Out-of-state depositions, 925. See also Foreign countries, depositions in
clients and, 921
conference rooms and, 924
court reporters and, 924
directors, managing agents, and officers of parties and, 921
Federal Rules of Civil Procedure 26(c) and, 921
Federal Rules of Civil Procedure 45 and, 922
local rules and, 923
location of depositions and, 924
nonparty witnesses and, 922
notice of depositions and, 921
party witnesses and, 921
protective orders and, 921
subpoenas and, 922
Uniform Foreign Deposition Act and, 922
Uniform Interstate and International Procedure Act and, 922
Questioning of witnesses, objections and, 730, 731, 1032. See also Always and never questions; Broad ques-
tions; Compound questions; Embarrassing questions; Instructions not to answer questions; Narrow
questions; Open-ended questions; Tricky or objectionable questions; Written questions, depositions upon
R
Recesses
court reporters and, 544
defending of depositions and, 832, 833, 834, 840, 841, 842, 845, 860
Federal Rules of Civil Procedure 30(d) and, 542.1, 832
Federal Rules of Civil Procedure 37(a)(1) and, 542.1
frequency of, 544, 833
length of, 544
objections and, 544
opposing counsel and, 544, 637
purposes of, 543, 525, 615.1, 750, 751, 833, 840, 841, 842, 845, 860
witnesses and, 544, 637
Recording deposition
methods, 140 et seq.
Re-cross examination, 551
Redepose witness, sample, 561.4
Redeposing a witness, 227
Redirect examination
defending of depositions and, 540
scope of depositions and, 551
written questions and, depositions upon, 960
Reenactments, video depositions and, 141
Refreshing recollections, of witnesses, 434, 534, 612, 613, 615.2, 713, 763, 843, 1014
Reopening deposition, 561.4
Reporters. See Court reporters
Video depositions
advantages and disadvantages of, 141
audio/visual technicians and, 231, 515, 1033
correcting of, 561.1
costs of, 240
court orders and, 231, 515
court reporters and, 231
defending of depositions and, 822, 832
demonstrative evidence and, 141
judges and, 141
juries and, 141
location of depositions and, 210.2
motions for leave to take and, 141
notice of depositions and, 231, 421, 515
objections and, 141, 515, 1033
opposing, 231.1
opposing counsel and, 141, 231
preparation for, 439
procedures, 515
purposes of, 141
reenactments and, 141
stipulations and, 231, 515
subpoenas and, 231
telephone depositions and, 142, 516
transcripts and, 561.1
trial and, use of depositions at, 1033
witnesses and, 141, 459
Videoconferencing, 144 et seq.
Voir dire
attorney-client privilege and, 761
defending of depositions and, 741
Witnesses. See also Adverse witnesses; Argumentative witnesses; Evasive witnesses; Expert witnesses; Fact
witnesses; Forgetful witnesses; Friendly witnesses; Hostile witnesses; Key witnesses; Neutral witnesses;
Nonparty witnesses; Party witnesses; specific headings
checklists regarding, 433, 534
correcting, reviewing, and signing of depositions by, 522, 561, 561.1, 844, 1011.4, 1011.5
current employee of organizational opponent, 112.5
demeanor of, 621
designated by organization, 212.2
examination of upon assertion of work product privilege, 638
Federal Rules of Evidence 602 and, 732
Federal Rules of Evidence 603 and, 521, 732
Federal Rules of Evidence 607 and, 1022.2
Federal Rules of Evidence 612 and, 713
Federal Rules of Evidence 801 and, 1022.2
Federal Rules of Evidence 804 and, 1022.3
fees of, 222
files of, preparation of, 414
former employee of organizational opponent, 112.5
importance of, 134
introductory remarks to, 531
lay witnesses and expert opinion questions, 622.2A
length of deposition days and, 543, 834
order of questions and, 611
preparation for depositions and, 430439, 534, 713, 763, 810, 811
representation of, 436, 531
Work product privilege. See also Privileged information
defined, 762
documents and, 762.1
expert witnesses and, 622A, 639A
Federal Rules of Civil Procedure 26(b) (3) and, 762
Federal Rules of Evidence 612 and, 762.1
improper use, 440
objections and, 762, 762.1, 762.2
party witnesses and, 713
waiver of, 762.1
Written questions, depositions upon. See also Questioning of witnesses
court reporters and, 960
cross-examination and, 960, 961
Federal Rules of Civil Procedure 30(c) and, 961
Federal Rules of Civil Procedure 31 and, 960
location of depositions and, 960
notice of depositions and, 960
redirect examination and, 960
service of, 960
subpoenas and, 960
telephone depositions and, 960, 961