California Practice Guide Federal Civil Procedure Before Trial

William W Schwarzer A Wallace Tashima and James M Wagstaffe Contributing Editors Hon Roslyn O Silver Hon Andrew J Wistrich Atty

Steven J Adamski and Atty Ivo Labar

Chapter 11 Disclosure And Discovery Part IV Discovery Procedures

A Depositions 1 [111321] Deposition Defineda [111322] Oral vs written depositions2 [111323] Depositions Requiring Prior Court Ordera [111325] Prelawsuit depositions(1) [111326] Includes inspections and examinations(2) [111327] Need for prelawsuit discovery(a) [111328] By prospective defendants (b) [111329] By prospective plaintiffs1) [111330] Not a substitute for discovery(c) [111331] Application(d) [111340] Likelihood of litigation1) [111341] Need not be federal lawsuit(e) [111342] Deponents knowledge unique(f) [111343] Substance of proposed testimony(g) [111344] Scope of discovery(3) [111345] Procedure(a) [111346] Where filed(b) [111347] Contents of petition=gt [111348] PRACTICE POINTER(c) [111349] Service on expected adverse party(d) [111350] Order(e) [111351] Use as evidence(f) [111352] Other discovery methods(4) [111353] Compare--immediate depositionb [111354] Hold on depositions before early meeting(1) [111355] Purpose(2) [111356] Effect (3) [111357] No bar to deposition notice(a) [111358] Comment(4) [111359] Exceptions(a) [111360] Written stipulation(b) [111361] Notice states witness leaving country1) [111362] Limitation on use of deposition at trial(5) [111363] Obtaining leave of courtc [111370] More than 10 depositions per side (1) [111371] Effect(2) [111372] Compare--corporate depositions(3) [111373] Commentd [111374] Deposition of person previously deposed(1) [111375] Effect(2) [111376] Compare--recessed deposition=gt [111377] PRACTICE POINTERe [111378] Depositions after discovery cut-off

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(1) [111379] Discovery schedule set by court order=gt [1113791] PRACTICE POINTERf [111380] Deposition of prisonerg [111381] Deposition after judgment and pending appeal h [111382] Deposition lasting more than seven hours=gt [111383] PRACTICE POINTER3 [111390] Sequence of Depositionsa [111391] No priorities generally(1) [111392] Practical effect(2) [111393] Example=gt [111394] PRACTICE POINTERb [111395] Compare--customary prioritiesc [111396] Compare--altering sequence for good cause(1) [111397] Good cause required4 [111405] WHOSE Deposition May be Takena [111406] Partiesb [111407] Nonpartiesc [111408] Corporations and other entities(1) [111409] Notice or subpoena directed to entity(2) [111410] Notice or subpoena must describe matters to be asked(a) [111411] Not a limit on questions that may be asked=gt [111412] PRACTICE POINTER(3) [111413] Entity must designate person to testify on entitys behalf(a) [1114131] Managing agent 1) [1114132] Compare--subordinate employees(b) [111414] Person designated must have knowledge of matters described in notice1) [1114141] Sanctions for improper designation2) [111415] Duty to provide new witness3) [1114151] Compare--where no person qualified=gt [1114152] PRACTICE POINTER(c) [111416] Answers binding on corporation(d) [111417] Number and length of depositions=gt [111418] PRACTICE POINTERS(4) [111419] Compare--deposition notice naming specific officers and directors=gt [111420] PRACTICE POINTER(5) [111421] Compare--high-ranking officials lacking personal knowledge=gt [111422] PRACTICE POINTER5 Notice Requirementsa [111430] To whom notice must be given=gt [111431] PRACTICE POINTER(1) [111432] Not filed with court(2) [111433] Special notice required where personal records of consumer or employment

records sought b [111434] Contents of noticec [111435] Length of notice required(1) [111436] 10 days as reasonable(2) [111437] Consultation required=gt [111438] PRACTICE POINTER(3) [111439] Exception--30 days required where documents requested(a) [111440] Compare--documents subpoenaed1) [111441] Comment(4) [111442] Protective orders=gt [111443] PRACTICE POINTER(a) [111444] Effect of proceeding with deposition=gt [111445] PRACTICE POINTER(5) [111446] Depositions by stipulation

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6 [111450] Subpoena to Nonparty Deponent7 [111451] Place of Depositiona [111452] Nonparty witness(1) [111453] Courts discretion(a) [111454] Comment(2) [111455] Court protection b [111456] Party witness(1) [111457] Court protection(a) [111458] Factors considered(b) Application1) [111459] Partys residence=gt [111465] PRACTICE POINTER2) [111466] Witness designated by corporate party(c) [111467] Conditions imposed=gt [111468] PRACTICE POINTERc [111469] Depositions by telephone video conference etc=gt [111470] PRACTICE POINTERS(1) [111471] Showing required for court order(2) [111473] Where deemed takend [111474] Deposition site in foreign countries8 [111480] Deposition Officer=gt [111481] PRACTICE POINTERa [111482] Persons disqualifiedb [111483] Deposition officers in foreign countriesc [111484] Procedural stipulations9 Preservation of Testimony a [111490] Opening statement by deposition officer(1) [111491] Administration of oath(2) [111492] Compare--audiovideo depositionsb [111493] Method of recording testimony(1) [111494] Effect(2) [111495] Other parties may designate other methods=gt [111497] PRACTICE POINTERS(3) [1114975] Protective ordersc [111498] Special rules for audiovideo depositions(1) [111499] Cost(2) [111500] Recording equipment(3) [111501] No distortion=gt [111502] PRACTICE POINTERS(4) [111503] Deposition officer (5) [111504] Transcript(6) [111505] Use at trial=gt [111506] PRACTICE POINTER=gt [111507] FURTHER POINTER10 [111515] Length of Deposition (Seven-Hour Rule)=gt [1115151] PRACTICE POINTER a [111516] Measuring seven-hour limit(1) [1115161] Limit waived if no objectionb [111517] Deponents designated to testify on behalf of corporation(1) [1115171] Where designee also testifies individuallyc [111518] Stipulation or order for additional time(1) [111519] Impeding or delaying deposition(2) [111520] Other circumstance=gt [111521] PRACTICE POINTER(3) [111522] Timing of request(a) [111523] Comment

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=gt [111524] PRACTICE POINTER11 [111530] Conduct at Depositiona [111531] Who may attend(1) [111532] Parties(2) [111533] Officers of corporate parties(3) [111534] Nonparties(a) [111535] Comment(b) [111536] Persons invited by party(4) [111537] Additional counselb [111538] Oath and examination c [111539] Explanation to witness=gt [111540] PRACTICE POINTERd [111541] Scope of examination(1) [111542] Comment(2) [111543] Deponents own knowledge(a) [111544] Refreshing deponents recollection(b) [111545] Information known to counsel(3) [111546] Reenactment(a) [111547] Rationale(4) [111548] Satisfying duty to supplement or correct earlier discoverye [111549] Cross-examination=gt [111550] PRACTICE POINTERf [111551] Objections(1) [111552] Matters waived if not objected to(a) [111553] Includes privilege and work product1) [111554] Documents reviewed prior to deposition(b) [111555] Form of questions=gt [111556] PRACTICE POINTER(2) [111557] Compare--matters not waived by failure to object=gt [111558] PRACTICE POINTERS (3) [111559] Form and manner of objection(a) [111560] No coaching witness(b) [111561] Civility rules(c) [111562] Sanctions for impeding examination =gt [111563] PRACTICE POINTER (dealing with improper objections)(4) [111564] Objection alone does not prevent testimony(a) [111565] Effect of relevancy objection=gt [111566] PRACTICE POINTERg [111567] Going off the record=gt [111568] PRACTICE POINTERh [111569] Instructing witness not to answer(1) [111570] Effect=gt [111571] PRACTICE POINTERSi [111572] Consulting with client during deposition or recesses(1) [111573] View prohibiting(2) [111574] View allowing conferences during recesses(a) [111575] Comment(3) [111576] Local rules=gt [111577] PRACTICE POINTERj [111578] Terminating or limiting deposition (1) [111579] Procedure(2) [111580] Grounds(3) [111581] Court order(4) [111582] Expenses for motion=gt [111583] PRACTICE POINTER12 [111590] Review and Signature

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a [1115905] 30-day deadlineb [111591] Changes in testimony=gt [111592] PRACTICE POINTER(1) [111593] Contradictions allowed(a) [111594] Contra view(b) [111595] Corrections may be treated as sham(2) [111596] Statement of reasons required(3) [111597] Compare--assertion of privilegec [111598] Effect of failure to sign13 [111605] Certification and Delivery of Transcripta [111606] Compare--not filed with courtb [111607] Obtaining copies(1) [111608] Third partiesc [111610] Retaining copies14 [111615] Depositions on WRITTEN Questionsa [111616] Advantages vs disadvantages=gt [111617] PRACTICE POINTERb Procedure(1) [111618] Notice and questions(2) [111619] Cross-questions(3) [111620] Objections(4) [111621] Conduct at deposition(5) [111622] Review signature etc15 [111625] Enforcing Deposition Discoverya [111626] Deponent fails to appear(1) [111627] Effect of pending motion for protective orderb [111628] Deponent refuses to answer questions or gives inadequate responses(1) [111629] Corporations failure to produce qualified witness to testify on its behalf(2) [111630] Costs c [111631] Deponent fails to comply with court order to answer(1) [111632] Parties(2) [111633] Nonparty deponents d [111634] Procedure16 [111640] Deposition as Evidencea [111641] Admissibility(1) [111642] As impeachment(2) [111643] Partys deposition as substantive evidence by adverse party(a) [111644] Compare--party may not use own deposition unless unavailable to testify(3) [111645] Any deposition as substantive evidence if deponent unavailable to testify(a) [111646] Court discretion to exclude(4) [111647] Limitations on admissibility(5) [111648] Compare--special rules for audiovideo depositions(6) [111649] Compare--use in other litigation(7) [111650] Compare--court may require deposition summariesb [111651] Objections(1) [111652] Commentc [111653] Rebutting deposition testimony(1) [111654] After impeachment(2) [111655] Other portions of same deposition offered in evidence (rule of completeness)

[111315] Overview The following are the authorized methods of obtaining discovery

bull Depositions upon oral examination or written questions (FRCP 30 para 111321 ff) bull Written interrogatories (FRCP 33 para 111660 ff) bull Production of documents or things or permission to enter upon land or other property for

inspection (FRCP 34 para 111805 ff) bull Requests for admission (FRCP 36 para 111970 ff)

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bull Physical and mental examinations (FRCP 35 para 112130 ff) and bull Subpoenas to nonparties (for testimony or documents) (FRCP 45 para 112220 ff)

[111316] Advantages and disadvantages of depositions The primary advantages of depositions are that they allow spontaneous follow-up questioning and they allow opposing counsel to observe the witnesses appearance and demeanor The major disadvantage of depositions is that they are expensive time-consuming and the information obtained is limited to the witnesses largely unaided recollection [111317] Advantages and disadvantages of interrogatories The advantages of interrogatories include the fact that they are inexpensive (because there are no court reporter fees transcript costs or travel expenses) that they require relatively little preparation time and that they require the opposing party to provide all information available to it its opposing counsel or any of its agents or employees Disadvantages of interrogatories include the fact that the answers are usually prepared by opposing counsel after study and reflection so the answers may not be very helpful [111318] Advantages and disadvantages of requests for production and inspection Advantages are that documents prepared contemporaneously with the underlying events may be the best account of what occurred untainted by the fact that litigation ensued Also unlike depositions and interrogatories there is no presumptive limit on the number or categories of documents that may be sought Further this is the only way of inspecting land buildings and things Disadvantages of requests for production and inspection are few but one drawback is the inability of the propounding party to prevent the responding party from burying it with a large quantity of irrelevant information [111319] Advantages and disadvantages of requests for admissions Advantages of requests for admissions include

--streamlining litigation by establishing which elements of claims or defenses will be contested and by eliminating the need to authenticate documents or prove background facts

--responses that are binding on the responding party (unlike answers to interrogatories and answers to deposition questions) unless the responding party obtains court approval to modify them and

--if the responding party refuses to admit matters that cannot reasonably be disputed the propounding party may be able to recover its costs of proof Disadvantages of request for admission are that the responses tend to be equivocal and significant matters are seldom admitted because the responses are prepared by opposing counsel [111320] Advantages and disadvantages of physical or mental examinations The advantage of mental and physical examinations is that they provide the opposing party an opportunity to have physicians not aligned with plaintiff evaluate alleged mental or physical injury thus placing the opposing party on a more equal footing with the person claiming mental or physical injury The disadvantage is that a mental or physical examination can be relatively expensive

1 [111321] Deposition Defined A deposition is testimony taken before trial or pending appeal under oath subject to cross-examination and recorded by audio audiovideo or stenographic means Under certain circumstances deposition testimony may be admissible at trial [FRCP 30-32]

a [111322] Oral vs written depositions The Federal Rules provide for two kinds of depositions oral and upon written interrogatories (questions) Oral depositions are far

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more common than depositions on written interrogatories and are the focus of this section (The latter are discussed briefly at para 111615 ff)

2 [111323] Depositions Requiring Prior Court Order Depositions are generally available as a matter of right ie without leave of court--at any time after an action is commenced [FRCP 30(a)(1)]However a prior court order is required for the following types of depositions

bull prelawsuit depositions (FRCP 27(a) para 111325 ff) bull depositions before the parties early meeting (FRCP 30(a)(2)(C) para 111354) bull absent a written stipulation a deposition of someone previously deposed in the case (FRCP

30(a)(2)(B) para 111374 ff) bull absent a written stipulation more than 10 depositions per side (FRCP 30(a)(2)(A) para

111370 ff) bull depositions after the discovery cut-off set by the court (para 111378) bull depositions of a prisoner (FRCP 30(a)(2) para 111380) bull depositions after judgment while appeal pending (FRCP 27(b) para 111381)

[111324] Discretionary Leave of court shall be granted to the extent consistent with the principles stated in Rule 26(b)(2) [FRCP 30(a)(2)] This requires the court to consider

--whether the discovery sought is unreasonably cumulative or duplicative --whether it could be obtained from some other source that is more convenient less

burdensome or less expensive etc --whether the party seeking discovery has had ample opportunity to obtain the information

and --whether the burden or expense of the proposed discovery outweighs its likely benefit

(taking into account the amount in controversy importance of issues etc) [FRCP 26(b)(2)]

a [111325] Prelawsuit depositions The Federal Rules provide a procedure to perpetuate testimony that might otherwise be lost if a party had to wait until a lawsuit was filed [See FRCP 27(a) In re Federal Grand Jury Proceedings 03-01 (D OR 2004) 337 FSupp2d 1218 1222 (citing text)]

(1) [111326] Includes inspections and examinations Although the Rule speaks in terms of perpetuating testimony it also applies to inspection of documents and things (Rule 34) or a physical or mental examination (Rule 35) [See FRCP 27(a)(3) Martin v Reynolds Metals Corp (9th Cir 1961) 297 F2d 49 56 Application of Deiulemar Compagnia Di Navigazione SpA v MV Allegra (4th Cir 1999) 198 F3d 473 478 fn 5--(W)e refer to testimony and evidence interchangeably in the context of Rule 27]

(2) [111327] Need for prelawsuit discovery Prelawsuit discovery will be ordered only where it is shown that

bull the moving party is presently unable to bring it (an action) or cause it to be brought and bull a deposition to perpetuate testimony (or inspection of documents etc) is necessary to

prevent a failure or delay of justice [FRCP 27(a)(1) (3) (emphasis added) see In re Bay County Middlegrounds Landfill Site (6th Cir 1999) 171 F3d 1044 1046-1047]

(a) [111328] By prospective defendants The requirement that the moving party show why a lawsuit cannot first be filed is satisfied when the moving party is the potential defendant and thus unable to commence the litigation [See State Farm Fire amp Cas Co v Taylor (MD NC 1998) 118 FRD 426 431--improper to use declaratory relief action to perpetuate testimony] For example a party who expects to be sued may be allowed to take a prelawsuit deposition of an aged or gravely ill witness or party who may not be available to testify later [Petition of Rosario (D MA 1986) 109 FRD 368 370]

(b) [111329] By prospective plaintiffs But a prospective plaintiff must make a clear showing why an action could not first be filed and the deposition taken later (eg insufficient information presently available to support action and key witness about to leave country) [See State of Nevada v OLeary (9th Cir 1995) 63 F3d 932 936--potential plaintiffs cannot use Rule 27 to obtain unknown information in order to enable them to draft a complaint]

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1) [111330] Not a substitute for discovery Rule 27 is not available for investigating whether a lawsuit should be filed or to satisfy Rule 11s prefiling inquiry requirements [Petition of Ford (MD AL 1997) 170 FRD 504 507--the rule authorizes the perpetuation of evidence not the discovery or uncovering of information In re Chester County Elec Inc (ED PA 2002) 208 FRD 545 547]

(c) [111331] Application The moving party must allege facts showing a risk of permanent loss of testimony [Penn Mut Life Ins Co v United States (DC Cir 1996) 68 F3d 1371 1375]

bull [111332] Allegations that the proposed deponent is retired and that passage of time may impair his ability to recall relevant facts and testify competently are not sufficient [Penn Mut Life Ins Co v United States supra 68 F3d at 1375]

bull [111333] On the other hand affidavits showing the proposed deponent is of advanced age establish an increased risk of unavailability to testify at the time of trial [Penn Mut Life Ins Co v United States supra 68 F3d at 1375--affidavits showed proposed deponent 80 years old Texaco Inc v Borda (3rd Cir 1967) 383 F2d 607 609--71 years old]

bull [111334] The potential deponents plans to leave the country for a long period of time may be ground for perpetuating testimony presumably because the difficulties of serving process and conducting a deposition overseas create a risk of losing testimony [Penn Mut Life Ins Co v United States supra 68 F3d at 1375 fn 3][111335-1339] Reserved

(d) [111340] Likelihood of litigation A party need not always demonstrate that litigation is an absolute certainty Even anticipated actions that are contingent and uncertain can be cognizable for purpose of Rule 27 jurisdiction For example a prelawsuit deposition may be ordered despite pending administrative proceedings that may resolve the dispute [Penn Mut Life Ins Co v United States supra 68 F3d at 1374--IRS had not completed its audits]

1) [111341] Need not be federal lawsuit Assuming federal jurisdictional requirements are met (ie a matter cognizable in any court of the United States) a federal court may order prelawsuit discovery although the litigation is expected to take place in a state or foreign courtMoreover where a special need is shown Rule 27(a) discovery may be ordered to preserve evidence for use in a commercial arbitration at home or abroad [Application of Deiulemar Compagnia Di Navigazione SpA v MV Allegra (4th Cir 1999) 198 F3d 473 479 see para 1112933]

(e) [111342] Deponents knowledge unique To show that a prelawsuit deposition will prevent a failure or delay of justice some courts hold the moving party must show the proposed deponent has unique knowledge of the facts about which his or her testimony is sought A prelawsuit deposition is improper if other witnesses can provide the same information [Penn Mut Life Ins Co v United States supra 68 F3d at 1375]Other courts do not require that the proposed deponent be the only witness who can testify (T)he best interpretation of the rule is that the testimony to be perpetuated must be relevant not simply cumulative and likely to provide material distinctly useful to a finder of fact A determination that the evidence is absolutely unique is not necessary [In re Bay County Middlegrounds Landfill Site (6th Cir 1999) 171 F3d 1044 1047]

(f) [111343] Substance of proposed testimony The moving party must set forth in some detail the substance of the testimony it seeks to preserve A Rule 27(a) deposition may not be used as a substitute for discovery [State of Nevada v OLeary (9th Cir 1995) 63 F3d 932 936--this requirement not satisfied where proposed deponents thoughts and views were unknown]

(g) [111344] Scope of discovery The broad relevant to a claim or defense of any party standard (FRCP 26(b) para 11610 ff) does not apply to prelawsuit depositions Rule 27 discovery does not permit fishing expeditions discovery is limited to evidence that is both material and competent (ie that would be admissible at trial) [See State of Nevada v OLeary supra 63 F3d at 936 Nissei Sangyo America Ltd v United States (7th Cir 1994) 31 F3d 435 440 In re Hopson Marine Transp Inc (ED LA 1996) 168 FRD 560 564-565]

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(3) [111345] Procedure The person expecting to sue or be sued must file a verified petition for an order authorizing the deposition of the persons named in the petition [FRCP 27(a)(1)]

(a) [111346] Where filed The petition must be filed in the district of the residence of any expected adverse party (The petitioners residence and the residence of the person to be deposed are immaterial) [FRCP 27(a)(1)]

(b) [111347] Contents of petition The petition is filed in the name of the petitioner (ie In the Matter of ) and must show

bull That petitioner expects to be a party in an action regarding a matter cognizable in federal court but is presently unable to bring the action (usually because petitioner expects to be sued as a defendant)

bull The subject matter of the expected action and the petitioners interest in the action bull The basis for federal jurisdiction over the anticipated federal action (ie diversity of

citizenship or a federal question) bull The facts desired to be established by the proposed testimony and the reasons for desiring

to perpetuate it bull The identity including addresses of persons expected to be adverse parties and bull The identity including addresses of the persons to be examined and the substance of the

testimony expected to be elicited from each proposed examinee [FRCP 27(a)(1) see Matter of Nabors Loffland Drilling Co (WD LA 1992) 142 FRD 295 296--petition defeated by opposing counsels declaration showing no basis for federal jurisdiction in the contemplated action] FORM PETITION FOR ORDER AUTHORIZING DEPOSITION BEFORE ACTION see Cal Prac Guide Fed Civ Pro Before Trial Form No 11A3

=gt [111348] PRACTICE POINTER Your petition must also present facts showing why the deposition is needed to prevent a failure or delay of justice (para 111327) If it is because a party or crucial witness is gravely ill your petition as to the nature or gravity of the illness may not be sufficient (inadmissible opinions) Be prepared with affidavits or declarations from a doctor as to the proposed deponents physical condition

(c) [111349] Service on expected adverse party Copies of the petition and notice stating the time and place of the hearing must be served on each expected adverse party at least 20 days before the hearing date Such service may be made either inside or outside the district in the manner provided by FRCP 4 (ie personal service generally required) [FRCP 27(a)(2) (amended 2005)] If despite diligent effort the expected adverse party cannot be served the court may order service by publication in that event the court must appoint an attorney to represent the expected adverse party and to cross-examine the deponent [FRCP 27(a)(2)]If the expected adverse party is a minor or incompetent the court must appoint a guardian ad litem to represent that party as provided in FRCP 17(c) [FRCP 27(a)(2)]

(d) [111350] Order If satisfied that the preservation of testimony is necessary the court will authorize the petitioner to take the deposition specify the subject matter and decide whether the deposition will be oral or written [FRCP 27(a)(3)]

(e) [111351] Use as evidence Depositions taken pursuant to Rule 27 may be used in any action involving the same subject matter subsequently brought in a federal district court [FRCP 27(a)(4)]

(f) [111352] Other discovery methods Although this procedure is most often used in connection with depositions it may also be utilized for prelawsuit production of documents (or inspection of land) as well as physical and mental examinations [See Martin v Reynolds Metals Corp (9th Cir 1961) 297 F2d 49 56--inspection of land In re Hopson Marine Transp Inc (ED LA 1996) 168 FRD 560 564--disassembly and inspection of allegedly defective brakes]

(4) [111353] Compare--immediate deposition If it appears that the witness will not survive the 20-day notice period the party may file the lawsuit and seek immediate leave of court for a deposition under Rule 30(a) [Petition of Jacobs supra 110 FRD at 423]

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b [111354] Hold on depositions before early meeting A stipulation or court order is required to take depositions before the parties initial meeting under Rule 26(f) to confer on discovery and other matters (see para 11527) [FRCP 30(a)(2)(C) see also FRCP 26(d)] Premature notices of deposition are defective and unenforceable [Keller v Edwards (D MD 2002) 206 FRD 412 415]

(1) [111355] Purpose If depositions are held before the parties initial meeting to develop a mutually cost-effective discovery plan the cooperative effort at framing discovery could be frustrated [Adv Comm Notes on 1993 Amendments to FRCP 26(d)]

(2) [111356] Effect This creates a substantial hold on depositions at the outset of a lawsuit

--The initial meeting under Rule 26(f) must be held no later than 14 days before the initial scheduling conference or the date the scheduling order is due

--A scheduling order is not due until 90 days after the appearance of the first defendant (FRCP 16(c) see para 1522)

--Thus the hold on depositions could be as long as 76 days (90 days minus 14 days) after the first defendant appears in the action

(3) [111357] No bar to deposition notice By its terms FRCP 30(a)(2)(C) applies only to taking depositions not serving notice Thus apparently a party can serve a notice before the initial meeting of a deposition to be taken after the meeting

(a) [111358] Comment It is doubtful the drafters of the Rule had this in mind or intended this result Accordingly some judges may frown on this practice

(4) [111359] Exceptions The hold on depositions before the parties early meeting does not apply in the following situations

(a) [111360] Written stipulation The parties may stipulate in writing to permit the taking of depositions during the hold period [FRCP 29 30(a)(2)]

(b) [111361] Notice states witness leaving country No court order is necessary to depose a witness where the deposition notice contains a certification with supporting facts stating the person to be deposed is about to leave the US and will be unavailable for examination unless deposed before the Rule 26(f) early meeting [FRCP 30(a) (2)(C)]

1) [111362] Limitation on use of deposition at trial A deposition taken under this provision cannot be used at trial against a party who demonstrates that when served with the notice it was unable to obtain counsel to represent it at the deposition [See FRCP 32(a)(3) last para]

(5) [111363] Obtaining leave of court Either party may seek leave of court to take depositions before the initial meeting Such leave shall be granted unless the court finds such discovery would be inconsistent with the benefits vs burdens approach provided under Rule 26(b)(2) (see para 111324)

bull [111364] For example leave to take a deposition before the early meeting may be granted because of an urgent need for discovery in connection with an application for a TRO or preliminary injunction [Stanley v University of So Calif (9th Cir 1994) 13 F3d 1313 1326 (citing text)] [111365-1369] Reserved

c [111370] More than 10 depositions per side A stipulation or court order is required if the proposed deposition would result in more than 10 depositions being taken by the deposing partys side (eg if the party seeking the deposition is one of several defendants more than 10 depositions by all defendants) [FRCP 30(a)(2)(A) see Archer Daniels Midland Co v Aon Risk Services Inc of Minn (D MN 1999) 187 FRD 578 586--party must make a particularized showing of why extra depositions are necessary Barrow v Greenville Independent School Dist (ND TX 2001) 202 FRD 480 483--must also show necessity of each deposition previously taken]

(1) [111371] Effect Coparties are expected to confer and agree as to which depositions are the most important More than 10 depositions per side must be justified under the benefits vs burdens approach of Rule 26(b)(2) (see para 111324) [Adv Comm Notes on 1993 Amendments to FRCP 30(a)(2)]

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The number of depositions to be taken is normally one of the subjects covered at the parties early meeting to develop a discovery plan They can stipulate to more than 10 depositions per side where necessary (but the court has power under Rule 26(b)(2) to override such stipulations)

(2) [111372] Compare--corporate depositions For purposes of this rule the deposition of a corporation or other business entity under FRCP 30(b)(6) is treated as a single deposition although the entity may designate several persons to testify on its behalf [Adv Comm Notes on 1993 Amendments to FRCP 30(a)(2)(A)]

(3) [111373] Comment The 10-deposition limit may impact plaintiffs more than defendants Eg in large product liability cases defendants are usually in control of the information and plaintiffs may need more depositions to prove their case

d [111374] Deposition of person previously deposed A court order is required to re-depose a witness previously deposed in the same case [FRCP 30(a)(2)(B) see Ameristar Jet Charter Inc v Signal Composites Inc (1st Cir 2001) 244 F3d 189 192]Good cause for such order may include a substantial passage of time with new evidence discovered since the first deposition taken new theories added to the complaint etc [See Graebner v James River Corp (ND CA 1989) 130 FRD 440 441 (decided before Rule amended and citing text)]

(1) [111375] Effect All parties are expected to question the deponent (whether a party or nonparty) at a single deposition rather than having each party depose the witness separately Parties who are later joined in the action will normally be allowed to depose a witness previously deposed But it is not clear whether parties who had a chance to examine the witness at the first deposition should be allowed to question the witness at the second deposition

(2) [111376] Compare--recessed deposition The one deposition per witness rule does not apply where a deposition is recessed or continued for convenience of the deponent or of counsel (eg to gather additional material before resuming questioning) [Adv Comm Notes to 1993 Amendments to FRCP 30(a)(2)] The parties may agree to conduct the resumed deposition in a different manner For example if only a few questions remain they may choose to conduct the balance of questioning telephonically [Adv Comm Notes on 1993 Amendments to FRCP 30(a)(2)]

=gt [111377] PRACTICE POINTER If at the time of a deposition you anticipate the need to question the deponent again at a later date propose a continuance either to a fixed date or a date to be set on notice and expressly reserve the right to resume questioning on matters previously covered Of course a continuance requires agreement by the deponent and all parties present If any of them objects you must continue your questioning at the present time Where there is a legitimate need for a continuance (eg deponents illness) and opposing counsel refuses to stipulate the remedy is to seek a court order terminating the examination (FRCP 30(d) (4) see para 111578)

e [111378] Depositions after discovery cut-off A court order based on a showing of good cause is required to depose a witness after the discovery cut-off ordered by the court The parties stipulation is not sufficient [See FRCP 29]

(1) [111379] Discovery schedule set by court order Courts frequently impose schedules for completion of depositions and other discovery (see para 1522) The effect of course is to require that depositions be taken before the cut-off date set by the court After the discovery cut-off date a deposition may not be taken except with court approval for good cause shown Such approval is not automatic and may be withheld if the court believes the party seeking discovery has been dilatory (see para 11579)

=gt [1113791] PRACTICE POINTER Counsel sometimes agree informally to take depositions (or to complete depositions commenced earlier) after the discovery cut-off date Courts usually do not interfere with such stipulations as long as things proceed smoothly but you cannot count on the court being willing to enforce discovery in this situation

11

f [111380] Deposition of prisoner The deposition of a person confined in prison may be taken only by leave of court and on such terms as the court prescribes [FRCP 30(a)(2)]

g [111381] Deposition after judgment and pending appeal A court order is also required to take a deposition after judgment and while the case is on appeal [FRCP 27(b)](Such depositions may be necessary for example where a new witness has been discovered whose testimony would be relevant upon retrial but who is ill etc and might not be able to testify at a later date) The procedural requirements are similar to those for prelawsuit depositions above The motion to perpetuate testimony is filed in the district court where the judgment was rendered (not in the appellate court) Service may be accomplished on the adverse partys attorney [FRCP 27(b)]

h [111382] Deposition lasting more than seven hours A court order may be required where a deposition is expected to last more than one day of seven hours on the record [FRCP 30(d)(2) see para 111515]

=gt [111383] PRACTICE POINTER The better practice however is for the deposition to go forward to determine how much can be covered in the seven hours and then if additional time is needed for counsel to stipulate to extend the deposition for a specific additional time period If the parties cannot reach a stipulation then court intervention may be sought [Malec v Trustees of Boston College (D MA 2002) 208 FRD 23 24][111384-1389] Reserved

3 [111390] Sequence of Depositions Unless the court upon motion for the convenience of parties and witnesses and in the interests of justice orders otherwise depositions may be taken in any sequence The fact one party is conducting discovery (by deposition or otherwise) does not operate to delay another partys right to discovery [FRCP 26(d)]There is nothing wrong with counsel attempting to take discovery in a sequence that affords them a tactical advantage [Keller v Edwards (D MD 2002) 206 FRD 412 415]

a [111391] No priorities generally There is no rule of deposition priority in federal court Thus the fact that one party has already noticed a deposition does not prevent another party from noticing another deposition before that one [FRCP 26(d) United States v Bartesch (ND IL 1986) 110 FRD 128 129]

(1) [111392] Practical effect The only time limit imposed relates to what is reasonable notice (a minimum of 30 days if documents are sought at the same time see para 111439) If defendant notices a deposition during the hold period plaintiff is free to notice depositions as well (para 111357) If defendants depositions are set before plaintiffs they will generally be taken first but defendants have no absolute priority in federal court

(2) [111393] Example D notices Ps deposition with a request for production of documents in 30 days P immediately notices Ds deposition to take place within 20 days and before Ps deposition This sequence of discovery is proper

=gt [111394] PRACTICE POINTER Avoid this problem Consult opposing counsel before noticing depositions and attempt to work out a mutually agreeable schedule You can also raise any questions concerning the sequence of depositions at the early conference with opposing counsel and at the first scheduling conference The court may be willing to control the sequence of discovery if you can provide a reason supporting judicial control over this process

b [111395] Compare--customary priorities Notwithstanding the above attorneys usually respect the order in which deposition notices are served

c [111396] Compare--altering sequence for good cause Upon motion and for the convenience of parties and witnesses and in the interests of justice the court may alter the sequence of depositions or any other form of discovery [FRCP 26(d) United States v Bartesch (ND IL 1986) 110 FRD 128 129]

(1) [111397] Good cause required Courts do not routinely grant protective orders altering the sequence of depositions Good cause is required--ie a specific reason why one partys deposition should be taken before other depositions are allowed

12

[111398-1404] Reserved 4 [111405] WHOSE Deposition May be Taken A party may depose any person

including a party The person to be deposed may be a natural person a public or private corporation a partnership or a governmental agency [FRCP 30(a) (b)(6) FDIC v Butcher (ED TN 1986) 116 FRD 196 201]

a [111406] Parties Parties can take the deposition of any other party They can even take their own depositions (eg to perpetuate their own testimony where there is a risk they will be unavailable to testify at trial) [FRCP 27(a) and see para 111329 ff]

b [111407] Nonparties Depositions are the only way to obtain testimony and documents from a nonparty witness [Pennsylvania RR v The Marie Leonhardt (ED PA 1959) 179 FSupp 437 438](The subpoena procedure for compelling attendance of nonparty witnesses and obtaining documents is discussed at para 112221 ff)

c [111408] Corporations and other entities A deposition may be taken of any entity (corporation partnership etc) by naming the entity as the deponent and describing the matters on which examination is requested [FRCP 30(b)(6) FDIC v Butcher supra]

(1) [111409] Notice or subpoena directed to entity Where the deposition of a corporation or other entity is sought the notice of deposition or subpoena is directed to the entity itself eg XYZ Corp a corporation The entity not the officer or agent testifying on its behalf is the deponent (The entity will then be obligated to produce the most qualified person to testify on its behalf see para 111413) [Mattel Inc v Walking Mountain Productions (9th Cir 2003) 353 F3d 792 798 fn 4 (citing text))]

(2) [111410] Notice or subpoena must describe matters to be asked A deposition notice or subpoena directed to an entity must describe with reasonable particularity the matters on which examination is requested [FRCP 30(b)(6) (emphasis added) see also Cates v LTV Aerospace Corp (5th Cir 1973) 480 F2d 620]Thus for example a deposition notice should state XYZ Corporation is hereby requested and required pursuant to FRCP 30(b)(6) to designate and produce a person or persons to testify on behalf of XYZ Corporation on the following matters (describing each matter with particularity)

(a) [111411] Not a limit on questions that may be asked This does not limit the scope of the questions that can be asked of the corporations designated representative Any question relevant to the claim or defense of any party may be asked even if not specified in the deposition notice [King v Pratt amp Whitney (SD FL 1995) 161 FRD 475 476 affd without opn (11th Cir 2000) 213 F3d 646 Detoy v City amp County of San Francisco (ND CA 2000) 196 FRD 362 366-367]Comment This is no recommendation against specification because the examining party is likely to get I dont know answers on matters not specified [See King v Pratt amp Whitney supra 161 FRD at 476]

=gt [111412] PRACTICE POINTER Counsel representing the corporation or entity should object to questions beyond the topics designated in the Rule 30(b)(6) notice and state on the record that any answers given by the witness are not the answers of the corporation or entity The deposing party may not simply notice a later deposition of the corporation on the additional topics Leave of court must be obtained to take another deposition from the same party (FRCP 30(a)(2)(B) see para 111374)

(3) [111413] Entity must designate person to testify on entitys behalf If the notice of deposition or subpoena served on the entity sufficiently describes the matters on which questions will be asked the entity is under a duty to designate and produce one or more officers directors or managing agents or other persons who consent to testify on its behalf [FRCP 30(b)(6)] If the corporation is a party the deposition notice itself compels such production If it is not the corporation must be subpoenaed as any other nonparty witness the subpoena must advise the entity of its duty to make such designation [FRCP 30(b)(6)]

(a) [1114131] Managing agent A person is treated as a managing agent of the corporation (and thus one whose deposition may be taken without service of subpoena) if

13

he or she has been vested with general power and discretion over corporate activities [Tomingas v Douglas Aircraft Co (SD NY 1968) 45 FRD 94 96-97--aircraft manufacturers engineers charged with investigating accidents are managing agents] To determine whether an employee is a managing agent courts consider whether the individual

--is invested with power to exercise his or her discretion and judgment in dealing with corporate matters

--can be depended upon to carry out the employers direction to give required testimony and

--has an alignment of interests with the corporation rather than one of the other parties [Philadelphia Indem Ins Co v Federal Ins Co (ED PA 2003) 215 FRD 492 494--determination depends on functions responsibilities and authority of individual involved respecting subject matter of the litigation]

1) [1114132] Compare--subordinate employees If a person is a subordinate employee or is at the time of the deposition no longer a director officer or managing agent of the corporation a subpoena is necessary to compel his or her attendance [Colonial Capital Co v General Motors Corp (D CT 1961) 29 FRD 514 515--eg secretaries stenographers etc]

(b) [111414] Person designated must have knowledge of matters described in notice The person(s) so designated must be able to testify fully as to the matters designated [See Bon Air Hotel Inc v Time Inc (5th Cir 1967) 376 F2d 118 121 FDIC v Butcher (ED TN 1986) 116 FRD 196 201--designation of deponent with limited knowledge about transactions held improper]

1) [1114141] Sanctions for improper designation If the entity party intentionally or otherwise designates a witness who lacks knowledge of the matters specified in the notice the deposing party may seek reimbursement of expenses incurred in taking the deposition (including reasonable attorney fees) [FRCP 26(g) United States v Taylor (MD NC 1996) 166 FRD 356 363]

bull [1114142] An entity party served with a FRCP 30(b)(6) notice may also be sanctioned for requesting the deposing party to identify the witnesses it wished to depose on behalf of the entity and what testimony it wished the entity to designate as Rule 30(b)(6) testimony The request is improper because it attempts to shift to the deposing party the onus of identifying who best speaks for the entity on the matters in question [Foster-Miller Inc v Babcock amp Wilcox Canada (1st Cir 2000) 210 F3d 1 17]

2) [111415] Duty to provide new witness If it appears at the deposition that the witness designated by the corporation is unable to answer questions on matters specified in the deposition notice a corporate party must immediately designate a new witness [Marker v Union Fidelity Life Ins Co (MD NC 1989) 125 FRD 121 126]

3) [1114151] Compare--where no person qualified If the entity no longer employs anyone knowledgeable about the designated matter it must prepare a representative (using documents former employees or other sources) to testify at the deposition It is immaterial that such testimony is hearsay and would be inadmissible at trial [See United States v Taylor (MD NC 1996) 166 FRD 356 362]

=gt [1114152] PRACTICE POINTER If the corporation is unable to designate a representative to testify on a designated topic (eg because it has no agents who can testify without invoking privilege) it should seek a protective order under Rule 30(b) [See United States v Kordel (1970) 397 US 1 9 90 SCt 763 768]

(c) [111416] Answers binding on corporation The answers given by the person designated by the corporation under Rule 30(b)(6) are binding on the corporation The designated witness is speaking for the corporation [United States v Taylor supra 166 FRD at 361]

(d) [111417] Number and length of depositions Where a corporation designates several witnesses to testify on its behalf pursuant to FRCP 30(b)(6) the deposition counts as only one deposition against the 10-deposition-per-side limit (FRCP 30(a)(2)(A) para 111370)

14

The noticing party may question each designee for up to seven hours [See Adv Comm Note to 2000 Amendment to FRCP 30]

=gt [111418] PRACTICE POINTERS By relying on FRCP 30(b)(6) as much as possible the noticing party can maximize the aggregate number and duration of depositions allowed by the FRCP However Rule 30(b)(6) also has some drawbacks

--It forces deposing counsel to lay out the precise topics on which information is sought allowing opposing counsel to prepare the witness thoroughly on those topics This destroys any element of surprise at the deposition while tipping deposing counsels hand on important issues

--It does not limit the number of witnesses the entity may designate ie it can select many witnesses with pieces of knowledge regarding the matters designated running up deposition costs In view of these drawbacks many attorneys consider using interrogatories to discover which officers and employees have knowledge of the facts and then deposing them individually under Rule 30(b)(1) not under Rule 30(b)(6)

(4) [111419] Compare--deposition notice naming specific officers and directors FRCP 30(b)(6) does not preclude depositions by other authorized procedures Thus where a notice of deposition specifies certain officers or directors the corporation has no right to designate others to appear in their stead [United States v One Parcel of Real Estate at 5860 North Bay Road Miami Beach Fla (SD FL 1988) 121 FRD 439 439-440]

Moreover if the corporation is a party the notice compels it to produce any officer director or managing agent named in the deposition notice It is not necessary to subpoena such individual The corporation risks sanctions-- including default or dismissal--if the designated individual fails to appear [FRCP 37(d) Bon Air Hotel Inc v Time Inc (5th Cir 1967) 376 F2d 118 121 Cadent Ltd v 3M Unitek Corp (CD CA 2005) FRD fn 1 (2005 WL 2850103) (citing text) see discussion at para 112402]

=gt [111420] PRACTICE POINTER The disadvantage to naming the officer or director to be deposed is that his or her answers are not necessarily binding on the corporation In contrast if you simply name the subject matter and allow the corporation to designate the person to be deposed the answers obtained will be binding on the corporation (see para 111414)

(5) [111421] Compare--high-ranking officials lacking personal knowledge The CEO of a corporation or a high-ranking government official may obtain a protective order from being deposed about matters as to which he or she has no personal knowledge even if the company or organization has such knowledge This prevents use of depositions for harassment purposes and protects such persons from the interference of the discovery process [See Kyle Engineering Co v Kleppe (9th Cir 1979) 600 F2d 226 231-232 Stagman v Ryan (7th Cir 1999) 176 F3d 986 994-995--State employee who was fired from his job in Attorney Generals office barred from deposing Attorney General who was shown to have no personal involvement in decision to terminate plaintiff] The same is true as to high-level government officials The fact they are not involved in the decisionmaking process may justify relieving them of the burdens of litigation discovery [See In re FDIC (5th Cir 1995) 58 F3d 1055 1061--absent exceptional circumstances senior government officials may not be deposed in cases in which government is party]

=gt [111422] PRACTICE POINTER Deposition notices directed at high-level corporate officials frequently draw a motion for a protective order especially where the corporate officer claims no personal knowledge of the facts involved The court may require the party seeking the deposition first to conduct a FRCP 30(b)(6) deposition to minimize the burden to the corporation [See Folwell v Hernandez (MD NC 2002) 210 FRD 169 173--The preferred approach for deposing a corporation is the use of Rule 30(b)(6) which requires the corporation to obtain the information] [111423-1429] Reserved

5 Notice Requirements

15

a [111430] To whom notice must be given The party desiring to take a deposition must give reasonable written notice to every other party to the action [FRCP 30(b)(1)]

=gt [111431] PRACTICE POINTER If another party notices the deposition of a witness whom you also wish to depose serve your own deposition notice for the same time and place This prevents the party noticing the deposition from unilaterally canceling the deposition and delaying your discovery [See Lauson v Stop-N-Go Foods Inc (WD NY 1990) 133 FRD 92 94]

(1) [111432] Not filed with court The Notice of Deposition and other documents that are part of the deposition process (deposition subpoenas transcript etc) are not to be filed with the court unless used in the proceeding or the court orders them filed [FRCP 5(d) see para 111225 ff]

(2) [111433] Special notice required where personal records of consumer or employment records sought In California state court actions where personal records of a consumer or employment records are sought from a custodian of the records the person to whom the records pertain (party or nonparty) must be given special notice that such records are being sought and of his or her privacy rights [See Calif CCP sectsect 19853 19856 and detailed discussion in Weil amp Brown Cal Prac Guide Civ Pro Before Trial (TRG) Ch 8E] Whether such special notice is required in federal actions is presently unclear (See discussion of Erie doctrine at para 163 ff)

b [111434] Contents of notice The deposition notice is required to set forth bull The date time and place for taking the deposition bull The name and address of each person to be examined if known and if the name is not

known a general description sufficient to identify the examinee or the particular class or group to which he or she belongs and

bull The method by which the testimony shall be recorded (eg stenographically audio video etc see para 111493) [FRCP 30(b)(2)]

--Note Other parties may serve notice that they will arrange for other methods of recording at their own expense see FRCP 30(b)(3) para 111495

--Limitation Depositions by telephone or other remote electronic means require a stipulation or court order [FRCP 30(b)(7)]

bull If the deponent is a nonparty and has been served with a deposition subpoena (para 112221 ff) requiring production of documents or records the deposition notice must include a designation of the material to be produced (This requirement may be met by attaching a copy of the subpoena to the notice) [FRCP 30(b)(1)]

bull If the deponent is a party the notice may be accompanied by a Rule 34 request for production of documents at the deposition (in which event Rule 34 governs the request see para 111805 ff) [FRCP 30(b)(5)]

--Under Rule 34 the documents or categories of documents sought are to be described with reasonable particularity [FRCP 34(b) see para 111885 ff]

bull If the deponent is a corporation or other entity the notice or subpoena must describe with reasonable particularity the matters on which questions will be asked This permits the corporation to designate a person to testify on its behalf [FRCP 30(b)(6)]FORM NOTICE OF DEPOSITION see Cal Prac Guide Fed Civ Pro Before Trial Form No 11B

c [111435] Length of notice required The notice of deposition must give reasonable notice to the parties [FRCP 30(b)(1) see United States v Philip Morris Inc (D DC 2004) 312 FSupp2d 27 36-37--3 days not reasonable notice (especially to busy litigators who need to prepare to testify about events occurring six to nine years previously) In re Sulfuric Acid Antitrust Litig (ND IL 2005) 231 FRD 320 327]

(1) [111436] 10 days as reasonable 10 days notice is normally reasonable but it depends on the circumstances of the case What would be reasonable even in a late stage of a relatively simple case with few lawyers may take on a very different cast where the case is exceedingly complex the depositions are to occur virtually hours before the discovery cut-off and the schedules of the deponents and a number of

16

lawyers would be unable to accommodate the belatedly filed notices [In re Sulfuric Acid Antitrust Litig supra 231 FRD at 327]

(2) [111437] Consultation required Some courts have local rules requiring counsel to consult with opposing counsel about the convenience of deposition dates and to accommodate opposing counsel if possible before serving a deposition notice [See ND CA Rule 30-1]

=gt [111438] PRACTICE POINTER It is also good practice to contact the nonparty witness in advance To avoid scheduling conflicts consider making a conference call to opposing counsel and the nonparty witness to arrange for the deposition If this is not feasible make your arrangements with them separately but be sure to follow up with written confirmation before issuing the deposition subpoena

(3) [111439] Exception--30 days required where documents requested If the party noticing the deposition joins a request for production of documents Rule 34 procedures apply Under Rule 34 a minimum of 30 days notice is required (see FRCP 34(b) para 111902) [FRCP 30(b)(5)]

(a) [111440] Compare--documents subpoenaed Documents may also be obtained simply by personally serving a deposition subpoena on the person or entity (including parties) having custody or control of the documents (see para 112240) Rule 45 governing subpoenaed documents requires service only a reasonable time before the deposition (see para 112276)

1) [111441] Comment Some courts view subpoenaing documents for a partys deposition in less than 30 days as an end round Rule 34s 30-day requirement They are likely to grant protective orders postponing production

(4) [111442] Protective orders A deponent who claims lack of sufficient notice may seek a protective order to enlarge the time for taking the deposition [FRCP 26(c) 30(b)(3) see Blankenship v Hearst Corp (9th Cir 1975) 519 F2d 418 429--party objecting has heavy burden of showing reason for protection]

=gt [111443] PRACTICE POINTER It is safer to seek a protective order than to refuse to show up for deposition on the ground of inadequate notice Failure to appear invites serious sanctions (see para 112402 ff) should the court disagree with you

(a) [111444] Effect of proceeding with deposition Merely filing a motion for protective order does not stop the deposition or excuse the deponent from attending [See FRCP 30(d)(1) Adv Comm Notes to 1993 Amendments to FRCP 30(b)(3)] But if the moving party received less than 11 days notice of deposition and its motion for protective order was pending at the time of the deposition the deposition cannot be used against that party at trial [FRCP 32(a)(3) (last para)]

=gt [111445] PRACTICE POINTER The examining counsel in such cases has to decide whether it is more important to proceed with the deposition as scheduled or to utilize the deposition at trial Prudence usually dictates postponing the deposition

(5) [111446] Depositions by stipulation The notice requirements above can be waived or changed by written agreement of the parties Unless the court orders otherwise the parties may by written stipulation provide that depositions may be taken before any person at any time or place upon any notice and in any manner and when so taken may be used like other depositions [FRCP 29 (emphasis added) see discussion at para 111195] [111447-1449] Reserved

6 [111450] Subpoena to Nonparty Deponent A deposition subpoena is necessary to assure attendance of a nonparty witness [FRCP 45 see detailed discussion at para 112221 ff]

7 [111451] Place of Deposition The place at which a deposition may be taken depends on whether the deponent is a party or nonparty

a [111452] Nonparty witness 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 or inspection [FRCP 45(b)(2) see para 112270]

17

However on a timely motion the court shall quash or modify the subpoena if it requires a nonparty to appear for deposition more than 100 miles from his or her residence or regular place of business or employment [FRCP 45(c)(3)(A)(ii) see para 112301]

(1) [111453] Courts discretion The court has power to require a nonparty to travel beyond the 100-mile limit if the subpoenaing party shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated [FRCP 45(c)(3)(A)(B)(iii) Chung v Chrysler Corp (D DC 1995) 903 FSupp 160 165]

(a) [111454] Comment Even so a nonparty will rarely be required to appear at a location greatly in excess of the 100-mile limit [See Comm-Tract Corp v Northern Telecom Inc (D MA 1996) 168 FRD 4 7]

(2) [111455] Court protection Parties must take reasonable steps to avoid imposing undue burden or expense on a person subject to a subpoena If they breach this duty the court may impose appropriate sanctions that may include reimbursement for lost earnings and reasonable attorney fees [FRCP 45(c)(1)]Likewise the court may impose conditions that alleviate any hardship on the person subpoenaed where the subpoena requires disclosure of confidential information (eg trade secrets) or studies by an unretained expert or burdensome travel [See FRCP 45(c)(3)(B)]

b [111456] Party witness The deposition of a party (or its officers employees etc) may be noticed wherever the deposing party designates subject to the courts power to grant a protective order [Turner v Prudential Ins Co of America (MD NC 1988) 119 FRD 381 383 Farquhar v Shelden (ED MI 1987) 116 FRD 70 72]

(1) [111457] Court protection If the parties cannot resolve disputes regarding location a protective order may be obtained [FRCP 26(c)]

(a) [111458] Factors considered In making its order the court considers convenience of the parties and relative hardships in attending at the location designated [Wisconsin Real Estate Inv Trust v Weinstein (ED WI 1982) 530 FSupp 1249 1254 and see Hyde amp Drath v Baker (9th Cir 1994) 24 F3d 1162 1166--Hong Kong plaintiffs who had filed suit in Calif ordered to appear for depositions in Calif after having disregarded prior order to appear in Hong Kong]

(b) Application 1) [111459] Partys residence Normally a partys deposition is taken in the district in

which he or she resides or is employed or has a place of business [Grey v Continental Mktg Assn Inc (ND GA 1970) 315 FSupp 826 832-- unusual circumstances required to justify putting party to inconvenience of deposition elsewhere Philadelphia Indem Ins Co v Federal Ins Co (ED PA 2003) 215 FRD 492 495]Where counsel for both parties are located in the district where the action is pending the court has discretion to order a party to appear there for depositions [See Benchmark Design Inc v BDC Inc (D OR 1989) 125 FRD 511 512 Abdullah v Sheridan Square Press Inc (SD NY 1994) 154 FRD 591 593][111460-1464] Reserved

=gt [111465] PRACTICE POINTER Wherever possible try to stipulate with counsel to take depositions at the most economical and convenient place Consider the expenses and time involved for all counsel and witnesses to be deposed Often disputes can be resolved by offering to share some of the expenses

2) [111466] Witness designated by corporate party Where a corporate party designates an officer director or employee to testify on its behalf (see para 111413) the deposition should ordinarily be taken at the corporations principal place of business [Moore v Pyrotech Corp (D KS 1991) 137 FRD 356 357 Zuckert v Berkliff Corp (ND IL 1982) 96 FRD 161 162 Dwelly v Yamaha Motor Corp (D MN 2003) 214 FRD 537 541--requiring Rule 30(b)(6) deposition to take place in Defendants principal place of business in Japan]

(c) [111467] Conditions imposed The court may also require payment of deponents travel and other costs as a condition for allowing the deposition to be taken at a particular location

18

=gt [111468] PRACTICE POINTER In deposing out-of-town witnesses select an associate counsels office or pick a neutral site (eg a hotel room) Decline offers by opposing counsel to have the deposition in their offices This reduces the chance for interruptions and deprives the deponent of the psychological advantage of being deposed in friendly surroundings

c [111469] Depositions by telephone video conference etc The parties may stipulate in writing or the court may order that a deposition be taken by telephone or other remote electronic means [FRCP 30(b)(7)(emphasis added)]

=gt [111470] PRACTICE POINTERS A deposition by telephone can be taken through a simple telephone conference call hook-up The witness can be located at one location the attorneys in their respective offices and the deposition reporter at any of these locations or elsewhere (As a practical matter the deposition reporter is usually located with the witness) Telephone depositions may not be suitable for obtaining controversial testimony because you cannot observe the impact of your questions or the witness nonverbal responses You also may not know if someone is listening in and coaching the witness A video conference deposition overcomes these obstacles but is somewhat more expensive However it is particularly cost-effective for expert witnesses because it avoids or minimizes expensive travel time

(1) [111471] Showing required for court order The party seeking to take the deposition must show good cause for an order to depose by telephone or other remote electronic means [FRCP 30(b)(7)]

bull [111472] A desire to save money constitutes good cause to depose out-of-state witnesses by telephone The burden is on opposing parties to show how they would be prejudiced [Cressler v Neuenschwander (D KS 1996) 170 FRD 20 21]

(2) [111473] Where deemed taken For purposes of enforcing discovery the deposition is deemed taken in the district where the witness is located Thus the oath must be administered by a person qualified to administer oaths in that jurisdiction and the court in that district is empowered to impose sanctions etc [FRCP 30(b)(7)]

d [111474] Deposition site in foreign countries The procedures for taking depositions in foreign countries are discussed at para 111280 ff [111475-1479] Reserved

8 [111480] Deposition Officer The deposition must be conducted under the supervision of an officer authorized to administer oaths (eg a notary public) by federal or local law or someone appointed by the court in which the action is pending [FRCP 28(a)]

=gt [111481] PRACTICE POINTER The most common practice is to designate someone who is both a notary public and a certified shorthand reporter (CSR) The deposition officer thus serves the dual function of administering the oath and recording the testimony

a [111482] Persons disqualified Depositions may not be taken before a relative or employee of any party or the attorney for any party or a person who is financially interested in the action [FRCP 28(c)]

b [111483] Deposition officers in foreign countries The procedures for taking depositions in foreign countries are discussed at para 111280 ff

c [111484] Procedural stipulations Unless the court orders otherwise the parties may by written stipulation agree to take a deposition before any person [FRCP 29][111485-1489] Reserved

9 Preservation of Testimony a [111490] Opening statement by deposition officer The deposition officer begins the

proceedings by stating on the record --the officers name and business address --the date time and place of the deposition --the name of the deponent --the administration of oath or affirmation to the deponent and --identification of all persons present [FRCP 30(b)(4)]

19

(1) [111491] Administration of oath Before testimony commences the deposition officer must put the deponent under oath [FRCP 30(c)]

(2) [111492] Compare--audiovideo depositions Special rules apply to the opening statement on audiovideo depositions see para 111503

b [111493] Method of recording testimony Unless the court orders otherwise a deposition may be recorded either stenographically or by audio or video tape (by sound sound-and-visual or stenographic means) [FRCP 30(b) (2)] The method of recording must be stated in the deposition notice [FRCP 30(b)(2) see para 111434]

(1) [111494] Effect A stipulation or court order is not required for audio or video tape depositions Nor is a stenographic reporter required in every deposition (but a deposition officer is still required see below)

(2) [111495] Other parties may designate other methods Other parties are free to arrange for other methods of recording the deposition at their own expense by appropriate notice to the deponent and opposing parties [FRCP 30(b)(3)]

bull [111496] For example where a deposition notice states testimony will be recorded stenographically other parties may send out a deposition notice stating the deposition will be recorded on audio or video tape In such event they must pay the costs for the additional record or transcript (unless the court orders otherwise) [FRCP 30(b)(3)]

=gt [111497] PRACTICE POINTERS Videotape depositions can be extremely effective --Videotaping usually cuts down on abuses by counsel during the deposition (eg coaching

the witness unnecessary interruptions of the questioning abusive questions or objections etc)

--It tends to make the witness more candid (The eye of the camera is upon him or her etc)

--It provides a far better record of the examination than any transcript or audiotape It is clearly the best way to preserve the testimony of a witness who is ill or feeble and may be unavailable to testify at trial or of a key witness living in another state or country who may be unwilling or unable to testify in person at trial

--It is also much more effective for impeachment at trial than reading inconsistent testimony in a deposition transcript

--BUT videotaping is also more expensive--normally about $250 extra per half day If you win the videotaping costs may be recoverable as court costs (see below) [1114971-14974] Reserved

(3) [1114975] Protective orders For good cause a court may grant a protective order against videotaping a deposition Good cause requires a showing that videotaping will work a clearly defined and serious injury to the party seeking the protective order The deponents anxiety regarding videotaping does not by itself constitute good cause [Fanelli v Centenary College (D NJ 2002) 211 FRD 268 271]

c [111498] Special rules for audiovideo depositions As stated above no prior court order is required to record a deposition on audio or videotape But there are several special requirements to consider

(1) [111499] Cost The party noticing an audio or video deposition bears the cost of the recording [FRCP 30(b)(2)]It is not clear whether the cost of an audiovideo recording is recoverable as costs of suit by the prevailing party The statute governing recovery of court costs (28 USC sect 1920(2)) provides for the cost of a stenographic transcript necessarily obtained for use in the case Courts are split on whether this includes audiovideo recordings [See Morrison v Reichhold Chemicals Inc (11th Cir 1996) 97 F3d 460 464-465--video recording cost recoverable under sect 1920(2) where prevailing party noticed deposition to be video recorded and opponent did not then object to method of recordation compare Migis v Pearle Vision Inc (5th Cir 1998) 135 F3d 1041 1049 (contra)--no recovery for videotaping because statute allows only stenographic transcript]

(2) [111500] Recording equipment The only requirement is that the recording facilities be sufficient to produce a recording from which a stenographic transcript may be obtained [See FRCP 30(b)(2)]

20

(For example where several counsel are present this may require several microphones rather than a simple hand-held cassette recorder)

(3) [111501] No distortion The appearance of the deponent and the attorneys shall not be distorted through camera or sound recording techniques [FRCP 30(b)(4)]

=gt [111502] PRACTICE POINTERS In video depositions the camera is normally directed toward the witness However if cost-justified it may be a good idea to arrange for other cameras directed toward the attorneys as well Avoid unpleasant surprises and disputes with opposing counsel by agreeing in advance on ground rules for recording the deposition For suggested stipulations see Uniform Audio-Visual Deposition Act 12 Uniform Laws Annotated 12

(4) [111503] Deposition officer At the beginning of the deposition and of each tape (or other recording medium) the deposition officer (para 111480) must state on the record

--the officers name and business address --the date time and place of the deposition and --the deponents name [FRCP 30(b)(4)]

At the end of the deposition the officer shall state on the record that the deposition is complete and shall set forth any stipulations made by counsel (eg regarding custody of the recording and any exhibits) [FRCP 30(b)(4)]

(5) [111504] Transcript If the testimony is to be offered on a summary judgment motion or at trial (see below) a stenographic transcript will be required [See FRCP 26(a)(3)(B) 32(c)] To obtain such transcript a party can have a stenographer present at the deposition (see para 111493) or alternatively can arrange to have a transcript made from the audio or video recording of the deposition [FRCP 30(b)(2) Adv Comm Notes to 1993 Amendments to FRCP 30(b)(2)]

(6) [111505] Use at trial A party offering an audio or video recording into evidence at trial must provide the court with a stenographic transcript of the portions offered [FRCP 32(c)]Any party (not just the party who took the deposition) has the right to play admissible portions of the audio or video tape for the jury unless the court for good cause orders otherwise [FRCP 32(c)]

=gt [111506] PRACTICE POINTER Where an opposing witness is unavailable at trial so that his or her audiovideo deposition testimony is admissible consider demanding it be presented in audiovideo form if you think the witness demeanor or opposing counsels manner of questioning (or behavior) should be viewed by the jury

=gt [111507] FURTHER POINTER To avoid fiddling with a cassette or video tape recorder while trying to locate relevant testimony consider having the recording transcribed onto a CD-ROM with appropriate search commands This will allow you to locate and play instantly any portion of the testimony [111508-1514] Reserved

10 [111515] Length of Deposition (Seven-Hour Rule) Unless otherwise ordered by the court or stipulated by the parties a deposition is limited to one day of seven hours [FRCP 30(d)(2) (emphasis added)] (Note This time limit cannot be modified by local rule see FRCP 26(b)(2) para 1124)

=gt [1115151] PRACTICE POINTER The seven-hour rule means choices may have to be made about the topics to be covered and the time to be spent on each topic (including time for cross-examination) You can ask the court for additional time where necessary (see para 111518) but it may not be granted

a [111516] Measuring seven-hour limit The seven-hour limit applies to time spent on the record exclusive of rest breaks and lunch breaks [See Adv Comm Notes to 2000 Amendment to FRCP 30]

(1) [1115161] Limit waived if no objection If a deposition goes beyond the seven-hour limit counsel must object on the record and adjourn the deposition Otherwise the time limit may be waived [See Dorn v Potter (WD PA 2002) 191 FSupp2d 612 615 fn 2--testimony obtained after the seven-hour mark could be used by opposing counsel because deponents counsel never raised the issue during the deposition itself]

21

b [111517] Deponents designated to testify on behalf of corporation Where a corporation designates several witnesses to testify on its behalf pursuant to FRCP 30(b)(6) (see para 111413) the examination of all designees counts as only one deposition against the 10-deposition limit (para 111417) but the noticing party may question each designee for up to seven hours [See Adv Comm Note to 2000 Amendment to Rule 30]

(1) [1115171] Where designee also testifies individually Each deponent is entitled to a presumption that his or her testimony will last no more than seven hours even if testifying both individually and as corporate designee under Rule 30(b)(6) The deposing party does not have carte blanche to depose an individual for seven hours as an individual and seven hours as a 30(b)(6) witness Rather the court must decide whether a particular witness should be required to submit to questioning which exceeds seven hours in length [See Miller v Waseca Med Ctr (D MN 2002) 205 FRD 537 540]

c [111518] Stipulation or order for additional time The parties may agree to extend the length of deposition [FRCP 30(d)(2)]Alternatively the deposing party may obtain a court order such order should be granted upon a showing that either

bull additional time is needed for a fair examination of the deponent or bull the examination has been impeded or delayed by the deponent another person or other

circumstance [FRCP 30(d)(2)](1) [111519] Impeding or delaying deposition Impeding or delaying the deposition is

not only ground for additional time but also subjects the party responsible to sanctions see para 111562

(2) [111520] Other circumstance Presumably this includes matters that often require additional time eg the need to review voluminous documents produced by the deponent need to question the deponent regarding entries in such documents need for each attorney in a complex multi-party case to question the deponent need for an interpreter etc [See Adv Comm Note to 2000 Amendment to FRCP 30]

=gt [111521] PRACTICE POINTER Where the deponent is to be asked questions regarding numerous or lengthy documents the Advisory Committee states it is desirable to send copies of the documents to the witness sufficiently in advance of the deposition so that the witness can become familiar with them Should the witness nevertheless not read the documents in advance thereby prolonging the deposition a court could consider that reason for extending the time limit [Adv Comm Note to FRCP 30 192 FRD at 395]As a practical matter deposing counsel may not want to tip his or her hand before the deposition But by failing to do so counsel risks a ruling that the allotted time has not been utilized properly Counsel needs to balance these competing considerations

(3) [111522] Timing of request The Rule does not address whether the request for additional time should be made before or after the deposition Presumably there may be cases in which the need for additional time is evident even before the deposition is taken However some courts may refuse to consider such a request until the first seven hours have been exhausted [See Malec v Trustees of Boston College (D MA 2002) 208 FRD 23 24]

(a) [111523] Comment Normally it is preferable to wait until after one day of testimony has been taken before asking the court for additional time because only then can anyone really know if one day of seven hours was sufficient On the other hand if lengthy and expensive travel arrangements must be made in order to take the deposition it makes sense to ask the court to resolve this issue ahead of time Planning what subjects to cover in a complete case will also be different if you believe that one day will not be sufficient Prioritize the topics you plan to cover In evaluating requests for additional time the court is likely to take into account whether the deposing party made efficient use of the time allotted under the Rule Counsel who unreasonably prolong the questioning may be refused additional time

=gt [111524] PRACTICE POINTER If you represent the deponent be practical when asked to stipulate to additional time Agreeing to extend the deposition an hour or two may be far more convenient and less costly for your client than responding to a motion to

22

reopen the deposition and possibly having to make another appearance at a later date (In addition you may need a similar courtesy from opposing counsel in the future) [111525-1529] Reserved

11 [111530] Conduct at Deposition Examination and cross-examination of deposition witnesses generally proceeds in the same manner as at trial under the Federal Rules of Evidence [FRCP 30(c)]But there are some important differences

a [111531] Who may attend The Federal Rules do not specifically state who may attend a deposition But the court may order that discovery be conducted with no one present except persons designated by the court [FRCP 26(c)(5) Beacon v R M Jones Apt Rentals (ND OH 1978) 79 FRD 141 141- 142]

(1) [111532] Parties Generally parties and their counsel have the right to attend every deposition But on a strong showing of annoyance or embarrassment to the deponent the court may exclude even one of the parties [Galella v Onassis (2nd Cir 1973) 487 F2d 986 997]

(2) [111533] Officers of corporate parties Similarly the officers or a designated representative of a corporate party ordinarily have the right to attend But this is given a common sense interpretation Not every officer of a corporate party is entitled to be present the court may grant a protective order limiting which officers may attend

(3) [111534] Nonparties The court may exclude everyone except persons designated from attending a deposition [FRCP 26(c)(5)]

(a) [111535] Comment As a practical matter total strangers (eg the press) will not have notice of a deposition and cannot force their way into proceedings in private offices [See Times Newspapers Ltd (of Great Britain) v McDonnell Douglas Corp (CD CA 1974) 387 FSupp 189 197]

(b) [111536] Persons invited by party The more difficult question is whether a party or counsel may invite nonparties to sit in and observe the deposition Sometimes the deponent will invite family members or staff for psychological support or to help refresh his or her memory during recesses Sometimes the lawyer conducting the deposition will invite the press or nonparties whose presence makes the deponent feel uncomfortable or an expert witness to evaluate the deponent while testifying Unless counsel resolve the matter amicably one side or the other will have to suspend the deposition and seek a protective order [FRCP 26(c)] In any event the deposition officer is required to identify on the record all persons present at a deposition (FRCP 30(b)(4)(E) para 111490) Moreover other parties need to know the identity of those present to determine if there may be a basis for excluding them pursuant to Rule 26(c)

(4) [111537] Additional counsel More than one counsel for a party may attend a deposition Normally however only one attorney conducts the examination But it is not improper for two attorneys to question the witness where some reasonable purpose is served thereby [See Rockwell Intl Inc v Pos-A-Traction Indus Inc (9th Cir 1983) 712 F2d 1324 1325--not an abuse for Rockwells attorney in federal action to question witness after examination by Rockwells attorney in related state action]

b [111538] Oath and examination The deposition officer must put the witness on oath and record or cause to be recorded the testimony However a solemn affirmation may be substituted for an oath [FRCP 30(c) 43(d)]

c [111539] Explanation to witness Deposing counsel usually begins the deposition by explaining to the witness the nature of the proceedings ie the witness is under oath the witness should not answer unless he or she fully understands the question the questions answers and objections will be transcribed and the witness will have a chance to correct the transcript but that counsel may comment to the jury upon such corrections at time of trial etc

=gt [111540] PRACTICE POINTER Keep such explanations brief The witness will usually have been prepared to testify by his or her own lawyer Especially since the length of depositions is limited to 7 hours without a court order or stipulation it is important to get to the point

23

d [111541] Scope of examination As with discovery generally questions may relate to any matter not privileged that is relevant to the claim or defense of any party (or if the court so orders relevant to the subject matter involved in the action) [FRCP 26(b)(1)]

(1) [111542] Comment Thus the scope of questioning at a deposition is very broad Objections for irrelevance are difficult to sustain Hearsay and opinions may be liberally inquired into on the theory that they may lead to discovery of admissible evidence [See Mellon v Cooper-Jarrett Inc (6th Cir 1970) 424 F2d 499 500-501]

(2) [111543] Deponents own knowledge On the other hand a witness is required to answer only as to matters within his or her own knowledge A deponent is not required to speculate or guess although he or she may be asked to give an estimate of matters where estimates are commonly made (eg distance size weight etc)

(a) [111544] Refreshing deponents recollection The deponent may review documents or other evidence available at the deposition for the purpose of refreshing his or her memory [FRE 612 In re Comair Air Disaster Litig (ED KY 1983) 100 FRD 350 353]

(b) [111545] Information known to counsel As stated only the deponents own knowledge is discoverable by deposition The deponent need not provide other information known only to his or her counsel (or others) and not by the deponent personally (Interrogatories are the correct procedure for discovery of such information see para 111748)

(3) [111546] Reenactment Deponents at videotaped depositions may be asked to reenact earlier conduct (eg conduct at time of claimed injury) and may be ordered to do so if they refuse Such reenactments are proper discovery because they assist the parties in a better understanding of what occurred at the time of the incident [Roberts v Homelite Div of Textron Inc (ND IN 1986) 109 FRD 664 668 Carson v Burlington Northern Inc (D NE 1971) 52 FRD 492 493]

(a) [111547] Rationale The federal rules do not limit depositions to questions and answers Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence [FRCP 30(c)]

(4) [111548] Satisfying duty to supplement or correct earlier discovery According to some courts deposition answers (or questions) regarding matters not covered by a partys initial disclosures or earlier discovery responses may satisfy that partys duty to supplement or correct the earlier disclosure or discovery See discussion at para 111245 ff

e [111549] Cross-examination All parties present at the deposition have the right to cross-examine the deponent the same as at trial [FRCP 30(c)]However unlike trial cross-examination is not limited to topics raised on direct The cross-examination may extend to any topic [Smith v Logansport Community School Corp (ND IN 1991) 139 FRD 637 641-642]Moreover counsel representing the deponent has the same right to ask questions as other counsel present (But whether they should do so is another matter see below)

=gt [111550] PRACTICE POINTER Asking questions at a deposition of your own client or of a friendly witness usually makes sense only if (1) the witness is expected to be unavailable at trial or (2) the witness has inadvertently given adverse or incorrect testimony and the matter can be cleared up with carefully-focused questions

f [111551] Objections Because the permissible scope of examination is so broad the grounds for objection to deposition questioning are limited and those that exist must be pursued promptly or are waived [FRCP 32(d)(3)]Whatever objections are made at the deposition must be included in the transcript and whatever testimony is given is subject to such objections [FRCP 30(c)]

(1) [111552] Matters waived if not objected to Failure to object results in a waiver as to errors and irregularities in the

bull manner of taking the deposition or bull form of the questions or answers or bull oath or affirmation or bull conduct of the parties or

24

bull any other kind of error that might have been corrected if timely objection had been made [FRCP 32(d)(3)(B)]

(a) [111553] Includes privilege and work product This includes objections on ground of privilege or work product ie they are waived unless a specific objection to disclosure is timely made during the deposition (see para 11785)

1) [111554] Documents reviewed prior to deposition Arguably the identity of documents counsel selects to show a witness in preparation for a deposition is protected as opinion work product (see para 11970) However where the documents are shown to refresh the witness recollection such documents may have to be produced (see para 11971)

(b) [111555] Form of questions It is important to object seasonably to the form of questioning otherwise evidence elicited will be admissible at trial [See Kirschner v Broadhead (7th Cir 1982) 671 F2d 1034 1038--failure to object to unresponsive answers resulted in waiver and Oberlin v Marlin American Corp (7th Cir 1979) 596 F2d 1322 1328--failure to object to leading questions resulted in waiver] To avoid waiver therefore the following challenges to the form of questioning must be timely made

bull leading or suggestive bull ambiguous or uncertain bull compound bull calls for narration or bull argumentative [In re Stratosphere Corp Secur Litig (D NV 1998) 182 FRD 614 618

(citing text)] =gt [111556] PRACTICE POINTER If you represent the deponent you have to be sharp

with objections as to the form of questioning You cant afford to let sloppy questions slide by Sloppy questions often evoke sloppy answers or even worse answers that volunteer information And it is too late to raise these objections when the answers are introduced at trial If youre taking the deposition dont ignore well-taken objections because if you later attempt to use the response the court may sustain the objection robbing you of the testimony youre relying on Avoid arguments on or off the record simply insist on answers

(2) [111557] Compare--matters not waived by failure to object On the other hand objections to competence of a witness or relevance or materiality of testimony are not waived by failure to object unless the defect could have been cured if the objection had been raised [FRCP 32(d)(3)(A)]

=gt [111558] PRACTICE POINTERS This creates traps at a deposition whether youre the examiner or representing the deponent If you represent the deponent do not interpose objections on grounds of hearsay opinion evidence materiality etc Usually nothing is gained because these are not valid grounds for objection to discovery (see above) And you may educate opposing counsel to evidentiary problems they hadnt considered and allow them to clean up the record with proper questions If youre taking the deposition dont get trapped by opposing counsels not objecting to your questions

--For example questions calling for hearsay are perfectly proper for discovery purposes (para 11614) but of course the answers are generally inadmissible at trial Opposing counsel does not waive the hearsay objection by failing to raise it at the deposition Therefore you may end up with wonderful hearsay testimony that will be useless at trial or on a motion hearing

--Another common occurrence is for the deponent to testify to facts or opinions for which no foundation has been laid eg testimony elicited from eyewitnesses without showing that they were in a position to have observed what they claim to have seen In such a case if you try to use the deposition as evidence at trial youre bound to run into an objection on the ground there is no foundation for the deponents testimony

25

--Bottom line If you intend to use deposition testimony at trial (and you usually do) phrase your questions to avoid all substantive objections--ie hearsay no foundation conclusions etc Otherwise you may find you have conducted an expensive discovery procedure that does you little good in the long run

(3) [111559] Form and manner of objection Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner [FRCP 30(d)(1)]Of course it is not enough to preserve grounds for objection simply by stating Objection Counsel must also state the grounds for the objection (without explanation or argument) (See Jones Rosen Wegner amp Jones Rutter Group Prac Guide Federal Civil Trials amp Evidence (TRG) Ch 8J)

(a) [111560] No coaching witness Counsel may not use speaking objections to coach the deponent (Eg defending attorney interrupts mid-question to ask for a clarification or in the course of objecting attempts to suggest the right answer or to warn the witness of potentially harmful answers) [See Hall v Clifton Precision a Div of Litton Systems Inc (ED PA 1993) 150 FRD 525 530]

(b) [111561] Civility rules Several courts have adopted so-called civility rules banning discourteous conduct by counsel during litigation generally and in depositions in particular (eg argumentative comments questions and objections) [See ND CA Gen Order 40 CD CA Civility and Professionalism Guidelines (discussed at para 11601)]

(c) [111562] Sanctions for impeding examination If the court finds objections have frustrated a fair examination or unreasonably prolonged the examination it may impose an appropriate sanction on the persons responsible [FRCP 30(d)(3) see Van Pilsum v Iowa State Univ of Science amp Technology (SD IA 1993) 152 FRD 179 180]The sanctions may include costs resulting from the obstructive tactics including the opposing partys attorney fees and expenses in adjourning the deposition obtaining a court order etc [FRCP 30(d)(3)]This sanction may be imposed on a nonparty witness as well as a party or attorney [Adv Comm Notes to 1993 Amendments to FRCP 30(d)(3)]

bull [1115621] Another appropriate sanction may be to reopen the deposition and allow questioning beyond the one-day limit [FRCP 30(d)(3) see Antonino-Garcia v Shadrin (D OR 2002) 208 FRD 298 300--permitting renewed deposition after deponent refused to answer question and brought along a supporter who disrupted the proceedings]

=gt [111563] PRACTICE POINTER (dealing with improper objections) Adjourning a deposition to seek a court order limiting the scope and manner of future objections is an expensive and time-consuming remedy It also wastes the present opportunity to question the deponent which may have important tactical value As a result many examining counsel put up with a fair measure of improper objections

--Some opposing counsel are obstreporous for tactical reasons eg to see if they can distract or interrupt the flow of the questioning Therefore consider just ignoring the objection avoiding any colloquy and going forward with the deposition

--Have the Federal Rules and Advisory Committee Notes handy You may be able to use these to persuade opposing counsel to withdraw an improper objection or to make a clear record of why the objection is improper

--State a clear warning on the record to highlight the issue to opposing counsel and to the court For example Counsel the form and manner of your objections appear to me to violate Rule 30(d)(1) because your objections are argumentative and suggest possible responses to the deponent If you make further argumentative or suggestive objections I intend to suspend this deposition and seek an appropriate court order under Rule 30(d)(4) together with sanctions under Rule 30(d)(3) for impeding a fair examination of this witness

--In any case before suspending a deposition to seek a protective order determine whether the assigned judge is available and willing to resolve the dispute by telephone

(4) [111564] Objection alone does not prevent testimony An objection alone does not excuse the deponents obligation to testify Evidence shall be taken subject to the objection [FRCP 30(c) (emphasis added)]

26

But where the objection is on the basis of privilege the deponents counsel may follow up the objection with an instruction to the witness not to answer (see below)

(a) [111565] Effect of relevancy objection Rule 30(c) renders relevancy objections meaningless in most depositions The deponent must even answer questions calling for blatantly irrelevant information subject to the objection [FRCP 30(c) International Union of Elec Radio amp Machinery Workers AFL-CIO v Westinghouse Elec Corp (D DC 1981) 91 FRD 277 278]

=gt [111566] PRACTICE POINTER The supposed remedy for deponents counsel to protect against abuse is to suspend the deposition and request limiting instructions from the court under FRCP 30(d) (see below) But unless the judge is available immediately by telephone that remedy may be too risky and too expensive to pursue As a result questions calling for irrelevant information are usually answered If the irrelevant questioning continues the deponent may have good cause to terminate the deposition [Alexander v FBI (D DC 1999) 186 FRD 208 213--witness justified in terminating deposition where much of deposition spent exploring irrelevant matters] This is rarely advisable however because it invites a motion for contempt or other sanctions Therefore before advising a client to walk out on a deposition make a very clear record of (i) the abusive questioning (ii) your efforts to curb the abuse without terminating the deposition and (iii) the reasons why prompt relief under FRCP 30(d) is not available

g [111567] Going off the record At any time during a deposition counsel may stipulate that further proceedings be off the record In such event the deposition reporter will make no further record (and any audio or video recording will be turned off) until either counsel instructs the reporter to go back on the record

=gt [111568] PRACTICE POINTER This is common practice while counsel are examining documents exploring settlement arranging dates for further discovery etc It can also be used to avoid taking down arguments between counsel which runs up deposition and transcript costs (and also makes transcripts difficult and time-consuming to read) unless you believe that a transcript will be useful for a possible Rule 30(d) motion But going off the record should be used sparingly to avoid sidetracking the deposition or later claims that stipulations were made A simple statement of the legal ground for objection is enough to preserve any objection at trial And a simple statement of reasons why the objection does not lie is enough for a court to rule on a later motion to compel

h [111569] Instructing witness not to answer A person may instruct a deponent not to answer only when necessary

bull to preserve a privilege bull to enforce a limitation previously ordered by the court or bull to adjourn the deposition while seeking a court order limiting further examination [FRCP

30(d)(1)](1) [111570] Effect Except as stated it is generally improper for counsel at a deposition to

instruct a deponent (counsels own client or anyone else) not to answer a question and doing so may warrant sanctions [Boyd v University of Maryland Med System (D MD 1997) 173 FRD 143 147--instruction not to answer is presumptively improper Cobell v Norton (D DC 2003) 213 FRD 16 27--alleged harassment not a proper ground for instructing witness not to answer questions] If irrelevant questions are asked the proper procedure is to answer the questions noting them for resolution at pretrial or trial [In re Stratosphere Corp Secur Litig (D NV 1998) 182 FRD 614 618-619--party may object to an irrelevant line of questions but instructing a witness not to answer is sanctionable] If the questioning becomes abusive counsels remedy is to contact the judge by telephone if possible or to adjourn the deposition and seek a court order terminating the deposition (see below) [Ralston Purina Co v McFarland (4th Cir 1977) 550 F2d 967 973 Eggleston v Chicago Journeymen Plumbers Local Union No 130 UA (7th Cir 1981) 657 F2d 890 903]

27

=gt [111571] PRACTICE POINTERS When instructing a witness not to answer state on the record your reason for doing so If the instruction is based on a claim of privilege be sure to identify the privilege asserted and the portion of the question that calls for privileged information [See In re Stratosphere Corp Secur Litig supra 182 FRD at 621] When claiming privilege be sure that the record shows each element necessary to assert the privilege (eg the existence of the privileged relationship communication made during the relationship etc) If requested allow opposing counsel to examine your witness regarding the foundation for the privilege claim If you refuse a court may find the privilege has not properly been claimed or has been waived

i [111572] Consulting with client during deposition or recesses Courts disagree on the extent to which a deponent may consult with his or her attorney during a deposition or recess

(1) [111573] View prohibiting Some courts hold such conferences are improper except for the purpose of determining whether a privilege should be asserted Otherwise once a deposition starts a witness must be left on his or her own [Hall v Clifton Precision a Div of Litton Systems Inc (ED PA 1993) 150 FRD 525 528]This includes conferring regarding documents shown to the deponent during the deposition (Such documents must be shown to the deponents counsel before being shown to the deponent however) [Hall v Clifton Precision a Div of Litton Systems Inc supra 150 FRD at 528]Moreover the deponent and his or her counsel are effectively precluded from speaking to each other once a deposition has begun because if they do so opposing counsel may inquire into what was said [Hall v Clifton Precision a Div of Litton Systems Inc supra 150 FRD at 531-532]

(2) [111574] View allowing conferences during recesses Other courts find nothing improper in consultations between the deponent and his or her attorney during regularly scheduled deposition recesses absent any showing of improper coaching or interference with the questioning Nor may the deponent be questioned regarding such consultation when the deposition resumes (the attorney-client privilege applies) Counsels ability to consult with his or her client during a recess protects against misleading questions and inadvertent answers [See Odone v Croda Intl PLC (D DC 1997) 170 FRD 66 68--recess called by deposing counsel In re Stratosphere Corp Secur Litig (D NV 1998) 182 FRD 614 621--recesses scheduled by court order]

(a) [111575] Comment This does not mean however that the deponents attorney may demand a break or a conference between questions and answers [See In re Stratosphere Corp Secur Litig supra 182 FRD at 621]

(3) [111576] Local rules Some courts also have their own guidelines controlling deposition conduct Such guidelines often prohibit taking a break while a question is pending counsel conferring with their clients while examining documents and excessive breaks These guidelines are consistent with the notion that deposition examination should proceed in a manner as similar as possible to testimony at trial

=gt [111577] PRACTICE POINTER If your client or witness is being deposed and testifies erroneously discuss the problem with the witness during a recess When you go back on the record ask permission for the witness to clarify the record If your request is refused you can clarify the record by asking the witness the necessary question on cross-examination

j [111578] Terminating or limiting deposition Under appropriate circumstances (below) the deponent or any party may move to terminate or limit the deposition during the taking of the deposition [FRCP 30(d)(4)]Such motions may be appropriate to control questioning that is abusive grossly repetitive or conducted so as to embarrass or frighten the deponent

(1) [111579] Procedure Counsel for the deponent simply demands that the deposition be suspended for the time necessary to make an appropriate motion [FRCP 30(d)(4)]

28

The motion is made either in the court where the action is pending or in the district where the deposition is being taken [FRCP 30(d)]

(2) [111580] Grounds The moving party must show that the examination is being conducted in bad faith or in such manner as unreasonably to annoy embarrass or oppress the deponent or party [FRCP 30(d)(4) Ralston Purina Co v McFarland (4th Cir 1977) 550 F2d 967 973-974 fn 11]

(3) [111581] Court order Upon such a showing the court may order the deposition terminated or limit its scope and manner [In re Master Key Litig (9th Cir 1974) 507 F2d 292 294]If the order terminates the deposition no further deposition of the witness may be conducted without a court order [FRCP 30(d)(4)]

(4) [111582] Expenses for motion The court is also authorized (under Rule 37(a)(4)) to award the prevailing party expenses incurred on the motion [FRCP 30(d)(4)]

=gt [111583] PRACTICE POINTER As an alternative to terminating the deposition call the court clerk and ask whether the judge or the magistrate judge is willing to hear and resolve the matter on the telephone (Even if the judge declines to do so your telephone call may moderate abusive conduct by the opposing counsel or party) Moreover if you are taking the deposition consider completing whatever questioning you can before adjourning (After all the court may disagree with you and bar resumption of the deposition) [See Smith v Logansport Community School Corp (ND IN 1991) 139 FRD 637 639--length of deposition or delays may not be enough] [111584-1589] Reserved

12 [111590] Review and Signature The deponents review and signing of a deposition transcript before filing with the court is no longer required in every case It must be requested by the deponent or any party at the time of the deposition [FRCP 30(e)]If so requested the deponent is allowed 30 days after being notified the transcript is complete to review the transcript A deponent who wishes to make any change in form or substance must provide a signed statement reciting the changes and the reason for each change [FRCP 30(e)][1115901-15904] Reserved

a [1115905] 30-day deadline The 30-day period runs from the date the court reporter notifies the attorney the deposition transcript is available It is not extended for the attorneys delay in notifying the deponent or the deponents delay in making the corrections Corrections not received by the court reporter within 30 days are untimely and may be stricken [Welsh v RW Bradford Transp (ND IL 2005) 231 FRD 297 300 but see Hambleton Bros Lumber Co v Balkin Enterprises Inc (9th Cir 2005) 397 F3d 1217 1224-- missing 30-day deadline by a mere day or two might not alone justify excluding the corrections in every case]

b [111591] Changes in testimony If a request was made for prefiling review the witness has the right to make any change desired in form or substance to the testimony The deposition officer must enter these changes upon the transcript together with a statement of the reasons given by the witness for making them [FRCP 30(e)]

=gt [111592] PRACTICE POINTER Be sure to advise the client that he or she is likely to be questioned at trial about any substantive changes made in the transcript and therefore making any such change must be approached with caution

(1) [111593] Contradictions allowed The Rule places no limitations on the types of changes that may be made by a witness before signing his or her deposition Therefore most courts hold that even flat out contradictions are permitted (although the deponent may be impeached at trial on the basis of the original answers) The court has no power to examine the legitimacy of reasons for the changes [Podell v Citicorp Diners Club Inc (2nd Cir 1997) 112 F3d 98 103 DeLoach v Philip Morris Cos Inc (MD NC 2002) 206 FRD 568 570]

(a) [111594] Contra view Some courts disagree and order the deposition reporter to delete changes that contradict the testimony given [Greenway v International Paper Co (WD LA 1992) 144 FRD 322 325--a deposition is not a take-home exam Rios v Welch (D KS 1994) 856 FSupp 1499 1502--witness not permitted to rewrite testimony]

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(b) [111595] Corrections may be treated as sham Where it appears to the court that the corrections were purposeful rewrites of harmful deposition testimony in order to avoid summary judgment they may be treated the same as sham affidavits (affidavits contradicting prior deposition testimony see para 14166 ff)

--While the language of FRCP 30(e) permits corrections in form or substance this permission does not properly include changes offered solely to create a material factual dispute in a tactical attempt to evade an unfavorable summary judgment [Hambleton Bros Lumber Co v Balkin Enterprises Inc supra 397 F3d at 1225 (emphasis added) see also Thorn v Sundstrand Aerospace Corp (7th Cir 2000) 207 F3d 383 389 and Burns v Board of County Commrs of Jackson County (10th Cir 2003) 330 F3d 1275 1281-1282]

(2) [111596] Statement of reasons required FRCP 30(e) contemplates that deponents give a reason for any change in testimony This is an important component of errata submitted pursuant to FRCP 30(e) because the statement permits an assessment concerning whether the alterations have a legitimate purpose [Hambleton Bros Lumber Co v Balkin Enterprises Inc supra 397 F3d at 1224-1225--absence of any stated reasons supported concern that corrections were sham]

(3) [111597] Compare--assertion of privilege The Rule permitting a change in substance does not permit the deponent to strike testimony as privileged where no privilege was asserted at the deposition Testimony voluntarily given waives the privilege [SEC v Parkers burg Wireless Limited Liab Co (D DC 1994) 156 FRD 529 535--5th Amendment privilege]

c [111598] Effect of failure to sign If the deponent or a party requested prefiling review but the deponent either does not review or does not sign a statement reciting requested changes during the 30-day period the deposition officer shall indicate in the certificate (below) that review was requested and no changes were received [See FRCP 30(e)] [111599-1604] Reserved

13 [111605] Certification and Delivery of Transcript The deposition officer is required to certify on the deposition that the witness was sworn and that the deposition is a true record of the testimony given Thereafter the deposition officer seals the transcript in an envelope endorsed with the title of the action and marked Deposition of [name of witness] and sends it to the attorney who took the deposition (who then becomes responsible for storage and safe keeping) unless otherwise ordered by the court [See FRCP 30(f)(1) and CD CA Rule 32-2]

a [111606] Compare--not filed with court Deposition transcripts (and other discovery requests and responses) are not filed with the court unless the court orders them filed or they are used in the proceedings [FRCP 5(d) see para 111225] Some local rules provide that when only part of a discovery request or response is required for use in a proceeding only that part shall be filed [CD CA Rule 26-2]

b [111607] Obtaining copies All parties to the action as well as the deponent are entitled to copies of deposition transcripts upon payment of the reasonable charges therefor [FRCP 30(f)(2)]

(1) [111608] Third parties Unless a deposition transcript is ordered filed nonparties have no right of access and cannot obtain copies [New York v Microsoft Corp (D DC 2002) 206 FRD 19 24]However if the court orders a transcript filed nonparties are entitled to obtain copies upon payment of the clerks fees unless the court has issued a protective order preventing public disclosure [CPC Partnership Bardot Plastics Inc v PTR Inc (ED PA 1982) 96 FRD 184 185-186 see discussion at para 111125 ff] [111609] Reserved

c [111610] Retaining copies Unless otherwise stipulated or ordered by the court the deposition officer must retain his or her stenographic notes of any deposition taken stenographically or a copy of any audio or video taped deposition [FRCP 30(f)(2)]The deponent or any party is entitled to a copy of the deposition transcript or audiovideo recording upon payment of reasonable charges [FRCP 30(f)(2)][111611-1614] Reserved

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14 [111615] Depositions on WRITTEN Questions Depositions may be taken on written questions instead of by oral examination [FRCP 31]

a [111616] Advantages vs disadvantages This procedure can be utilized as a low-cost substitute for deposing witnesses located outside the forum whose testimony may be necessary at trial The main advantage is that the examiner avoids traveling to where the witness is located and it can substitute for trial testimony from an unavailable witness But it has several disadvantages All questions to be asked must be served on opposing counsel beforehand so there is rarely any surprise to the witness And there is no opportunity for follow-up questions so there is no easy way to compel answers from an evasive witness

=gt [111617] PRACTICE POINTER Depositions on written questions are not suitable for hostile witnesses or those whose testimony is likely to be controversial consequently the procedure is rarely used The procedure is better suited for obtaining testimony of records custodians or other neutral or friendly percipient witnesses (eg witnesses whose testimony is needed only to establish simple foundational facts such as the elements of the business records exception to the hearsay rule) and certain expert witnesses (eg treating physicians)

b Procedure (1) [111618] Notice and questions The party taking the deposition serves the opposing

parties with a notice identifying the deponent and the officer taking the deposition and copies of the questions to be asked [FRCP 31(a)]

(2) [111619] Cross-questions The opposing parties have 14 days to serve cross-questions followed by seven-day periods respectively for service of redirect and recross questions [FRCP 31(a)(4)]The result is that the total time for developing questions for cross redirect and recross is 28 days

(3) [111620] Objections Objections to the form of written questions are waived unless served in writing upon the party propounding the question Such objections must be served within 5 days after service of the questions and within the time allowed for serving the succeeding cross or other questions [FRCP 32(d)(3) (C)](On the other hand there is generally no waiver of objections as to materiality admissibility or competence of the information sought FRCP 32(d)(3)(A) see para 111557)

(4) [111621] Conduct at deposition The party taking the deposition delivers copies of all questions to the deposition officer and the officer proceeds to take the deposition of the deponent The questions are read the responses taken down and the transcript prepared as on an oral deposition [FRCP 31(b)]

(5) [111622] Review signature etc The deposition reporter submits the transcript to the witness for review and signature Thereafter the officer certifies files or mails the transcript attaching a copy of the notice and the questions as on an oral deposition (para 111590 ff) [FRCP 31(b)] [111623-1624] Reserved

15 [111625] Enforcing Deposition Discovery The procedures for enforcing deposition discovery depend on the nature of the violation

a [111626] Deponent fails to appear If a party fails to appear for deposition sanctions may be imposed even in the absence of a prior court order (see para 112402) [FRCP 37(d) Henry v Gill Industries Inc (9th Cir 1993) 983 F2d 943 947--repeated last-minute cancellations constitute failure to appear see also Haraway v National Assn for Stock Car Auto Racing Inc (D DE 2003) 213 FRD 161 165]If the party who fails to appear is the one who noticed the deposition he or she may be ordered to pay the reasonable expenses including attorney fees incurred by any other party who attended pursuant to the notice [FRCP 30(g)]If a nonparty witness fails to appear in response to subpoena the only sanction available is contempt (see para 112315 ff)

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(1) [111627] Effect of pending motion for protective order Failure to appear is not excused by the fact that a motion for protective order was pending on the date set for appearance See discussion at para 111166

b [111628] Deponent refuses to answer questions or gives inadequate responses If a deponent (party or nonparty) refuses to answer a question or responds evasively the deposing partys remedy is to make a motion to compel answers [FRCP 37(a)(2) amp (3) Estrada v Rowland (9th Cir 1995) 69 F3d 405 406 Aziz v Wright (8th Cir 1994) 34 F3d 587 589 see para 112352 ff]

(1) [111629] Corporations failure to produce qualified witness to testify on its behalf A motion to compel is proper where the person designated by a corporation or other entity to testify on its behalf lacks sufficient information to answer questions on matters described in the deposition notice (see para 111413) [FRCP 37(a)(2)]

(2) [111630] Costs For failure to answer questions deponents may be ordered to pay the deposing partys expenses incurred in connection with the motion to compel including attorney fees [FRCP 37(a)(4) see para 111960 ff]

c [111631] Deponent fails to comply with court order to answer Additional sanctions may be imposed where the deponent fails to comply with a court order to answer questions at a deposition

(1) [111632] Parties A party deponent who fails to answer questions after being directed to do so by the court may be held in contempt of court or subjected to any discovery sanction authorized by Rule 37(b)(2) (see para 112400 ff)

(2) [111633] Nonparty deponents A nonparty witness who fails to answer questions after being directed to do so by the court is subject only to punishment for contempt of court [FRCP 37(b)(1) 45(e) see para 112315 ff]

d [111634] Procedure The procedures for filing a motion to compel and for sanctions are discussed in detail at para 112352 ff [111635-1639] Reserved

16 [111640] Deposition as Evidence A deposition may be used in any court proceeding against any party present at the deposition or who had reasonable notice thereof [FRCP 32(a)]

a [111641] Admissibility A deposition may be admissible evidence at trial of the action under the following circumstances

(1) [111642] As impeachment To impeach the deponents testimony at trial [FRCP 32(a)(1)]

(2) [111643] Partys deposition as substantive evidence by adverse party A partys deposition may be used by an adverse party for any purpose ie as substantive proof as well as impeachment [FRCP 32(a)(2)]This also applies to depositions of officers directors or managing agents of an entity party (corporation etc) or other person designated to testify on the entitys behalf under Rule 30(b)(6) [FRCP 32(a)(2)]

(a) [111644] Compare--party may not use own deposition unless unavailable to testify This rule does not permit a party to introduce his or her own self-serving deposition testimony unless he or she is outside the state or otherwise unable to testify at trial (see below) However under the rule of completeness a party may introduce portions of his or her own deposition testimony which ought in fairness to be considered with portions introduced as substantive evidence by an adverse party [See FRCP 32(a)(4) and para 111655]

(3) [111645] Any deposition as substantive evidence if deponent unavailable to testify The deposition of a witness whether or not a party may be used for any purpose if the court finds the witness

bull is dead bull is unable to attend because of age illness infirmity or imprisonment bull is more than 100 miles from the place of trial (courthouse) or outside the United States

unless his or her absence was procured by the party offering the deposition bull cannot be subpoenaed or

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bull if such exceptional circumstances exist as to make it desirable in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court [FRCP 32(a)(3) (emphasis added) see Tatman v Collins (4th Cir 1991) 938 F2d 509 511--deposition admitted in lieu of testimony because witness lived more than 100 miles from the courthouse albeit within 100 miles of the border of the judicial district]

(a) [111646] Court discretion to exclude Even if deposition testimony is admissible under Rule 32(a)(3) the trial court has discretion to exclude it under appropriate circumstances (eg where follow-up questioning appears necessary) [Skins amp Leather Co Inc v Twin City Leather Co Inc (ND NY 2000) 246 BR 743 748--because credibility was key issue bankruptcy judge excluded videotaped deposition stressing his need to evaluate demeanor of the witness and to ask questions following witness testimony]

(4) [111647] Limitations on admissibility A deposition cannot be used against a party if bull the deposition was taken before the parties initial meeting and without leave of court

under FRCP 30(a)(2)(C) (witness about to leave country see para 111361) and the party was unable despite reasonable diligence to obtain an attorney to represent him or her at the deposition (FRCP 32(a)(3) last para see para 111362)

bull the party received less than 11 days notice of the deposition and had filed a motion for protective order requesting relief and the motion was pending when the deposition was taken (FRCP 32(a)(3) last para see para 111444)

(5) [111648] Compare--special rules for audiovideo depositions A party offering an audio or video recording into evidence at trial must provide the court with a stenographic transcript of the portions offered [FRCP 32(c) see para 111504] Any party (not just the party who took the deposition) has the right to run admissible portions of the audio or video tape for the jury except for impeachment purposes or as otherwise ordered by the court [FRCP 32(c)]

(6) [111649] Compare--use in other litigation A deposition may also be used as substantive evidence in other litigation under FRE 804(b)(1) relating to former testimony of unavailable witnesses (Unavailability includes the factors stated in FRCP 32(a)(3) plus claims of privilege lack of memory etc) Thus depositions taken in one case may become admissible in other cases involving the same subject matter But it must appear that the party or a predecessor in interest against whom the deposition is offered had the motive and opportunity to cross-examine the deponent in the earlier proceedings [FRE 804(b)(1) see Kirk v Raymark Industries Inc (3rd Cir 1995) 61 F3d 147 164-165 Clay v Buzas (D UT 2002) 208 FRD 636 638]

(7) [111650] Compare--court may require deposition summaries A district court may require the parties to submit narrative summaries of the depositions instead of reading the actual transcript Rationale FRE 611(a) makes admission of deposition testimony discretionary with the trial court therefore it may control the manner in which such testimony is presented [Oostendorp v Khanna (7th Cir 1991) 937 F2d 1177 1180--but 5-page limit on deposition summaries may be too strict]

b [111651] Objections Objections to the form of questions or the conduct of the deposition proceedings etc cannot be raised at trial if not raised at the time of deposition (see para 111552) But questions as to admissibility ordinarily can be raised for the first time at trial ie grounds that would require the exclusion of the evidence if the witness were then present and testifying (eg objections to the competence of a witness or to the competence relevance or materiality of testimony) [FRCP 32(b)(d)(3)(A)]

(1) [111652] Comment Even so most judges require that objections to deposition testimony be made prior to trial so that evidentiary issues will not disrupt the trial Typically each party is required to serve on the other designations of the deposition testimony they intend to introduce and objections to the opposing partys designations prior to the final pretrial conference so that the court may consider and rule on the objections before trial commences

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c [111653] Rebutting deposition testimony Deposition testimony may be rebutted at trial by oral testimony or any other type of admissible evidence

(1) [111654] After impeachment A witness who has been impeached by his or her deposition testimony may testify on redirect concerning the circumstances of the deposition to explain why he or she was confused [Wilmington v JI Case Co (8th Cir 1986) 793 F2d 909 921--fact that no objection was made at deposition is immaterial deponent is not seeking to exclude the testimony but merely to place it in context]

(2) [111655] Other portions of same deposition offered in evidence (rule of completeness) Usually the party offering deposition testimony introduces only certain portions of the deposition transcript The opposing party may require the offeror to introduce any other part which ought in fairness to be considered with the part introduced Moreover any party may offer any other part of the same deposition (to the extent admissible under applicable rules of evidence) [FRCP 32(a)(4)]

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