5.2 Mechanics of Depositions

• Library: Civil Discovery in Virginia (Virginia CLE) (2021 Ed.)

5.2 MECHANICS OF DEPOSITIONS

5.201 In General. The requirement for the pleading that initiates the deposition is governed by the Rules. Practical considerations regarding objections are discussed below. Counsel should carefully adhere to the formalities of the notice and secure the court reporter in advance. When necessary, a properly served and timely subpoena may be required to ensure attendance at a deposition.

5.202 Place of Deposition. Location is an important consideration in the taking of depositions.⁷ Unless the attorneys agree otherwise, Rule 4:5(a1) requires taking depositions in the jurisdiction where the suit is pending, in the adjacent county or city, or where a non-party witness resides, is employed, or has his or her principal place of business. Local practice tends to guide related decisions.⁸ Treating physicians are usually deposed in their offices and other experts in the offices of the retaining attorney. It is also good practice to depose a corporate designee in his or her place of business to permit easy access during the deposition to the entity's business records and documents. The federal government may require that attorneys depose its employees at the local office of the U.S. district attorney or in the office of the agency's general counsel. The court reporter must be at the same location as the deponent.⁹

5.203 Notice of Examination (Deposition). Once a location is determined, counsel must send out a notice. Exemplar notices are included in Appendices 5-1 and 5-2. Rule 4:5(b)(1) requires a "reasonable" time period between the service of the notice and the date of the deposition but specifies no precise time limits. Unless an exception applies, the Federal Rules define reasonable notice as 14 days.¹⁰

The requirements for the pleading, styled a "Notice of Deposition," are set forth in Rule 4:5(b)(1).¹¹ All notices should include (i) the name and address of the deponent; and (ii) the date, place, and time of the deposition. If a party requests that the witness produce documents at the deposition, the notice and accompanying subpoena, if any, should state with reasonable specificity the documents to be brought to the deposition. Parties technically do not require a subpoena duces tecum. Counsel should be aware, however, that some attorneys take the position that a documents request accompanying a notice of deposition requires a 21-day notice as though the records request were a formal request for production of documents.¹² It is good practice, though not required, to identify the officer before whom the deposition will be taken and to note that the deposition will be "continued from day to day until completed."

The Rules do not require leave of court to notice a deposition once the time for filing responsive pleadings has passed.¹³ The plaintiff may take a deposition before the time for filing responsive pleadings has expired if leave of court is obtained or if it is factually appropriate and the special notice provisions of Rule 4:5(b)(2) are met. Rule 4:6A sets no limit on the number of depositions that can be taken in a case, though the number may be limited for "good cause."¹⁴ The initiating attorney should notice the deposition in all pending actions where use of the evidence is anticipated (for example, a personal injury action and a companion declaratory judgment action) as failure to do so might jeopardize the ability to use the deposition in any related matters.

Counsel should be familiar with the provisions of Rule 4:7(a)(6), which gives special consideration to persons under a disability. The rule prohibits the use of a deposition of a person under a disability in an action against that person unless it was taken in the presence of a guardian ad litem, an attorney serving pursuant to section 8.01-9 of the Virginia Code, or was taken on questions that the guardian agreed to in advance. The deposition of a prisoner may be taken on such terms as the court prescribes,¹⁵ but any action or suit against a prisoner, except for suits for divorce, to determine the prisoner's child support obligation, or to establish a parent-child relationship, must be taken through a "committee" appointed for the inmate by the court.¹⁶

Counsel should address defects in the notice or subject matter of the deposition by filing a motion for a protective order under Rule 4:1(c) or by stating a clearly articulated objection at the beginning of the deposition. Failure to object to defects in form and process before the deposition results in the waiver of certain objections.¹⁷

5.204 Notice of Deposition of a Corporate Designee. When a party or "witness" is a corporation, association, partnership, or governmental agency, a notice of deposition for a "corporate (or governmental) designee" is essential to secure binding testimony on behalf of that entity.¹⁸ The notice of a corporate designee designates topics, not persons. That distinction shifts the burden of who knows what from the discovering party to the party receiving the notice.¹⁹ A so-called corporate designee deposition also enables the initiating attorney to reduce the number, scope, and breadth of depositions by placing the burden on the entity to produce the person or persons most knowledgeable about the enumerated subject areas.

Rule 4:5(b)(6) states:

A party may in his notice name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which he will testify. The persons so designated shall testify as to matters known or reasonably available to the organization.

Rule 4:7(a)(3) states:

The deposition of a party or of anyone who at the time of taking the deposition was an officer, director, or managing agent, or a person designated under Rule 4:5(b)(6) or 4:6(a) to testify on behalf of a public or private corporation, partnership or association or governmental agency which is a party may be used by an adverse party for any purpose.

The requirement to state with reasonable particularity the subject matter of the deposition permits the entity to designate and prepare an appropriate person to testify on its behalf and to apply for a protective order to limit examination areas. While any number of persons may be designated by the entity, questioning beyond the designated areas may properly be objected to or curtailed at the convened deposition.²⁰ Opposing counsel's failure to properly prepare and produce a qualified and knowledgeable witness can be the basis for a motion for sanctions.²¹

A deponent designated by the entity testifies on behalf of the entity and not as an individual. The designee must be able to testify to matters beyond his or her personal factual knowledge. This distinction is important because it ensures that the testimony is binding on the entity and is not refuted later as a personal, nonbinding opinion of the deponent. At the start of the deposition, each deponent should be asked to state...