50 RI Bar J., No. 5, Pg. 5 (May, 2002). Everything You Always Wanted to Know About Depositions: but your client could not afford to research.

Author:David A. Wollin, Esq.
 
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Rhode Island Bar Journal

Volume 50.

50 RI Bar J., No. 5, Pg. 5 (May, 2002).

Everything You Always Wanted to Know About Depositions: but your client could not afford to research

Everything You Always Wanted to Know About Depositions: but your client could not afford to research David A. Wollin, Esq.

Geoffrey W. Millsom, Esq.David A. Wollin, Esq. is a litigation partner in the law firm of Adler Pollock & Sheehan P.C.Geoffrey W. Millsom, Esq. is an associate of the firm.One of the most potent discovery tools available in litigation is the deposition. Typically, it is the first opportunity to confront the opposing party or witnesses. With advanced planning, a deposition can be an effective means to challenge the other side's contentions, to exploit their weaknesses and to eliminate particular claims or defenses. Indeed, many cases have settled or been lost after an effective cross-examination during the deposition of a key witness.

For most litigators, the mechanics of taking and defending a deposition are like second nature. And yet, even for seasoned attorneys, there are many recurring, subsidiary issues concerning depositions that are not immediately apparent, but may have a profound effect on the way depositions are conducted.

This article explores 12 key issues that every litigator must know before taking or defending a deposition. In some instances, the Rhode Island Rules of Civil Procedure provide a ready answer. In others, the Rules are silent. In most cases, the Rhode Island Supreme Court has yet to weigh in on the precise resolution of these questions, and the federal courts are split. Every litigator must be cognizant of these 12 issues in order to ensure that the deposition is the paramount discovery tool that it was designed to be as opposed to a trap for the unwary.

While the Rhode Island Rules provide for two types of depositions (fn1) - depositions upon oral examination pursuant to R.I. R. Civ. P. 30 and through written questions pursuant to R.I. R. Civ. P. 31 (fn2) - this article focuses on the former, since they constitute the vast majority of depositions taken in this State. (fn3)

I.WHEN CAN DEPOSITIONS BE TAKEN?

After commencing suit, the plaintiff is prohibited (absent leave of court) from taking a deposition until at least 30 days after service of process on any defendant or the filing of a waiver of service. (fn4) The defendant, on the other hand, can notice a deposition immediately. (fn5) Once the defendant has served notice of taking a deposition or otherwise sought discovery, however, the plaintiff is relieved of the 30-day limitation and can take a deposition without court approval. (fn6) The plaintiff also may take a deposition prior to the expiration of 30 days if he serves a notice and certifies, with supporting facts, that the deponent is expected to leave the State of Rhode Island and will be unavailable for examination in the State unless deposed before the 30-day period ends. (fn7)

Despite the Rules' apparent bias in favor of having a defendant's deposition occur first within first 30 days of the litigation, a plaintiff's deposition in fact may take priority. Rule 30(a)(2)(B) states that the plaintiff can take a deposition within the 30-day period once the defendant "has served notice of taking deposition." Significantly, the Rule does not state that the plaintiff can only notice or take a deposition once the defendant has actually taken his deposition. Thus, once the defendant has served notice of taking a deposition, a plaintiff conceivably could notice his deposition for a date earlier than the defendant's. This conclusion is further supported by Rule 26(d), which provides that "methods of discovery may be used in any sequence and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not operate to delay any other party's discovery." (fn8) Of course, the Superior Court, upon motion, for the convenience of the parties and the witnesses and in the interests of justice, can order a different sequence and require the defendant's deposition to occur first. (fn9)

Although the practice is fairly uncommon, depositions can be taken to perpetuate testimony before an action is filed or pending an appeal. (fn10) Rule 27(a) provides that a party wishing to take a deposition in advance of filing suit must comply with Rhode Island statutes, specifically, R.I. Gen. L. § 9-18-12. That statute is limited to testimonial discovery and does not authorize the issuance of document requests or subpoenas. (fn11) The statute requires the petitioning party to show in writing to the Superior Court the reasons for the application, including the reasonableness of the request, the name of the witness(es) to be deposed, the subject matter of the controversy and the identity of those with an interest therein. (fn12)

It is important to remember that a request to take a deposition pursuant to Rule 27(a) does not commence litigation. Thus, the Rhode Island Supreme Court has held that the filing of a petition in advance of suit for perpetuation of the testimony of a defendant who had knowledge of the possibility of a wrongful death claim being brought against it is not sufficient to toll the running of the applicable statute of limitations. (fn13)

Rule 27(b) provides that, if an appeal has been taken from a judgment or before the appeal period has expired, the Superior Court may allow a party to depose witnesses to perpetuate their testimony for use in the event of further proceedings in the case. However, this Rule is not designed to permit a party to go on a fishing expedition in search of a basis for an action against other targets, but instead is to be used when necessary to preserve testimony that might otherwise be lost. (fn14) The party seeking such a deposition must request and obtain court approval by providing the names and addresses of the persons to be examined, the substance of the testimony that is expected to be obtained and the reasons for perpetuating the testimony. (fn15) The court can allow the deposition to occur if perpetuation of the testimony is proper to "avoid failure or delay of justice," and thereafter the depositions may be taken and used in the same manner as if they had been taken while the case was pending. (fn16)

II.HOW MUCH ADVANCED NOTICE MUST BE GIVEN?

Rule 30(b)(1) sets forth how much advance notice must be given to every other party to the action before the deposition of a party or a witness is taken. The Rule states that "[a] party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action." (fn17)

Rule 30(b)(1) does not define the phrase "reasonable notice," and the Rhode Island Supreme Court has never determined the minimum number of days that constitute such notice under the Rule. In 1921, the Rhode Island Supreme Court did rule, based on a statute requiring notice to be served in a "reasonable time" before a deposition is taken, that less than three full business days was reasonable because the travel time between the office of defendant's counsel in Westerly, Rhode Island and the location of the deposition in Lewisburg, Pennsylvania was only ten hours by train. (fn18) Federal courts construing Federal Rule 30(b)(1), which is identical to Rhode Island's rule, have generally required, except in unique circumstances, (fn19) at least three days' notice before allowing a deposition to proceed. (fn20)

Given the ambiguity of the phrase "reasonable notice," courts and parties have some flexibility to react to the facts and circumstances unique to each case, and thus the reasonableness of deposition notices will be determined on a case-by case basis. Yet, despite the Rhode Island Supreme Court's precedent from 1921, it is unlikely that, except in unique circumstances, notice of less than 11 days will suffice under the Rules, in light of another provision, Rule 32(a)(3)(E). Rule 32(a)(3)(E) provides that a deposition may not be "used against a party who, having received less than 11 days notice of the deposition, has promptly upon receiving such notice filed a motion for a protective order under Rule 26(c)(2) requesting that the deposition not be held or be held at a different time or place and such motion is pending at the time the deposition is held." (fn21) As the Committee Note to this Rule states, "a party given less than 11 days notice of a deposition, who promptly moves for a protective order which is pending at the time of the deposition, is protected from use of the deposition." Thus, a party who seeks to use a deposition in the litigation, either in support of a motion for summary judgment or for a hearing or trial, must view 11 days as the minimum period of advance notice, unless that party can present compelling circumstances to defeat the motion for protective order. Of course, if the opposing party fails to move for a protective order in advance of the deposition, he cannot rely upon this provision and instead can only prevent the deposition's use by showing that the notice period was unreasonable under Rule 30(b)(1) in light of all the relevant facts and circumstances.

III.WHO CAN BE DEPOSED AND HOW IS THEIR ATTENDANCE COMPELLED?

Rule 30(a)(1) provides that a party may take the testimony of any "person," including a party, by deposition upon oral examination. Leave of court is only required in three circumstances: the person to be examined is confined in...

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