CHAPTER 11 - 11-1 Depositions in General

• Jurisdiction: United States

11-1 Depositions in General

A deposition records sworn testimony taken outside the courtroom that is certified in conformity with the Texas Rules of Civil Procedure so that it is the equivalent to testimony given in the courtroom under oath. As a discovery device, depositions allow the questioning of witnesses before trial by oral questions asked by a party's attorney¹ or by written questions asked by a deposition officer (i.e., the person recording the deposition, usually a court reporter).²

Depositions are central to civil litigation and perhaps the single most important discovery device.³ As one federal court somewhat cynically noted:

Depositions are the factual battleground where the vast majority of litigation actually takes place. It may safely be said that [Federal] Rule 30 has spawned a veritable cottage industry. The significance of depositions has grown geometrically over the years to the point where their pervasiveness now dwarfs both the time spent and the facts learned at the actual trial—assuming there is a trial, which there usually is not.⁴

After an action is commenced, depositions are used for a wide variety of purposes, including basic fact discovery, preserving the testimony of witnesses who might be unavailable for trial, and establishing facts needed for settlement or pretrial motions (e.g., summary judgment motions).⁵ Depositions also may be taken before suit is commenced to perpetuate the testimony of a person or to investigate a potential claim or suit.⁶ At trial, depositions generally are used as the testimony of unavailable witnesses and to cross-examine live witnesses and impeach their trial testimony to the extent it differs from their earlier deposition testimony.⁷

The most common type of deposition is the oral deposition, consisting of questions by the attorney for one party, answers by the deponent, and objections and cross-examination by the other parties' attorneys.⁸ Depositions generally can be taken without leave of court, although a deposition to perpetuate testimony or to investigate a potential claim or suit requires a court order.⁹ Once an action is commenced, the party noticing the deposition generally is not required to establish that the deponent has information about which the deponent can testify at trial.¹⁰ Indeed, one of discovery's important purposes is to ascertain who has such information. Of course, if the noticing party is proceeding in bad faith, the proper response is to move for protection under Texas Rule 192.6.¹¹

Texas Rules relevant to depositions are Rules 176 (subpoenas),¹² 190 (deposition time limits),¹³ 199 (oral depositions generally),¹⁴ 200 (depositions upon written question),¹⁵ 201 (depositions in foreign jurisdictions for use in Texas proceedings and depositions in Texas for use in foreign proceedings),¹⁶ 202 (depositions before suit or to investigate claims),¹⁷ 203 (signing, certification, and use of oral and written depositions),¹⁸ 205 (discovery from nonparties),¹⁹ and 215 (abuse of discovery and sanctions).²⁰

11-1:1 Who Can Be Deposed

11-1:1.1 Introduction

The testimony of "any person or entity" may be taken by oral examination or on written questions.²¹ This includes any natural person; any entity, irrespective of its nature (e.g., corporation, partnership, limited partnership, limited liability company, or association), as well as the entity's officers, directors, employees, and agents; public officials; and any governmental entity, subdivision, body, or agency as well as its directors, officers, employees, and agents. This is made clear by Texas Rule 199.2(b)(1), which expressly provides that a deponent can be "either an individual or a public or private corporation, partnership, association, governmental agency, or other organization."²² A party can even take his, her, or its own deposition.

Importantly, Texas Rules 199 and 200 draw no distinction between depositions of parties and nonparties.²³ In contrast, interrogatories and requests for admission only can be addressed to parties.²⁴ Document requests pursuant to Texas Rule 196 also are limited to parties,²⁵ but the substantial equivalent of a Texas Rule 196 production request can be obtained from a nonparty by serving a notice and subpoena pursuant to Texas Rules 205 and 176, respectively,²⁶ or, if the nonparty is to be deposed, by including a document request in the deposition notice and subpoena, which requires the nonparty witness to bring the requested documents to the deposition.²⁷

11-1:1.2 Attorneys

The fact that the proposed deponent is an attorney or even the attorney for the opposing party in the action is not an absolute bar to deposing the attorney,²⁸ although the attorney-client and work-product privileges may provide bases for the attorney to refuse to answer some or all of the questions asked during the deposition. Nonetheless, noticing the deposition of opposing counsel is viewed with disfavor. As noted by one Texas court:

Generally, an attorney of record in litigation is an advocate, not a fact witness, in the litigation process. As with compelling production of opposing counsel's litigation file, compelling a deposition of the opposing party's attorney of record concerning the subject matter of the litigation is inappropriate under most circumstances. Calling opposing counsel of record as a witness seriously disrupts the counsel's functioning as an advocate and may create a false impression that the advocate was improperly involved in the underlying issues in the litigation.²⁹

Federal courts similarly limit depositions of opposing counsel. One line of federal cases, based on Shelton v. American Motors Corp., allows the deposition of opposing counsel only when "the party seeking to take the deposition has shown that (1) no other means exist to obtain the information than to depose opposing counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the preparation of the case."³⁰ Other federal courts, as exemplified by In re Subpoena to Friedman, have adopted a "flexible" approach to such depositions that takes into consideration all relevant facts and circumstances in determining whether the deposition would entail an inappropriate burden or hardship, including the need to depose the attorney, the attorney's role in connection with the matter on which discovery is sought, the extent of discovery already conducted, and the risk of encountering issues relating to the attorney-client and work-product privileges.³¹

Although the few Texas courts that have considered the propriety of deposing opposing counsel have not adopted either test used by federal courts or set forth an alternative one,³² as noted above, they hold that depositions of opposing counsel generally are "inappropriate" and disfavored.³³ It is clear, however, that opposing counsel can be deposed when the attorney's advice is used by the client as a defense or the attorney is a fact witness with unique knowledge, an actor (e.g., a defrauder), or the creator of relevant non-privileged records.³⁴ In such circumstances, the deposition should be limited to those matters and not address the attorneys' role in the action or any investigation of the incident at issue that would be work product.³⁵

The rule disfavoring depositions of opposing counsel is not limited to trial counsel. It also applies to any attorney involved the action's preparation for trial. "[C]ourts have found that 'the critical factor in determining whether the Shelton test applies is not the status of the lawyer as trial counsel, but the extent of the lawyer's involvement in the pending litigation[,]'"³⁶ with the goal being to protect the opposing party's trial strategy, work product, and attorney-client communications. The heightened protection does not apply, however, in other circumstances, such as when the attorney sought to be deposed is not trial counsel or assisting in the litigation, but rather, for example, represented the party in another unrelated, but relevant, action, was involved in the negotiation of the contract at issue, or provided relevant business advice to the party.³⁷ In such circumstances, whether the attorney should be deposed and any limitations on the deposition are governed by the general rules regarding protective orders.³⁸

11-1:1.3 Lack of Knowledge

Often, prospective deponents will seek to quash a deposition notice or subpoena on the basis that the deponent lacks any relevant knowledge. If the deposition is not an "apex" one,³⁹ a claimed lack of knowledge generally is an insufficient basis for a protective order because "the general rule is that a claimed lack of knowledge does not provide sufficient grounds for a protective order; the other side is allowed to test this claim by deposing the witness."⁴⁰ If, however, the deponent or non-noticing party believes that the noticing party is proceeding in bad faith, the proper response is to move for protection under Texas Rule 192.6.⁴¹

In the same vein, the mere prospect that the witness may be asked questions that would be objectionable on privilege grounds is not a basis for failure to attend a deposition; instead, the deponent must appear and object to specific questions seeking privileged information on the basis of privilege.⁴² Of course, if the witness is a consulting expert whose mental impressions and opinions have not been reviewed by a testifying expert, the deposition is improper and a motion for a protective order or to quash the deposition notice is proper.⁴³

11-1:1.4 Apex Depositions

In Crown Central Petroleum Corp. v. Garcia,⁴⁴ the Texas Supreme Court established the "apex doctrine." The doctrine applies, and potentially allows an organization's high-level officials⁴⁵ to avoid being deposed, when the deposition is noticed solely because of the official's position in the organization.⁴⁶ If, however, the official is named as a party because the official, for example, participated in or committed the...