§30.6 Analysis

• Jurisdiction: Washington

§30.6ANALYSIS

This section examines the process for noting and taking depositions pursuant to CR 30.

(1)CR 30(a): When depositions may be taken

Any party may take depositions after service or filing of the complaint. The plaintiff, however, must obtain leave of court to take a deposition prior to the expiration of 30 days after service of the summons and complaint upon any defendant, unless a defendant has commenced discovery, or unless the notice states that the deponent is about to leave the state and sets forth facts to support this statement. No party may videotape a deposition within 120 days of later of the date of filing or service of the lawsuit, absent agreement of the parties or court order.

(2)CR 30(b): Deposition requirements and procedures

Atleast five days' notice for depositions—exclusive of the day of service, Saturdays, Sundays, and court holidays—is required by CR 30(b)(1). This means that notice of a deposition in a state court action must be given at least seven calendar days in advance before the deposition takes place. The federal rule requires only "reasonable notice." What is "reasonable" will depend upon the facts of the case and, in some instances, may be less than the five days required by CR 30(b)(1). See Ramm Indus. Co. v. Chapman Performance Prods., Inc., 18 Fed. R. Serv. 2d 1531 (N.D. 111. 1974) (four days'notice was reasonable under the circumstances); 4A James W Moore, Moore's Federal Practice 1I30.20L2] (3d ed. 1997). Thus, under the federal rule it is possible to schedule depositions on short notice shortly before, or during, trial.

CR 30(b)(8) requires at least 20 days' notice for videotaped depositions.

If a subpoena duces tecum will be served upon the deponent, the designation of materials to be produced as set forth in the subpoena must be attached to or included in the notice. CR 30(b)(1).

CR 30(b)(2) permits a plaintiff to take depositions sooner than 30 days after service of the summons and complaint if the notice of deposition states facts showing that the deponent is about to leave the state. If the plaintiff takes an early deposition under this rule, other parties who show that they were unable through the exercise of reasonable diligence to obtain counsel to represent them at the deposition may preclude use of the deposition against them.

CR 30(b)(3) empowers the court "for cause" to enlarge or shorten the time for taking the deposition. See also CR 6(b); CR 26(b)(1).

CR 30(b)(4) expressly allows the recording of depositions by other than stenographic means, upon court order or written stipulation between the parties. This presumably permits tape recordings, movies, or videotapes. The rule also provides that a party may arrange to have such depositions stenographically transcribed at that party's own expense. This provision allowed videotape depositions by agreement of counsel before the adoption of CR 30(b)(8) in September 1989.

Pursuant to CR 30(b)(5), a notice of deposition of a party deponent may be accompanied by a request for production of documents or tangible things "in compliance with rule 34 ...." This requirement of a request for production and the 30 days allowed for a response under CR 34 cannot be circumvented by a subpoena duces tecum to a party. See Chapter 45. (Rule 45. Subpoena) of this deskbook.

Practice Tip: In most cases, obtain documents and things from a party before taking a deposition. It is often inefficient to conduct a deposition and a document production at the same time. You will probably waste the time of the witness and the other attorneys while you are organizing and reviewing the documents, and your examination regarding the documents may be less focused than it would have been if more time had been spent in document review. Abetter practice is to obtain, organize, copy, and pre-mark the documents ahead of time. This includes copies of any expert's report.

If a notice of deposition is accompanied by a request for production, the provisions of rule 34 must be followed. Both the federal rule and the Washington rule allow 30 days to respond to a request for production, except that a defendant may serve a response within 40 days after service of the summons and complaint upon that defendant under the Washington rule and within 45 days under the federal rule. Thus, a notice of deposition accompanied by a request for production must be served at least 30 days in advance of the deposition. Note that a request for production can be served only on a party under CR 34; a request for documents on a nonparty must be accomplished by service of a subpoena under CR 45.

Practice Tip: If a deposition notice is coupled with a request for production of documents, consider allowing additional time for the resolution of any objections that might be raised. Otherwise, the examiner may be confronted at the deposition with comprehensive objections to the document request and few or no documents upon which an examination can be conducted.

CR 30(b)(6) sets forth the procedure for noting the deposition of a corporation, partnership, association, or governmental agency. This provision allows a party to obtain the institutional knowledge of an organization or a subdivision or portion of it. The notice and subpoena must designate the subjects of interrogation "with reasonable particularity," and the organization is then required to designate one or more witnesses to testify regarding the subjects stated in the notice or subpoena. Those persons must be prepared to testify as to the facts "known or reasonably available to the organization." This language imposes an affirmative duty on the organization to make available one or more witnesses who will be able to give complete, knowledgeable, and binding answers on its behalf. Flower v. T.R.A. Indus., Inc., 127 Wn.App. 13, 39, 111 P.3d 1192 (2005), review denied, 156 Wn.2d 1030 (2006);seeReillyv.NatWest Markets Grp.Jnc, 181 F.3d253,268 (2dCir. 1999), cert, denied, 528 U.S. 1119 (2000). The subpoena of a nonparty organization must advise that organization of its duty to designate a witness to testify regarding the matters specified in the subpoena.

Example: A subpoena for a CR 30(b)(6) deposition to a nonparty organization should include the following advice to the organization: Pursuant to Washington Civil Rule 30(b)(6), on or before the date of said deposition you must designate one or more of your officers, directors, or managing agents, or other persons who consent to testify on your behalf, to testify regarding the specified matters. You may set forth, for each person designated, the matters known on which that witness will testify. The designated witnesses must...