§30.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§30.8STRATEGIC AND PRACTICAL CONSIDERATIONS

This section explores important issues that arise in practice involving oral depositions.

(1)Local rules

Local rules may apply to depositions upon oral examination. King County made a number of changes to discovery rules effective September 1, 2005, including the following changes to local rules governing depositions upon oral examination.

(1) King County LCR 26(b)(5)(A)-(B), the parties may stipulate in writing to a modification of these limits, or, in the event they are unable to stipulate, may seek a court-ordered modification.

(2) King County LCR 26(b)(6)(C) provides that a party served with a notice of deposition in violation of King County LCR 26 shall inform all parties to the case that he or she will not be attending the deposition. This notification shall occur as soon as possible and, absent extraordinary circumstances, shall not be later than 24 hours before the scheduled deposition. Notice shall be in writing and shall be provided in the manner that is most likely to provide actual notice of the objection. Fax or e-mail notification is permitted, provided the parties have previously agreed to receive pleadings in this manner or the notifying party also provides telephonic notice.

Chelan and Douglas Counties require filing of a written deposition before a video deposition may be used. Chelan County LR 32(a)(6); Douglas County LR 32(a)(6). At this time there are no other local rules corresponding to CR 30 through 32.

The U.S. District Court for the Eastern District of Washington has adopted a local rule regarding depositions of prisoners. This rule permits United States attorneys to take depositions of prisoners without court permission required by Fed. R. Civ. P. 30(a)(2), except when the official in charge of the prison where the witness is confined disapproves. See Fed. R. Civ. P. 30(a); E.D. Wash. LR 30.1(b). The U.S. District Court for the Western District of Washington has no comparable local rule. The Eastern District has also adopted a local rule setting forth procedures to videotape depositions. E.D. Wash. LR 32.1(a)-(h).

(2)Whether to take depositions and who should be deposed

Depositions remain the most effective way to discover the testimony likely to be given at trial. A deposition permits the assessment of a witness's appearance and credibility and improves counsel's ability to make an educated appraisal of the value of a case. Depositions also give clients an opportunity to see the attorneys in action, to observe the other side's witnesses, to hear other versions of the facts, and to participate in the development of the case. A deposition also avoids the possibility that testimony will be lost or become less clear as time passes.

In cases involving a limited number of individual parties, you should normally depose the opposing parties. When the parties or potential witnesses are numerous, however, or when the case involves a corporation with many potential witnesses, the question of which depositions to take becomes more difficult. Obviously, cost is an important—and sometimes determinative—consideration.

Practice Tip: The general inclination of trial counsel in cases involving corporate parties is to take depositions of top-level employees who may have been involved in the matters in dispute. In some instances, however, it may be more productive to start with middle- or lower-level employees. For example, lower-level corporate employees may testify more "objectively" and be less concerned about the impact of their testimony on job tenure, especially if they have some measure of job security through union affiliation or other means. In contrast, management-level employees may have a higher degree of interest in the outcome of the litigation and, therefore, may be more inclined to color their testimony to favor their version of the facts. The testimony of lower-level employees also may be useful in revealing basic facts regarding the corporate structure or corporate activities, to provide a background for and help focus the examination of management-level employees. In cases in which a party serves a deposition notice on an executive officer of a corporate party opponent or a highly placed public official, consider the application of the "apex doctrine." The apex doctrine is a common-law doctrine that allows courts to balance a party's right to liberal discovery with an apex deponent's right to be protected from abuse and harassment. When a party seeks to depose an apex deponent, courts that recognize the doctrine typically determine whether the party seeking the deposition has shown that the deponent has "unique or superior personal knowledge of discoverable information" and that the information "cannot be obtained by a less intrusive method, such as by deposing lower-ranking employees." 9 A William Meade Fletcher, Fletcher, Cyclopedia of the Law of Corporations §4663 (rev. 2012); see Reifv. CNA, 248 F.R.D. 448, 451 (E.D. Pa. 2008) (discussing a number of leading cases). No Washington court has expressly adopted the doctrine, although it is recognized in Diaz v. Washington State Migrant Council, 165 Wn.App. 59, 84 n.9,265 P.3d 956 (2011).

In cases pending in federal court, depositions of witnesses pursuant to Fed. R. Civ. P. 30(b)(6) provide some advantage under the limitations on duration and number of witness now in effect in all federal courts.

Practice Tip: If your case is in federal court, you are subject to the limitation on the number of depositions allowed and the seven-hour time limit under the federal rule, and therefore it is important to select deponents carefully. Depositions under Fed. R. Civ. P. 30(b)(6) may ameliorate these limitations. A deposition under rule 30(b)(6) will be treated as a single deposition even when more than one witness is designated to testify. See Fed. R. CIV. P. 30, Notes of Advisory Committee on Rules—1993 Amendment. However, for the purposes of the durational limit, "the deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition." Fed. R. Civ. P. 30, Notes of Advisory Committee on Rules—2000 Amendment.

Nonparty witnesses are another class of witnesses whom you should consider deposing. It may be advisable simply to take statements from such witnesses, avoiding deposition costs and the education of opposing counsel. A witness statement is useful at trial for impeachment purposes, provided the statement is signed and the witness is available to testify at trial. If the witness is unavailable, however, the statement generally would be inadmissible, whereas a deposition of the witness would be usable under CR 32(a)(3). If you are confident that a witness will voluntarily appear at trial or is subject to a trial subpoena, a deposition might not be necessary. In any case, if the substance of the likely testimony of a witness is not known with certainty, interview the witness and perhaps take a formal statement before the deposition.

Take depositions only when actually needed to ascertain facts or information or to preserve testimony. They should never be used as a means of harassment or to increase expense for the other side.

Whether to take a deposition depends, among other things, upon the likelihood that the witness will be available at trial. Inquire about the witness's health and travel plans. Determine whether the witness is subject to subpoena, or whether another party is likely to bring the witness to the trial.

Despite all of the advantages of depositions, they may not be appropriate under certain circumstances. For example, do not take a deposition if the information sought could be better obtained through other means of discovery. Customer lists are better obtained through document requests than depositions. Nor should a deposition be taken if you are not adequately prepared, because the significance of the witness's testimony may not be understood.

Cost is an important consideration in determining whether to take a deposition and which witnesses to depose. Even the shortest of depositions will ordinarily cost hundreds of dollars for reporter's attendance fees and transcripts, not to mention your own fees if you are billing your client on an hourly basis. Although some expense can be avoided by not ordering the transcript, other expenses are substantial enough to require careful consideration of whether a deposition is really necessary.

(3)When and where to depose

The rules do not specify day or times for scheduling depositions. Counsel often stipulate to the date and time. Case law suggests that counsel must be reasonable in deposition scheduling. See 8A Charles A. Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure §2111 (2d ed. 2010 & Supp. 2013) (and cases cited therein). Give consideration to the schedules of opposing counsel and the deponent when it is possible to do so without prejudicing the client's rights. Reasonable requests for changes in deposition times or dates ordinarily should be granted as a matter of courtesy unless time is of the essence. An extension should be allowed even if the attorney requesting it has previously refused to grant an extension. Generally, when responding to a request for change in date or time, balance the need for expedition against the deference ordinarily given to opposing counsel's schedule, the length of the requested extension, the opponent's willingness to grant reciprocal extensions, the time actually needed for the deposition, and the likelihood that a court would grant the extension if asked to do so. If possible, develop a mutually satisfactory discovery schedule with opposing counsel.

Under CR 45(e)(2), a nonparty resident of Washington may be required to attend a deposition "only in the county where the person resides or is employed or transacts business in person, or...