Considerations Related to Depositions

• Pages: 51-55

51

CHAPTER III

CONSIDERATIONS RELATED TO DEPOSITIONS

Antitrust lawsuits have a reputation for spawning countless

depositions that each continue for days at a time. Under Federal Rule of

Civil Procedure 30(d)(2), which presumptively limits depositions to one

seven-hour day, and with the number of depositions potentially limited to

ten under Rule 30(a)(2)(A), it may be necessary to reconsider the

approach of deposing every person with any knowledge pertinent to the

case for as long as possible. This chapter proposes various strategy

considerations related to depositions. Specifically, lawyers should ask

why, who, when, what, and how with respect to each deposition.

A. Why Take This Deposition?

The first question that needs to be asked about any deposition is

whether it should be taken. The usual reason given for taking a

deposition is that a lawyer must prepare for trial by deposing each person

on the opponent’s witness list, especially those that cannot be compelled

to testify in person at trial. Before the deposition is taken, however, the

lawyer should ask whether he or she can talk to the witness informally

instead of in a deposition; whether the deposition will present “bad”

testimony (or alternately, whether it is better to know the “bad”

testimony in advance of trial so at least the trial witness will not be

allowed to wander from his or her deposition testimony); whether the

deposition is likely to reveal cross-examination theories; and whether the

lawyer already has enough material from document production to

impeach the witness at trial. The lawyer should also consider whether

the witness’ lack of memory will be refreshed by opposing counsel after

the deposition and right before trial.

Asecond reason that often is advanced for taking a deposition is to

enable the lawyer to communicate directly with the opponent’s

executives. Before a deposition is taken, however, a lawyer should ask

whether the executive is likely to “bond” to his or her lawyer as a result

of the deposition, and whether the opponent is being forced to prepare

for trial—preparation that otherwise might not occur.

Athird rationale that is advanced for taking a deposition is to

preserve the testimony of an elderly or sick witness. The lawyer should

consider whether bad testimony is being preserved and, realistically, how

“tough” a lawyer can get with an elderly or ill witness.