Depositions

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 277-320

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notice of DePositions task 57

TASK 57

Notice of Depositions

I. WHAT AND WHY

A. You may take an individual’s deposition by nam-

ing the individual as the deponent in the deposi-

tion notice. FRCP 30(b)(1); EEOC v. District of

Columbia Public Schools, 217 F.R.D. 12 (D.D.C.

2003) (school district not required to produce

information on all teachers where information not

directly relevant to plaintiff’s age discrimination

claim and production would require significant

time and effort); In re Cathode Ray Tube (CRT)

AntiTrust Litigation, 82 Fed. Rules Serv. 3d 451

(N.D. Cal. 2012) (deposition of objector to pro-

posed class action settlement compelled; objector

voluntarily appeared in action by objecting, and

basis for objections and claimed standing to object

were relevant topics).

B. A deposition notice notifies all parties of a deposi-

tion’s time, place, date and recording method and

the deponent’s name. FRCP 30(b)(1).

C. You can depose parties or nonparties. To depose a

nonparty, you must also serve a subpoena. FRCP

45. See Task 40.

D. Review Task 58 to notice an entity’s deposition.

E. Absent a written stipulation, you must obtain leave

of court to take more than 10 depositions. See

FRCP 30(a)(2)(A)(i); Harry A. v. Duncan, 223

F.R.D. 536 (D. Mont. 2004) (notices of deposi-

tion for 85 depositions quashed, protective order

issued); Barrow v. Greenville Independent School

District, 202 F.R.D. 480 (N.D. Tex. 2001) (to

obtain leave to take more than 10 depositions,

party must show that both additional depositions it

wishes to take and depositions it has already taken

are necessary under Rule 26(b)(2) standards).

F. Absent a written stipulation, you must obtain

leave of court to depose a witness who has already

been deposed in a case. See FRCP 30(a)(2)(A)

(ii); York v. Union Pacific R. Co., 74 Fed. R. Serv.

3d 1419 (D. Neb. 2009) (where plaintiff alleged

injuries arising from employer’s failure to provide

proper ergonomics, but failed to disclose particular

injury in first deposition, defendant entitled to take

second deposition to inquire about that injury);

In re Sulfuric Acid Antitrust Litig., 230 F.R.D.

527 (N.D. Ill. 2005) (leave to take additional

deposition was denied where witness already

was deposed for 17 hours, purpose of additional

CHAPTER 11: DEPOSITIONS

TASKS

Task 57 Notice of Depositions

Task 58 Notice Entity Depositions

Task 59 Determine Deposition Recording Method

Task 60 Videotape Depositions

Task 61 Take Telephonic Depositions

Task 62 Object to Deposition Notice

Task 63 Prepare to Take Depositions

Task 64 Prepare Witnesses

Task 65 Take Depositions

Task 66 Defend Depositions

Task 67 Terminate or Limit Scope of Deposition

Task 68 Limit Deposition Length

Task 69 Request Transcript Correction and Signature

FORMS

Form 21 Notice of Deposition

Form 21.1 Notice of Deposition

Form 22 Objection to Notice of Deposition

Form 23 Witness Briefing Checklist

Form 23.1 Motion

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task 57 DePositions

deposition was to ask witness to decipher hand-

written notes which requesting party obtained well

before time of first deposition, and requesting

party unreasonably delayed in waiting 2 ½ months

to file motion on the day discovery was closed);

Quality Aero Technology, Inc. v. Telemetrie

Elektronik, GmbH, 212 F.R.D. 313 (E.D.N.C.

2002) (second deposition permitted when based

on newly discovered information, party sought to

cover new topics not covered in first deposition,

and notice of second deposition was served within

discovery deadline). This prohibition applies to

both parties and third party witnesses. Ameristar

Jet Charter, Inc. v. Signal Composites, Inc., 244

F.3d 189 (1st Cir. 2001) (subpoenas issued to third

party witnesses for second depositions without

leave of court quashed). This limitation includes

Rule 30(b)(6) depositions of entities. Foreclosure

Management Co. v. Asset Management Holdings,

LLC, 71 Fed. Rules Serv. 3d 516 (D. Kan. 2008)

(leave of court required to take second Rule 30(b)

(6) deposition of corporate plaintiff; leave granted

where defense established need to depose plain-

tiff on identified topics, deposition would not be

cumulative, and benefits outweighed burdens).

G. Absent a written stipulation, you must obtain

leave of court to take a deposition of longer than

one day of seven hours. The court must allow

additional time if needed for a fair examination

of the deponent or if the deponent, another per-

son, or other circumstance impedes or delays the

deposition. LaPlante v. Estano, 226 F.R.D. 439

(D. Conn. 2005) (additional time granted where

plaintiff and attorney were uncooperative during

deposition and unilaterally discontinued examina-

tion). When a witness must testify in more than

one related action, the court should determine

the appropriate total length of questioning for the

witness, rather than assuming a separate, indepen-

dent limit of seven hours for each action. Miller

v. Waseca Med. Ctr., 205 F.R.D. 537 (D. Minn.

2002). Sanctions may be imposed for any impedi-

ment, delay, or other conduct which frustrates

the fair examination of the deponent. Rule 30(d)

(2),(3); Payne v. District of Columbia, 82 Fed.

Rules Serv. 3d 560 (D.D.C. 2012) (in wrongful

termination action, length of mayor’s deposition

reduced to 3.5 hours from presumptive seven

hours); In re Sulfuric Acid Antitrust Litig., 230

F.R.D. 527 (N.D. Ill. 2005) (party waived claim

that more time was needed to complete deposition

where party failed to raise argument at conclu-

sion of first session or for 4 ½ months afterwards;

and moved for leave to take additional deposi-

tion rather than for additional time); Harry A. v.

Duncan, 223 F.R.D. 536 (D. Mont. 2004) (notices

of deposition for depositions exceeding 1 day/7

hour limit quashed, protective order issued).

II. WHEN

A. Except as provided below, the parties may not

take depositions before the FRCP 26(f) initial

meeting. FRCP 30(a)(2)(A)(iii), 26(d)(1); Keller

v. Edwards, 206 F.R.D. 412 (D. Md. 2002) (depo-

sition notices were defective and unenforceable

when served on defendants together with com-

plaint). See Tasks 20-22.

B. You may take depositions before the meeting only:

1. By written agreement of the parties. FRCP

30(a)(2)(A).

2. By court order after motion (see Task 94) if,

for example, the witness is in poor health or

imminently leaving the jurisdiction or you

need the deposition for a TRO or preliminary

injunction. See FRCP 26(b)(2)(A).

3. If the witness is leaving the country and will

be unavailable after the initial meeting. FRCP

30(a)(2)(A)(iii). You do not need a stipulation or

order, but must provide sufficient facts in the

deposition notice. See Rodriguez v. Biltoria

Realty LLC, 203 F. Supp. 2d 290 (E.D.N.Y.

2002) (fo reign cit izen’s deposition commenced

before scheduling conference was allowed to

proceed over objections when foreign citizen

would be leaving country shortly upon visa

expiration).

4. If a local rule allows it or provides that your

district has opted out of FRCP 26(d)(1).

C. If the FRCP 26 disclosure requirements do not

apply to your case (see Task 19), you may take

a deposition any time after the plaintiff files the

complaint, unless a local rule or court order pro-

vides otherwise.

D. Give reasonable notice of the deposition. FRCP

30(b)(1).

1. FRCP 30(b)(1) does not define “reasonable

notice.” Determine whether notice is reason-

able in light of the circumstances, such as

whether the parties must travel or whether the

witness will become unavailable imminently.

Harry A. v. Duncan, 223 F.R.D. 536 (D. Mont.

2004) (notices of deposition for 85 depositions

on 2 weeks’ notice served shortly before close

of discovery gave inadequate notice; notices

quashed, protective order issued).

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2. Consult local rules for more specific notice

requirements. Local rules commonly require

notice of at least:

a. Five court days for local depositions.

b. Ten court days for out-of-town depositions.

3. Give at least 33 days notice (30 days plus three

days for service by mail) if you request the

deponent to produce substantial records at the

deposition. FRCP 30(b)(2), 34(b).

4. You may shorten the notice period by filing a

motion to shorten time. See Task 94.

E. In extraordinary circumstances, a deposition may

be taken during a trial. See In re Air Crash at

Charlotte, 982 F. Supp. 1084 (D.S.C. 1997) (allow-

ing depositions involving impeachment of a surprise

impeachment witness and witness intimidation).

F. If circumstances warrant, “preservation” deposi-

tions designed to preserve testimony for trial

rather than for purposes of discovery may be taken

after the discovery cutoff. Estenfelder v. Gates

Corp., 199 F.R.D. 351 (D. Colo. 2001) (defendant

permitted to take, after discovery cutoff, “pres-

ervation” depositions of former employees who

resided in Europe and would be unavailable to tes-

tify at trial when no surprise or prejudice to plain-

tiff or delay of trial would result; since depositions

were not taken for discovery purposes, discovery

deadline was inapplicable).

III. HOW

A. In the deposition notice (see Form 21):

1. State the witness’s name and address, or suf-

ficiently describe the witness to identify the

witness or the particular class or group to

which the witness belongs. FRCP 30(b)(1).

Use a description when you do not know the

witness’s name, but you have enough informa-

tion to identify him or her. For example, “The

supervisor on duty at 2:00 P.M. on May 6,

1995” should enable plaintiff’s employer to

check its records to identify the correct person.

2. State the deposition date, time and place.

FRCP 30(b)(1).

a. You may depose plaintiffs in the district

where they filed the case, even if they

do not live or work there. See El Camino

Resources Ltd. v. Huntington Nat. Bank,

70 Fed. Rules Serv. 3d 1383 (W.D. Mich.

2008) (principal of California plaintiff

company properly deposed in forum state

of Michigan); see also Cobell v. Norton,

213 F.R.D. 16 (D.D.C. 2003) (73-year-old

plaintiff’s motion to be deposed where he

resided rather than where case was filed

was denied when plaintiff failed to file affi-

davit providing specific reasons why depo-

sition would constitute undue hardship).

b. However, depose defendants only in

the district where they reside or work,

unless they agree otherwise. See Grey v.

Continental Marketing Associates, Inc.,

315 F. Supp. 826 (N.D. Ga. 1970).

c. Without prior agreement, do not require

nonparties to travel more than 100 miles

from their residence or place of business.

FRCP 45(c)(3)(A)(ii); Matthias Jans &

Associates v. Dropic, 49 Fed. R. Serv.

3d 1239, (W.D. Mich. 2001); compare

Shawnee Holdings, Inc. v. Travelers

Indemnity Co. of America, 57 Fed. Rules

Serv. 3d 988 (M.D. Pa 2004) (managing

agent employees of defendant compelled to

travel over 100 miles to testify at trial).

d. Scheduling a deposition for a genuinely

inconvenient time or place (over 100

miles away or at a demonstrably busy

time) will likely elicit a protective order

under FRCP 26(c).

e. Holding a deposition in your own office

can put the deponent at a psychological

disadvantage. The deponent is in your ter-

ritory and you are in control.

f. However, if you take the deposition at the

office of opposing counsel or the deponent

you may have access to documents the

deponent “forgot” to produce or mentions

during the deposition.

3. State the method you will use to record the

deposition. FRCP 30(b)(3). See Task 59.

4. The deposition notice need not indicate who

will be in attendance at the deposition (such as

co-parties and their counsel). Brant v. Principal

Life & Disability Ins. Co., 195 F. Supp. 2d 1100

(N.D. Iowa 2002) (employer noticed employee’s

deposition; employee’s objection to use of his

deposition testimony on grounds that he was not

notified that employer’s insurer would also be

present was without merit).

B. You may include a request to produce documents

with the deposition notice. The request must com-

ply with FRCP 34. FRCP 30(b)(2). See Task 36.