AuthorWilliam M. Audet/Kimberly A. Fanady
notice of DePositions task 57
Notice of Depositions
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
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
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
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).
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
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
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
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).
notice of DePositions task 57
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).
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.

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