Depositions

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 283-330

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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

naming the individual as the deponent in the

deposition notice. FRCP 30(b)(1); E.E.O.C. v.

Tepro, 38 F. Supp. 3d 883 (E.D. Tenn. 2014)

(EEOC required to produce for deposition

employee it had listed as potential witness); In re

Cathode Ray Tube (CRT) AntiTrust Litigation,

82 Fed. Rules Serv. 3d 451 (N.D. Cal. 2012)

(deposition of objector to proposed 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

deposition’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); Scott v. City of Sioux

City, Iowa, 298 F.R.D. 400 (N.D. Iowa 2014)

(party made particularized showing of need for 21

depositions); Thykkuttathil v. Keese, 294 F.R.D.

601 (W.D. Wash. 2013) (same, 17 depositions).

The limit is 10 depositions per side, not per party.

Thykkuttathil.

.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); See John Wiley & Sons, Inc. v. Book Dog

Books, LLC, 298 F.R.D. 145 (S.D.N.Y. 2104) (7

day limitation inapplicable where party stipulated

to 2 day deposition; party may not refuse to

appear for second day based on separate discovery

dispute with opposing party); Madison v. Jack

Link Associates Stage Lighting & Productions,

Inc., 297 F.R.D. 532 (S.D. Fla. 2013) (good cause

to take additional deposition of plaintiff’s treating

physician); 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

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

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 deposition was to ask witness to

decipher handwritten 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). 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 plaintiff

on identified topics, deposition would not be

cumulative, and benefits outweighed burdens). A

witness who appears for a deposition that does not

take place has not been deposed for purposes of

this Rule. Paige v. Consumer Programs, Inc., 248

F.R.D. 272 (C.D. Cal. 2008).

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 person,

or other circumstance impedes or delays the

deposition. John Wiley and Sons, Inc. v. Book

Dog Books, LLC, 298 F.R.D. 145 (S.D.N.Y. 2014)

(plaintiff not entitled to cancel second day of

deposition where parties stipulated to deposition

exceeding seven hours); JTR Enterprises, LLC v.

An Unknown Quantity of Colombian Emeralds,

Amethysts and Quartz Crystals, 297 F.R.D. 522

(S.D.Fla. 2013) (corporate designee’s failure to

bring responsive documents to deposition provided

good cause to permit continued 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 examination). 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, independent 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 impediment,

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).

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) (deposition notices were defective and

unenforceable when served on defendants together

with complaint). 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

provides 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

reasonable in light of the circumstances,

such as whether the parties must travel or

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NOTICE OF DEPOSITIONS TASK 57

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).

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)

(allowing depositions involving impeachment

of a surprise impeachment witness and witness

intimidation).

F. If circumstances warrant, “preservation”

depositions 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, “preservation” depositions of former

employees who resided in Europe and would be

unavailable to testify at trial when no surprise or

prejudice to plaintiff or delay of trial would result;

since depositions were not taken for discovery

purposes, discovery deadline was inapplicable);

compare Smith v. Royal Caribbean Cruises,

Ltd, 302 F.R.D. 688 (S.D. Fla. 2014) (fact that

witnesses lived over 100 miles from place of trial

was insufficient excuse for failure to depose them

during discovery period); Ferri v. Berkowitz,

293 F.R.D. 144 (E.D.N.Y. 2013) (depositions to

preserve testimony for post-appellate proceedings

unwarranted absent showing that failure or

delay of justice would result if depositions were

not taken); In re Navy Chaplaincy, 287 F.R.D.

100 (D.D.C. .2012) (deposition of general not

permitted where no showing that testimony was

necessary or that plaintiffs had excuse for failing

to depose general sooner).

III. HOW

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

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

sufficiently 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

information 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 American

General Life Insur. Co. v. Harshman,

299 F.R.D. 157 (E.D. Ky. 2014) (forum

district was proper location for deposition

of corporate plaintiff, rather than location

of plaintiff’s principal place of business

or defendant’s residence); Paleteria La

Michoacana, Inc., v. Productos Lacteos

Tocumbo S.A. de C.V., 292 F.R.D. 19

(D.D.C. 2013) (corporate officers of

Mexican corporation that essentially

acted as plaintiff in trademark challenge,

availed themselves of U.S. courts and

were properly deposed in U.S); 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); compare Hernandez v.

Hendrix Produce, Inc., 297 F.R.D. 538

(S.D.Ga. 2014) (depositions of plaintiff

Mexican migrant workers ordered to be

held via internet rather than requiring

economically disadvantaged workers

to travel to Georgia from Mexico at

substantial expense).

b. However, depose defendants only in

the district where they reside or work,

unless they agree otherwise. See United

States v. One Gulfstream G-V Jet Aircraft

Displaying Tail Number VPCES, 304

F.R.D.10 (D.D.C. 2014) (protective order

issued requiring government to depose

high ranking foreign official in native