AuthorWilliam M. Audet/Kimberly A. Fanady
Notice of Depositions
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.
.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
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
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).
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
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
provides otherwise.
D. Give reasonable notice of the deposition. FRCP
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
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
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).
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

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