Depositions

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 333-388

HANDLING FEDERAL DISCOVERY

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 of Custodian of Records

Form 21.2 Attachment to Deposition Notice under Rule 30(b)(6)

Form 22 Objection to Notice of Deposition

Form 23 Witness Briefing Checklist

Form 23.1 Motion

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).

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TASK 57 DEPOSITIONS

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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 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.

NOTICE OF DEPOSITIONS TASK 57

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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) (foreign citizen’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 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.