Obtaining TestimonyBy Deposition

• Pages: 37-51

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CHAPTER III

OBTAINING TESTIMONY BY DEPOSITION

Conventional wisdom suggests deposing every potential witness who

has knowledge of a claim or defense in the action. However, given that

parties are potentially limited in the number of depositions that they may

take under Federal Rule of Civil Procedure 30(a)(2)(A)(i), it may be

necessary to reconsider the approach of deposing every person with any

knowledge pertinent to the case. This chapter proposes various strategies

related to depositions. Specifically, lawyers should ask why, who, when,

what, and how with respect to each deposition. The chapter concludes

with remarks on preparing for and defending the deposition.

A. Overview of Federal Rule of Civil Procedure 30

Federal Rule of Civil Procedure 30 governs deposition practice in

federal court. Under Rule 30(a), each side—not each party—is limited to

ten depositions unless the court grants otherwise. Absent consent by the

parties, a party needs permission from the court to depose a witness who

already has been deposed in a case. Rule 30(d)(1) provides that each

deposition is limited to one day of seven hours.1 Additional time may be

granted by the court at a party’s request if needed to “fairly examine” the

deponent.

An officer, director, or managing agent of a party to a case may be

compelled to appear for deposition pursuant to Rule 30. Other deponents,

including third parties, may be compelled to appear for deposition by

subpoena under Rule 45. Rule 45 provides that a subpoena may be served

at any place within 100 miles of the place specified for the deposition.

Rule 30(g) allows a party to recover reasonable expenses for attending a

deposition in which the deponent refused to proceed with questioning or

failed to attend.

Under Rule 30(b), a party who wishes to depose a person must give

“reasonable written notice” to every other party. Such notice must include

the time and place of the deposition and, if known, the deponent’s name

1. The 2000 Advisory Committee Notes clarifies that this is seven hours on

the record, and thus excludes breaks and off-the-record discussions.