Preparing for, taking, and defending depositions

• Author: Stewart Edelstein
• Pages: 99-130

99

CHAPTER FIVE

PREPARING FOR,

TAKING, AND

DEFENDING

DEPOSITIONS

This chapter provides ans wers to the most common questions t hat arise

pertaining to taking and defending depositions in federal court. It does

not cover all questions that may arise, or all procedures. For example,

it does not include a discussion of telephonic depositions, because they

are infrequent. There is no substitute for reading all rules applicable to

depositions.

The outcome of the great majority of cases is determined by reso-

lution of issues of fac t rather than issues of law. As eighteenth-centu ry

English jurist William Blackstone put it: “Experience will abundantly

show that above a hundred of our lawsuits arise from disputed facts,

for one where the law is doubted of.” Depositions provide the most

effective mechanism to ferret out what facts are true during the dis-

covery phase.

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1. THEADVANTAGESANDDISADVANTAGESOFTAKINGA

DEPOSITION

This is your only opportunit y to get unfiltered i nformation from oppos-

ing parties, a nd spontaneous answers from them. You can obtain admis-

sions. You can ask follow-up questions. Answers are under oath. You can

learn the strengths and weaknesses of your case. You can test potential

theories of your case. You can get a sense of how well the opposing part y

will testify in court. You can obtain information from and preserve tes-

timony of nonparty witnesses.

But depositions are expensive. You must weigh the cost against the

benefit. In federal court, each party pays for its own transcript. Your

questions can reveal your factual and legal theories of the case. Your

deposition gives the opposing par ty a “sneak preview” of what to expect

on cross-examination at trial, and an opportunity to prepare for that

cross-examination. If you depose a nonparty witness, opposing coun-

sel learns what you learn from that witness, and has the opportunity

to cross-examine that witness at deposition. Your deposition may cause

opposing counsel to be better prepared for trial.

2. WHENTOTAKEADEPOSITION

Complete your research on the legal elements of each cause of action

and, where applicable, each affirmative defense, cross-claim, and coun-

terclaim. Unless you know all those elements, you won’t know what

to ask. Develop a working theme for your case, and give thought to

your opponent’s likely themes. Obtain all documents you will need for

that deposition, by formal discovery and by other means. Do a Google

search of the other parties, the deponent, and witnesses. In appropriate

cases, before taking a deposition, obtain responses to interrogatories.

Complete formal and informal discovery as to the deponent.

Except by court order or agreement of the parties, you cannot take

a deposition until after completion of the Rule 26(f) conference. Rule

26(d). Court permission is not required to take a deposition unless you

plan to take more than 10 depositions, the person has already been

deposed, or you want to take a deposition before the Rule 26(f) con-

ference is completed. You can take a deposition before that conference

without court permission, though, if you certify in the notice, with

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Preparing for, Taking, and Defendi ng Depositions | 101

supporting fact s, that the deponent is expected to leave the country and

be unavailable unless deposed before that time. Rule 30(a)(2).

If you notice the deposition of a part y, a nd you seek that part y’s pro-

duction of documents at that deposition, case law supports the conclu-

sion that the party has 30 days from notice to interpose objections to

that production. Otherwise, this procedure could circumvent the 30-day

per iod t o obje ct i n the rule s per tai nin g to d ocu ment r eques ts. Rule 3 4(b).

3. HOWMANYDEPOSITIONSYOUCANTAKEANDHOWLONG

EACHDEPOSITIONCANBE

Unless the parties st ipulate or the court orders otherw ise, each side can-

not take more than 10 depositions. Rule 30(a)(2)(A). This limit applies

to all plaintif fs collectively and to all defendants collectively. In the Rule

26(f) conference, discuss the number of depositions required. Unless

authorized by the court or stipulated by the parties, a person can only

be deposed once, Rule 30(a)(2)(A)(ii), and a deposition is limited to one

day of seven hours, not including breaks, Rule 30(d)(1).

4. HOWTONOTICEADEPOSITION

You must provide “reasonable written notice” to every other party. Rule

30(b)(1). This rule, a nd Rules 30(b)(2) and (3), state what must be included

in that notice. You must provide that notice to all other part ies. Rule 30(b)

(1). If you notice the deposition of a party who has appeared, you must

serve that notice on counsel for that party. If you notice the deposition of

a nonparty, you must serve a subpoena on that nonparty. Rule 45(a).

If you require the deponent to bring documents to the deposition,

include that requirement in the notice of deposition of a party and in a

subpoena duces tecum on a nonpart y witness. Rules 30(b)(2) and 34. If pos-

sible, arrange with opposing counsel to receive those documents before

the deposition so you can review them and make copies of the docu-

ments you want to use at deposition, and to save time at the deposition.

If you depose an entity, comply with Rule 30( b)(6). The recipient of

a Rule 30(b)(6) deposition notice is required to designate one or more

people who consent to testify on its behalf as to the matters you desig-

nate in the deposition notice. Anyone so designated must testify as to

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