Beyond the Bar

• Publication year: 2020
• Pages: 25

Beyond the Bar Vol. 32 Issue 3 Pg. 25 South Carolina Bar Journal November, 2020

BEYOND THE BAR

Depositions Upon Written Questions: Spirits in the Law

By Warren Moise

It was one summer afternoon years ago in the old courtroom. The courtroom in the town of St. George, to be exact. I was before a venerable, snow-haired circuit judge arguing against a plaintiff’s motion for a protective order. In those days, the large windows of the Dorchester County courtroom were occasionally left open to let the heat escape. Sometimes we had to stop jury trials when trains rumbled by on the tracks outside.

But I digress. Plaintiff’s motion for a protective order dealt with my notice of a deposition upon written questions. We had just begun discovery, and the plaintiff’s case had quickly gone off the tracks. To avoid exposing her client to an oral deposition, the plaintiff amended her complaint to limit the amount in controversy to under $10,000. See S.C. R. Civ. P. 30(a)(2); id.

Staff note (“[D]epositions should not be routinely available in cases involving less than $10,000 in controversy.”).

I argued to the judge that Rule 30(a)(2) placed a clear limitation on oral depositions in cases pled under $10,000. However, Rule 31 put no amount-in-controversy limits on depositions upon written questions. The legislature enacted both rules at the same time. If it had meant to treat them the same, it would’ve put an amount-in-controversy bar in both rules. Right?

The judge had become a friend of mine. I’d tried several cases before him in St. George.

He did not, however, feel compelled to go my way on this one. It was here where he began invoking the spirits:

“Sorry, Mr. Moise. I’m going to grant plaintiff’s motion. Your interpretation violates the spirit of the rules.”

Harrumph!

Ok, so let me take a survey. Anyone who’s taken a Rule 31 deposition upon written questions, raise your hand. I didn’t think so. In a completely unscientific survey, I’ve asked around, in and out of my law office, and no lawyer I spoke to has ever taken one. I haven’t either. In fact, a study in the 1960s showed that only 2% of depositions were done under Rule 31. Although depositions upon written questions might be appropriate under “limited circumstances,” Mill-Run Tours, Inc. v. Khashoggi, 124 F.R.D. 547, 549 (S.D.N.Y. 1989), they are “rarely, if ever, used in modern litigation.” Fid. Int’l Currency Advisor a Fund, LLC v. United States, 2007 WL 9412764, at *3...