10,000 Depositions Later Podcast

Today's roundup of new deposition-related cases focuses on four rulings. One offers a great strategy to exclude hostile deponents' deposition testimony, where they answer your opponents' questions but refuse to let you fully and fairly cross-examine them. A second touches on the age-old question of whether "Form!" or "Objection!" is enough or whether you must articulate the specific evidentiary basis. The third offers an idea for administering a slightly modified oath to immature deponents who might not understand the standard oath. The fourth looks at a novel approach one party took in noticing an individual witness with an attached, lengthy 30(b)(6) list of topics relating to matters that seemed better suited for a corporate representative.

Thanks for listening! And be sure to check out the book upon which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Available on Amazon and almost everywhere else books are sold. Now in it's fourth edition at 600 pages. It's a career-saving resource.

SHOW NOTES

Perrot v. Kelly, et al., Case No. 18-cv-10147, 2023 WL 11873009 (D. Mass. October 27, 2003) (reserving right to exclude deponent's testimony if witness continued to thwart plaintiff's opportunity to fully and fairly examine her, under FRE 804 relating to witness "unavailability"; court appears to equate refusal to give testimony with unavailability)

B.P., et al. v. City of Johnson City, et al., No. 2:23-cv-71-TRM-JEM, 2024 WL 3461408 (E. D. Tenn. July 18, 2024) (refusing to limit lawyer to word "Objection" during depositions, and stating that lawyers have obligation to state the specific basis for the objection and not limit it to "objection" or "form" alone; further declining to sanction lawyer for longer narrative objections about incomplete documents because they were not intended to coach witness as to a particular answer)

People v. Lopez, 550 P.3d 731 (Ct. App. Colo 2024) (affirming conviction of criminal defendant over objection that trial judge conducted modified administration of oath to 10-year old witness; finding that modified oath is appropriate for an immature witness who may not understand standard oath)

Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024) (rejecting plaintiffs' effort to depose individual by serving FRCP 30(b)(6)-style deposition notice with lengthy attached topic list)

See, 30(b)(6)-style Deposition Notice Served on Individual, PACER CM/ECF Doc. No. 135-1 (showing notice with attached topic list and list of documents to be brought by individual deponent) Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024)

In this episode, Jim Garrity discusses deposition protocol stipulations, which are agreements between the parties that establish the framework for noticing and conducting depositions. They're common in class-action and multi-district cases, but they're useful - and underutilized - in ordinary litigation as well. They can also be used to create internal deposition guidelines for law firms and legal organizations. Jim lists about three dozen common provisions in such agreements and offers practice tips on proposing and implementing them. Have a listen!

SHOW NOTES

Stipulation and Order Governing Protocol for Fact Depositions and Rule 30(b)(6)/PMQ Depositions [CM/ECF Doc. 742), In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case No. 4:22-md-03047-YGR (S. D. Cal. April 3, 2024) (36 pages)Protocol Governing Depositions, Dennis, et al. v. JPMorgan Chase & Co., et al., Case No. 1:16-cv-6496 (S. D. N. Y. June 23, 2020) [CM/ECF Doc. 419-1) (14 pages)

Stipulation And Order Regarding Remote Depositions [CM/ECF Doc. 108], FTC v. Tapestry, Inc., et al., Case No. 1:24-cv-03109 (S. D. N. Y. June 6, 2024) (15 pages)

Stipulation And [Proposed] Order Regarding Remote Depositions, In the Matter of Tapestry Inc., A Corp., & Capri Holdings Ltd., A Corp., Respondents., No. 9429, 2024 WL 3203213 (MSNET June 13, 2024) (related proceeding before Federal Trade Commission) (11 pages)

Deposition Protocol Order, In Re Terrorist Attacks on September 11, 2001, Case No. 1:03-md-01570-GBD-SN (S. D. N. Y. January 31, 2018) [CM/ECF Doc. 3894) (15 pages)

Fed. R. Civ. P. 29(a) (rule on discovery stipulations between parties)

Episode 22, FRCP 29(a) Stipulations: A Way to Save Time, Money & Headaches, 10,000 Depositions Later Podcast, released December 25, 2020 (30 minutes)

Our depo case digest episodes present a fast roundup of new deposition-related rulings nationwide. Today: (1) Two new rulings on relevance as a basis to instruct a witness not to answer a question, or to halt the deposition for purposes of seeking a protective order; (2) A ruling about a clever way to assure testimony is admissible when you use leading questions in deposing a witness considered "hostile" under rules of evidence; and (3) A case on excluding parties from depositions when their presence may traumatize deponents.

All cases mentioned in this episode are cited in the show notes, with helpful parentheticals. Can't see all the cases? Not all podcast sites allow lengthy show notes. Click through to our home page, where the full notes are always accessible. Thanks for listening!

SHOW NOTES:

Delgado v. Donald J. Trump for President, Inc., et al., No. 19-CV-11764 (AT) (KHP), 2024 WL 3219809, (S.D.N.Y. June 28, 2024) (order denying pro se plaintiff’s motion to compel certain answers that non-party deponent declined to answer following instruction by counsel based on relevance)

Keplar v. Google, LLC, 346 F.R.D. 41, 51 (N.D. Tex. Mar. 8 2024) (“if counsel’s questions go so far beyond the realm of possible revenue relevance where the deposition is being conducted in an abusive manner, i.e., in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party, then it would be permissive to instruct the deponent not to answer and move for a protective order")

Jenkins v. Miller, No. 2:12-CV-184, 2024 WL 3220349, at *2 (D. Vt. Jan. 2, 2024) While the Court cannot issue a general a ruling at this time, it acknowledges that Miller will likely be an important witness for all parties. The Court will therefore make itself available on January 18, 2024, the date on which the deposition is scheduled to take place, to issue rulings as necessary. Plaintiff's motion for leave to ask leading questions (ECF No. 745) is therefore denied at this time without prejudice, and may be renewed at the time of the deposition and/or thereafter as necessary.

Austin v. Fordham University, et al,No. 23 CIV. 4696 (JLR) (GS), 2024 WL 3161854, at *4 (S.D.N.Y. June 25, 2024) (“The Court grants Austin's motion for a protective order preventing Sweeney from attending Austin's deposition in person. However, Sweeney may be present in the same location where the deposition is taken (but in a different office) and permitted to see and hear the deposition in real time via a one-way remote video feed. Sweeney's counsel may consult with his client during normal breaks in the testimony and may also leave the deposition room when he deems it necessary to consult with his client during the deposition”)

Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L. Ed. 2d 443 (1984) (“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials. See generally Fed.Rule Evid. 103(c).”)

Fed.R.Evid. 611(c) (rule allowing the use of leading questions during what would otherwise be direct examination upon a showing the witness meets the test of hostility)

Fed. R. Civ. P. 26(b)(1) (general discovery rule on allowing discovery "regarding any nonprivileged matter that is relevant...") 

Fed. R. Civ. P. 26(c)(1) (rule on grounds for protective orders)

Fed. R. Civ. P. 30(d)(3)(A) (rule on terminating depositions for purposes of seeking protective orders)

As a result of listener requests, today we add a new kind of show—the Depo Digest episode—to our podcast. These new segments will supplement the regular single-topic deep dives for which we're known. The Depo Digest installments, in contrast, will quickly highlight three or four brand-new rulings of interest to you as a litigator. Jim Garrity explains that our team reviews more than 500 deposition-related rulings weekly. Not all justify a full episode by themselves, but many are still of real practical value. So we're passing these along to you in digest form, yet another powerful tool to help you stay at the top of your deposition game. We heard you, and we're acting on your excellent suggestion. Thanks!

SHOW NOTES

Burton v. United States of America, Case No. 1:18-CV-02039 (JHR) (SDA), 2024 WL 305-6940 (S. D. New York June 19, 2024) (finding that 2015 amendments to FRCP 30(b)(6), requiring conferral, can be read to require disclosure of corporate designees and their resumes prior to deposition to facilitate “the efficiency and productivity of the deposition”)

In re Chrysler Pacifica Fire Recall Products Liability Litigation MDL, No. 22-3040, 2024 WL 3048495 (E.D. Mich. June 18, 2024) (finding that routine inconvenience and expense of traveling to forum for deposition is not “good cause” justifying protective order allowing plaintiffs to appear for deposition by remote video)

Williams, et al. v. J.B. Hunt Transport, Inc., No. CV-20-01701 PSG, 2024 WL 2108841 (C.D. Calif. Apr. 30, 2024) (order rejecting taxability of court reporter convenience add-ons for litigation packages, logistics and processing, concierge tech support, and virtual primary participants)

According to current cognitive psychology and neuroscience understanding, our memories are multilayered constructs composed of personal experiences and information acquired from external sources. So, when questioning witnesses about their recollections, it's crucial to understand what those layers are made up of. Is it purely personal recollection? Does it include what they were told by others? Does it include what they were told when their lawyer prepped them for the deposition? Examining the underlying sources or layers of the deponent’s knowledge helps identify the individuals and documents that influenced and possibly biased what the witness says.

Be sure to click through to our home page if you don't see the complete list of cites in the show notes. And - please - leave us a 5-star review wherever you hear this podcast? It's a free, fast, and incredible way to thank our production team for the research and time spent producing this free resource for you. Our whole team thanks you!

SHOW NOTES

In re FirstEnergy Corp. Sec. Litig., No. 2:20-CV-03785-ALM-KAJ, 2024 WL 1984802, at *14 (S.D. Ohio May 6, 2024) (“Seemingly, FirstEnergy argues that all facts about the internal investigation are privileged or protected because, at some point, these facts were communicated by lawyers to various individuals. Time and again, courts have rejected this type of argument. While communications between attorneys and clients are privileged, facts are not. Humphreys, Hutcheson and Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) (citing Upjohn Co., 449 U.S. at 395). And facts do not become privileged or protected because they were provided to witnesses by attorneys or acquired in anticipation of litigation. See, e.g., Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D. Neb. 1989) (“There is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.”); United States v. BAE Sys. Tactical Vehicle Sys., LP, No. 15-12225, 2017 WL 1457493, at *5–6 (E.D. Mich. Apr. 25, 2017); Basulto v. Netflix, Inc., No. 22-21796, 2023 WL 3197655, at *2–3 (S.D. Fl. May 2, 2023) (“[F]act-oriented discovery is permitted even if the witness learned about the facts from her attorneys.”); Clear Cast Grp., Inc. v. Ritrama, Inc., No. 1:09-cv-169, 2011 WL 13334451, at *6 (N.D. Ohio Sept. 15, 2011). So too here. Facts related to the internal investigation are not shielded simply because they were funneled through attorneys to witnesses”)

Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278–79 (D. Neb. 1989) (citing Sedco Intern., S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 379, 74 L.Ed.2d 512 (1982) for the proposition that “No contention can be made that the attorney-client privilege precludes disclosure of factual information. The privilege does not protect facts communicated to an attorney. Upjohn Co. v. United States, 449 U.S. 383, 395–96, 101 S.Ct. 677, 685–86, 66 L.Ed.2d 584 (1981). Clients cannot refuse to disclose facts which their attorneys conveyed to them and which the attorneys obtained from independent sources. Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947); 8 J. Wigmore, Wigmore on Evidence § 2317 (McNaughton rev. 1961).

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008) (quoting In re Linerboard Antitrust Litig., 237 F.R.D. 373, 384 (E.D.Pa.2006) (“ ‘[T]here is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.’ ” (quoting Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D.Neb.1989))).)

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 215 (E.D. Pa. 2008) (“Contrary to State Farm's contention, the mere fact that counsel for State Farm may have provided such information to the witness in preparation for the Rule 30(b)(6) deposition does not convert the information into attorney work product. Were State Farm's logic followed to its full extent, anytime an attorney is involved in preparing a Rule 30(b)(6) witness, such preparation would be futile because the witness would inevitably be precluded from testifying to anything learned from the attorney. Were this the rule, every Rule 30(b)(6) deposition in which an attorney was involved in preparing the witness would be doomed from the start”)

Palmisano v. Paragon 28, Inc., No. 21-60447-CIV, 2021 WL 1686948, at *6 (S.D. Fla. Apr. 7, 2021) (“Thus, while the privilege applies when a questioner directly asks a deponent about discussions with counsel, the “attorney-client privilege simply does not extend to facts known to a party that are central to that party's claims, even if such facts came to be known through communications with counsel who had obtained knowledge of those facts through an investigation into the underlying dispute.”)

Thurmond v. Compaq Comput. Corp., 198 F.R.D. 475, 483 (E.D. Tex. 2000) (requiring disclosure of facts defendant “only learned through communications with counsel”)

Kansas Wastewater, Inc. v. Alliant Techsystems, Inc., 217 F.R.D. 525, 528, 532 n.3 (D. Kan. 2003) (“It is well established that a party may not withhold relevant facts from disclosure simply because they were communicated to, or learned from, the party's attorney.”).

Elizabeth Loftus, prominent figure in the study of human memory, particularly on malleability of human memory and misinformation effects. Loftus, E.F. (1975). Leading questions and the eyewitness report. Cognitive Psychology, 7, 560–572; Loftus, G.R. & Loftus, E.F. (1976). Human Memory: The Processing of Information. Hillsdale, NJ: Erlbaum Associates; Loftus, E.F. & Doyle, J. (1987). Eyewitness Testimony: Civil and Criminal. NY: Kluwer; Loftus, E.F.; Hoffman, H.G. (1989). Misinformation and memory: The creation of memory. Journal of Experimental Psychology: General, 118(1), 100–104.

Daniel Schacter, research on the “seven sins” of memory and the constructive nature of memory. Books include Searching for Memory: The Brain, the Mind, and the Past (1996); Forgotten ideas, neglected pioneers: Richard Semon and the story of memory. (2001); and The Seven Sins of Memory: How the Mind Forgets and Remembers (2001)

Charan Ranganath, Why We Remember: Unlocking Memory’s Power to Hold On to What Matters

In this episode, Jim tackles the problem of 30(b)(6) witnesses showing up with voluminous notes and documents to use in refreshing their memory about the topics to be addressed. Are these witnesses automatically required to give you those notes and materials ahead of time? If not, is there anything you can do to get them beforehand? And, what about getting copies of documents these and other deponents looked at before the deposition but didn't bring with? For the answers to these and other questions, listen in. And thanks for being a loyal listener of the podcast! We appreciate you!

SHOW NOTES

ChampionX LLC, f/k/a Windrock, Inc. v. Resonance Systems, Inc., et al., Case No. 3:21-CV-288-TAV-JE M (E. D. Tennessee Oct. 19, 2023) (providing that documents used during a deposition to refresh witnesses recollection must be produced to the adverse party while deposition is in progress, and need not be produced ahead of time, barring some other obligation)

Arrowood Indem. Co. The Lubrizol Corp. v. United States Fire Ins. Co., No. 1:10 CV 2871, 2015 WL 12734892, at *2 (N.D. Ohio Mar. 31, 2015) (“Fed. R. Evid. 612. Rule 612 applies to depositions and deposition testimony through Federal Rule of Civil Procedure 30(c)”)

Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) This rule is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c) (“Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence.”)

Antero Res. Corp. v. Tejas Tubular Prod., Inc., 516 F. Supp. 3d 752, 753 (S.D. Ohio 2021) (“Importantly, Rule 612 applies to deposition testimony”)

Antero Resources Corporation v. Tejas Tubular Products, Inc., 2021 WL363550, No. 2:19-CV-804 (S. D. Ohio Feb.2, 2021) (if witness uses documents for a testimonial purpose–as [the corporate representative did ]-any claim of work product protection over those documents is waived; further holding that, where conflict exists between the command of Fed. R. Evid. 612 to disclose materials used to refresh recollection, and protection provided by the attorney-client privilege, the weight of authority holds that privilege is waived).

United States v. Holden, 557 F.3d 698, 703–04 (6th Cir. 2009) (“Rule 612 does not apply where a witness refers to documents for purposes other than refreshing recollection”)

K & S Assocs., Inc. v. Am. Ass'n of Physicists in Med.,No. 3:09-1108,2012 WL 4364087, at *3 (M.D. Tenn. Sept. 21, 2012) (citing Nutramax Lab., Inc., 183 F.R.D. at 468, 473) (finding that documents were used for a “testimonial purpose” where the witness's review of them “unavoidably enhanced his recollection of events”)

Gilbert v. Atlantic Trust Co., N.A., 2005 WL8176938 (D. N.H. Nov. 17, 2005) (order denying motion to compel documents reviewed by deponent prior to deposition, under FRE 612, because of movant's failure to establish predicate during deposition)

FRE 612 - Writings Used to Refresh A Witness

Do you sometimes send multiple lawyers to depositions? If so, it's important to know how to maximize your odds of taxing each lawyer's fees when you prevail in the action and file your fee petition. As Jim Garrity says, it's easy to avoid traps, but it's also easy to step into them. In this episode he provides bright-line guidance for making your fee petition a successful one. Have a great week!

SHOW NOTES

Basic Principle

Gradisher v. Check Enf't Unit, Inc., No. 1:00-CV-401, 2003 WL 187416, at *4 (W.D. Mich. Jan. 22, 2003) (“There is no hard and fast rule allowing or preventing more than one attorney from attending a deposition, hearing, or trial on behalf of a prevailing party”)

Burden of Fee Applicant

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir. 1999) (“Thus, a fee applicant is entitled to recover for the hours of multiple attorneys if he satisfies his burden of showing that the time spent by those attorneys reflects the distinct contribution of each lawyer to the case and is the customary practice of multiple-lawyer litigation. But the fee applicant has the burden of showing that, and where there is an objection raising the point, it is not a make-believe burden”)

Burden of Party Opposing Fee Award

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (party opposing fee petition has burden also, and is obligated to provide specific and reasonably precise objections and proof in seeking to reduce fee aware due to a lack of billing judgment)

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) (The Supreme Court rejected that position, reasoning that fee shifting statutes “favor[ ] treating a case as an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S. at 161–62, 110 S.Ct. at 2320. Nothing about the holding in Jean precludes a fee opponent from challenging a fee request on the basis that an excessive number of hours were billed on some discrete task within the case. Moreover, our decisions contemplate a task-by-task examination of the hours billed. See, e.g., Loranger, 10 F.3d at 782–83 (noting that 100 hours for the task of preparing a fee request in the case was excessive); Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir.1996) (disallowing redundant hours billed for the task of deposing witnesses).

Fees Not Reduced

Aquilino v. Univ. of Kansas, 109 F. Supp. 2d 1319, 1326 (D. Kan. 2000) (“With respect to the depositions of plaintiff and Dr. Linda Stone-Ferrier and the period of jury deliberations, the Court finds that plaintiff's decision to employ two attorneys was reasonable. Both attorneys were extensively involved in the case and their appearance at key depositions was reasonable”)

Clements v. Prudential Protective Servs., LLC, 100 F. Supp. 3d 604, 617 (E.D. Mich. 2015) (finding “nothing ‘duplicative’ with regard to having two lawyers represent [the p]laintiff” where the defendant objected to “two attorneys attending depositions”), aff'd, 659 F. App'x 820 (6th Cir. 2016))

Jones v. Federated Dep't Stores, Inc.,527 F. Supp. 912, 920 (S.D. Ohio 1981) (defendant’s protests in opposition to fee petition undermined by fact that they also had two attorneys present at depositions)

Wajcman v. Inv. Corp. of Palm Beach, No. 07-80912-CIV, 2009 WL 10668140, at *4 (S.D. Fla. Sept. 11, 2009) (“The law is clear in that where multiple attorneys perform work on a case, they may each be compensated, so long as the attorneys' efforts are not unreasonably duplicative. See Barnes, 168 F.3d at 432 (“[a]n award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation”)(quoting Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983)); Norman, 836 F.2d at 1301-1302 (observing that multiple attorneys may be compensated for their work on a case “if they are not unreasonably doing the same work and are being compensated for the distinct contribution of each lawyer”)(citing Johnson, supra)

Fees Reduced or Denied

Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir. 1996) (some fees disallowed for redundancy of work in deposition attended by two attorneys for same party; “Plaintiff has asserted that only one attorney prepared and conducted depositions of parties and witnesses, while both attorneys attended all of the depositions. Because a comparison of the two sets of time entries largely attests to this explanation, the court has subtracted half of each attorney's hours spent for mere attendance of depositions”)

Van Cleve v. Soc'y of St. Vincent De Paul, No. C03-1019, 2005 WL 1868876, at *4 (N.D. Iowa Apr. 4, 2005) (declining without explanation to award fees for two lawyers to attend depositions; saying that one lawyer prepared for the depositions, and then a second lawyer attended the depositions as well)

Baker v. Nat'l Seating Co., No. 3:05-CV-187, 2006 WL 8442688, at *2 (E.D. Tenn. Mar. 28, 2006) (reducing hours of plaintiffs’ lawyers where two very experienced attorneys attended depositions; rejecting arguments that two attorneys were needed to take an active part in formulating questions and making judgments about credibility of the deponents)

Gradisher v. Check Enf't Unit, Inc., No. 1:00-CV-401, 2003 WL 187416, at *4 (W.D. Mich. Jan. 22, 2003) (while case was class action, issues were not complex and litigation was not burdensome, so there was no need for two lawyers at depositions; held, fees for work of second lawyer reduced)

DaSilva v. Vozzcom, Inc., No. 08-80040-CIV, 2009 WL 10667450, at *7 (S.D. Fla. June 9, 2009) (“The law is clear in that where multiple attorneys perform work on a case, a firm may be compensated for work performed by separate attorneys so long as the attorney's efforts are not unreasonably duplicative”)

Schlosser v. Vrhabilis, No. 3:20-CV-190-TRM-JEM, 2024 WL 1600671, at *4 (E.D. Tenn. Feb. 1, 2024), report and recommendation adopted sub nom. Schlosser v. VRHabilis, LLC, No. 3:20-CV-190, 2024 WL 1071871 (E.D. Tenn. Mar. 12, 2024) (magistrate order recommending denial of fees for second attorney’s appearance at deposition, holding that plaintiff did not sufficiently explain why two attorneys was reasonable; mere fact both were “heavily involved” in case, and both needed to observe each witness, did not explain why attorneys could not review transcripts of deponents, or why attorneys needed to “observe each witness”)

Strong Trading Inc. v. Unique Designs, Inc., No. 221CV04206RGKPVC, 2022 WL 22715189, at *5 (C.D. Cal. Oct. 4, 2022) (denying taxability of hours for third lawyer’s work at a deposition where, although the attorney “needed to be there because she was responsible for handling documents and evidence in the trial was less than two weeks away,” the time entry for that attorney simply said “attendance,” and thus the timesheet did not indicate the lawyer was playing a critical role)

Jim Garrity's observation is that many litigators are still not using Zoom’s live-caption feature in depositions. This setting is perfect for clients and other participants who want to watch remote depositions, but can’t play audio without disrupting others. It’s also excellent for you or others on your team to ensure you asked the question you planned and got the answer you think you heard. Some great tips in this episode, as always. (And can we ask you a favor? Would you take an extra 18 seconds, go to the rating section wherever you get your podcast, and leave us a five star rating? We don't charge a dime for the tremendous research and production that goes into every single episode, so the only way you can give us a thumbs up is with a sweet 5-star rating. We know leaving ratings is a hassle, but it really means so much to our production team. Every new five-star rating we get energizes the whole crew.  It's actually more important than money because it validates our work, and let's us know that you like and are finding value in the episodes. Thanks!)

The court ruling in the spotlight today is a reminder that it's critically important to include evidentiary support when you seek a protective order - to relieve a party or witness of the obligation to travel for deposition - based on financial, medical or caregiver reasons. It also reminds us of the importance of providing your judge with the most recent case law, which is trending toward routinely allowing remote depositions in most situations. As always, Jim Garrity provides critical practice tips and insights on the issue. Have a great week!

Show Notes

Hosie v. Omni Hotels Management Corporation, Case No: 1:22-cv-00265-MR-WCM, 2024 WL 1685557 (W. D. N. C. Apr. 18, 2024) (finding insufficient record evidentiary support to warrant protective order relieving Plaintiff of obligation to travel for her deposition)

Henry v. Tacoma Police Department, et al., No. 3:22-cv-05523-LK, 2023 WL 5530201 (W.D. Wash. Aug. 28, 2023) (expressing view that remote depositions can be as effective or more effective than in person depositions for credibility determinations, in part because remote plaintiffs appearing by video do not need to wear masks)

In this episode we answer a listener who wanted to know how to correct a deposition transcript where the errors were caused by the interpreter, not by the court reporter. It's an important episode, because correcting interpreted deposition testimony requires planning before the deposition begins. As always, Jim Garrity provides invaluable practice tips and strategies. Thanks for listening!

SHOW NOTES

Fed.R.Civ.P. 30(e)(1) (providing framework for requesting review of, reviewing, and making changes in form or substance to transcripts).

https://www.njcourts.gov/sites/default/files/courts/transcript.pdf (New Jersey Courts guidance for reporters, noting that only interpreter’s English response, not the foreign language answer, will appear in transcript)

https://www.courtreportersboard.ca.gov/formspubs/best_interpreter.pdf (When the court reporter knows the foreign language being spoken and knows that the interpretation is incorrect, the court reporter is not to interrupt to correct the interpretation. It is the onus of the parties present to provide a check interpreter. The court reporter’s function is to capture the record, not create it)

Bai v. Williams, No. 2:20-CV-2042-KJD-NJK, 2023 WL 5101881, at *34 (D. Nev. Aug. 8, 2023) (jury instructed, in case where witness testified through an interpreter “that it would hear testimony in a language other than English and that the witness “will testify through the official court interpreter.” The court instructed that, “[a]lthough some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness's testimony. You must disregard any different meaning”)

In re: Takata Airbag Prod. Liab. Litig., No. 15-2599, 2016 WL 5844311, at *4 (S.D. Fla. Sept. 8, 2016), report and recommendation adopted sub nom. In re Takata Airbag Prod. Liab. Litig., No. 15-02599-MD, 2016 WL 5844338 (S.D. Fla. Sept. 21, 2016) (noting parties’ agreement agreed that objections to translations may be made for 60 days after the court reporter provides the final transcript)

Proposed Order Regarding Deposition Protocol, CM/ECF Document 1187-1, ECF p. 13, In re: Takata Airbag Prod. Liab. Litig., No. 1:15-2599, 2016 WL 5844311 (S.D. Fla. Sept. 8, 2016), report and recommendation adopted sub nom. In re Takata Airbag Prod. Liab. Litig., No. 15-02599-MD, 2016 WL 5844338 (S.D. Fla. Sept. 21, 2016) (sample deposition protocol that includes provisions on choosing interpreters and resolving disagreements, and proposing 60 days for objections to interpretation-related errors in transcript)

Allamon v. Acuity Specialty Prod., Inc., 877 F. Supp. 2d 498, 505 (E.D. Tex. 2012), aff'd, 534 F. App'x 248 (5th Cir. 2013) (finding no authority to support the argument that a court reporter may extend deadline for returning an errata, or that FRCP 30(e) contains any exceptions to its requirements)

Charges for deposition interpreters can easily double the cost of the deposition itself. So, who pays, and what's the underlying principle? What if the deponent speaks English but still demands an interpreter? Finally, can courts shift the cost (from one party to another) in some circumstances? All your questions will be answered, in just 19 minutes flat. Today's show notes, like those with every episode, contains a wealth of case citations on point. Check them out, and thanks for listening!

SHOW NOTES:

PayCargo, LLC v. Galbreath, 2021 WL 8895467 (S. D. Fla. Apr. 27, 2021) (party seeking discovery must pay cost of interpreter; denying motion to force deposition without interpreter, where some evidence suggested witness might need interpreter to understand certain highly technical questions)

Matter of Majestic Blue Fisheries, LLC, No. CV 11-00032, 2013 WL 12233715, at *2 (D. Guam June 21, 2013) (party who used interpreter hired by another party in back-to-back deposition must pay their pro rata share of interpreter’s bill, finding that party who needs discovery must pay costs associated with it, and because subsequent party used interpreter, they must pay their share since they also used services to take their depositions”)

Signify Holding B.V. v. TP-Link Rsch. Am. Corp., No. 21CV9472JGKKHP, 2022 WL 3656315, at *3 (S.D.N.Y. Aug. 25, 2022) (court orders defendant to pay for initial cost of interpreter where it designated a native Mandarin speaker; filings showed the witness dealt with plaintiff’s employees in English for years, done extensive business in English, and attested in English to court documents, such that it appeared the use of interpreter was more a convenience than a necessity)

Refco v. Afincomex & Banco Ganadero, No. 93 CIV. 2251 (PNL), 1993 WL 498074, at *1 (S.D.N.Y. Nov. 30, 1993) (defendant allowed to use interpreter during deposition of its principal, but must pay for interpreter based on undisputed evidence that the witness had advanced degrees from Harvard and Cambridge, passed securities licensing exams in English, was fluent in English and did business in English; court added that request for interpreter appeared to be in bad faith)

Stocks v. City of Aurora, No. 13-CV-01141-RBJ-CBS, 2016 WL 9735866, at *3 (D. Colo. May 17, 2016) (where prospective deponent seeks interpreter over objection of noticing party, deponent can seek protective order and, when a deponent requests an interpreter in advance of their deposition, the noticing party can avoid disputes simply by hiring the requested interpreter and later seeking reimbursement)

Passow v. M/V AFRICA GRAECA, No. CIV.A. 09-2550-KDE-S, 2009 WL 4723336, at *2 (E.D. La. Dec. 3, 2009) (order providing, without explanation or reasoning, that if interpreters were required of defense witnesses – all of whom spoke Greek or Tagalog - defendants must bear the costs)

Thompson v. Red Olive Co., No. 14-10620, 2015 WL 687351, at *1 (E.D. Mich. Feb. 18, 2015) (court resolved demand by defendant that noticing plaintiff hire an interpreter by allowing each party to hire, at their own expense, an interpreter if they wished to do so)

Simmons v. Garland, No. 21-CV-1728-SJB, 2024 WL 1468239 at *3 (E. D. N. Y. Mar. 20, 2024) (order denying motion to exclude expert testimony on grounds contemporaneous translation was inaccurate; movant failed to preserve right to review transcript before deposition ended)

Torres v. Rock & River Food, Inc., 2017 WL 4969914 (S.D.Fla.) (“The courts have held that when a deponent can communicate in English the deponent is not entitled to use an interpreter”)

Act II Jewelry, LLC v. Zhu, No. 2:09CV407, 2010 WL 11450509, at *2 (E.D. Va. Feb. 19, 2010) (approving use of interpreter who was clearly qualified to interpret Mandarin speaker’s testimony, even though not technically “certified” as one)

Walls v. Department of Children and Families, Case No. 98-1793-CIV-T-17(E) (unpublished order holding that deposition is not a judicial proceeding, and thus court has no obligation to pay for deposition interpreter; defendant must bear initial cost and may seek to tax expense if it prevails)

Goyette v. DCA Advert. Inc., No. 91 CIV 3518 (KC), 1991 WL 639599, at *1 (S.D.N.Y. Sept. 16, 1991) (use of interpreter disallowed for entirety of deposition, where native Japanese speakers were shown to be fluent in English in both personal and business settings, but would be allowed for help in understanding specific questions that might pose difficulty)

Malpico v. Newman Mach. Co., 107 F. Supp. 2d 712, 714 (W.D. Va. 2000) (plaintiff would not be allowed his own choice of interpreter during deposition conducted before magistrate judge, even though official interpreter did not speak plaintiff’s special dialect of Spanish; held, chosen interpreter could still sufficiently communicate with plaintiff, and court would allow plaintiff to have his own interpreter outside the deposition room to communicate with his lawyer)

Naqvi v. Oudensha America, Inc., Case No. 88-C-6966, 1991 WL 4435 (N. D. Ill 1991) (affirming magistrate’s ruling denying use of interpreter where native Japanese speaker managed office and employees in English, studied English in college)

Lopez–Gomez v. Jim's Place, LLC, 60 F. Supp. 3d. 853, 855 (W.D. Tenn. 2014) (where defendants sought to take the plaintiff's deposition and plaintiff's counsel persuasively demonstrated that his client required the services of an interpreter, defendants were required to bear the cost of that interpreter but could recover those costs pursuant to § 1920 if they later became the prevailing party)

Carbajal v. OMNI Hotels Mgmt. Corp., No. EDCV202485JWHKKX, 2021 WL 6618602, at *3 (C.D. Cal. Nov. 1, 2021) (order allowing additional time for deposition where interpreter was needed)

Mahe v. Cont'l Tire The Americas, LLC, No. EDCV 10-1744-DSF (OPx), 2012 WL 13014611, at *3 (C.D. Cal. Mar. 28, 2012) (finding good cause for an additional three hours of deposition due to consecutive interpretation and importance of the witness to the claims at issue despite alleged duplicative questioning)

Court Interpreters Act,28 U.S.C.A. § 1827 (West) (outlining circumstances where court can appoint an interpreter; not applicable generally to civil litigation between private parties, but useful for background to see how interpretation issues are addressed)

28 U.S.C.A. § 1920(6) (West) (allowing for taxation of interpreter costs)

Fed. R. Civ. P. 54(d)(1) (allowing recovery of costs, including interpreters)

Fed. R. Civ. P. 26(c)(1) (authorizing court to allocate expenses associated with discovery)

https://www.uscourts.gov/sites/default/files/guide_vol05.pdf (U. S. Courts guide on the use of interpreters)

In today's episode Jim Garrity answers a question that vexes many litigators relating to corporate representative depositions under Fed. R. Civ. P. 30(b)(6) when the lawyers sharply disagree on the propriety of the topics. Is is better to seek court relief before - or after - the 30(b)(6) deposition? And, assuming it's proper to seek a protective order either before or after, is one better than the other, and why?

Thanks for listening! Be sure to check out the show notes, which contain the research on which this episode is based, as well as citations to model motions for protective order and model responses in opposition.

Now - would you take a moment and leave a five-star review wherever you access this podcast? Those great ratings and comments are deeply appreciated by me and our production staff. Thank you so much.

SHOW NOTES

Agreed to Rule Before Depo

In re Deepwater Horizon BELO Cases, 3:21-cv-3287, 2023 WL 9229118 (N. D. Fla. Sept. 5, 2023) (court, acknowledging split in authority on whether protective order should be sought before or after 30(b)(6) deposition, agreed to rule on motion for protective order, in dispute over topics, before deposition, citing multitude of discovery disputes between parties already and length of time cases have been pending)

Florida v. United States, 342 F.R.D. 153 (N. D. Fla. 2022) (court agreed to rule on motion for protective order before 30(b)(6) deposition, saying that based on “the briefing and telephone hearing,” court had sufficient basis to rule on the motion; also collecting cases on split in thinking about when protective order should be sought)

Fed. Deposition Ins. Corp. v. Brudnicki, No. 5:12-cv-00396, 2013 WL 5814494, at *2 (N. D. Fla. Oct. 29, 2013) (court agreed to rule on dueling motion for protective order/motion to compel before 30(b)(6) deposition, but stating that disputes should be resolved and narrowed by the lawyers, and then presented to the court following the deposition if needed)

Miles v. United States, No. 3:14cv360, 2015 WL 11109793, at *2-3 (N.D. Fla. Oct. 19, 2015) (ruling on, but refusing to issue, advance protective order that would limit topics to be covered during Rule 30(b)(6) deposition)

Santos v. Bank of Am., N.A., No. 8:17-CV-2588, 2018 WL 3391330, at *1 (M.D. Fla. May 2, 2018) (issuing protective order to prevent inquiry into certain topics during Rule 30(b)(6) deposition)

EEOC v. Austal USA, LLC, No. CV 1:18-00416, 2019 WL 11201138, at *1 (S.D. Ala. July 1, 2019) (ruling on, but denying, protective order that would have limited topics for a Rule 30(b)(6) deposition)

Declined to Rule Before Deposition

Boukardougha v. Bank of Am., N.A., No. 6:22-CV-2002-WWB-RMN, 2023 WL 6280439, at *2 (M.D. Fla. Sept. 26, 2023) (Court declines to rule on topics prior to deposition, citing “the limited briefing before the Court” and “Defendant's belated filing^,”and, further, finding that the court “cannot say that the topics in the deposition notice are wholly irrelevant to Plaintiff's claims or to claims that Plaintiff may bring against Defendant. Evidence is relevant if it has “any tendency” to make a fact of consequence “more or less probable”)

New World Network Ltd. v. M/V Norwegian Sea, No. 05-22916-CIV, 2007 WL 1068124, at*4 (S. D. Fla. Apr. 6, 2007)(denying in part motion seeking protective order before deposition, holding that 30(b)(6) depositions come with no special privilege for advanced court rulings on questions to be asked in a deposition, and that a protective order or motion to compel should be sought after the deposition takes place)

Other

King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995), aff'd sub nom. King v. Pratt & Whitney, 213 F.3d 646 (11th Cir. 2000), and aff'd sub nom. King v. Pratt & Whitney, 213 F.3d 647 (11th Cir. 2000) (questions beyond the designated topics in a 30(b)(6) deposition may be posed to the designee, in which case the designee is no longer speaking for the entity but in a personal capacity)

Sample Motions for Protective Order

Defendant’s Emergency Motion for Protective Order [Doc. 642, filed Aug. 22, 2023],In re Deepwater Horizon BELO Cases, Case No. 3:19-cv-00963-MCR-HTC (N. D. Fla. Apr. 23, 2019) (excellent example of sample motion for protective order on 30(b)(6) notice)

Defendant’s Motion for Protective Order, [Doc. 57, filed July 1, 2022], State of Florida v. United States of America, Case No. 3:21-cv-01066-TKW-ZCB (N. D. Fla. Sept. 29, 2021) (same)

Sample Oppositions to Motions for Protective Order

Plaintiff’s Response in Opposition to Defendant’s Emergency Motion for Protective Order [Doc. 644, filed Aug. 30, 2023],In re Deepwater Horizon BELO Cases, Case No. 3:19-cv-00963-MCR-HTC (N. D. Fla. Apr. 23, 2019) (excellent example of sample opposition to preemptive motion for protective order on 30(b)(6) notice)

Plaintiff’s Response in Opposition to Motion for Protective Order [Doc. 59, filed July 7, 2022] State of Florida v. United States of America, Case No. 3:21-cv-01066-TKW-ZCB (N. D. Fla. Sept. 29, 2021) (same)

Fed. R. Civ. P. 26 (addressing motions for protective orders)

In this episode, Garrity points out an important but usually overlooked followup question to ask right after you ask deponents if they took medication that might affect their testimony. Care to guess? (Don't look at the case in the show notes. That's cheating!)

SHOW NOTES

Stanford v. C.R. Bard, Inc, et al., Case No. 121-cv-00576-DDD-SBP, 2023 WL 9024610 (D. Colo. Nov. 9, 2023) (summary judgment granted, and plaintiff’s affidavit stricken, where plaintiff sought to avoid unequivocal deposition testimony by claiming she had stopped taking medication the night before, and that doing so caused her to become distracted and thus misunderstand critical questions; defense counsel asked plaintiff “Have you taken any medication within the last 24 hours that might interfere with your testimony today, like making you sleepy or anything like that?”, but did not ask if she had refrained from doing so, or whether there were other conditions affecting her ability to testify)

*The following cases were added after this episode aired:

Mims v. Sanofi US Servs, Inc. No. 3:23CV24723-MCR-HTC, 2024 WL 1723515, at *4 (N.D. Fla. Feb. 23, 2024) ("Questions about what medications Mims has taken or is taking as well as questions about her health, however, are not protected by Florida's physician-patient privilege because Sanofi is not asking about any information Mims disclosed to her physicians")

Today, Jim Garrity talks about a powerful technique for increasing the persuasive impact of deposition testimony that must be read to the trier of fact when a deponent is unavailable. Done properly, according to some lawyers who've used the tactic, it can contribute to victory, without drawing the attention of an opponent.

And while you're here, would you mind taking just a few seconds and give this podcast a 5-star rating on whichever site you visited (e.g., Apple, Spotify, Google). Your positive ratings are a huge thank-you to the production team that helps prepare and produce each episode. It means more to them than we can possibly explain. Thanks!

SHOW NOTES

www.ActorsAtLaw.com (“Actors-at-Law provides trial attorneys with professional character actors as deposition readers at trial when witness is not available and a national movie/commercial casting director can help you with witness preparation and presentation skills in the courtroom or at mock trials")

The Florida Bar Journal, “Action! This Witness is Played by An Actor!”, by Jan Pudlow, Senior Editor, July 1, 2011; https://www.floridabar.org/the-florida-bar-news/action-this-witness-is-played-by-an-actor/

PrawfsBlog, July 11, 2011, Something New Under the Sun: Actors for Hire to Read Depositions, Baker, Thomas E.; https://prawfsblawg.blogs.com/prawfsblawg/2011/07/something-new-under-the-sun-actors-for-hire-to-read-depositions.html

Klapsa, Katherine Lee, Lawyers Bring Big-Screen Drama To The Courtroom: How Popular Culture’s Influence On The Law Has Created The Need For “Professional Witnesses” 18 Barry Law Rev. 355 (Spring 2013) (discussing the impact of movies and television on jury expectations to see powerful, compelling witnesses on the stand)

Siegel, David D., Federal Subpoena Practice Under The New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197 (Jan. 1992) (noting that when deponents are unavailable, “The questions and answers are read by others, sometimes even actors, with no opportunity to observe demeanor, etc., but the geographical restrictions on the civil subpoena have nevertheless made the deposition the main alternative [to live testimony]”)

Elfrink, Tim, Lincoln Road’s Actors at Law Hires Out Talent to Read Witness Testimony, Miami New Times Magazine (July 7, 2011); https://www.miaminewtimes.com/news/lincoln-roads-actors-at-law-hires-out-talent-to-read-witness-testimony-6381626.

Levy, Art, Courtroom Drama: Is It Ethical To Hire Actors To Portray Witnesses? Florida Trend Magazine (Jun. 14, 2011) (discussing tactic at length from business, legal and ethical perspectives); https://www.floridatrend.com/article/1856/courtroom-drama-is-it-ethical-to-hire-actors-to-portray-witnesses

Morris v. Bland, Case No. 5:12-cv-3177-RMG, 2015 WL 1290632 (D. S. Carolina Jan. 30, 2015) (Not reported in Fed. Supp.) (denying taxation of costs associated with the hiring of, and lodging for, a professional actor to read testimony, where deposed witness wound up testifying live; but adding, “The normal practice for reading a deposition of an absent witness is that the presenting counsel will read the deposition to the jury or have a colleague take the witness stand and read the part of the witness. In over 35 years as a trial litigator and trial judge, the Court has never seen or heard of a lawyer hiring an actor to read a deposition. If an actor was proposed to be used, the Court would have to carefully evaluate the request to prevent any distortion of the testimony by an over-dramatic reading. The Court finds the hiring of an actor to read a deposition in this matter was unnecessary and unreasonable and denies reimbursement for this cost”)

Browning v. Advoc. Health & Hosp. Corp., __ N.E. 3d __ (Ill. Ct. App. Sept. 15, 2023), 2023 WL 5988690 (affirming $49 million verdict where excerpts of deposition testimony of doctors were presented by a “reader,” and where the jury was instructed that the “testimony [was] previously taken under oath at a prior deposition. You are to treat that testimony as if the doctor was here;” in addressing dissenting judges’ criticism of the use of a reader, the court said that “The dissent implies that having an actor read a deposition at trial is unusual. The Illinois Rules of Evidence and the Illinois Rules of Professional Conduct of 2010 do not prohibit it, and the practice has been around for years. Even if we to assume prejudice, neither the defendants nor the dissent explain how that would have affected the outcome.”)

In our never-ending mission to ensure you're never caught off guard, no matter what the tactic, today we address the question whether multiple lawyers on behalf of the same party object during a deposition. As always, we discuss the best strategies when using (or defending against) this tactic, and we provide cases on point in the show notes. Have a great week!

SHOW NOTES

Webster v. Target Corporation, Case No. 2:22-cv-11293-MAG-CI, 2023 WL 6509097 (E. D. Mich. Oct. 5, 2023) (holding that there is no prohibition against multiple lawyers for the same party objecting while defending a deponent, but limiting parties to a single attorney during future depositions in the case)

Continental Casualty Company v. Compass Bank, Case No. CV-04-0766-CB-C, 2005 WL 8158673 (S. D. Ala. Dec. 7, 2005) (finding there is no flat prohibition against the practice of having multiple lawyers objecting on behalf of the same party during a deposition)

Fed. R. Evid. 611(a) (authorizing the trial judge to control the mode of examination and presentation of evidence at trial)

Fed. R. Civ. P. 30(d)(3)(A) (allowing for an oral motion to terminate or limit a deposition in progress where it is being conducted in bad faith or in a manner intended to annoy, oppress, or embarrass a party or deponent)

Fed. R. Civ. P. 26(c) (authorizing parties to seek protective orders limiting or otherwise prescribing the manner in which discovery may be conducted)

Why do some courts and lawyers instinctively react to examinations under oath (EUOs), also called sworn statements, as if they're "secret depositions?" When conducted properly, they clearly aren't. But the issue still arises from time to time. In this episode Garrity talks about two recent court rulings. One is from a Florida federal judge that rejected an effort to have the court treat EUOs and depositions as one and the same. The other, from South Carolina, sanctioned a defendant for taking an EUO that the court said in essence was the very deposition the court had forbidden. Garrity offers some fantastic thoughts and tips for conducting EUOs in a way that mnimizes the risk a court will confuse them with depositions, which are an intellectually and procedurally different animal.

SHOW NOTES

Fed. R. Civ. P. 30, Depositions by Oral Examination (main federal deposition rule, outlining the procedural requirements for an oral examination to constitute a deposition)

Order Denying Defendant’s Motion to Strike Sworn Statement, etc. Jett v. Del Toro, Case No. 5:22-cv-90-MW-MJF, Docket No. 46, (N. D. Fla. Sep. 21, 2023) (rejecting argument that a sworn statement taken with a court reporter under oath is a deposition; further, “The traditional practice of securing affidavits for use in support of summary judgment often involves a statement written by counsel specifically for that purpose, which is then presented to and signed by the affiant. This Court fails to see how an unedited transcription of the witness's own words, is not, if anything, substantially more reliable than the traditional alternative”)

Defendant’s Motion to Strike, etc., Jett v. Del Toro, Case No. 5:22-cv-90-MW-MJF, Docket No. 38, (N. D. Fla. filed August 11, 2023) (unsuccessfully arguing that sworn statements or EUO’s “are simply unnoticed depositions”)

Reed v. Aetna Casualty and Surety Company, Inc., 160 F.R.D. 572 (N.D. Ind. Mar. 29, 1995) (rejecting motion to strike statement of plaintiff conducted by plaintiff’s counsel under oath and before a court reporter; rejecting arguments that statement could not be considered because it wasn’t signed by the plaintiff, contained leading questions, and was taken without defendant having the opportunity to cross-examine the witness, saying defendant was in the same position it would have been if an affidavit by the witness had been filed, as the defendant would not have been able to cross-examine the affidavit, either)

Bozeman v. Orum, 422 F.3d 1265 (11^th Cir. 2005) (rejecting argument that statement made under oath before court reporter was inadmissible for summary judgment purposes because it was neither signed nor taken in the presence of defendants lawyers to allow cross-examination; held, “We reject this argument. Sworn statements given before court reporters or at least as reliable as signed affidavits and are properly considered on summary judgment”)

Glenn v. 3M Co., 440 S.C. 34, 95, 890 S.E.2d 569, 602 (Ct. App. 2023), reh'g denied (Aug. 10, 2023) (sanctioning counsel for taking “sworn statement” of witness whose deposition court had prohibited, where statement was under oath, was “in the question-and-answer format typical of a deposition,” and taken before a reporter and at the same day and time as the proposed deposition the court has prohibited; held, “. . . Fisher Controls wholly disregarded this [c]ourt's order prohibiting Dr. Timothy Oury's deposition. Although Fisher Controls labeled the deposition a “sworn statement,” the statement is clearly a deposition submitted under a label which would not immediately invoke the [c]ourt's ire. The statement was transcribed by an official [c]ourt [r]eporter on the day and at the time that Fisher Controls had originally scheduled Dr. Oury's deposition—a deposition prohibited by an Order of Protection from this [c]ourt.”)

Defendant’s Memorandum in Opposition to Protective Order, Zorn v. Principal Life Insurance Company, No. 6:09-CV-00081-BAE-GRS, 2010 WL 4253299 (S.D.Ga. July 22, 2010) (“Plaintiff also asserts that because he underwent an examination under oath (EUO) during the claims process, he should somehow be exempt from a deposition in his own, subsequent lawsuit. Plaintiff cites no authority for this position, and the case law is to the contrary. See Kamin v. Central States Fire Ins. Co., 22 F.R.D. 220 (E.D.N.Y. 1958) (denying motion for protective order to preclude depositions on the grounds that EUOs had been taken); Oreman Sales, Inc. v. State Farm Fire & Casualty Co., 1991 WL 87936 (E.D. La. May 23, 1991) (same); Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D. Kan. 1996) (“Taking a statement of a party, sworn or unsworn, pursuant to investigating a claim or potential lawsuit, does not equate with deposing him or her.”); Joe's Market Fish, Inc. v. Scottsdale Ins. Co., 1998 WL 851504 (N.D. Ill. Dec. 3, 1998) (“an examination under oath does not immunize an individual from a later deposition”); Jones v. State Farm Fire & Casualty Co., 129 F.R.D. 170 (N.D. Ind. Jan. 2, 1990)(“Undoubtedly State Farm now has information which was not available at the time of the examination under oath.”)St. Francis Hosp., Inc. v. Grp. Hosp. Serv., 598 P.2d 238, 240–41 (Okla. 1979) (saying a “[d]eposition has been defined by various jurisdictions as being confined to the written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing, upon oral examination or in response to written interrogatories where an opportunity for cross-examination is given”)

Brooks v. Tate, No. 1:11-CV-01503 AWI, 2013 WL 4049053, at *1 (E.D. Cal. Aug. 7, 2013) (“By definition , “a ‘deposition’ is the examination under oath by ‘oral questions' of a party or deponent.” Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D.Cal.2008). A party who wants to depose a person by oral questions must give written notice to every other party, stating the time and place of the deposition. Fed.R.Civ.P. 30(b)(1). “Where a deponent is not a party to the action, he can be compelled to appear at a deposition examination only by issuance of a subpoena” pursuant to Rule 45. Cleveland v. Palmby, 75 F.R.D. 654, 656 (W.D.Okl.1977). “Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28.” Fed.R.Civ.P. 30(b)(5)(A).”)

Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D. Cal. 2008) (“Considering Rule 30 as a whole, and affording the words in that rule their plain meaning, as we must, see Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 928, 112 L.Ed.2d 1140 (1991) (“ ‘We give the Federal Rules of Civil Procedure their plain meaning.’ ” (quoting Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989))); Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir.2002) (“As a rule of construction, Federal Rules of Civil Procedure are given their plain meaning.”), it is clear that a deposition is the examination under oath by “oral questions” of a party or deponent. In other words, a party who merely appears for a deposition that does not take place has not “been deposed” since he has not been examined by oral questions”)

Chicago Coliseum Club v. Dempsey, 8 Pa. D. & C. 420, 420–21 (Com. Pl. 1926) (“The definition of a deposition will be found in 1 Bouvier's Law Dictionary, 848, as follows: “The testimony of a witness reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal, or according to the provisions of some statute law, to be used on the trial of some question of fact in a court of justice”)

The federal rules and their state equivalents do not authorize reporters to designate a method of recording. But one national court reporting conglomerate has just instructed its reporters to begin videotaping remote depositions as a matter of course, purportedly as "backup media." But given the absence of regulation regarding reporter backup recordings, what should you do to protect your deponents against the use, misuse or even sale of backup video recordings? (At least one reporting organization says backup media when made by a reporter at his or her own discretion "is the personal property of the CSR (certified shorthand reporter)." In this episode, Jim offers practice tips on handling situations where the reporter attempts to videotape your deposition without notice or consent.

SHOW NOTES

Online Pamphlet, "Best Practices for the Use of Backup Audio Media," Court Reporter's Board of California, approved March 1, 2015, https://www.courtreportersboard.ca.gov/formspubs/best_practice.pdf (discussing use and possible sale of court reporter backup recordings as a "value-added service," and stating that the recordings, absent law or court order, are the legal property of the reporter)

Maldonado v. Johnson, Case No. 3:22-cv-18229-TKW-ZCB, 2023 WL 5805583 (N. D. Fla. Jun. 6, 2023) ("A party may generally do what it wants with material obtained during the discovery process, as long as it wants to do something legal")

Fed. R. Civ. P. 30(b)(3)(B) (rule providing that objections to the "manner of taking the deposition" must be made on the record, but that the deposition shall nonetheless proceed subject to the objection)

In today's episode, Jim Garrity discusses the ongoing seismic shift in judicial views about remote video depositions, as reflected in a court ruling four days ago. There, a judge refused to order a plaintiff to travel to the jurisdiction for an in-person deposition. The judge's reasoning? The sharp improvement in technology has made video depositions the functional equivalent, and credibility assessments can be made just as well remotely as in person. Listen in for the details, and for practice tips on arguing for or against remote depositions of critical or party witnesses. Thanks for listening!

SHOW NOTES:

Henry v. Tacoma Police Department, et al., 2023 WL 5530201, case number 3:22-CV-0553-LK (W.D. Wash. Aug 28, 2023) (applying two-pronged test for determining whether deposition that be done remotely or in person, court granted pro se plaintiff’s request that defendant depose him remotely, rather than forcing plaintiff to travel 2,600 miles to Tacoma, Washington from Jonesboro, Georgia; rejecting defense argument that credibility assessment was reason enough to force an in-person deposition)

City of Tacoma's Response to Plaintiff's Motion for Remote Deposition/Protective Order, filed August 16, 2023), CM/ECF Doc. 70, Henry v. Tacoma Police Department, et al., Case No. 3:22-CV-0553-LK (W.D. Wash. filed Aug. 16, 2023) (defendant's memorandum in opposition to remote deposition)

Brower v. McDonald’s Corp., No. 2:19-CV-02099-GMN-BNW, 2021 WL 3573633 (D. Nev. May 28, 2021) (providing that “leave to permit remote depositions should generally be granted liberally;’ analyzing the suitability of remote deposition using a two-step procedure, saying that “first, the proponent must advance a legitimate reason for seeking a remote deposition; and (2) if the movant articulates a legitimate reason, then the burden shifts to the opposing party to make a particularized showing that conducting the deposition by remote means would be prejudicial")

Vargas v. Evergreen Professional Recoveries, Inc., Case No. 2:21–CV–00926–RSL–JRC, 2022 WL 856991 (W. D. Washington March 23, 2022) (applying two-step analysis articulated in Brower, above)

The Jury Trial Reinvented, Robertson, C. and Shammas, M. 9 Tex. A&M L. Rev. 109 (Fall 2021) (outlining concepts for trials presented entirely by video, with testimony edited based on objections Suppose that, instead of producing live trials, courts created high-quality videos capturing all aspects of a trial, including opening arguments, testimonial and documentary evidence, closing arguments, and the judge’s instructions.

Nate Raymond, Texas Tries a Pandemic First: A Jury Trial by Zoom, REUTERS (May 18, 2020, 6:19 AM), https://reut.rs/3hKVqCs [http://perma.cc/J3H6-6496].

Herbert B. Dixon, Jr., Pandemic Potpourri: The Legal Profession’s Rediscovery of Teleconferencing, 59 Judges’ J. 37, 38 (2020) (reporting on a misdemeanor criminal jury trial conducted virtually, where jury returned guilty verdict after deliberating in “private virtual room”)

Griffin v. Albanese Enterprise, Inc., Courtroom View Network, https://pages.cvn.com/duval-county-florida-remote-trial-program [https://perma.cc/ERD9-VMEL] (relating to what was believed to be the country’s first fully remote state court civil jury trial, with a binding verdict; jurors awarded plaintiff more than $300,000 for battery caused by bouncers in a nightclub; jury selection and all other key elements were conducted remotely)

Fed. R. Civ. P. 30(b)(4) (providing for remote depositions upon stipulation by the parties or by motion and court order)

In this episode, Jim covers the problem of opposing lawyers who provide little or no notice of their plan to videotape your client's depositions, and explains the procedure for dealing with this kind of ambush.

SHOW NOTES

Chawla v. Metro. Oral Surgery Associates, P.C., 2014 WL 4678023, Case No. 11-CV-6248 RRM VMS (E.D.N.Y. Sept. 19, 2014) (criticizing plaintiff’s complaint about one days’ notice by defense of intention to videotape deposition, where original notice was served more than a month earlier, calling videotaping a regular feature of the 21st century landscape)

In re Tri Harbor Holdings Corporation, et al. v. Sigmapharm Laboratories, LLC, 2022 WL 17185098 (D. N. J. Nov. 22, 2022) (denying plaintiff’s motion in limine to exclude videotape of expert witness deposition where communications between parties, albeit vague, appeared to contemplate videotaping, even if not clearly spelled out in formal notices)

Conforto v. Mabus, 2014 WL 3896079, Case No. 12-cv-1316-W BLM (S. D. Cal. Aug. 8, 2014) (rejecting objection to videotaping where notice merely said deposition “may also be recorded by videotape;” further rejecting doctor’s note purporting to declare it necessary to Plaintiff’s mental health that videotaping be avoided)

Jones, et al. v. Natural Essentials, Inc., 126 N.E. 3d 223 (Ct. App. Ohio Dec. 17, 2018) (imposing sanctions where party walked out rather than proceed with deposition, where notices said depositions would be recorded “stenographically and/or on video”)

Seubert v. FFE Transportation Services, Inc., 2012 WL 5471883, Case No. 4:11-cv-0165-AGF (E. D. Miss. Nov. 9, 2012) (deeming use of email to disclose addition of videotaping, a few days before a noticed stenographic deposition, was sufficient notice)

Beekie v. Morgan, 751 So.2d 694 (Fla. 5^th DCA 2000) (reversing order denying plaintiff chance to reschedule deposition where plaintiff canceled first deposition upon objection by defense counsel that notice said deposition “may” be videotaped and was not definitive)

Rawcar Group, LLC, etc. v. Grace Medical, Inc., 2013 WL 12076572, Case No. 13-cv-1105-H (BLM) (S. C. Cal. Dec. 16, 2013) (granting motion to compel videotaped deposition where notice merely said “and may be videotaped;” criticizing defense counsel for argument that it was “entitled to know definitively” whether videotaping would occur; criticizing counsel for not being prepared where notice saying deposition ma be videotaped was served 18 days before deposition)

Schoolcraft v. City of New York, et al., 87 Fed. R. Serv. 3d 314 (S. D. N. Y. 2013) (denying award of expenses arising from cancellation of defendant’s deposition because of objection to lack of notice of videotaping; award under FRCP 37(d)(1)(A)(i) first requires proper notice of deposition, and notice that failed to disclose videotaping was not proper)

D'Amico Dry D.A.C., etc. v. Nikka Finance, Inc., 2018 WL 5116094, Case No. 18-0284-KD-MU (S. D. Ala. Oct. 19, 2010) (plaintiff  supplemented initial deposition notice to add videotaping weeks in advance of deposition; generic claims of harassment rejected)

Garcia v. Mako Surgical, Order Granting Defendant’s Motion to Strike Video Deposition,2014 WL 4206681 (S. D. Fla. Aug. 25, 2014), Case No. 13-cv-61361-CIV (granting defendant’s motion to strike/forbid use of videotape of CEO’s deposition where neither original, amended, or second amended notice failed to alert defense that deposition would be videotaped)

Woods v. G. B. Cooley Hospital Service District, et al., 2009 WL 151078, Case No. 07-CV-0926 (W. D. La. Jan. 24, 2009) (order granting motion in limine excluding videotape of deposition where defense counsel provided a months’ notice of deposition but, even during morning of depositions, failed to disclose intent to videotape one of plaintiffs’ depositions later that day)

Fed. R. Civ. P. 30(b)(3)(A, (B) (requiring proper prior notice of intent to videotape)

Can you issue a trial subpoena under Fed. R. Civ. P. 45 (or its state equivalents) not to a named person, but instead to a 30(b)(6)-style "Corporate Representative" and attach a list of topics? In this episode, Jim Garrity outlines the leading cases on point and discusses the arguments pro and con. The Show Notes below include a list of the cases upon which this episode is based, as well as a cite to an actual subpoena issued in this manner and the Motion to Quash that the subpoena triggered. (REMINDER: If you don't see all the cases, click through to the page that hosts our podcast. Not all sites allow lengthy show notes, but you'll always find the complete Show Notes on our home page.)

SHOW NOTES

Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM, 2023 WL 4686245, at *2 (M.D. Fla. July 21, 2023) (containing thorough analysis of issue, concluding “These procedures in Rule 30(b)(6) are applicable to depositions and do not apply to trial-witness subpoenas. Concluding otherwise would allow Rule 30 to expand the meaning of Rule 45 without any textual support for doing so. Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015).)

Defendant’s Motion To Quash Plaintiff’s Subpoena To Appear And Testify At A Hearing Or Trial In A Civil Action. CM/ECF Doc. 153 (on Pacer.gov), Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM (M.D. Fla. July 21, 2023)

[Example] Subpoena to Appear and Testify at A Trial or Hearing in a Civil Action (directed to “Corporate Representatives of [Defendant] with the most knowledge concerning the matters identified in the attached Exhibit “A” c/o [Counsel for Defendant],” Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM, 2023 WL 4686245, at *2 (M.D. Fla. July 21, 2023), CM/ECF Doc. 153-1 (attaching FRCP 30(b)(6)-style topic list as Exhibit A to rule 45 subpoena)

Bd. of Regents Univ. of Texas Sys. v. Bos. Sci. Corp., No. CV 18-392-GBW, 2023 WL 346243, at *2 (D. Del. Jan. 20, 2023) (“Out-of-Circuit caselaw, while more on point, has been inconsistent. In 1987, the Ninth Circuit held that a district court did not abuse its discretion when the court quashed a subpoena under Rule 45 directed towards a corporation because it had “discovered no authority ... for the proposition that the Rule 30 standards [that permit subpoenas upon a corporation] should govern Rule 45 subpoenas of witnesses.” Donoghue v. Orange Cnty., 848 F.2d 926, 932 (9th Cir. 1987). In 2013, a California district court distinguished the Ninth Circuit's ruling as having “emphasized a trial court's discretion” and as coming prior to 1991 amendments to Rule 45. See HTCCorp.v.Tech.PropertiesLtd., 2013 WL 12166376, at *2 & n.9 (N.D. Cal. Sept. 20, 2013). That case relied, in part, seeid., on a 2013 case, Conyers, in which a district court also required a corporate party to “comply with [a Rule 45] subpoena by producing its corporate representative at trial[,]” Conyers v. Balboa Ins. Co., 2013 WL 2450108, at *2 (M.D. Fla. June 5, 2013). However, the Sixth Circuit, in 2015, appeared to reject the Conyers decision and stated that a party which seeks to have a corporate representative testify at trial has two options: “subpoena a corporate witness who either ‘resides, is employed, or regularly transacts business in person’ in [the state]” or “take[ ] a deposition of a corporate officer during discovery for its use at trial.” Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015) (quoting Fed.R.Civ.P. 45(c)(1)(B)). The Sixth Circuit, however, held that the “subpoena failed several aspects” of Rule 45, and concluded that “the district court did not abuse its discretion in enforcing [Rule 45] as written.” Id. at 552–53")

Hill v. Nat'l R. R. Passenger Corp., No. CIV. A. 88-5277, 1989 WL 87621, at *1 (E.D. La. July 28, 1989) (“Rule 30(b)(6) specifically applies to the deposition of a corporation. Rule 45 of the Federal Rules of Civil Procedure provides the proper procedure by which a person may be compelled to testify at a trial. There is no provision allowing the use of the 30(b)(6)-type designation of areas of inquiry or allowing service on a corporation through an agent for service of process in order to compel a particular person, who may be a corporate employee outside the subpoena power of the court, to testify at the trial. Further, plaintiff has not pointed the Court to any specific authority allowing such a procedure nor has the Court found any authority supporting the plaintiff's position. Accordingly, for the above and foregoing reasons, IT IS ORDERED that the motion of Amtrak to quash the subpoena directed to the National Railroad Passenger Corporation be hereby GRANTED and the subpoena is hereby QUASHED.”)

Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015) (finding that rules must be enforced as written, and rejecting what it called an effort to take a 30(b)(6) deposition in the middle of trial; held“Hill tries to avoid these conclusions by urging us to “temper[ ]” the “technical” Rules by interpreting them “through the lens of common sense.” Appellant Br. 24. But these rules were not made to be “tempered”; they were made to be “technical”—from the specific amount of fees tendered, to the court issuing the subpoena, to the geographic scope of the request. It is not surprising, then, that Hill can point to only one case that supports his position, Conyers v. Balboa Ins. Co., No. 8:12–CV–30–T–33EAJ, 2013 WL 2450108, at *1 (M.D.Fla. June 5, 2013) (using Rule 30 to expand Rule 45). Even if that case persuaded us that the Rules should be modified by judicial fiat, the district court did not abuse its discretion in enforcing them as written”)

Smith v. Royal Caribbean Cruises, Ltd., 302 F.R.D. 688, 694 (S.D. Fla. 2014) (“Here, the use of a Rule 30(b)(6) notice upon unnamed Defendant corporative representatives, for designated testimony at trial, is both improper and ultimately unnecessary. Defendant must have a corporate representative at trial and certainly Plaintiff can call on that representative as a witness in his case in chief. By doing so, Plaintiff can obtain the testimony he now seeks through this notice. But what he cannot do is use a discovery device—a Rule 30(b)(6) notice—under the guise of a trial subpoena. The discovery period in the case is over and has been over since December 2013.”)

Conyers v. Balboa Ins. Co., No. 8:12-CV-30-T-33EAJ, 2013 WL 2450108, at *2 (M.D. Fla. June 5, 2013) (“Thus, upon due consideration of the parties' arguments and the Court's evaluation of Rule 45, the Court determines that Balboa must comply with the subpoena by producing its corporate representative at trial and should promptly identify this individual so that Plaintiffs may pay the relevant fees associated with the corporate representative's travel and attendance at trial”)

Williams v. Asplundh Tree Expert Co., No. 3:05CV479J33MCR, 2006 WL 2598758, at *3 (M.D. Fla. Sept. 11, 2006) (“As such, the Court holds that the corporate representative should be considered a “party” regardless of whether he/she is an officer of the company and should be produced even if he/she resides outside the 100 mile limit.^”)

Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 303 (S.D.N.Y. 2009) (“A different outcome is necessitated, however, for the subpoenas served on the corporate parties themselves. The Bondholders' objection to these subpoenas was raised only in vague terms in their moving papers and not fully addressed until reply briefing and subsequent letters to the Court.⁷ Regardless of whether this argument was raised in a timely manner (see infra n. 9) there is no basis under the 100–mile rule to quash the subpoenas seeking testimony of the Bondholders' corporate representatives. The Bondholders, as parties to this action, affirmatively have taken advantage of the benefits of this forum, and the Court has the power to require these parties to produce corporate representatives to testify on their behalf at trial.”)

HTC Corp. v. Tech. Properties Ltd., No. 5:08-CV-00882-PSG, 2013 WL 12166376, at *2 (N.D. Cal. Sept. 20, 2013) (noting defendant’s argument that “. . . Conyers v. Balboa Ins. Co., a recent case from the Middle District of Florida [is] persuasive authority that this court should deny a motion to quash a trial subpoena directed at an unnamed corporate representative;” concluding that “Rule 45 has indeed undergone both substantive and cosmetic revision since that opinion issued in 1987.⁹ Having reviewed Conyers as well as other more recent decisions addressing a subpoena seeking corporate testimony on listed topics from a third party located within the state of the court, the court finds that such a subpoena may be appropriately served without running afoul of the limits of Rule 45”)

In this episode, Jim Garrity steps up to the plate to take a swing at a controversial tactic: using a request for production to demand an opponent turn over, free, copies of transcripts of depositions taken in the pending case. Is it forbidden by Fed. R. Civ. P. 34 and its state analogues? Is it fair to court reporters and opposing counsels? Does fairness have a role if it's permitted by rule? Get the lowdown, practice tips, and supporting authorities in the Show Notes below. Thanks for listening!

SHOW NOTES

Collazo v. Safelite Fulfillment, Inc., etc., Case No. 8:22-cv-01137-SDM-MRM (M.D. Fla. filed May 16, 2022); Time-Sensitive Motion to Compel at Doc. 35; Text Order at Docket Entry 37 (through Docket Report menu item)

Bahr v. NCL (Bahamas) Ltd., No. 19-CV-22973, 2022 WL 293255, at *3 (S.D. Fla. Feb. 1, 2022) (“The duty to supplement continues after the close of discovery. See In re BankAtlantic BanCorp, Inc., No. 07-61542-CIV, 2010 WL 3294342, at *5 (S.D. Fla. Aug. 20, 2010) (citing Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) (the duty to supplement extends beyond the close of discovery, until the filing of a notice of appeal);  Klonski v. Mahlab, 156 F.3d 255, 267-68 (1st Cir. 1998) (the duty to supplement extends beyond the close of discovery and into trial); Hunyh v. J.P. Morgan Chase & Co., No. CIV 06–0001–PHX–RCB, 2008 WL 2789532 at *24-25 (D. Ariz. Jul. 17, 2008) (Rule 26 requires supplementation after discovery closes), Locascio v. Jacobs, No. 8:05-CV-416-T-24EAJ, 2006 WL 1540290 at *1 (M.D. Fla. May 30, 2006) (the duty to supplement under Rule 26(e) supersedes the parties’ agreement to stop supplementing thirty (30) days prior to trial, and the duty to supplement discovery responses continues, at least, until trial)).

Express Freight Sys. Inc. v. YMB Enterprises Inc., No. 20 CV 186 (ARR)(LB), 2022 WL 2467176, at *6 (E.D.N.Y. Mar. 29, 2022), adopted, 623 F. Supp. 3d 39 (E.D.N.Y. 2022) (interpreting FRCP 30(f)(3) as dispositive of the issue; “On its face, nothing in the Rule undermines Rule 30(f)(3) which, as stated earlier, requires that parties pay for their own copies of transcripts. See Fed. R. Civ. P. 30(f)(3) (“When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party of the deponent.”); see also Steven S. Gensler & Lumen N. Mulligan, Practice Commentary Rule 26 (Feb. 2022).)

Express Freight Sys. Inc. v. YMB Enterprises Inc., No. 20 CV 186 (ARR)(LB), 2022 WL 2467176, at *6 (E.D.N.Y. Mar. 29, 2022), adopted, 623 F. Supp. 3d 39 (E.D.N.Y. 2022) (“Defendant's argument that plaintiff is required to provide a copy of the Mendlovic deposition is peculiar. If defendant is correct, and an opposing party can be required under the Federal Rules of Civil Procedure to provide free deposition transcripts during the discovery phase, why would a party ever bother purchasing its own copy of a transcript? “)

Fed. R. Civ. P. 32(c) Form of Presentation (“Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise”)

Music With Mar, LLC v. Mr. Froggy’s Friends, Inc., 2020 WL 10403366, at *1 (M.D. Fla. 2020) (order in jurisdiction where parties must file entire transcripts, saying “a party relying on a deposition transcript to support a motion for summary judgment must file the transcript in its entirety (condensed version is fine) with exhibits”)

In re BankAtlantic BanCorp, Inc., No. 07-61542-CIV, 2010 WL 3294342, at *6 (S.D. Fla. Aug. 20, 2010) (rejecting defense argument that it had no obligation to supplement discovery responses as to documents it did not have when discovery closed; “It is unquestioned that Plaintiffs requested the OTC documents and the SEC transcripts well before the close of discovery. It is also unquestioned that Defendants provided to Plaintiffs all of these documents and transcripts which were in Defendants' possession at the close of discovery. At the end of discovery, Defendants' production of the OTC documents and SEC transcripts was incomplete. Thus, as the remaining OTC documents and SEC transcripts became available for production, Defendants had a duty to produce them”)

Fed. R. Civ. P. 30(f)(3) (“…When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent”)

Schroer v. United States, 250 F.R.D. 531, 535 (D. Colo. 2008) (held, in response to pro se plaintiff’s demand for transcripts, that “Contrary to the assertions of the plaintiff in support of his Motion, it is unusual for a party to attempt to compel the production of deposition transcripts from another party by means of a request for production of documents under Rule 34. I find that Rule 34, concerning the production of documents and tangible things, is not an appropriate mechanism to obtain a copy of the transcript of a deposition taken in the same action)

Vickers v. Jp Morgan Chase N.A., No. SA-12-CA-31-XR, 2013 WL 12134153, at *12 (W.D. Tex. Feb. 22, 2013) (citing the Schroer case, but without independent analysis, stating that “If plaintiff is seeking transcripts of depositions taken in this case, plaintiff has not demonstrated she may obtain them through a discovery request.^”)

Friend v. Taylor L. PLLC, No. 4:17-CV-29-TLS-JPK, 2022 WL 2915710, at *1 (N.D. Ind. July 25, 2022) (The Court adopts that reasoning here and denies the Plaintiff's request. Rule 30 governs depositions and provides the means for a party to obtain a deposition transcript—i.e., the court reporter will provide a copy of a transcript once paid a reasonable charge. See Fed. R. Civ. P. 30(f)(3). While Rule 26(b)(3)(C) requires parties to hand over previous statements in certain instances, applying it in the way requested by the Plaintiff would cut court reporters out of the payments they have earned and are entitled to under Rule 30(f)(3). This understanding is also consistent with “[t]he general rule ... that a party must obtain copies of deposition transcripts directly from the court reporter upon the payment of a reasonable charge, and not from opposing counsel or the court.” Schroerv.UnitedStates, 250 F.R.D. 531, 537 (D. Colo. 2008); see Watson v. Ohio Ambulance Solutions, LLC, No. 1:20-cv-802, 2022 WL 2133739, at *3 (S.D. Ohio June 14, 2022) (“Courts have consistently held that a party is not required to provide an opposing party with a free copy of a deposition transcript.”). Thus, the Plaintiff can obtain a copy of the transcript from the court reporter”)

Schroer v. United States, 250 F.R.D. 531, 537 (D. Colo. 2008) (“The extenuating circumstances which might justify relief from the general rule that a party must obtain deposition transcripts from the court reporter upon the payment of a reasonable charge might include the inability of the party to pay the amount charged, even if reasonable; an unreasonable charge by the reporter; abusive conduct on the part of the opposing party in taking an unreasonably large number of depositions or unreasonably expanding the length of those depositions by prolonged examination; and the like. See generally Caldwell v. Wheeler, 89 F.R.D. at 147–48”)

In this episode, Jim Garrity talks about a new federal appellate decision that affirmed severe sanctions against a party whose lone designated 30(b)(6) representative largely read from lengthy, lawyer-scripted statements, and who was often unable to answer questions without regurgitating the prewritten information. The “scripts” ran hundreds of pages, and the witness sometimes read from them for as much as 45 minutes at a time. Memory aids or notes are an acceptable testimonial aid for 30(b)(6) witnesses – who are often called on to testify about matters for which they have no personal knowledge – but Garrity says there’s a better way to prepare and present 30(b)(6) testimony in cases involving multiple parties, complex claims and defenses, or both. (As always, the Show Notes contain pertinent cases on the topic.). Thanks for listening!

SHOW NOTES

Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468, --- F.4th ---- 2023 WL 3939432 (11^th Cir. June 12, 2023)

Plaintiff’s Response in Opposition to Defendants’ Consolidated Motion for Rule 37 Sanctions, CM/ECF Doc. 404, Consumer Financial Protection Bureau v. Brown, et al., Case No. 1:18-cv-0859-RWS (N.D. Ga. June 2, 2017)

Order Imposing Sanctions, Consumer Financial Protection Bureau v. Brown, et al., Case No. 1:18-cv-0859-RWS (N.D. Ga. Aug. 25, 2017)

Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11^th Cir. June 12, 2023) (issued August 25, 2017)

Brief of Appellee Electronic Merchant Systems, etc., Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11^th Cir. filed May 13, 2022) (CM/ECF Doc. 60)

Brief of Appellee Global Payments, Inc., Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11^th Cir. filed May 13, 2022) (CM/ECF Doc. 61)

Wausau Underwriters Insurance Company v. DanFoss LLC, 310 F.R.D. 683 (S. D. Fla. 2015) (a 30(b)(6) designee’s reliance on an outline is appropriate, especially since the outline was attached as an exhibit to the deposition)

GlobalTap, LLC v. Peterson Manufacturing Corporation, Inc., 2021 WL 3292261, No. 1:18-CV-05383 (N. D. Ill. July 29, 2021) (criticizing designee’s excuse for failing to be properly prepared, saying the witness had no reason to believe he could not bring documents, notes, or other aids, to the deposition)

Healthier Choice Flooring, LLC v. CCA Global Partners, Inc., 2013 WL 1210190, at *8 (N. D. Ga. Jan, 2013) (finding 30(b)(6) designee's request to see prepared written response before responding to questions should not be construed as refusal to answer, saying "It is not unreasonable or unusual for a corporate designee to be provided with written information in order to satisfy the duty of the corporation to produce information in order to satisfy the duty of the corporation to produce a knowledgeable witness in response to the topics noticed for deposition pursuant to Fed. R. Civ. P. 30(b)(6)").

In this episode, Jim reviews the force-multiplier capabilities of CaseText's new AI-powered software known as Co-Counsel, introduced just 90 days ago. One of its features is "Prepare for a Deposition," which allows litigators to generate a theoretically-unlimited number of deposition topics and questions. Our initial take? It could be a phenomenal and cost-effective tool in your deposition practice. We took a seven-day test run of the software (link below) and now report the results and many creative uses it offers. (Please note that, as with all our reviews of third-party products, we do not accept compensation of any kind from vendors, have no relationship with them, and do not provide them notice of the review.)

SHOW NOTES

https://casetext.com/research-trial/ (Link for free trial of CaseText.com's Co-Counsel AI-assisted legal software)

Many courts have held that a lawyer who makes a technically-improper objection waives the objection. This often arises in jurisdictions where a form objection must include the legal basis (e.g., "Form, compound"). But since a defective objection could be cured during the deposition upon notice, must the examining lawyer object to the objection to lock in the waiver? Fed. R. Civ. P. 32(d)(3)(B) says objections to any errors or irregularities during a deposition are waived unless a timely objection is made. What to do? In this episode, Jim Garrity addresses this nuance in the rules and, as always, offers practical tips.

SHOW NOTES

Kasparov v. Ambit Texas, LLC, et al., 2017 WL 4842350 at *9, Case No. 3:16-cv-3206-G-BN (N. D. Texas Oct. 26, 2017)(“That Defendants’ counsel did not address Plaintiff’s counsel’s “form” objections at or during the deposition does not necessarily mean that Defendants have waived any waiver of the objections….”)

Defendant’s Reply Brief in Support of Motion for Summary Judgment EbinNew York, Inc. v. SIC Enterprise, Inc., et al., Case No. 1:19-cv-01017-PKC-TAM, CM/ECF Doc. 138 (E. D. N. Y. Oct. 18, 2022) (citingKasparov,above, a position that just because defense counsel did not address defective form objections at or during the deposition, it does not mean that defense counsel “waived any waiver of the objections”)

Joint Status Report, etc.,Kasparov v. Ambit Texas, LLC, et al., Case No. 3:16-cv-03206-S, CM/ECF Doc. 172 (N. D. Tex. Oct. 9, 2017) (listing, on pp. 22-25, and pp. 43-45, examples of conflicting case law on whether the specific legal basis for a form objection must be stated)

Sec. Nat. Bank of Sioux City, Iowa v. Abbott Lab'ys, 299 F.R.D. 595 (N.D. Iowa 2014), rev'd sub nom.Sec. Nat. Bank of Sioux City, IA v. Day, 800 F.3d 936 (8th Cir. 2015) (imposing sanctions for, among other things, “excessive” and “astounding” form objections”)

Animal Legal Defense Fund v. Lucas, etc., 2020 WL 7027609, Case No. 2019-40 (W. D. Penn. Nov. 30, 2020) (“By way of example only, ALDF represents that counsel for Farmers Inn made 565 objections during the deposition of Sally Zellonis, 187. during Born’s deposition, and 170 during Buzard’s deposition")

Fed. R. Civ. P. 30(c)(2) (providing that objections to any aspect of a deposition must be timely made during the deposition)

Fed. R. Civ. P. 32(d)(3)(B) (providing that objections not made to errors or irregularities during deposition are waived if the error or irregularity could have been cured and if not timely made during the deposition itself) 

In this episode, Jim Garrity discusses a brand new court ruling where a judge held that requests to review a transcript before it's finalized must be made before the deposition is completed, failing which the request is untimely, even if made immediately after the deposition concludes. The order says defense counsel claimed to make the "read request" after the reporter announced "We're off the record" but while the reporter and all counsel were still logged in on a Zoom link. Even so, the court said, that's too late. Garrity talks about the significance of the ruling, and offers practice tips in the event you inadvertently miss your chance to make a timely request for review.

SHOW NOTES

Cypress Property and Casualty Insurance Company v. Jallad & R Investments, LLC, 2023 WL 3021075, No. 3:21-cv-1478-L (N. D. Tex. Apr. 20, 2023) (request for review copy of transcript before finalization untimely where not made before deposition concluded, even if made immediately afterwards)

EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 266 (3d Cir. 2010) (In a case involving a different Fed. R. Civ. P. 30(e)(1) errata sheet-related deadline, court suggested judge has some discretion in forgiving the missed deadline, saying, “Note, however, the phrasing of the rule—it provides that a party or deponent “must be allowed 30 days” to submit errata (the rule formerly stated that the party or deponent “shall have 30 days”). Fed.R.Civ.P. 30(e)(1). The natural language of the rule, then, does not preclude courts from allowing more time upon a prior request or forgiving minor untimeliness after the fact. Instead, the rule grants courts discretion to do so under appropriate circumstances. While courts retain the authority to enforce the amendment window strictly, we leave the matter to their sound discretion to determine if and when extension of the time limit is appropriate.”)

Fed. R. Civ. P. 30(e)(1) (requiring request for review copy to be made before deposition concludes)

In this episode, Jim Garrity discusses the “good cause” standard for seeking a protective order limiting the use of deposition transcripts and recordings beyond the pending case. Some judges continue to misapply the applicable standard for such protective orders. Garrity talks about one such ruling, just issued, that once again applied an outdated and legally erroneous standard. Given the ease with which deposition transcripts and recordings can be instantly posted online - and in light of the fact that many parties and foes do exactly that - Garrity argues that you should actively and routinely consider the use of a protective order to limit the non-judicial circulation and use of deposition testimony.

SHOW NOTES

AFT Michigan v. Project Veritas, et al., 2023 WL 2890152, Case No,. CV-

In this episode, Jim Garrity tackles the frequent problem of repetitive questions in depositions, and answers the questions "How many of the same questions is too many? What factors should I consider in deciding whether the repetition has transitioned into harassment? And at that point, what do I do?" As always, Jim offers practice tips, identifies the legal grounds for "asked and answered" objections and for instructing deponents not to answer repetitious questions. And don't forget the show notes, full of great cases to illustrate the point.

SHOW NOTES

Siefert, et al. v. Hamilton County Board of Commissioners, 2023 WL 2456853, No. 1:17-cv-511 (S. D. Ohio Mar. 10, 2023) (court declined to reopen deposition, despite numerous instructions by defense lawyer not to answer questions on grounds of “asked and answered,” where it appeared that, by and large, deponent provided the information sought; noting that defense did not, however, comply with the rule relating to instructions not to answer based on harassment by then terminating the deposition or seeking a protective order; similar questions asked approximately two dozen times)

Charles v. People, 2014 WL 2803991, 60 V.I. 823 (S. Ct. V.I. June 20, 2014) (noting judge’s admonishment to defense lawyer with jury present that “. . .if you are going to ask the same questions five, six, seven, eight, nine times, move on to new territory”)

Tajonera v. Black Elk Energy Offshore Operations LLC, 2015 WL 915273, No. CIV-A- 13-0366 (E. D. La. Mar. 3, 2015) (noting repetition of question 7 times, argument with witness and other behavior, declaring it a violation of both the federal rules and a prior order entered in that case that “that during depositions, counsel shall not engage in harassing or repetitive questioning”)

Schenk v. Smith, 1991 WL 71927, 9-90-13, 9-90-14 (Ct. App. Ohio May 6, 1991) (afforming judgment on appeal, finding no error in trial court’s instruction to counsel to desist from further questions on a given topic “since the question had been asked and answered four times. It is within the trial court’s discretion to exclude relevant evidence if its probative value is substantially outweighed by undue delay or needless presentation of cumulative evidence”)

Neighbour v. Matusavage, 25 A.2d 868 (Ct. Err. & App. N.J. 1942) (affirming judgment on appeal in case where trial court directed a witness not to answer and advised counsel that he had so ruled because the same question had been asked and answered 2 or 3 yellow times already, but noting that “the record shows that in fact the same question in slightly varied form had been asked and answered by this witness no less than a dozen times;” observing that “how many times a witness may be asked for the identical information irrespective of contradictory answers is within the sound discretion of the trial court”)

Martinez v. Greiner, 2001 WL 910772, No. 01-cv-2911 (S. D. N. Y. Aug. 13, 2001) (noting court’s observation that multiple defense counsel appeared to ask the same questions 12 to 15 times)

Nolan v. Weil-McLain, 2005 WL 724041, No. 01-L-117 (Ill. Cir. Ct. Mar. 21, 2005) (noting in passing in opinion that a specific question, followed by substantially the same answer, was asked and answered several times throughout a deposition as different defense counsel questioned the deponent)

Zeleny v. Newsom, No. 17-CV-07357-RS (TSH), 2020 WL 6585793, at *4 (N.D. Cal. Nov. 10, 2020) (“The asked-and-answered objection is additionally problematic because it is a speaking objection and therefore also violates Rule 30(c)(2)’s separate prohibition on argumentative and suggestive objections. There is nothing wrong with asking a question multiple times during a deposition. Sometimes the witness didn't answer it, or answered only part of it, or the answer is implausible, or the answer builds in caveats that a slight rephrasing of the question might expose, or asking essentially the same question from different angles or in slightly different ways yields different answers. Unless repeated questioning crosses the line into harassment, it can be an effective technique of cross-examination. Objecting “asked and answered” is a way of coaching the witness because it is not actually objectionable to ask a question multiple times. Saying “asked and answered” can be a way of telling the witness not to change his testimony from what he said before. Also, as every lawyer knows, when the defending attorney objects “asked and answered,” often the question really wasn't answered, so the objection becomes a suggestion to the witness to continue refusing to answer the question, which is what happened here. Defense counsel's instruction not to answer based on his “asked and answered” objection is overruled. Zeleny may depose Bertini further on those questions and on any reasonable follow up questions”)

Fairweather v. Friendly's Ice Cream, LLC, No. 2:13-CV-00111-JAW, 2015 WL 339626, at *4 (D. Me. Jan. 23, 2015) (“The defense makes the odd statement that an objection based on a question having been “asked and answered” is “not a viable objection under any Rule of Evidence and it therefore must be overruled.” Def.'s Objection s at 10. Defense counsel is wrong. Rule 403 of the Rules of Evidence allows a trial court to exclude relevant evidence if its “probative value is substantially outweighed by a danger of ... wasting time[ ] or needlessly presenting cumulative evidence.” FED.R.EVID. 403. The traditional objection that a question has been asked and answered is a shorthand way of making a Rule 403 time wasting and cumulative evidence objection. If a question has already been asked and answered, to ask it again and demand an answer would be to “wast[e] time [and] needlessly present[ ] cumulative evidence.” Id.”)

Mashiri v. Ocwen Loan Servicing, LLC, No. 12cv2838- L (MDD), 2014 WL 4608718, at *2 (S.D. Cal. Sept. 15, 2014) (“If counsel for Plaintiff believed that counsel for Defendant was asking the same question repeatedly in bad faith or to unreasonably annoy, embarrass or oppress Plaintiff, counsel’s option was to move to terminate or limit the deposition under Rule 30(d)(3). Plaintiff's current motion to terminate the deposition is untimely for that purpose as Rule 30(d)(3) requires the motion be made during the deposition.”)

Plaintiff John Doe’s Reply To Non-Party Jane Roe’s Response To Plaintiff John Doe’s Emergency Motions To Hold Non-Party Jane Roe In Contempt Of Court And To Compel Roe’s Deposition, Doe V. Texas Christian University, No. 4:22-CV-00297-O (N. D. Tex. Filed Nov. 17, 2022) (arguing that termination of deposition was improper because terminating counsel did not timely move to terminate the deposition and did not use the language of the rule in terminating, saying instead, “And we will likewise reserve our rights to seek redress because counsel continued to ask the witness questions in a means designed to upset her and harass her and embarrass her, and nonetheless continued pressing that means, and we consider it improper and we’ll raise that issue with the court and – if and when relief is sought”)

Fed. R. Evid. 403 (basis of "asked and answered" objection; allowing exclusion of relevant evidence if there is a risk of needlessly presenting cumulative evidence)

Cf., Episode 38, 10,000 Depositions Later Podcast (addressing related topic of whether multiple lawyers representing one party can question deponent in deposition)

In this episode, Jim explains why you'd be well-served to download and use OpenAI's ChatGPT software in your deposition practice, both beforehand and on the fly during depositions. He also offers numerous examples to help you understand how this stunning advance in artificial intelligence can sharpen your skills, whether taking or defending.

In this episode, Jim Garrity and the publisher announce a $5,000 book giveaway - of the newly-release 4th edition of 10,000 Depositions Later - exclusively for our podcast listeners. Garrity explains how to score your free copy of the $70 book in this short episode.

Ever run into deponents who pretend they don't understand even the simplest questions? Of course you have. (Who hasn't?) Today, Jim Garrity explains why you might not want to continue rewording questions for such slippery deponents, instead using their sham "confusion" against them to attack their credibility (or even to seek sanctions).

SHOW NOTES

Skyline Advanced Tech. Servs. v. Shafer, No. 18-CV-06641-CRB-RMI, 2020 WL 13093877, at *4 (N. D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N. D. Cal. July 30, 2020) (“Shafer responded to a strikingly large number of questions posed to her by stating that she did not understand the question (some of which were so clear and simply phrased that it strains credulity to imagine that she in fact did not understand the question”; further recommending dismissal as a sanction because “Shafer's willful destruction of evidence combined with her unfortunate behavior at her deposition have effectively frustrated the public's interest in the expeditious resolution of this case, as well as the court's need to effectively manage its docket, thus, these factors weigh in favor of granting the requested sanction of dismissal”)

Donelson v. Hardy, 931 F.3d 565, 568 (7th Cir. 2019) (affirming dismissal of lawsuit based in part on plaintiff’s unjustified claims that he did not understand deposition questions; court described Donelson's responses as “evasive and argumentative answers” enhanced by “dishonesty and false obtuseness”)

Mewborn v. Abbott Lab'ys, No. CV-188732-DSF-PLAX, 2019 WL 8060095, at *1 (C. D. Cal. Oct. 7, 2019) (Additionally, plaintiff, “[a]ided by and taking cues from her attorney, ... repeatedly pretended not to understand simple questions, refused to provide straightforward responses, and/or feigned an inability to read documents throughout her deposition”)

Xiaobin Song v. Ming Ying Wu, No. B-202427, 2008 WL 4140833, at *4 (Cal. Ct. App. Sept. 9, 2008) (describing as credibility issue defendant’s prior claim that she did not understand English, while in trial answering questions even before they were interpreted, even though questions sometimes contained sophisticated English terms)

Johnson & Johnston Assocs., Inc. v. R.E. Serv. Co., No. C 97-04382 CRB`, 1998 WL 908925, at *5 (N.D. Cal. Dec. 23, 1998), rev'd, 285 F.3d 1046 (Fed. Cir. 2002) (describing at “litigation misconduct” differences in the witnesses answers - and ability to understand simple questions - in deposition and then at trial, and listing many examples)

Vagenos v. LDG Fin. Servs., LLC, No. 09-CV-2672 (BMC), 2010 WL 1608877, at *2 (E.D.N.Y. Apr. 15, 2010) (rejecting claim deponent’s credibility should be questioned where examiner used technical terms that were likely confusing to the deponent; “This often-confusing line of inquiry at his deposition, in which plaintiff was ultimately entirely forthcoming about his past indiscretions, is not probative of his character for veracity^”)

Skyline Advanced Tech. Servs. v. Shafer, No. 18CV06641CRBRMI, 2020 WL 13093877, at *6 (N.D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N.D. Cal. July 30, 2020) (“Shafer's response in opposition to Skyline's motion contains a surprisingly candid concession (which is surprising in light of the fact that she took such care to be remarkably evasive and highly uncooperative during her deposition)”)

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence; (b) Scope of Cross-Examination (which provides in part that “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility”)

Fed. R. Civ. P. 32 (“Using Depositions in Court Proceedings (a) Using Depositions. (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence”)

In this episode, Jim Garrity addresses the risk of instant privilege loss - attorney-client, work-product, or any other privilege - in depositions, absent immediate objection and an instruction not to answer (and an immediate demand for return of privileged documents, if applicable). He discusses a decision where a court found that a plaintiff waived the attorney-client privilege by answering just three questions over two minutes, because there had been no objection or instruction not to answer by the plaintiff's counsel.

By the way, have you checked out the 4th edition of Jim Garrity's blockbuster practice handbook on depositions? It's now out! 615 pages, detailed table of contents, and cover to cover with expert practice tips and insights, backed up by thousands of on-point citations to court rulings on deposition-related topics. Available on Amazon and just about everywhere else. Look for 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. It's the ultimate user's guide and handbook on deposition tips, tactics & strategies for civil, administrative, and arbitrative proceedings.

SHOW NOTES

Luna Gaming-San Diego, LLC v. Dorsey & Whitney, LLP, et al., 2010 WL 275083, No. 06-cv-2804 BTM (WMc) (S.D. Cal. Jan. 13, 2010) (finding waiver of privilege in deposition, in absence of objection, to three questions and two minute discussion about a privileged document)

Neuberger Berman Real Est. Income Fund, Inc. v. Lola Brown Tr. No. 1B, 230 F.R.D. 398 (D. Md. 2005) (colorable good faith assertion of privilege, even if ultimately rejected by the court, is different from an improper objection, because the privilege objection must be made to avoid waiver, because it implicates substantive rights of the party apart from the litigation, and because it serves to prevent depositions from becoming tools for abuse)

ADDED AFTER EPISODE AIRED:

LifeBio, Inc. v. Eva Garland Consulting, LLC, No. 2:21-CV-722, 2023 WL 3258586, at *9 (S.D. Ohio May 4, 2023) (finding privilege waiver where, among other things, plaintiff's counsel allowed use of privileged document by opposing counsel in deposition; held, "..counsel waited over 300 days . . . after Defendant used the documents in a fully briefed summary judgment motion to attempt to clawback the documents, “long after the proverbial cat was out of the bag.” [Citations omitted.] Put simply, nothing about Plaintiff's attempts to rectify this situation was attentive, diligent, or even “reasonable.” Fed. R. Evid. 502(b)(3). Nor were they “prompt[ ]....”)

How often are lawyers, deponents, and other participants surreptitiously recording depositions, including conversations during breaks that are meant to be private or privileged? Jim Garrity reports on this troubling conduct and surmises that it happens a lot more than many realize. As always, Garrity offers practice tips at the end of the episode, and our research on the topic appears in the show notes below. Thanks for listening!

SHOW NOTES

Defendant’s Second Motion for Terminating Sanctions (filed Sept. 29, 2020), Plaintiffs’ Opposition to Defendant’s Second Motion for Terminating Sanctions (Redacted) (filed Jan. 28, 2021), and Findings of Fact, Conclusions of Law, and Order Denying Defendant’s Second Motion for Terminating Sanctions and Granting Alternative Relief, Winters v. Dennis, Case No. A-15-723886-C, Dept. XI (Dist. Ct. Nevada July 26, 2021)Andrew C. v. Karcher, et al., 2006 WL 2664267, Case No. B184495 (Ct. App. Cal. Sept. 18, 2006) (sanctions imposed in form of $6,000 fine and order barring use of deposition transcript, where lawyer alleged arranged for second camera and a microphone to capture testimony and conversations of opposing counsel and his client)

Picard v. Guilford House, LLC, No. X03CV106016061S, 2014 WL 1876595 (Conn. Super. Ct. Apr. 3, 2014) (order staying case, imposing fines, and expressing an intention to refer plaintiff’s counsel to the bar following allegations that lawyer left her iPhone on, in record mode, during all breaks during the deposition, allegedly picking up privileged conversations between a key defense witness and defense lawyers; rejecting arguments of privilege in the recording or an absence of privacy expectations by those who were recorded.)

Knopf v. Esposito, 2018 WL 1226023, Case No. 17-cv-5833 (DLC) (S. D. N. Y. Mar. 5, 2018) (sanctions imposed after attorney video recorded deposition despite denying five times on the record that he was not recording)

Brockmeier v. Solano Cnty. Sheriff's Dep't, No. CIV S-05-2090 MCEEFB, 2010 WL 148179 (E.D. Cal. Jan. 12, 2010) (noting, without ruling on it, that defendant’s efforts to depose the pro se plaintiff were disrupted when “…counsel for defendants became aware Plaintiff was apparently surreptitiously recording the deposition and conversations in the room during breaks by way of an audio recording device in her purse…”)

Fluckiger v. Hawkins, No. 1:11-CV-00120-DAK, 2012 WL 6569485 (D. Utah Dec. 17, 2012) (where plaintiff admitted to secretly recording his depositions on a personal audio or video recorder, counsel was ordered to review the tapes and certify whether they had been altered in any way)

Hylton v. Anytime Towing, No. 11CV1039 JLS WMC, 2012 WL 3562398 (S.D. Cal. Aug. 17, 2012) (ordering pro se plaintiff to attend a second deposition and “to destroy the unauthorized computer recording he made of the first deposition,” finding that the plaintiff “secretly recorded the deposition proceedings on his laptop computer, including off-the-record sidebars between defense counsel”)

In this episode, Jim Garrity discusses a new summary judgment ruling against a company based in part on testimony by its 30(b)(6) designee that was outside the scope of the designee's topics. The ruling highlights the risk of choosing designees who possess personal knowledge well beyond the topics about which they will testify. Garrity offers practice tips for litigators on both sides of this issue - for those who select, prepare, and defend 30(b)(6) designees, and for those who schedule and depose them. The citation for the ruling appears in the show notes below. Thanks for listening!

SHOW NOTES

Order Granting Summary Judgment and Denying as Moot Other Outstanding Motions, MSP Recovery Claims Series, LLC, et al. v. Tower Hill Prime Insurance Company, et al., 2022 WL 17839537, Case No. 1:20-cv-262-AW-HTC (N.D. Fla. Dec. 20, 2022) (citing plaintiffs’ 30(b)(6) designee’s off-topic admission in granting defense motion for summary judgment)

In this episode Jim Garrity tackles the propriety of a question often heard in depositions when the deponent has just contradicted the testimony of another witness: "Are you calling them a liar?" Is this objectionable? If so, what's the objection? If it's objectionable and you don't object, is it per se reversible error? Is there a better way to ask the question? So many questions, so little time. But Jim answers them all and more, in just 13 1/2 minutes. (And speaking of time, do you have time to leave a 5-star rating for our podcast wherever you listen to our show? It takes no more than ten seconds, and our entire team will be forever grateful. Those 5-star ratings are like Kobe beef to the crew. Thanks!)

SHOW NOTES

Merritt v. Arizona, No. 21-15833, 2022 WL 3369529, at *2 (9th Cir. Aug. 16, 2022)g. “[T]he prohibition on improper vouching based on evidence outside the record extends to civil trials")

Easter v. Mills, 239 Or. App. 209, 213, 243 P.3d 1212, 1214 (2010) (“The Oregon Supreme Court has recently reviewed and elaborated on its decisions on this subject. In State v. Lupoli, 348 Or. 346, 357, 234 P.3d 117 (2010), the court stated:“This court has long held that one witness may not give an opinion on whether he or she believes another witness is telling the truth. * * * Applying that principle is a straightforward matter when one witness states directly that he or she believes another witness, or that the other witness is honest or truthful. However, statements that fall short of such overt vouching also may be impermissible”)

United States v. Pereira, 848 F.3d 17, 22 (1st Cir. 2017) (“In United States v. DeSimone, 699 F.3d 113 (1st Cir. 2012), this court clarified that although [i]t is improper for an attorney to ask a witness whether another witness lied on the stand[,] ... [i]t is not improper to ask one witness whether another was “wrong” or “mistaken,” since such questions do not force a witness to choose between conceding the point or branding another witness as a liar. There is no error in simply asking a witness if he agreed with or disputed another witness's testimony”)

Broyles v. Cantor Fitzgerald & Co., No. CV 3:10-857 JJB-CBW, 2017 WL 3946261, at *3 (M.D. La. Aug. 21, 2017), report and recommendation adopted, No. CV 10-857-JJB-CBW, 2017 WL 3928939 (M.D. La. Sept. 7, 2017) (order adopting magistrate’s report recommending the granting of motion in limine to exclude testimony as to one witnesse’ opinion of another’s testimony); see also Defendants’ Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony (CM/ECF Doc. 588), Defendants’ Memorandum In Support Of Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony (Doc. 588-1), Joseph N. Broyles, et al. v. Cantor Fitzgerald & Co., et al., Civil Action No.: Case 3:10-cv-00854-SDD-CBW Document 588 (M. D. La. filed May 13, 2016), Consolidated With: Civil Action No. 3-10-Cv-00857-JJB-SCR; CM/ECF Doc. 672 (Plaintiff’s Memorandum In Opposition To S&Y Parties’ Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony)

United States v. Rivera, 780 F.3d 1084, 1096–97 (11th Cir. 2015) (“As to the propriety of questions by a prosecutor that prod a defendant to accuse another witness of lying, we have held that such questions are not proper. United States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir.2011). . . .Of course, the fact that a prosecutor should not ask a testifying defendant whether another witness was lying does not mean that the prosecutor will be prohibited from pinning down a defendant's testimony by focusing the latter on conflicts between his account of a certain event and another witness's testimony on that point. Indeed, in Schmitz, we cited with approval the Third Circuit's observation that “it is often necessary on cross-examination to focus a witness on the differences and similarities between his testimony and that of another witness. This is permissible provided he is not asked to testify as to the veracity of the other witness”)

United States v. Schmitz, 634 F.3d 1247, 1268–70 (11th Cir. 2011) (“We hold that it is improper to ask a testifying defendant whether another witness is lying”)

Southern Union Co. v. Sw. Gas Corp., 281 F. Supp. 2d 1117, 1127 (D. Ariz. 2003) (propriety of such a question may depend on the context in which the question is asked, citing cases for proposition that ‘were they lying’ questions may not always be improper, and that the balance may shift in favor of admitting lay opinion as the distance increases between the opinion and the ultimate issues)

Easter v. Mills, 239 Or. App. 209, 214–15, 243 P.3d 1212, 1215 (2010) The question at issue here, and the answer it elicited, were not of the same sort found to be objectionable in those cases. Here, A.H.'s mother was not asked whether she believed that A.H. was telling the truth (nor did her answer reveal whether she believed that A.H. was telling the truth). Rather, she was asked if she knew of any motive A.H. would have to lie. Admittedly, this line of questioning may skate close to the edge of what is permissible, given the real danger that it might elicit a response that includes a comment on the credibility of a witness, even if the question does not specifically call for such a response. Here, however, the response did not contain the mother's opinion as to whether A.H. was telling the truth. Moreover, as the state notes, the defense theory of the case was that A.H. had a motive to lie about the abuse, because she was angry with petitioner and petitioner's daughter. In that circumstance, questions of A.H.'s mother concerning whether she knew if her daughter had such a motive were permissible. Her response to the challenged question merely was that she did not know of any motive that her daughter had to fabricate the allegation of abuse. We conclude that the post-conviction court correctly determined that the question and answer at issue here were permissible”)

Com. v. Baran, No. 1804251, 2006 WL 2560317, at *16 (Mass. Super. June 16, 2006), aff'd, 74 Mass. App. Ct. 256, 905 N.E.2d 1122 (2009) (vacating criminal convictions in part based on prejudicial vouching; “Moreover, the issue concerning the vouching of credibility is not limited to experts: “[I]t is a fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.’ Commonwealth v. Montanino, 409 Mass. 500, 504, 567 N.E.2d 1212 (1991). To violate this principle, testimony supporting a witness's credibility “need not be direct. The question is whether the witness's testimony had the same effect as if [the witness] had directed his comments specifically to [another witness's] credibility”)

Schmitz v. City of Wilsonville, No. CV-96-1306-ST, 1999 WL 778586, at *4–6 (D. Or. Sept. 17, 1999) (declining to extend vouching to civil cases; but finding no plain error from comments and denying motion for new trial)

Sneed v. Burress, 500 S.W.3d 791, 795 (Ky. 2016) “(It is equally impermissible for an attorney to phrase her remarks so as to indicate that a witness is lying based on the evidence presented. Of course, pointing out inconsistencies in a witness's statements and other evidence—and drawing reasonable inferences therefrom—is entirely permissible to the extent that it otherwise comports with our rules of practice and procedure. However, counsel is not permitted to make affirmative conclusions as to the credibility of a witness. Determining witness credibility “is within the exclusive province of the jury.” Id. (citation omitted).”) Also held can be considered harmless error based on circumstsances, but remanded for retrial)

State v. Bell, 283 Conn. 748, 779–80, 931 A.2d 198, 218 (2007) The other claimed improprieties in the present case, however, involve a variation on the classic type of Singh violation in which a defendant is asked whether another witness is lying, instead asking the defendant whether a witness' testimony was “true,” “right” or “accurate” and whether the defendant agreed with certain statements of other witnesses. Although these questions did not ask the defendant overtly to say whether a witness was wrong or mistaken, effectively, they essentially asked the same improper question, only phrased in the positive rather than in the negative. See United States v. Freitag, 230 F.3d 1019, 1024 (7th Cir.2000) (asking defendant if testimony of other witnesses is true is improper because it “invades the province of the jury; indeed asking if testimony is true implies that if it is not, it is a lie, which is a credibility question for the jury to decide”); see also United States v. Sanchez–Lima, 161 F.3d 545, 548 (9th Cir.1998) (reversible error when one government witness permitted to testify, over defense objection, that another government witness was telling truth, because determination of witness credibility is for jury and such testimony constituted bolstering by inadmissible evidence)

Hunter v. State, 397 Md. 580, 591, 919 A.2d 63, 69 (2007) (“We agreed with the trial court that this line of questioning was impermissible because the attorney was effectively asking the witness to say “whether the witness who gave [the statement] [ ] testified falsely.... [O]ne witness cannot be asked to characterize the testimony of another Missouri, K. & T.R. Co. v. Lycan, 57 Kan. 635, 47 P. 526, 528 [ (1897) ] ), since that is exclusively the function of the jury.” Id. at 314–15, 171 A. at 55. Thus, as early as 1934, we held that “were-they-lying” questions are impermissible in civil cases.”; reversing judgment and ordering new trial)

Eggleston v. Com., No. 2010-CA-002291-MR, 2012 WL 6061711, at *2 (Ky. Ct. App. Dec. 7, 2012)In Moss, our Supreme Court reaffirmed the longstanding rule that it is improper to require a witness to comment upon the credibility of another witness: With few exceptions, it is improper to require a witness to comment on the credibility of another witness. A witness's opinion about the truth of the testimony of another witness is not permitted. Neither expert nor lay witnesses may testify that another witness or a defendant is lying or faking. That determination is within the exclusive province of the jury")

State v. Airhart-Bryon, 13 Wash. App. 2d 1003, review denied, 196 Wash. 2d 1018, 474 P.3d 1052 (2020) (“Airhart also cites Boehning to argue prosecutors commit flagrant misconduct as a matter of law whenever they ask one witness if another is lying. Boehning generally supports this proposition. 127 Wn. App. at 525, 111 P.3d 899. However, our Supreme Court’s longstanding requirement is that allegations of prosecutorial misconduct be evaluated “ ‘in the context of the entire record and the circumstances at trial.’ ” See, e.g., Thorgerson, 172 Wn.2d at 442, 258 P.3d 43 (quoting Magers, 164 Wn.2d at 191, 189 P.3d 126). Here, we look to the context of the entire record to conclude there was no incurable misconduct”)

Montgomery Cnty. Dep't of Health & Hum. Servs. v. P.F, 137 Md. App. 243, 268, 768 A.2d 112, 126 (2001) (“The second reason assigned by the Bohnert Court was that a social worker's opinion regarding the credibility of the child invades the fact finder's role in assessing credibility and resolving disputed facts. Citing well-established limitations on the role of witnesses, the Bohnert Court held that the social worker's opinion constituted an improper “vouching” for the credibility of the alleged victim. In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury.... It is also error [in civil cases] for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying....”, (citing Bohnert v. State, 312 Md. 266, 277, 539 A.2d 657, 662 (1988)It is also error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Thompson v. Phosphate Works, 178 Md. 305, 317-319, 13 A.2d 328 (1940); American Stores v. Herman, 166 Md. 312, 314-315, 171 A. 54 (1934). The Court of Special Appeals said in Mutyambizi v. State, 33 Md.App. 55, 61, 363 A.2d 511 (1976), cert. denied, 279 Md. 684 (1977): Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, and questions to that effect are improper, either on direct or cross-examination.”)

Draper v. Rosario, 836 F.3d 1072, 1084 (9th Cir. 2016) (“The current version of the Model Rules similarly states that, in both civil and criminal trials, a lawyer shall not “state a personal opinion as to ... the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” Model Rules of Prof'l Conduct R. 3.4(e) (2015). In sum, our prior case law indicates that attorneys may not rely on evidence outside the record during closing argument and that prosecutors may not vouch for witnesses’ credibility. We now make clear that the prohibition on improper vouching based on evidence outside the record extends to civil trials”)

Shuang Ying Nancy Zhang v. A-Z Realty & Inv. Corp., et al., No. EDCV 19-887-KK, 2022 WL 17361983, at *2 (C.D. Cal. Aug. 24, 2022) (“In addition, “counsel in a civil trial may not rely on evidence outside the record during closing argument")

Fed. R. Evid. 608. A Witness's Character for Truthfulness or Untruthfulness.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence)

Rule 602. Need for Personal Knowledge. (A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

Rule 701. Opinion Testimony by Lay Witnesses (If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702)

ADDED AFTER EPISODE AIRED:

People v. Lopez, 550 P.3d 731 (Colo. Ct. App. March 14, 2024) ((a witness may not testify that another witness, including a child victim, told the truth on a particular occasion)

In this episode, Jim Garrity continues his advocacy for litigators’ active management of every facet of their depositions, this time focusing on two sorely-neglected components of video depositions: background and lighting. Today he talks about ways to gain control of these two elements. He also tells you where we buy our backgrounds and portable lighting, and offers to send you images showing how we set up the lights, and the before-and-after look of the lights on a sample deponent.

SHOW NOTES

In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2020 WL 6687777, at *12 (S.D. Fla. Nov. 11, 2020) (detailed order establishing deposition protocols in class action case and specifying that depositions “. . .will be conducted in a neutral setting, against a solid background, with only such lighting as is required for accurate video recording”)

Fed. R. Civ. P. 30(c)(2) (requiring that objections to any aspect of a deposition, which would include background and lighting, must be noted on the record, but that the examination still proceeds subject to the objection)

ADDED SINCE PUBLICATION OF EPISODE 109

Vazquez Diaz v. Commonwealth, 487 Mass. 336, 361,167 N.E.3d 822, 846 (2021) ("...participants, notwithstanding published guidance to the contrary, will appear in suboptimal lighting, which will make their facial expressions harder to see, or in cluttered environments, which will complicate the effort to identify the emotional valence of their expressions. Videoconferencing may also provide less audio information than in-person courtroom speech does, impairing decision-makers' ability to discern the emotions conveyed by the sound of the voice")

In this episode, Jim Garrity alerts you to a federal decision where the judge catalogued thirty-two factors that courts should consider in resolving disputes about where depositions should take place. It's an excellent decision to have in your arsenal. To this list, Garrity lists several more common location-related things to consider.

SHOW NOTES:

DeepGulf, Inc. v. Moszkowski, 330 F.R.D. 600 (N. D. Fla. Jan. 30, 2019) (listing 32 factors judges should consider when resolving disputes about where depositions should take place)

If you're like most litigators, you now regularly issue subpoenas that command the deponent to appear “Via Zoom Videoconference,” or something similar. In this episode, Jim Garrity explains why doing that - rather than listing a physical location for the deposition - may render your subpoena fatally defective and unenforceable.

SHOW NOTES

Order Denying Plaintiffs Motion to Compel General Dynamics’ Compliance with Subpoena, Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 53), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (denying motion to compel compliance with subpoena in part because subpoena failed to command attendance at a specified “place of compliance; instead, it merely listed the place as “VIA ZOOM VIDEO CONFERENCE”)

Frobe v. UPMC St. Margaret, No. 2:20cv00957-CRE, 2021 U.S. Dist. LEXIS 129924, at *3 (W.D. Pa. July 13, 2021) (“ ‘Zoom Videoconferencing’ is not a ‘Place;’ rather, it is a method of taking the deposition;” court required subpoenaing party to modify subpoena to have place of deposition changed to within 100 miles of deponent's home or place of employment, whichever was more convenient to deponent)

Russell v. Maman, No. 18-CV-06691-RS (AGT), 2021 WL 3212646, at *2 (N.D. Cal. July 29, 2021) (declining to enforce subpoena that listed place as “Via Zoom;’ court could not determine with certainty that it had jurisdiction because it could not tell from subpoena that it was the district where compliance with the subpoena was required)

Opposition to Plaintiffs Motion to Compel General Dynamics Compliance with Subpoena, etc., Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 38), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (excellent memorandum in opposition to enforcement of subpoena that failed to specify “place” of deposition and instead listed the place as “VIA ZOOM VIDEO CONFERENCE”)

CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 709 (N.D. Tex. 2017) (“Under Rule 45, then, the place of compliance must be a physical “place” subject to “geographical limits” and capable of being measured according to mileage;” provision of email address, where subpoenaed documents are to be produced, was insufficient)

Fed. R. Civ. P. 45(c)(1)(A) (providing generally that place listed in subpoena for compliance must be within 100 miles of the witness’ residence, place of employment, or where the witness regularly transacts business)

Fed. R. Civ. P. 45(a)(1)(A)(iii) (imposing requirement that subpoena state the specified time and place for compliance)

**The following authorities were added after Episode 107 was aired:

Chen v. Federal Bureau of Investigation, et al., No. 22-MC-0074 (CRC), 2022 WL 17851618, at *3 (D.D.C. Oct. 18, 2022) (rejecting argument that non-party remote deposition subpoena was unenforceable because it did not specify a physical location)

Hawkins, et al. v. CUNA Mutual Group, etc., No. CIV-22-536-SLP, 2022 WL 19001967, at *2 (W.D. Okla. Nov. 21, 2022) (denying motion to quash Zoom deposition subpoena of Wisconsin lawyer, without prejudice to refile in Wisconsin, nothing that motion must be filed where deponent will testify if location is not in same district where action is pending)

In this episode, Jim Garrity offers up a clever idea for turning your skills in choosing 30(b)(6) designees into a deposition superpower. On the flip side, Garrity shares ideas on how to use this same principle to gain compliance from organizations that resist and delay your efforts to set corporate representative depositions. As always, the research on which this episode is based appears in the show notes below. Last point: Do you have 60 seconds to leave us a 5-star review, wherever you get your podcast episodes? These episodes are ad-free, so the only way you can really say thanks is to leave us a high rating. It literally takes less than a minute, and seeing great scores is such a huge thrill for our production and research staff. We really do appreciate you! Thank you again, and have a great week!

SHOW NOTES

The Deutsche Bank Entities’ Memorandum in Opposition to Plaintiffs’ Motion to Compel, etc. (ECF Doc. 351); Order on Plaintiffs’ Motion to Compel, etc. (ECF Doc. 364), In re Enron Corporation Securities Derivative & “ERISA” Litigation, Case No. 4:02-md-01446, Civil Action No. H-03-1276, Consol. Lead Civil Action No. H-01-3624 (S.D. Tex. Oct. 3, 2005)

Ierardi v. Lorillard, Inc., 1991 WL 158911, Case No. CIV-A 90-7049 (E. D. Pa. Aug. 13, 1991) (discussing use of former employee as corporate designee)

Sunbeam Corp. v. Black & Decker (U.S.) Inc., 151 F.R.D. 11 (D. Rhode Island 1993) (plaintiff Sunbeam designated a professor to testify as 30(b)(6) representative in patent infringement litigation, where topics included potential prior art known to Sunbeam, the criteria employed by Sunbeam in determining the scope of each of the claims of the patent in suit, and the meaning of certain patent terms)

Universal City Studios, Inc. v. Corley, 2000 WL 621120, No. 00-CIV-277 (S.D.N.Y. May 12, 2000) (where defendant opted to proceed with deposition under rule 30(b)(6), it would not be heard to complain when plaintiff designated someone who was not an officer, director, or managing agent of plaintiff)

Phillips v. American Honda Motor Co., Inc., et al., 2005 WL 1527685 (S. D. Ala. June 27, 2005) (denying motion for sanctions where multiple defendants all relied on the same single corporate designee, who not only did not work for any corporate defendants, but who did not speak English)

Guinnane v. Dobbins, 2020 WL 4734897 at *4-5 (D. Mont. Aug. 14, 2020) (“Second, Rule 30(b)(6) does not provide a mechanism by which a party can simply refuse to produce or prepare its designee on noticed topics”)

Fed. R. Civ. P. 30(b)(6) (allowing entity to designate, without limitation, “other persons who consent to testify on its behalf")

Today's we cover a fascinating topic: What to do when your party opponents assert a Fifth Amendment or similar privilege in their deposition? Unlike diamonds, privileges aren't necessarily forever. Your opponent can later drop, withdraw, or waive an assertion of privilege. And many litigants do, indeed, try to gain unfair advantage by eleventh-hour waivers, surprising adversaries with previously-shielded information. In this episode, Jim Garrity outlines the problem, and identifies six specific steps to take – in order – to stop this kind of misconduct.  As always, our show notes contain the research on which this episode is based. Note that some podcast sites don’t display lengthy show notes.  If you can’t see all fifteen citations in this episode’s notes, click through to our home page for the full list. Thanks!

SHOW NOTES

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, No. 3:18-CV-1506 (S.D. Cal. 2020) (individual defendant in securities fraud case produced no documents at deposition as required, and walked out after 1 hour 45 minutes, during most of which he allegedly refused to answer many questions, launched into profanity-laced tirades, and continuously invoking the Fifth Amendment; held, Plaintiff may re-depose defendant, and “the Court cautions Defendant Fellner that if he invokes the Fifth Amendment privilege with respect to topics on which he later attempts to present argument or testimony, the court may prevent him from doing so, or may issue other evidentiary sanctions such as giving an adverse jury instruction that the jury’s that the jurors may consider his implication of the privilege during his deposition in assessing his credibility”)

Keating v. OTS, 45 F.3d 322, 324 (9^th Cir. 1995) (“A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege”)

Sheindlin & Orr, The Adverse Inference Instruction After Revised Rule 37 (E): An Evidence-Based Proposal, 83 Fordham L. Rev. Issue 3 (2014) (discussing the history and implications of adverse inference jury instructions)

Order Granting Plaintiff’s Motion for Summary Judgment, SEC v. Premier Holding Corporation, 2020 WL 8099514. No.: SACV 18-00813 (C. D. California Nov. 30, 2020) (“As a preliminary matter, the SEC asserts that Letcavage should be precluded from offering testimony and other evidence in opposition to its motion for summary judgment because he asserted his Fifth Amendment privilege and refused to answer all substantive questions in his deposition; The Court agrees - while Letcavage certainly has the right to assert the privilege, he “cannot have it both ways. By hiding behind the protection of the Fifth Amendment as to his contentions, he gives up his right to prove them”), citing SEC v. Benson, 657 F. Supp. 1122, 1129 (S.D.N.Y. 1987)

Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 912 (9th Cir. 2008) (trial judge must balance the hardships caused to each party in considering adverse inference instruction, recognizing that there is a tension between one party's Fifth Amendment right and the other party's right to a fair proceeding; decisions when to allow the adverse inference and not to allow it must be determined on a “case-by-case basis under the microscope of the circumstances of that particular civil litigation”)

SEC v. Cutting, 2022 WL 4536816, No. 2:21-cv-00103 (D. Idaho Sept. 28, 2022) (Court grants plaintiff SEC’s motion to preclude defendant, in opposing the SEC’s motion for summary judgment, from introducing evidence, denials, and defenses that he previously withheld by invoking his Fifth Amendment privilege during deposition; “Cutting now attempts to speak on these very matters for which he previously invoked the privilege. ‘But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions” and then tossed aside to support a party's assertions’ ”), citing In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991)

United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 640 (9th Cir. 2012) (holding a court may strike the testimony of a witness in a civil proceeding to avoid a witness's improper use of the Fifth Amendment privilege against selfincrimination as a sword as well as a shield) (collecting cases). “The purpose of this rule is to protect the integrity and truth-seeking function of the judicial system from the distortions that could occur if a witness could testify and then use the Fifth Amendment privilege to prevent any adversarial testing of the truth of that testimony.” $133,420.00 in U.S. Currency, 672 F.3d at 640. “By striking testimony that a party shields from crossexamination, a court can respect the witness's constitutional privilege against self-incrimination while still preventing the witness from using the privilege to mutilate the truth a party offers to tell.” Id. (quoting Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988) (quoting Brown v. United States, 356 U.S. 148, 156 (1958)) (internal quotation marks omitted)

United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 85 (2d Cir. 1995) (if litigant in civil proceeding seeks to waive Fifth Amendment privilege only at the “eleventh hour,” and such waiver “appears to be part of a manipulative, ‘cat-and-mouse approach’ to the litigation,” a trial court may bar the litigant “from testifying later about matters previously hidden from discovery through an invocation of the privilege”)

In re 650 Fifth Ave. & Related Properties, No. 08 CIV. 10934 (KBF), 2013 WL 12335766 (S.D.N.Y. Sept. 6, 2013) (order approving adverse inference instruction based on defendant’s assertion of Fifth Amendment privilege and deposition), and  Joint Proposed Requests to Charge, US v. 650 Fifth Avenue and Related Properties, No. 1:08-cv-10934-LAP (PACER Document 1684-6), filed May 5, 2017

Sand, Modern Federal Jury Instructions, Instr. 75-5 (adverse inference instruction)

Libutti v. United States, 107 F.3d 110 (2d Cir. 1997) (pertinent to adverse inference instruction)

Pinnock v. Mercy Medical Center, 180 A.D.3d 1086 (App. Div. New York 2020) (declining to impose sanctions, including preclusion of evidence and adverse inference about assertion of Fifth Amendment privilege, where defendant physician was facing pending criminal charges at the time of his deposition)

Fed. R. Civ. P. 37(b)(2)(i)-(vii) (authorizing sanctions for failure to permit discovery, including but not limited to an order deeming facts as admitted, prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence)

ClearOne Communications, Inc. v. Chiang, 679 F. Supp.2d 1248 (D. Utah 2009) (adverse inference instruction about dishonesty read to jury just before witness took stand, where court had previously found that the witness had not given truthful answers on some topics during his deposition)

Card Technology Corporation v. DataCard, Inc., 249 F.R.D. 567 (D. Minnesota 2008) (following refusal of plaintiff’s currently-employed senior official to appear for deposition, the court deemed some facts admitted, and forbid the witness, if he appeared at trial, from testifying about certain topics that would have been explored in deposition)

ADDED AFTER EPISODE AIRED:

Munger, etc. v. Intel Corporation, No. 3:22-CV-00263-HZ, 2023 WL 3260034, at *3 (D. Ore. May 3, 2023) ("The Court finds Cloud may not invoke the Fifth Amendment privilege as a shield to oppose depositions while discarding it for the limited purpose of making statements to oppose summary judgment. The Court, therefore, grants Plaintiff's requests to strike Cloud's Declaration in support of her Surreponse to Plaintiff's Motion for Summary Judgment")

Parker v. State Farm Mut. Ins. Co., No. 3:23-CV-00139, 2024 WL 1855426, at *3 (S.D. Tex. Apr. 29, 2024) ("As already discussed, the law is clear: State Farm is entitled to argue, and the jury is free to draw, negative inferences from Parker's invocation of the Fifth Amendment" in deposition)

In this episode, Jim Garrity addresses the problem caused by litigators who repeatedly interrupt your deponents’ answers, potentially resulting in a transcript full of half answers. It's a common and serious headache for defending lawyers, and you can only fix the problem one of two ways - either during the deposition, or through an errata sheet.  Garrity explains the pluses and minuses of using an errata sheet to complete interrupted answers, and tells you what courts have to say about that approach.  He then offers practical tips for addressing repeated interruptions during the deposition itself, and identifies four steps to fix the problem.  As always we've got supporting research in the case notes, with parentheticals that allow you to quickly scan the holdings or significance of each decisions. (Remember that if you don't see the full text of the show notes, just click through to our home page for the full list). Thanks for listening!

SHOW NOTES

***(Added after release of episode) In re Injectafer Prod. Liab. Litig. ALL CASES, No. CV 19-276, 2022 WL 4280491  (E.D. Pa. Sept. 15, 2022) (“Defendants propose. . . changing “It would be one of the—yes” to “It would be one of the sources of information. Yes.” This change is not necessarily inconsistent with the original testimony because it appears that the deponent was cut off or otherwise stopped speaking in the middle of the sentence and is justified as making the answer more complete. See id. While finishing a thought is not necessarily a proper justification for an errata modification, here it appears to be justified and within the flexible scope of the Third Circuit's approach to Rule 30(e)")

Grey v.  Amex Assurance Company, 2002 WL 31242195, No. B152467 (Ct. App. Calif. Oct. 7, 2002) (reversing summary judgment in part because trial court abused discretion in failing to consider errata sheet containing “changes. . . made because the witness was interrupted before completing her answers;” further noting that the defendant “. . .took the risk that [the plaintiff’s] corrections would bring some of its undisputed facts into controversy”)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 512 (N.D. Ill. 2015) (denying, without prejudice, motion to strike errata sheet, as motion failed to specifically discuss many of the 67 changes defendant wanted stricken; noting that “The reason given for the vast majority of the 67 changes was that [Plaintiff] “did not finish” her answer during the deposition, though the transcript does not reflect that she was interrupted and prevented from doing so,” and outlining how various courts and commentators deal with the extent to which changes to testimony can be made on errata sheets)

Arce v. Chicago Transit Authority, F.R.D. 504, 512, fn. 5 (N.D. Ill. 2015) (noting that, if one looks back at the early origins of the rule on errata sheets, quoted in this opinion, it may be argued that the intent of the drafters was indeed to limit changes to clerical-level mistakes, not to allow substantive changes): "One commentator who examined the history of the rule dating back to the original Equity Rule 67, and the twin Equity Rules 50 and 51 that succeeded it, concluded that Rule 30 was never intended to allow for more than the correction of transcription errors: "Appeals to the plain language of Rule 30(e) are incomplete and misleading without reference to the Rule's transcriptive focus. Read in historical context, the Rule appears to be distinctly clerical, ill-equipped—and never intended—to embrace substantive changes. Although its wording has changed over time, Rule 30(e) has retained one modest but steady focus: the who, how, and what of accurate transcription. The Rule is meant to secure an accurate representation of what was said, leaving to another day (and frequently to the mechanisms of Rule 56) the question of the meaning and implication of the deposition content for purposes of material factual disputes. The common understanding of Rule 30(e) has moved far afield from that mild ambition, giving us the confusion and circuit split we know today. Read in light of its history, the Rule clearly embraces a transcriptive focus. Ruehlmann, Jr., supra, at 915. Rule 30(e)’s counterpart in Illinois state court, Supreme Court Rule 207(a), was amended to limit corrections to transcription errors because the “potential for testimonial abuse” had “become increasingly evident as witnesses submit[ted] lengthy errata sheets in which their testimony [was] drastically altered....” Ill. Sup. Ct. R. 207(a), Rules Committee Comment to Paragraph (a) (1995)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (citing Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 60 (1998), for its author’s argument that Rule 30(e) permits “opposing counsel, at her choosing, to introduce both versions to the jury”)

Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir.2000) (observing, as to changes in errata sheet, that what the witness “tried to do, whether or not honestly, was to change his deposition from what he said to what he meant;” quoting the common refrain that “a deposition is not a take home examination,” the court remarked that while this was a “questionable basis for altering a deposition.” the court would allow the change under Rule 30(e) since the rule expressly “authorizes ‘changes in form or substance’.”

Tchankpa v. Ascena Retail Group, Inc., No. 2:16-CV-895, 2018 WL 1472527 (S.D. Ohio Mar. 26, 2018) (refusing, based on Sixth Circuit’s strict interpretation of errata sheet changes, to allow “. . .impermissible substantive alterations to Tchankpa's testimony. . .”, including explanations stating “Incomplete; I was cut off,” allegedly because “defense counsel interrupted him;” “In this circuit, a deponent cannot make substantive changes to his deposition testimony under Rule 30(e) based on defense counsel's interruptions. . .”)

Hirsch v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) When a party makes changes to his deposition pursuant to Rule 30(e), the original answers remain part of the record. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[T]he rule requires that the original transcript be retained (it is implicit in the provision of that rule that any changes made by the deponent are to be appended to the transcript) so that the trier of fact can evaluate the honesty of the alteration.”); Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (“Subject to the rules of evidence, the jury is permitted to hear the original answer, the change, and the reasons for the change and decide – in the context of all the other evidence – whether to credit either answer and what weight to assign it.”); Coleman v. Southern Pacific Transportation Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998) (accepting the argument that “a change in a deposition statement does not eradicate the deponent's original answers”); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D. Ill. 1981) (“Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made.”). The reason for this is obvious: “[t]he Rule is less likely to be abused if the deponent knows that ... the original answers[,] as well as the changes and the reasons will be subject to examination by the trier of fact")

Hirsh v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) (court-ordered second deposition of plaintiff did not extend deadline for submitting errata sheet following delivery of transcript from first deposition; counsel claimed he “believed that the first deposition did not ‘count,’ because it was ordered [to] be redone, and therefore corrections were reserved”; errata sheet rejected as untimely)

Neutrion Dev. Corp. v. Sonosite, Inc., 410 F. Supp. 2d 529, 550 (S.D. Tex. 2006) (allowing and considering – without apparent challenge or concern – expert’s substantive changes to errata sheet, necessitated “. . . [because he] began to explain the knowledge that one of ordinary skill in the art would possess, but was interrupted by Neutrino's counsel”)

Trout v. FirstEnergy Generation Corp., 339 F. App'x 560, 565 (6th Cir. 2009) (noting argument made by defendant that plaintiff “. . . is not entitled to benefit from her corrected deposition testimony because her counsel did not rehabilitate her statements during the deposition,” meaning plaintiff’s counsel could and should have asked followup questions while the deposition was in progress)

Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., No. 1:11-CV-4483-SCJ-AJB, 2014 WL 11517837, at fn. 2 (N.D. Ga. Aug. 4, 2014) (Although Plaintiff's brief in response to Defendant's objections discusses a long day and interruptions by Defendant's counsel during the deposition, those reasons were not provided in the errata sheet. The Court also notes that if Defendant's counsel interrupted Plaintiff such that he could not elaborate much as he wished, Plaintiff's counsel had the opportunity afterwards to examine her client on those points and did not do so.”)

Fed. R. Civ. P. 30(e)(1)(B) (federal rule of civil procedure on errata sheets, which expressly contemplates possible changes in form or substance)

 In this episode, Jim Garrity spotlights a 107-page ruling, issued just three days ago, that offers a sharp reminder about the consequences to deponents who claim memory failure and who then follow up, at summary judgment time, with affidavits or errata sheets containing fantastically-improved recollections of key details. Garrity also discusses another brand-new ruling, likewise issued three days ago, that makes the same point. As always, he offers practical tips and insights - here, to help you avoid the fate suffered by litigants in those cases, which was to have their post-deposition affidavits, errata sheets, and declarations stricken.

As always, the case citations that are mentioned in the episodes or that support the topic appear below in the show notes.

Don't forget to check out the book on which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d Ed. (470 pages), available everywhere you get your books

(One more thing! If you have an extra 60 seconds, would you mind showing our production staff a little love, by leaving a 5-star rating wherever you get your podcast? These episodes take a great deal of time, energy, and research, and they’re always free to our audience. We work hard to make this podcast immediately useful for practicing litigators, and we now include the supporting caselaw in the show notes for every episode, which you can freely cut and paste when you face the same issue. You have no idea how much the staff appreciates that. Thank you!)

SHOW NOTES

Luman v. Diaz, et al., 2022 WL 4001063, No. H-19-4920 (S. D. Tex. Sept. 1, 2022) (rejecting key portions of defendant’s declaration on summary judgment, where declaration appeared to be sham effort to fill in purported memory gaps of defendant at deposition; further rejecting purported defense expert report, which attempted to offer substantive testimony about defendant’s motive that defendant himself could not remember during deposition)

King v. Kings County Sheriff’s Office, 2022 WL 3999485, No. 1:20-CV-00943 (E. D. Calif. Sept. 1, 2022) (rejecting errata sheet from plaintiff’s expert, where entries changed some answers from yes to no, no to yes, added new information, and qualified prior answers)

Sinclair Wyoming Refining Company v. A & B Builders, Ltd, 989 F. 3d 747 (10^th Cir. 2021) (rejecting changes to errata sheet, in part because (a) deponent could have been crossed-examined by his own lawyer to correct error during deposition and wasn’t, (b) witness did not appear confused in giving original answers during deposition, and (c) it did not matter, at the end of the day, whether the corrected testimony aligns with objectively-correct information or subjective evidence - what matters is what the deponent testified he or she believed was true)

https://en.wikipedia.org/wiki/Gordian_Knot

There's definitely a right and a wrong way to terminate or suspend a deposition in progress on the grounds it is being conducted in bad faith, or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. In this episode, Jim Garrity spotlights a new court ruling imposing sanctions against a party who failed to do it correctly. As always, Garrity offers you practical guidance, here about exactly how to suspend or terminate a deposition and seek court relief in a way that complies with the governing rule.

(While you're here, can we ask you a small favor? Our production staff deeply appreciates 5-star ratings, and positive comments, on the various sites that host our podcast. Since the podcast is free, would you mind taking 60 seconds of your time, navigating to wherever you get your podcast, and leaving the crew a 5-star rating? It makes all the difference in the world to them, and it's a super motivator to bring you the best possible episodes - always with supporting research you can use - at no charge whatsoever. Thank you so much!)

SHOW NOTES

Fed. R. Civ. P. 30(d)(3)(A) (providing only grounds under the rules for interrupting, terminating, or limiting a deposition in progress)

Daniels v. Dixon, et al., 2022 WL 3574443, No. 8:21-CV-00223-CJC (C. D. Cal. July 12, 2022) (defendant law enforcement officer and counsel walked out of deposition after fifty minutes alleging, among other things, that plaintiff was disrespectful in conducting his deposition; held, “Because Defendant has failed to move for an early termination [under Fed. R. Civ. P. 30(d)(3)], Defendant remains obligated to complete the deposition,” and was ordered to pay $2,031 in costs associated with the terminated deposition)

Coulter v. Paul Lawrence Dunbar Community Center, et al., 2020 WL 13469775, No. 16-CV-0125 (W. D. Penn. Feb. 27, 2020) (granting defense motion for sanctions where plaintiff walked out of deposition without properly suspending and then seeking court order relating to alleged defense harassment)

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, at *7 (S. D. Cal., 2020) (“Most significantly, a further deposition is warranted because of Defendant Fellner's decision to leave the deposition after less than two hours had elapsed, without moving for a protective order under Rule 30(d)(3) or otherwise alerting the Court that he was choosing to terminate the deposition. That decision not only “impede[d]” the deposition; it torpedoed it.”)

Omeprazole Patent Litigation, 227 F.R.D. 227, 230 (S. D. N. Y. 2005) (“It is not the prerogative of counsel, but of the court, to rule on objections.... [I]f the plaintiff's attorney believed that the examination was being conducted in bad faith ... or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied immediately to the ex parte judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d).”

*Added after this episode first aired:

Boulder Falcon, LLC v. Brown, No. 222CV00042JNPJCB, 2023 WL 2662187, at *12 (D. Utah Mar. 28, 2023) ("Fed. R. Civ. P. 30(d)(3)(A) provides: “At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Although the term “bad faith” can have many meanings depending upon the context in which it is used, one of its common connotations is to do something for an “improper purpose.” Bad faith and improper purpose include unnecessarily increasing the costs of litigation. Further, bad faith can arise when the examining attorney lacks a basis for asking questions that allege adverse facts.")

In this episode, Jim Garrity talks about dealing with document requests included within a Notice of Deposition Duces Tecum, and how to determine (a) the due date for service of your responses and objections to those document requests, regardless of the actual upcoming deposition date, and (b) the due date for the actual production of responsive documents. As always, we genuinely appreciate your listenership. If you have a moment, would you please add a five-star rating wherever you get your podcast? It takes just a second, but it's the #1 way to thank our production staff for these free, actionable, practice- oriented episodes. Thanks!

SHOW NOTES

Fed. R. Civ. P. 30(b)(2) authorizing deposition notice to include document requests for production ("at the deposition”)

Fed. R. Civ. P. 34(b)(2)(A) (providing that responses to document requests are due within 30 days after being served)

Gilbert v. E.I. Dupont De Nemours & Co., No. 3:15CV00988 (AWT), 2016 WL 3211682, at *3 (D. Conn. June 9, 2016) (“Rule 30, which allows the deposing party to request that documents be produced at the time of the deposition, does indeed incorporate Rule 34. Rule 34, in turn, states that the party to whom the request is directed must respond in writing within 30 days after being served. The Court has found nothing to indicate that the 30-day limitation is not applicable to document requests incorporated into deposition notices.”)

RM Dean Farms v. Helena Chem. Co., No. 2:11CV00105 JLH, 2012 WL 169889, at *2 (E.D. Ark. Jan. 19, 2012) (Rule 34, in turn, provides that the party to whom a document request is directed “must respond in writing within 30 days after being served.” Fed.R.Civ.P. 34(b)(2)(A). Thus, a party has 30 days within which to respond to a document request, even if the request is included in a notice of deposition, unless the time is shortened by stipulation or court order. Orleman v. JumpKing, Inc., No. Civ. A.99–2522–CM, 2000 WL 1114849, *9 (D.Kan. July 11, 2000))

Olmstead v. Fentress Cnty., Tennessee, No. 2:16-CV-00046, 2018 WL 6198428, at *4 (M.D. Tenn. Nov. 28, 2018), citing Schultz v. Olympic Med. Ctr., No. C07-5377 FDB, 2008 WL 3977523, at *2 (W.D. Wash. Aug. 22, 2008) (“It is well settled that Fed.R.Civ.P. 30(b)(2) provides that any deposition notice which is served on a party deponent and which requests documents to be produced at the deposition must comply with the thirty-day notice requirement set forth in Fed.R.Civ.P. 34.”)

Oldershaw v. Davita Healthcare Partners, Inc., 2017 WL 11688074, No. 15-CV-01964-MSK-NYW (D. Colorado April 13, 2017) (rule says that document request that is part and parcel of a notice of taking deposition requires production of documents at the deposition)

Sandler v. LC. System, Inc. Opinion and Order Granting Defendant’s Motions for Protective Order2:13-cv-13000-MOB-MCM (S. D. Mich. May 8, 2014) (granting protective order against embedded document request where defendant argued, among other things, that it had produced some documents prior to the deposition date)

Richardson v. Rock City Mech. Co., LLC, No. CV 3-09-0092, 2010 WL 711830, at *4 (M.D. Tenn. Feb. 24, 2010) (Except for concerns about legibility of copies (which should have been addressed earlier), it is not clear to the Court why originals are necessary, citing Fed. R. Evid. 1003)

In this episode, Jim Garrity explains how to seek an order limiting the duration of an upcoming deposition, including the rules you'll rely on and the arguments you'l make (for or against, depending). Occasionally, it's obvious that certain deponents - high-level officials, spouses, children, or privilege-bearing witnesses, to name just a few - have limited knowledge or involvement. If so, a deposition spanning a full day or more simply cannot serve a legitimate purpose. That's when it's time to seek a court order in advance, limiting the length of the deposition. As always, supporting cases are in the show notes below.

And be sure to check out the book upon which this podcast is based,10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d. Edition, available just about everywhere books are sold. And if you don't mind, would you take a moment and leave our production crew a five-star rating wherever you get your podcast? This podcast requires tremendous time, energy, and research resources, and is completely free. For that reason, the best way to say thank you is with a great rating. Our staff is thrilled every time we see a new 5-star rating show up. As always, thank you!

SHOW NOTES:

Forte Capital Partners, LLC v. Harris Kramer, LLP, 2008 WL 4924724, No. C 07-1237 SBA (N. D. Cal. Nov. 14 2008) (“There is nothing in the Federal Rules of Civil Procedure or case law that legitimizes taking the full seven hours to depose a person when there is no purpose”)

Iron Hawk Technologies, Inc. V. Dropbox, Inc., No. 2:18-CV-01481-DDP-JE M (C. D. Cal. Mar. 20, 2019) (order time-limiting deposition of Dropbox CEO to three hours, in response Dropbox’s motion protective order)

Van Den Eng v. The Coleman Co., Inc., 2005 WL 3776352, No. 05-MC-109-WEB-DWB (D. Kan. Oct. 21, 2005) (rejecting defense demand to block deposition of former CEO, but limiting deposition to four hours; while evidence is weak that former CEO has relevant knowledge, “as a general, a party seeking discovery may test and asserted lack of knowledge”)

Speed RMG Partners, LLC v. Arctic Cat Sales, Inc., 2021 WL 5087280, No. 20-CV-609 (NEB/LIB) (D. Minn. Jun. 14, 2021) (rejecting defense request to time-limit 30(b)(6) deposition to 3.5 hours, saying there had not been a sufficient showing that topics of proposed corporate designee deposition were adequately addressed by prior fact witnesses)

Higginbotham v. KCS International, Inc., 202 F.R.D. 444 (D. Maryland 2001) (in response to plaintiff’s counsel’s alleged intransigence as to duration of deposition, defense counsel “could and should have filed a motion to modify the subpoena and to limit the duration of the deposition”)

Fed. R. Civ. P. 26(b)(2)(A) (authorizing court to limit duration of depositions)

Fed. R. Civ. P. 26(c)(1) (authorizing courts to impose limits on discovery, including depositions)

Fed. R. Civ. P. 45(d)(1) (authorizing courts to issue orders limiting undue burdens caused by subpoenas)

Fed. R. Civ. P. 45(d)(3) (3) (authorizing courts to modify subpoenas to avoid undue burden)

In this episode, Jim Garrity answers a frequent question he gets about Fed. R. Civ. P. 30's seven-hour time limit, namely, "The noticing lawyer questioned the witness for the full seven hours, so wasn't I still entitled to conduct my cross examination?" As always, he concludes the episode with excellent practice tips, here arguments to use when you need more time, and points to make when you're opposing such a request. Thanks for listening!

SHOW NOTES:

Tankersley v. MGM Resorts International and Bellagio LLC, 2022 WL 1395457, No. 22-cv-0 200995-RFP-DJA (D. Nev. Apr. 18, 2022) (discussing factors to consider in allowing more time for cross-examination where noticing party consumes most or all the seven hours allowed under FRCP 30(d)(1); held, plaintiff's lawyer allowed to reopen plaintiff's deposition and conduct four hours of follow-up after defense used all but 35 minutes of the default duration)

Alabama Aircraft Industries, Inc. v. .Boeing Company, 2015 WL 10090631, No. 2:11-CV-03577-RDP (N. D. Ala. Dec. 22, 2015) ( allowing Plaintiff, after deposition in which defendant conducted 5 1/2 hours of examination, and where plaintiff was only able to conduct 55 minutes of cross-examination before witness departed, to continue examination as part of original deposition for one and 1/2 hours)

In this episode, Jim Garrity explains the pitfalls in defending against – or in asking - the common wrap-up question “Have you now told me everything that supports your claims?” (or defenses, as applicable). A deponent who is unprepared for this question is likely to foreclose any opportunity to add additional information. On the other hand, a lawyer who asks this question at the very end of a deposition may open a Pandora's box that cannot be closed. Garrity addresses the situation, as always, from both sides, and offers practice tips to avoid problems.

Supporting cases in the show notes, as always.

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SHOW NOTES

Ziehm v. RadioShack Corporation, 2010 WL 2079550, No. 09-69-P (D. Maine May 22, 2010) (portions of plaintiff’s affidavit struck as contradicting deposition testimony, where plaintiff was specifically asked whether they had disclosed everything on a particular topic during the deposition)

Beckel v. Walmart Associates, Inc., 301 F.3d 621 (7^th Cir. 2002) (statements in employee’s affidavit in opposition to summary judgment could not be credited because it was consistent with deposition testimony given in response to questions whether the plaintiff “remembered anything else” that had been said, to which she said “No”)

Owens v. TelePerformance USA, 2009 WL 3719411, No. 04 C 3645 (N. D. Illinois November 4, 2009) (portions of affidavit stricken where plaintiff attempted to add additional, new information despite having answered “Yes” in deposition when asked “Have you now told me everything that you felt was unfair or discriminatory?” and “And you’ve told me everything that was said to you at the time?”) 

In this episode, Jim Garrity discusses a question he got from a lawyer whose corporate opponent refused to make the CEO available for deposition under the "apex doctrine." Garrity explains the advice he gave, which was to immediately notice a designated-representative deposition under Fed. R. Civ. P. 30(b)(6). He also discusses the value of designated-representative depositions in arbitration, where - because of sharp restrictions on the number of depositions that can be taken - many witnesses will similarly be off-limits.

In this episode, Jim Garrity highlights a June 17, 2022 court ruling where Fed. R. Civ. P. 56(d) was in play. This rule allows you to ask a court to defer ruling on a prematurely-filed summary judgment motion, in order to allow you more time to complete depositions for use in opposing the motion. Here, Garrity dives deep into the rule, and into the winning and losing ways to draft or oppose FRCP 56(d) motions. Our Lessons from the Front Lines episodes spotlight brand-new deposition-related court rulings from around the country. So it's important to bear in mind that the rulings highlighted in these kinds of episodes are subject to revision, challenge, appeal, modification, or withdrawal. Thank you as always for listening.

SHOW NOTES

Fed. R. Civ. P. 56(d)

Koeppel v. Hartford Accident & Indemnity Co., 2022 WL 2191670 (E. D. La. June 17, 2022) (court declined to reconsider summary judgment motion because upcoming depositions would provide the missing proof where plaintiff’s counsel did not ask the court to defer ruling on summary judgment prior to the ruling)

Ocean Garden Products Inc. v. Blessings Incorporated 2020 WL 3545564, Case No. CV-18-322-TUC-RM (D. Ariz. 2020) (Rule 56(d) motion granted based on showing where good cause shown; excellent example of superior Rule 56(d) motion at Doc. 386 on Pacer.gov)

Patrick v. PHH Mortgage Corp., 2014 WL 713272, 998 F. Supp. 478 (N.D. W. Va. 2014) (Rule 56(d) motion denied where motion made only vague claims about what it would get and from whom)

Bunio Victory Packaging, L.P., 2020 WL 5203446 (E.D. Cal. 2020) (rule 56(d) motion granted in case where pro se plaintiff made legitimate showing)

Intervarsity Christian Fellowship/USA v. The University of Iowa, 2019 WL 9575232, Case No. 3:18-cv-80S-MRS-BJ (S. D. Iowa 2019) (Rule 56(d) motion granted where movant made good-faith showing of need for discovery, and where summary judgment motion was filed very early)

Papineau v. Brake Supply Company, Inc., 2020 WL 6704586, Case No., 4:18-CV-168-JHM (W.D. Ky 2020) (Rule 56(d) motion denied where factors weighed against holding dispositive motion in abeyance, being (a) when movant learned of issue needing more discovery, (b) whether the desired discovery would change potential ruling, (c) how long discovery has been open, (d) whether movant was diligent or dilatory, and (e) whether party filing dispositive motion was responsive to discovery requests)

N.K. Collins, LLC v. Williams Grant & Sons, Inc., 472 F. Supp. 3d 806 (D. Haw. 2020) (Rule 56(d) motion granted)

Hodgin v. UTC Fire & Security Americas Corp, Inc., 2018 WL 1308605, 885 F.3d 243 (4^th. Cir. 2018) (affirming denial of 56(d) motion and grant of summary judgment; question on 56(d) motion isn’t whether discovery remained open but whether party seeking to defer ruling had reasonable opportunity to conduct essential discovery)

Federal Housing Finance Agency v. Las Vegas Development Group, LLC, 2021 WL 5359593, Case. No. 20-15658 (9^th Cir. 2021) (affirming grant of summary judgment and denial of 56(d) motion where movant’s papers offered no reason to believe additional discovery would uncover evidence contradicting hundreds of pages of records and declarations proving key points)

Avery v. E & M Services, LLC, 2020 WL 4606840, No. 1:18-CV-00258 (D. N. Dakota 2020) (summary judgment denied without prejudice to allow parties to conduct more discovery)

Cimontubo – Tubagens e Soldadura, LDA v. Petroleos de Venezuela, S.A., 2022 WL 2155285, No. 21-875-CV (2d Cir. 2022) (affirming grant of summary judgment and denying 56(d) motion; while due process requires an opportunity to present every available defense, defendant already had opportunity and may not have timely asked for more time)

Junk v. Board of Governors of Federal Reserve System, 2022 WL 363776, Case No. 19-3125-CV (2d. Cir. 2022) (affirming summary judgment and denying 56(d) motion, saying movant didn’t meet applicable standards)

Cline v. Dart Transit Company, 804 Fed. Appx. 307 (6^th Cir. 2020) (reversing summary judgment and denial of 56(d) motion where trial judge limited discovery period to 90 days and allowed plaintiff a single deposition)

Smith v. OSF Healthcare System, 933 F. 3d 859 (7^th Cir. 2019) (reversing denial of 56(d) motion and grant of summary judgment where movant demonstrated good cause to warrant deferral of ruling on dispositive motion)

Laborers’ Pension Fund v. Midwest Brickpaving, Inc., 2020 WL 264752 (N. D. Ill. 2020) (denying 56(d) motion, in part asserting that six months was more than ample discovery period, given facts of case; court expressed disdain for filing of combination summary judgment response and 56(d) motion)

Huff v. United States, 2021 WL 2533443, Case No. 3:20-CV-00942-MAB (S.D. Ill. 2021) (granting motion to defer ruling on summary judgment)

Furrion Property Holding Limited v. Way Interglobal Network, LLC, 2021 WL 4263757, Case No. 3:19-CV-566-PPS-MGG (N.D. Ind. 2021)

Stroh Die Cast LLC v. StoneRidge Control Devices, Inc., 2022 WL 179338 (W. D. Wisc. 2022) (rejecting 56(d) motion, filed as combination document with opposition to summary judgment, as filed too late)

In this episode, Jim Garrity offers critical tips for preparing deponents who suffer from severe speech impediments. If left unaddressed, much of the deponent's testimony will be lost. It doesn't need to be that way, and Garrity offers a host of valuable practice tips to help litigators on both sides of this issue. This episode is based on the 13 reported court decisions in the show notes below. (And one more thing? Would you please go to our podcast, wherever you download it, and leave us a 5-star rating right now? That's a huge way to send us a thumbs-up for the insights and research we provide free in every episode. It means a lot to us, and won't take more than 30 seconds. Thanks in advance from our entire production team.)

SHOW NOTES

Smith v. State, 957 A. 2d 2 (S. Ct. Delaware 2008) (sexual battery conviction affirmed where victim, suffering from cerebral palsy, testified before trial with mother as interpreter, and at trial with assistance from expert speech pathologist who had worked with victim for six years); see also State v. Smith, 2019 WL 6194130 (Superior Court Delaware 2019) (petition for post-conviction relief denied where no evidence that use of interpreter rendered testimony inaccurate)

Reed v. State, 287 S.E.2d 205 (Ga. 1982) (court allowed court reporter to function as “interpreter” for criminal defendant with speech impediment, and also instructed jury to raise hands if they did not understand defendant; conviction affirmed)

State v. Holmes, 2012 WL 4086169 (Superior Ct. Delaware Aug. 22, 2012) (eyewitness to shooting suffered from expressive aphasia, and could not verbally articulate his answers, but could point and nod his head; held, this was sufficient to credit the testimony is reliable)

State Farm Life Ins. Co v. Smith, 66 Ill. 2d 591 (Supreme Ct. Ill. 1977) (dissent sharply criticizing majority opinion for apparently discounting the qualitative value of an eyewitness’s testimony because of a severe speech impediment, seemingly equating the impediment with confusion and unreliability)

In re Matter of Cohen, 2011 WL 2610663 (S. Ct. N. J. 2011) (courts decision to allow deponent to have his speech pathologist aid during deposition in translation of his testimony was harmless error, over objections that pathologist was not truly neutral and might interpret, rather than translate; excellent extended discussion of issue)

Trammell v. State, 53 Ala. App. 246 (Ct. Crim. App. 1974) (criminal conviction affirmed despite objection that sole eyewitness to fatal stabbing had suffered a stroke, causing trial judge to allow witness to be interrogated by leading questions, with answers given mostly by negative or affirmative nods of the head)

People v. Seel, 68 Ill. App. 3d 996 (App. Ct. Ill. 1979) (failure of defense counsel to adapt to speech limitations of key witness was as likely an explanation for contradictions in the witnesses testimony as possible dishonesty, saying that usual verbal pyrotechnics do not work with speech-impaired witnesses)

McGee v. State, 383 So.2d 200 (Ct. Crim. App. Ala. 1979) (conviction affirmed where repeated references to “unintelligible testimony in trial transcript left appeals court unable to say that error was committed at trial)

Gissendaner v. State, 54 Ala. App. 535 (Ct. Crim. App. Ala. 1975) (conviction reversed where state attempted to bolster testimony of speech-impaired witness out of concern that jury would discount witness’ testimony)

Kissic v. State, 594 So.2d 227 (Ct. Crim. App. Ala. 1991) (conviction affirmed despite argument that trial court should not have allowed testimony from witness who speech impediment allegedly made testimony unintelligible and misleading; held, evidentiary objection was made only after testimony had concluded, and was thus waived)

Parker v. State, 172 Ga. App. 540 (Ct. App. Ga. 1984) (conviction affirmed despite objections that prosecution was allowed to lead one of its witnesses, in light of witnesses testimony that he suffered from speech impediment)

EFFYIS, Inc. v. Hottolink, Inc., 2020 WL 13157804 (E.D. Mich. June 10, 2020) (court allowed taxability of “check translator” retained to verify the translation of documents)

http://www.voiceitt.com (example of speech-assistive devices “for people with non-standard speech”)

http://www.aphasia.com (Lingraphica device website)

In this episode, Jim Garrity discusses a brainstorming meeting he had with the podcast staff about show topics for the coming year. One member suggested he develop a "top five list" of things that litigators should be doing, but aren't. Bad idea! As Garrity explains in the episode, there is no single list of things all trial lawyers should do. Effective deposition plans are highly individualized. So one-size-fits-all checklists for litigators, applied mechanically, foster the very opposite of truly brilliant deposition practice. Garrity uses this episode instead to talk about five things that immediately came to mind, and that brand-new lawyers might give thought to, when building their own toolkit of deposition skills.

In this episode, Jim Garrity explores the psychological impact of seating arrangements, and how various seating configurations affect the way witnesses and deponents perceive you. As he explains, some seating arrangements are intuitively collaborative in nature, and give off friendly, cooperative vibes. Others, the research shows, can create negative energy from the outset. As always, he ends with practical guidance and insights on the best places to sit - vis-a-vis your subjects - for depositions and witness interviews.

SHOW NOTES

Sommers, Robert, Studies in Personal Space, Sociometry Journal,March 1959, American Sociological Association https://faculty.buffalostate.edu/hennesda/sommer%20personal%20space.pdf

Zhu, Rui and Argo, Jennifer,Exploring the Impact of Various Shaped Seating Arrangements on Persuasion,Journal of Consumer Research, Vol. 40, No. 2 (Aug. 2013), Oxford University Press

Morris, Juliann, The Effects of Seating Arrangements on Small Group Leadership Emergence, Vol. 16 (2018), University of Hawaii at Hilo Press

Van Edwards, Vanessa, Learn the Psychology of Conference Table Seating According to Science, Mar. 13, 2019, published on Medium.com

Russell, J. Curtis and Baron, Reuben M., Seating Arrangement and Social Influence: Moderated by Reinforcement Meaning and Internal-External Control, pub. In Social Psychology Quarterly,  Mar. 1980, Vol. 43, No. 1.

Lattimore, Karlson Lajuan, The Effect of Seating Orientation and a Spatial Barrier on Students’ Experience of Person-Centered Counseling, Graduate Thesis (Aug. 2013), Cornell University

Maximize the Impact of Seating Formations (undated), published on www.westsidetoastmasters.com.

In this episode, Jim Garrity ponder the issue whether you're immediately entitled to obtain notes taken by a deponent while testifying or, to go a step further, the notes of non-attorney witnesses observing the depositions of others. As always, Garrity offers practice tip for those seeking such notes and those opposing their production. Cases mentioned in the show are listed below.

And one more thing? Would you consider leaving us a 5-star rating, a positive review, wherever you get your podcasts? Our production staff work their tails off, and seeing a new rating is a great way to say thank you for their efforts. We appreciate it!

SHOW NOTES

Knowledge A-Z, Inc., 2007 WL 4553347, No. 1:05-CV-1019-RLY-WTL (S. D. Ind. Dec. 19, 2007) (corporate president took notes during his individual deposition and while testifying as corporate representative, at the conclusion of which counsel for defendant demanded the notes; held, whether plaintiff’s assertion of attorney-client privilege is correct or not, “the notes clearly are protected by the work product privilege,” and “Accordingly, they are not discoverable and the motion to compel is denied”)

Brown v. Northrup Grumman Corp., 2013 WL 3816659, Case No. CV-12-1488(JS)(ETB) (E.D.N.Y. 2013) (plaintiff sought to obtain handwritten notes taking by representative of corporate defendant during plaintiff’s deposition; held, notes were protected by attorney work-product doctrine, even if witness testified he was taking them of his own volition, where he took them for the purpose of sharing his observations with defense counsel and, further, partial production of notes did not constitute waiver of complete set of notes)

Milwaukee Concrete Studios, Ltd., v. Greeley Ornamental Concrete Products, Inc., 140 F.R.D. 373 (E.D. Wisc. December 9, 1991) (notes taken by employees of plaintiff during other witnesses depositions were not discoverable in were protected by the attorney-client privilege because they were preparing materials on behalf of their employer)

Moore v Kingsbrook Jewish Medical Center, 2012 WL 107800, Case Nos. 11-CV-3552 and 11-CV-3624 (E. D. N. Y. March 30, 2012) (pro se deponent’s notes, taken during her deposition, were protected by work-product privilege just the same as if she had a lawyer taking notes during her deposition for her)

Jones v. Bank of America, N.A., 2015 WL 180916, Case No. 3:14-CV-11531 (S. D. W. Va. April 21, 2015) (30(b)(6) deponent brought handwritten notes of previous interviews with defense employees to deposition, answered questions about them, and read portions of her notes into the record; held, assertion of attorney-client privilege, in the complete absence of objections during the deposition, resulted in waiver and were unavailing to avoid production)

Valvoline Instant Oil Change Franchising, et al., v. RFG Oil, Inc., 2014 WL 12026073 (S. D. Cal. May 20, 2014) (deponent’s limited use during deposition of timeline prepared at direction of counsel resulted in partial waiver, but only to those portions of the timeline that the witness actually reviewed and testified from during deposition; Rule 612’s provisions that allow for the disclosure of documents used to refresh memory for the purpose of testifying requires careful analysis based on the extent to which documents were consulted and relied upon, balanced against the unnecessarily broad waiver of privilege)

Flores v. Wall, 2012 WL 4471106, Case No. 11-69-m (D. Rhode Island Sept. 6, 2012) (“The practice of deponents referring to notes during their depositions is not uncommon”) 

In this episode, Jim talks about the problems associated with taking document-intensive depositions of remote video deponents who are participating on their cellphones. As always, Jim offers specific practice pointers for solving the problem. Have a great week!

In this episode, Jim Garrity explains what constitutes improper coaching during depositions, and offers a wide range of examples. As always, cases mentioned in the episode appear below in the show notes. Thanks for listening! And if you haven't checked out the book on which this podcast is based, you can find it on Amazon and just about everywhere else. Look for 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Now in its third edition at 450 pages, in both print and electronic formats.

SHOW NOTES

In re Neurotin Antitrust Litigation, 2011 WL 253434, Case No. 02-1390(FSH) (D. N. J. Jan. 25, 2011) (frequently-cited case cataloging examples of improper deposition coaching)

Freidman v. Fayenson, 983 N.Y.S.2d 203 (Supreme Ct. N.Y. Dec. 4, 2013) (comments such as “if you understand the question you can answer,” and “If you recall,” are improper coaching)

Sokn v. Fieldcrest Community Unit School District, 2014 WL 201534 (U.S.D.C. Ill. Jan 17, 2014) (defense counsel improperly directed deponent to cut off answer, and then improperly objected when plaintiff’s counsel tried to get the witness to finish answer; held, it is clear defense counsel was trying to impede plaintiff's counsel from getting complete response from the witness, which is sanctionable misconduct)

Big Top USA, Inc. v. Wittern Group, 183 F.R.D. 331 (U.S.D.C. Mass. Nov. 20, 1998) (dismissing case as sanction for numerous discovery violations, and providing examples of improper coaching during deposition)

ADDED AFTER EPISODE AIRED:

In the Matter of Rosin, 212 N.Y.S. 3d 633 (N. Y. S. S. Ct., App. Div. June 11, 2024) (lawyer publicly reprimanded for coaching deponent during remote deposition)

In this episode, Jim Garrity discusses an April 18, 2022, opinion from a federal appellate court, about a dispute between the parties over the accuracy of the stenographic transcript of the plaintiff's deposition. Despite the arguments made at the trial level about errors in the transcript, neither the parties nor the trial judges apparently obtained the audio of the deposition and made it a part of the record. That prompted the appellate court to vacate the summary judgment ruling and send the case back to the trial judge, with instructions for the court and parties to listen to the audio and report back to the Eleventh Circuit. As you know, Garrity has long advocated that litigators independently audiotape their depositions. This case perfectly proves his point.

Our Lessons from the Front Line episodes are based on brand-new deposition-related court rulings from around the country. Because the rulings discussed in these episodes are in fact newly-issued, listeners should bear in mind that the rulings are subject to appeal, challenge, modification or withdrawal. The case discussed in this episode is still pending.

SHOW NOTES:

Reed v. Pediatric Services of America, Inc., Case No. 21-10159 (11th Cir. April 18, 2022) (vacating summary judgment and remanding for trial court to evaluate, based on audio recording of deposition, the accuracy of the stenographic transcript)

Reed v. Pediatric Services of America, Inc., Case No. 4:20-cv-00064-HLM-WEJ, CM/ECF Doc. 47 (N. D. Ga. October 15, 2020) (order rejecting pro se plaintiff's motion challenging accuracy of deposition transcript)

Reed v. Pediatric Services of America, Inc., Case No. 4:20-cv-00064-HLM-WEJ, CM/ECF Doc. 71 (N. D. Ga. December 17, 2020) (order granting summary judgment)

Today Jim Garrity offers up 14 different, caselaw-supported, arguments to protect your client from being taxed with an opponent's videographer costs following an adverse case outcome. Many lawyers take for granted that the taxation of videographer charges is just as inevitable as for stenographic transcripts. That just isn't so. Listen for more. And remember our show notes contain all the cases mentioned in the episode. Today there are 18 cases in the list. If you can't see them all, click through to our show's home page. Thanks for listening!

SHOW NOTES:

Hemingway Villa Condominium Owners Association, Inc. v. Scottsdale Insurance Company, 2021 WL 7540794, Case No. 1:20-CV-24365-KMM (S. D. Fla. November 22, 2021) (citing FRCP 54(d) and 28 U.S.C. 1920 as authority for taxation of costs, and reciting fact that costs for deposition transcripts are taxable as long as the transcripts were necessarily obtained for use in the case; noting that not all deposition costs, however, are recoverable, including shipping and handling, expedited delivery of transcripts, exhibit costs, or condensed transcripts)

Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964), disapproved on other grounds by Crawford Fitting Co v. J. T. Gibbons, Inc., 482 U. S. 437, 442-43 (1987) (while prevailing party is ordinarily entitled to recover costs, a district court does not have unfettered discretion to award any and every cost that the wing party incurred in pursuit of their case)

Alvarez v. Lakeland Area Mass Transit District, 2020 WL 13119059, Case No. 8:19-CV-01044-33 SPF (M. D. Florida October 2, 2020) (detailing basic standards for taxability of deposition related costs; rejecting taxability of costs for “E – litigation package,” exhibits, scanning, hyperlinking, and shipping and handling;” further rejecting taxability of videographer charges without an explanation from the prevailing party on why the videography was necessary)

Bostick v. State Farm Mut. Auto. Ins. Co., No. 8:16-CV-1400-T-33AAS, 2018 WL 1474712 (M.D. Fla. Mar. 8, 2018), report and recommendation adopted, No. 8:16-CV-1400-T-33AAS, 2018 WL 1461741 (M.D. Fla. Mar. 23, 2018) (video deposition costs may not be awarded under Section 1920(2) without an explanation from the prevailing party on why the video deposition was necessary, citing Morrison v. Reichhold Chem., Inc., 97 F.3d 460, 465–66 (11th Cir. 1996)

Walter v. Wal-Mart Stores, Inc. 2011 WL 13394675 (N. D. Indiana November 4, 2011) (while videography expenses associated with the deposition or of a qualifying type for taxability, the costs may only be taxed if the deposition recordings were necessarily obtained for use in the case; the proper inquiry is whether the deposition was “reasonably necessary” to the case at the time it was taken, not whether it was used in a motion or in court)

Harris Brumfield, Trustee, et al. v. IBG LLC, et al., 2022 WL 972277 (N. D. Illinois March 31, 2022) (court resolve dispute over taxability of videotaping depositions by declining to award costs as to those individuals who resided within the Court’s subpoena jurisdiction at the time of their depositions and at the time of trial, and thus were available for in-person testimony)

Cascades Computer Innovation, LLC v. Samsung Elecs. Co., No. 11 C 4574, 2016 WL 612792, at (N.D. Ill. Feb. 16, 2016) (“A prevailing party may recover costs for both a paper transcript and a video recording of a deposition, but only when it was "reasonable and necessary" for counsel to obtain both,” citing. See Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008) )

Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (“… unless Champion demonstrates that both costs were “necessarily obtained for use in the case,” 28 U.S.C. § 1920(2), only its transcription costs are recoverable. See Tilton, 115 F.3d at 1478 (adopting similar standard and stating that the district court must find an independent, legitimate use for both the transcription and the video recording before both sets of costs can be recovered under 28 U.S.C. § 1920(2))

Trading Techs. Int'l, Inc. v. eSpeed, Inc., 750 F. Supp. 2d 962, 977 (N.D. Ill. 2010) (“After evaluating the necessity of each video deposition on a case-by-case basis, we find that both stenographic transcription and video-recording was only reasonably necessary for the depositions of witnesses living abroad whom TT disclosed as potential witnesses for trial”)

Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11^th Cir. 1996) (costs of both videography and stenography recoverable where party opposing bill of costs did not object to the duplicative methods of capturing testimony at the time the deposition was noticed)

Cherry v. Champion Int'l Corp., 186 F.3d 442, 446–47 (4th Cir. 1999) (“The discretion conferred by Rule 54(d)(1), while only defined in the rule as a general reservation, “unless the court otherwise directs,” has been defined more specifically by courts: “only misconduct by the prevailing party worthy of a penalty ... or the losing party's inability to pay will suffice to justify denying costs.” Congregation of The Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222(7th Cir.1988) (citations omitted); see also Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir.1985) (describing the denial of costs as “in the nature of a penalty” (internal quotation marks and citation omitted)); Serna v. Manzano, 616 F.2d 1165, 1167 (10th Cir.1980) (same). We have recognized additional factors to justify denying an award of costs, such as their excessiveness in a particular case, the limited value of the prevailing party's victory, or the closeness and difficulty of the issues decided. See Teague, 35 F.3d at 996. Although the losing party's good faith in pursuing an action is a “virtual prerequisite” to receiving relief from the normal operation of Rule 54(d)(1), that party's good faith, standing alone, is an insufficient basis for refusing to assess costs against that party. See id. With these principles in hand, we turn to the district court's denial of costs in this case”)

Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (“Champion asserts that videotaping Cherry's deposition was necessary to enhance its chances of effectively impeaching Cherry at trial. While that may be so, § 1920(2), read in conjunction with Rule 30(b)(2), requires more. The concept of necessity for use in the case connotes something more than convenience or duplication to ensure alternative methods for presenting materials at trial. See Fogleman v. ARAMCO (Arabian American Oil Co.), 920 F.2d 278, 285 (5th Cir.1991) (stating that deposition costs reasonably incurred for trial preparation or for use at trial, “rather than for the mere convenience of counsel,” constitute taxable costs under 28 U.S.C. § 1920(2)). While there surely are circumstances when both a videotape and a transcript of a deposition may be necessary, Champion has not made the showing why either a transcript or a videotape would not have been sufficient for the need it identified. We cannot conclude that the district court abused its discretion in concluding, based upon the circumstances of this case, that it would deny both the cost to videotape and the cost to transcribe Cherry's deposition testimony. Accordingly, we will allow only transcription costs”)

Thomasson v. GC Services Limited Partnership, 2007 WL 3203037, Case No. 05-cv-0940-LAB-CAB (S. D. California October 29, 2007) (argument of inability to pay costs, as way to avoid taxation, should be based on substantial documentation of a genuine inability to pay, citing McGill v. Faulkner, 18 F.3d 456, 459 (7^th Cir. 1994))

Teter v. Project Veritas, et al., 2022 WL 989229 (W. D. North Carolina March 31, 2022) (providing examples of when videography is necessary and reasonable above and beyond stenography, saying that videography was taxable where the deponent demonstrated physical gestures and answered questions by pointing to visual exhibits, whereas videography would not be taxed on the grounds of unnecessary expense where the sole purpose was to play video clips for impeachment purposes at trial, since the stenographic transcript would serve that function just as well)

Craftsman Limousine, Inc., et al. v. Ford Motor Company, et al., 579 F.3d 894 (8^th Cir. 2009) (while 28 USC 1920 doesn’t explicitly refer to taxability of videotaping, video depositions are allowed by rule, implicitly authorizing taxation of such costs)

Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10^th Cir. 1997) (28 USC 1920 implicitly permits taxation of costs of video deposition)

St. Francis Medical Center, et al. v. C. R. Bard, Inc., 2010 WL 1980328 (E. D. Missouri May 18, 2010) (court declined to tax video costs against losing plaintiff where some witnesses were noticed by plaintiff, not defendant, and such witnesses were defendant’s own employees or experts; the implication being that the duplicative method of recording that the noticing plaintiff did not choose, and which were of employees or experts or consultants of defendant, were not “necessarily obtained for use in the case,” especially where such were not cited by Defendant in its summary judgment motion; court also declined to tax text/video synchronization expenses)

Kriegel v. St. Thomas Beach Resorts, Inc., 1981 WL 704985, Case No. 78 – 362 (D. Virgin Islands Feb. 26, 1981) (example of outdated decision saying that videotape depositions cannot be taxed as costs absent agreement by the parties or advance court order)

Today, Jim Garrity interviews the chief legal officer of a company that offers commodity-priced transcripts with all the bells and whistles of the most expensive traditional court reporters. In the episode, the CLO, Dean Whalen, walks through the easy ABCs of using his company for reporting services. Here's a blurb from the company's website to give you a flavor for what you'll hear in the interview: "Active Reporting replaces all the annoying add-on fees with all the rich services litigators need to perform their best for a low, flat fee based on the duration of the proceeding. View the transcript as it comes together during the proceeding and get a rough copy one hour after the proceeding, all included. Need a certified transcript? How does one business day sound? No rush fee - it's standard. Need technical support or help with displaying exhibits? All included."

You've heard Jim rail on about the costs of conducting depositions. He has one of the heaviest civil (and deposition) practices in the country, and his firm pays eye-popping bills every week. This episode shows there are legitimate, outstanding options for litigators who, like Jim, are completely over the excessive fees charged by legacy reporting services.

And if you've got an extra 20 or 30 seconds, please leave us a five-star review wherever you get your podcast downloads. Our podcast staff invests a great deal of time each week in episode development and research, and those "thank-you's" in the form of a quick five-star rating really fires them up!

No, we can't explain it here! You'll have to listen to find out. It's our way of thanking listeners for making this the top podcast in the country on civil pretrial deposition strategies and tactics!

In this episode, Jim Garrity tackles the question whether you can bluff a dishonest deponent - for the purpose of encouraging the witness to be truthful - by implying you have evidence that actually doesn't exist? This episode discusses a decision that confronted this precise question. A lawyer placed cassette tapes on a table in front of a deponent during the examination. The tapes were suggestively labeled to imply that the tapes contained recordings of the witness' conversations, although they contained nothing of the kind. Learn more by listening to the episode. As always, email us with questions, comments, or show ideas at DepositionPodcast@JimGarrityLaw.com.

SHOW NOTES:

Cincinnati Bar Association v. Statzer, 800 N.E.2d 1117 (Ohio 2003) (disciplinary action initiated against trial lawyer who used props at deposition to incentive potentially-dishonest witness to be truthful)

Green, Bruce, Deceitful Silence, 33 No. 2 LITIG 24 (2007) (discussing the use of trickery in litigation)

Disciplinary Counsel v. Brockler, 48 N.E.3d 557 (Ohio 2016) (prosecutor suspended from practice for one year, based on his creation of a bogus Facebook page, which he allegedly used to communicate with a defendant's alibi witness; the goal was to see if he could create sufficient dissension between the witness and the defendant to cause her to recant her support)

*Added after first airing of this episode:

Boulder Falcon, LLC v. Brown, No. 222CV00042JNPJCB, 2023 WL 2662187, at *17 (D. Utah Mar. 28, 2023) ("Second, asking Mr. Vitek questions asserting adverse facts that Mr. Cohan knew or clearly should have known were false is hardly fair under any sense of that word")

Matter of Rena, 225 A.D.3d 1055, 206 N.Y.S.3d 817 (2024) ("In January 2023, respondent was suspended from practice for a 90-day term by the Supreme Court of Florida upon respondent's consent and her admission that, in the context of her representation of a criminal defendant, she had used an altered photo pack in her deposition of a child witness in violation of Florida law")

In this episode, Jim Garrity addresses one of the most widely-held misconceptions about deposition practice. He also provides practice tips when an opposing lawyer "invokes the rule" and demands that one or more of your attendees leave the deposition room, to prevent them from hearing a deponent's testimony. Garrity also shares tips from the opposite viewpoint - what to do when you're the lawyer who wants attendees excluded. As always, we've included case citations below to decisions on the topic covered in this episode. Thanks for listening! (Questions? Topics you'd like to suggest Jim cover? Email us at depositionpodcast@jimgarritylaw.com).

SHOW NOTES

Panama City Beach Condos, Limited Partnership, etc., 2009 WL 10674351 (N. D. Florida February 3, 2009) (sanctions imposed against lawyer who frivolously argued that FRE 615 applied to depositions and required exclusion of certain people from deposition room)

BCI Communications Systems, Inc. v. Bell Atlanticom Systems, Inc., et al., 112 F.R.D. 154 (N. D. Alabama September 16, 1986) (defendants not entitled as of right to invoke rule of sequestration in oral civil depositions, where only reason asserted for protective order was garden or boilerplate variety, such as risks of collusion or fabrication)

Hamon Contractors, Inc. v. District Court of First Judicial District, 877 P. 2d 884 (Colo. 1994) (holding that state court evidence rule 615 does not apply to depositions, and that general rule authorizing protective orders was proper mechanism to seek exclusion of persons from depositions)

Rocha v. Unknown Parties, et al., 2020 WL 6063295 (D. Arizona October 14, 2020) (rejecting application of rule of sequestration based on generic arguments that three police officers would coordinate their testimony if they sit in on each other’s depositions)

Brown v. U. S. Department of Veterans Affairs, et al., 2019 WL 13137937, Case No. 18-cv-54-PB (D. New Hampshire April 16, 2019) (plaintiff allowed to have person present in deposition to provide “moral support,” although person could not participate in any way in the deposition)

Howlett v. Chiropractic Center, P. C. 460 P.2d 942 (Sup. Ct. Montana March 31, 2020) (holding that state rule of evidence 615 did not apply to depositions, and also noting that plaintiff did not seek to have rule of sequestration applied to perpetuation deposition)

Huber Baking Co v. Frank C. Sparks Co, et al., 81 A.2d 132 (Superior Court of Del. April 24, 1951) (motion for protective order seasonably made on day of deposition where movant had no reason to believe multiple people would attempt to sit in on deposition)

Smith v. Southern Baptist Hospital of Florida, Inc., etc. et al., 564 So.2d 1115 (Fla. 1^st DCA 1990) (rule of sequestration applies at trial, not to depositions, and can only be accomplished in depositions through rule authorizing protective order to protect against annoyance, embarrassment, oppression, or expense; held, nonparty doctor could sit in and observe deposition)

Federal Rule of Evidence 615 (sequestration rule)

Federal Rule of Civil Procedure 30(c)(1) (specifically excluding rule of sequestration from application to depositions)

Federal Rule of Civil Procedure 26(c)(1)(E) (authorizing court to designate who may, and may not, attend depositions in a given case)

As you know, our Lessons from the Front Lines episodes spotlight brand-new court rulings from around the country on deposition-related topics. Today's case in the spotlight raises an issue we covered last year in Episode #49 - whether a lawyer can properly ask deponents during depositions to search their cell phones for information (assuming the deponent was not subpoenaed to bring the information or device). In this episode, Jim Garrity tells you exactly what questions the lawyer asked, what the deponent said in response, and what led the judge to issue a public reprimand because of the lawyer's conduct. Garrity also explains how the lawyer could have easily avoided running afoul of governing rules, and wraps up by asking you four questions to ponder about your own experience with similar issues in deposition.

SHOW NOTES:

Lafferty, et al. v. Alex Jones, et al., 2022 WL 490381, Sup. Ct. Case No. Xo6UWYCV186046436S (Sup. Ct Connecticut January 28, 2022) (lawyer publicly reprimanded for questions and comments posed to unrepresented, nonparty deponent about whether witness was willing or obligated to search his cell phone during the deposition)

In this episode - the first in a new series this year on testimonial privileges that can impede your efforts to depose witnesses - Jim Garrity explains the "legislative privilege," applicable to legislators and others who engage in legislative functions. It's not the same as "legislative immunity," and as with all privileges, there are ways to depose witnesses who can assert it. In this episode, there are fifteen cases cited in the show notes. If you can't see all fourteen, click through to our home page. (Some podcast sites don't accommodate longer show notes.) Thanks!

(NOTE: We add new cases to show notes when appropriate. These notes contain one or more new decisions issued after the episode was first aired. Scroll to bottom for newest decisions.)

SHOW NOTES:

Bogan v. Scott-Harris, 520 3U. S. 44, 53 (1972) (focus of the analysis is on the nature of the accused act; held, ordinance in question was legislative, because it reflected a discretionary, policymaking decision implicating the budget priorities of the city and the services the city provides to its constituents)

McKnight v. Brown, et al., 2022 WL 488607, Case No. 120-cv-03678-PAB-SKC (S. D. Colo. Feb. 17, 2022) (plaintiff may not assert otherwise-valid Fifth Amendment privilege to avoid answering any deposition questions, such as background questions, questions concerning his criminal convictions (if any) consistent with Fed. R. Evid. 609; and questions regarding his damages and injuries claimed in the case)

Bannum, Inc v. City of Beaumont, Texas, 236 F. Supp. 2d 633 (E. D. Texas December 12, 2002) (granting motion for protective order as to city clerk, city council, and planning and zoning commission, because discretionary decision on the issue - where a halfway house should best be placed - was a policy decision implicating the interests of the city as a whole)

Bryan v. City of Madison, 213 F. 3D 267, 274 (5^th Circuit 2000) (concluding that actions involving a decision to rezone a property were entitled to legislative immunity)

Singleton V. Merrill, 2021 WL 5979516, Case No. 2:21-cv-1291-AMM, and 2:21- CV-1530 -AMM (immunity and privileges lost when legislators actively participated in litigation pertaining to legislation they helped draft)

Gross v. Winter, 1989 WL 54866 (D.C. Circuit May 26, 1989) (District of Columbia Council member not entitled to absolute legislative immunity, because termination of legislative researcher was administrative, not legislative act)

Rateree, et al. v. Rockett, et al., 852 F.2d 946 (7^th Cir. 1988) (actions of city commissioners in approving budget decision to eliminate jobs were “legislative actions,” rather than administrative actions, and thus commissioners were entitled to absolute immunity)

Forrester v. White, 108 S.Ct. 538 (1988) (termination of probation officer did not give rise to absolute immunity from suit)

Page v. Virginia State Board of Elections, 15 F. Supp. 3d 657 (E. D. Virginia 2014) (legislative privilege did not apply to independently-contracted legislative consultant retained by a political party)

Rodriguez v. Pataki, 280 F. Supp. 89 (S. D. N.Y. 2003) (collecting cases on the contours of the concept of legislative immunity and privilege; immunity and privilege are distinct concepts; privilege not always absolute)

Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Maryland 1992) (mixing concepts of immunity and privilege, referring to protection for legislators as “testimonial legislative immunity”)

Trammel v. United States, 445 U.S. 40, 50 (1980) (discussing the impact of privileges on litigation, and observing that testimonial privileges should be very narrowly construed)

Florida Association of Rehabilitation Facilities, Inc. v. State of Florida, Department of Health and Rehabilitation, 164 F.R.D. 257 (N. D. Fla. 1995) (analyzing differences between legislative immunity and testimonial privileges)

E. E. O. C. v. Washington Suburban Sanitary Commission, 631 F. 3d 174 ( 4^th Circuit 2011) (employment in personnel decisions by legislators are generally administrative acts and not protected by legislative immunity and privilege)

Hicks v. Mount Airy-Surrey County Airport Authority, 2015 WL 8484453 (M. D. North Carolina 2015) (termination and nonrenewal of leases at airport was not legislative in nature because the decisions affect specific individuals rather than involving the formulation of broad policy or the adoption of perspective, legislative-type rules that affect the general policy affecting the larger population) 

**League of United Latin American Citizens, et al. v. Eddie Bernice Johnson, et al., No. EP21-CV-00259-DCG-JES-JVB, 2022 WL 1570858 (W.D. Tex. May 18, 2022) ( rejecting effort by Texas legislators to avoid deposition through invocation of legislative privilege; excellent discussion of the doctrine's contours)

ADDED AFTER EPISODE WAS AIRED:

In re Georgia Senate Bill 202, No. 1:21-MI-55555-JPB, 2023 WL 3137982, at *2 (N.D. Ga. Apr. 27, 2023) (extended discussion of legislative privilege)

Pernell v. Fla. Bd. of Governors of State University, No. 23-10616, 2023 WL 7125049, at *2 (11th Cir. Oct. 30, 2023) ("common-law privilege protects state legislators from “deterrents to the uninhibited discharge of their legislative duty” for the purpose of “the public good.” Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Although the core of the privilege is a state legislator's immunity from civil suit for acts related to legislative proceedings, see id. at 379, 71 S.Ct. 783, we have explained that this “privilege extends to discovery requests” because “complying with such requests detracts from the performance of official duties.”)

In this episode, Jim Garrity stresses the importance of systematically asking deponents to catalogue their prior testimonial experience in any form or forum. A witness' prior testimony can be an intelligence goldmine. No company Garrity knows of maintains (or at least admits to maintaining) a readily-available record of where, when and on what its current and former employees have testified. So the best source - unfiltered by opposing lawyers - are witnesses in their depositions. Garrity shares the question he asks witnesses for this purpose, for creating a record under oath of the existence of relevant transcripts or affidavits that can then be subpoenaed, obtained through a request for production, or through FOIA.

SHOW NOTES:

Boyd v. Youth Opportunity Investments, LLC, 2022 WL 332380, Case No. 3:20-cv-321-TAV-DCP (E. E. Tennessee February 3, 2022) (order directing parties to confer about exactly what deposition testimony Plaintiff wanted from another case, and directing Defendant to produce transcripts from that case that did not contain statutorily-protected material about minors at a facility Defendant managed)

Umfress v. City of Memphis, 2018 WL 11396506, Case No. 2:17-cv-02568-SHL-TMP (W. D. Tennessee Sept. 7, 2018) (court compelled city to produce relevant deposition transcripts from related or prior litigation notwithstanding protective order applicable to those transcripts)

Rogue v. CoreLogic Credco, LLC, 2020 WL 1907558, Case No. 1:19-cv-00260-BLW  (D. Idaho April 16, 2020 (company order to redact and produce transcript from prior similar proceeding that was allegedly subject to protective order in prior pursuit)

Bayer Healthcare Pharmaceuticals, Inc., et al. v. River’s Edge Pharmaceuticals LLC, et al., 2014 WL 11517823, Case No. 1:11-cv-1634-RLV-ECS (N. D. Georgia June 25, 2014) (order clarifying that Plaintiff was to produce transcripts from depositions in another case)

In this episode, Jim Garrity does a deep dive into Fed. R. Civ. P. 27 (and its state equivalents, because virtually all U.S. states and territories have a similar rule). Rule 27 allows you to take depositions before a lawsuit has been filed - and also when a judgment has been entered and the case is on appeal - in order to perpetuate/preserve testimony. But the rule actually allows so much more. In fact, Garrity says its name, "Depositions To Perpetuate Testimony," would be more accurate if it were renamed "Discovery to Perpetuate Evidence." Listen in for a great explanation how the rule works, and some fantastic practice tips. As always, the cases upon which this episode is based are listed in the show notes, with full case names, citations, and parentheticals. There are 17 cases in the show notes today. If you don't see them all, the site where you get your podcasts may not allow extended notes. Click through to our podcast homepage if that happens, or email us at DepositionPodcast@JimGarrityLaw.com. And if you have a minute, would you please leave us a five-star rating wherever you get your podcast? Our production staff would so deeply appreciate it. Thanks!

SHOW NOTES

In Re Carl David Jones, 2022 WL 102962, Case No. 7:21-mc-00001-BP (N. D. Texas January 11, 2022) (Role 27 petition rejected where sole purpose was to determine whether a claim existed)

Qin v. Deslongchamps, 539 F. Supp. 3d 943, Case No. 21-MC-16 (E.D. Wis. 2021) (petition denied where sole evident purpose was to determine whether diversity jurisdiction existed that would allow federal court to hear case; “[t]he federal courts have held that Rule 27 can only be used to prevent known testimony from being lost, not as a discovery tool to assist in preparing a complaint”)

Freeman v. Equifax, Inc., No. 221-CV-01137-APG-NJK, 2022 WL 195006 (D. Nev. Jan. 20, 2022) (offering examples that might justify perpetuation of testimony, saying “Such circumstances might derive in a particular case where a witness is gravely ill, elderly, or likely to leave the country for a prolonged period.”)

Naswood v. Banks, No. ED-CV-091675-SVW-DTB, 2013 WL 12470383, at *6 (C.D. Cal. Mar. 19, 2013), report and recommendation adopted, No. ED-CV-091675-SVW-DTB, 2014 WL 12962026 (C.D. Cal. July 2, 2014) (inmate filed petition to preserve camera and/or videotaped evidence while exhausting his administrative remedies under the Prison Litigation Reform Act; further, “[a]lthough Fed. R. Civ. P. 27 is entitled, “Depositions to Perpetuate Testimony,” Rule 27 permits a moving party to seek “orders like those authorized by Rules 34 and 35.” See Fed. R. Civ. P. 27(a)(3); see also Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961) (“[A] party may, in a proper case, proceed under Rule 27 for an order under Rule 34 without taking a deposition at all ....”)

In re Highland Cap. Mgmt., L.P., No. 19-34054-SGJ11, 2022 WL 38310 (Bankr. N.D. Tex. Jan. 4, 2022) (FRCP applies to bankruptcy cases, pursuant to Fed. R. Bankr. Pro. 7027”)

Willis v. PCN Fin. Servs. Grp., Inc., No. 220-CV-01833-DSC-LPL, 2021 WL 6054563 (W.D. Pa. Oct. 27, 2021), report and recommendation adopted sub nom. In re Willis, No. 2:20-CV-1833, 2021 WL 6051558 (W.D. Pa. Dec. 21, 2021) (“Authorizing Petitioner's discovery of the financial information may permit Petitioner to manufacture a cause of action. “[I]t is well settled that Rule 27(a) is not a method of discovery to determine whether a cause of action exists, and if so, against whom action should be instituted.” Id. “Courts generally agree that to allow Rule 27 to be used for the purpose of discovery before an action is commenced to enable a person to fish for some ground for bringing suit would be an abuse of the rule”)

Petition of Ingersoll-Rand Co., 30 5F. R. D. 122 (S. D. New York April 20, 1964) (court denied petition where expectation that action will be filed is hypothetical)

In Re Matzinger Exploration Co., 1995 WL 258279, Case No. 95-525 (E. D. Louisiana April 28, 1995) (court allows limited written discovery prior to perpetuation deposition, finding that because requires “… The District Court to address the interests of justice, [the rule] clearly authorizes the court to issue orders incidental to the perpetuation deposition that are necessary to ensure that the goal of presenting a failure or delay of justice is achieved”)

In re Agent Orange Product Liability Litigation, 96 F. R. D. 587, 588 (E. D. N. Y. 1983) (allowing party adverse to petition to conduct written discovery prior to perpetuation deposition)

In the Matter of Isaac Sims, 389 F. 2d 148 (5^th Cir. 1967) (Rule 27 petition justified in part because of key witness’ imminent departure to Peru)

Hawthorn v. Selke, et al., 2016 WL 6462110, Case No. 3:16-cv-246 (S. D. Ohio October 31, 2016 (Rule 27 petition dismissed pursuant to FRCP 12(b)(6) where petitioner merely appeared to seek general discovery, and where there was no extraordinary risk of the loss or spoilation of evidence)

In Matter of Petition of Legg Mason Investment Counsel & Trust Company, N.A., 2011 WL 1533165 (S. D. New York April 19, 2011) (court granted petition where action could be filed by date certain and key witness was 87 years old)

United Heritage Property & Casualty Company, 2018 WL 2437538 ( D. Oregon May 30, 2018) (where insurance carrier sought cell phone records, but counsel conceded he did not know when or how such records would be destroyed, Rule 27 petition would be denied and dismissed)

Martin v. Reynolds Metals Corp. 297 F 2d 49 (9th 1961) (possible loss of proof by company that expected to be accused of causing harm to cattle ranching operations justified Rule 27 petition, where deceased cattle possibly affected by contamination were being discarded, and where contamination in the soil and water might degrade prior to the filing of a lawsuit)

In Re Petition of Elaine Chao, Secretary of Labor, United States Department of Labor, 2008 WL 4471802, No. 08-mc-56-JSS (N. D. Iowa October 2, 2008) (Rule 27 Petition granted where key witnesses were undocumented immigrants who were about to be deported)

Melohn v. Stern, 2021 WL 1178132 No. 20-cv-05536 (PMH) (S. D. New York March 29, 2021) (Rule 27 petition denied where, among other things, petitioner acknowledged wanting to conduct discovery in order to gather information to meet heightened pleading standard for RICO claims)

Washington Mutual, Inc. v. United States of America, 2008 WL 11506727, No. Co6-1550-JCC (W. E. Washington October 10, 2008) (Rule 27 petition granted where testimony of 74-year-old witness may be lost “in the three years that are likely to pass before the appeal is finally resolved”)

In this episode, Jim Garrity discusses an October 21, 2021 ruling granting a protective order blocking plaintiffs' depositions set on short notice. In the case Garrity discusses, the plaintiffs' lawyer sent emails - one 49 days before the close of discovery, and another 42 days before the deadline - seeking deposition dates for specific named witnesses. But the actual Notice of Taking Depositions wasn't served until October 14, just a few days before the October 18, 19, and 20 depositions, and with a discovery deadline of October 21. So while the depositions had been discussed informally by email well in advance, the actual notice violated both a local rule and Fed.R.Civ.P. 32(a)(5)(A) against "short-notice" depositions. Garrity offers practical guidance on how to avoid winding up in this situation, including whether an email could ever serve as the formal deposition notice. The full case citation for the case discussed in the episode appears in the show notes below. And if you haven't left us a five-star rating wherever you get your podcast, would you be so kind as to do so right now? That's a great way to let us know you appreciate the effort that goes into producing these episodes. Thanks!

SHOW NOTES:

Bernstein, et al. v. Town of Jupiter, Florida, 2021 WL 6135188, No. 21-81215-CV (S.D. Fla. Oct. 21, 2021) (order granting defendant's motion for protective order blocking deposition set on short notice; held, while the plaintiff requested dates well in advance of the discovery deadline, the service date of the actual Notice of Taking Deposition was too close to the depositions themselves, violating rules on short-notice depositions)

Fed. R. Civ. P. 30(b)(1), (2), (3), (4); 30(b)(6); (outlining the required content of a proper Notice of Taking Deposition)

Fed. R. Civ. P. 32(a)(5)(A) ( addressing "short-notice" depositions, defined as depositions noticed less than 14 days from the date of the deposition, and providing severe consequences)

In this Lessons from the Front Lines episode, Jim Garrity analyzes Google's opposition to the deposition in a class action of its highest-level official, Sundar Pichai. The fight, which ended in a December 27, 2021 ruling allowing the deposition, implicates the judicially-created "apex witness" doctrine. That doctrine holds that depositions of top corporate, elected, and other government officials - those at the apex of their organization - should be discouraged or even prohibited unless the movant can satisfy the elements of the apex deposition test. As always, relevant case cites are in the show notes. And if you'd like the free bonus PDF containing the filings by Google and the plaintiffs on this issue, email us at DepositionPodcast@JimGarrityLaw.com. In the subject line, make clear you're asking for the Episode 78 bonus PDF. Thanks!

SHOW NOTES:

Joint Submission Re: Deposition of Google Officer Sundar Pichai, Brown et al. v. Google LLC, Case No. 5:20-cv-03664-LHK, Doc. 365 (S. D. Calif. Dec. 27, 2021) (jointly-submitted letter brief containing factual and legal arguments for and against apex deposition of Alphabet and Google CEO, but limiting deposition to two hours)

Order Regarding Deposition of Sundar Pichai, Brown et al. v. Google LLC, Case No. 5:20-cv-03664-LHK, Doc. 365 (S. D. Calif. Dec. 27, 2021) (allowing apex deposition of Alphabet and Google CEO, but limiting deposition to two hours)

Affinity Labs of Texas v. Apple, Inc., 2011 WL 1753982, at *15-16 (N. D. Calif. May 9, 2011) (rejecting efforts to depose Apple CEO Steve Jobs where other witnesses were produced with firsthand knowledge)

Computer Acceleration Corp. v. Microsoft Corp., 2007 WL 768-4605 (E. D. Texas June 15, 2007) (rejecting efforts to depose Microsoft CEO Bill Gates, where he merely directed and encouraged employees to focus on a specific issue)

Anderson v. County of Contra Costa, 2017 WL 930315 at*4 (and. D. Calif. March 9, 2017) (rejecting request for apex deposition, directing plaintiffs to first depose a corporate representative on key topics and, if necessary, to then meet and confer about the necessity and scope of an apex deposition)

In this episode, Jim Garrity answers some listener questions about depositions by written questions, and shares additional thoughts about the technique, which we covered in Episode 76. This will be our last episode of the year, and we wish all of our listeners a safe and happy holiday season and New Year. We're thrilled to report that we added thousands and thousands of new listeners in 2020, our first full year of the podcast, and we're grateful for the rave reviews about the way we structured the podcast: a single topic in each episode, actionable advice, tips and tactics for lawyers on both sides of an issue, and our actual research in the show notes. We have some unbelievable topics to cover in 2022 and look forward to continuing to help you overcome frustrating obstacles in your deposition practice and thoroughly master this critical element of your litigation. Thank you again!

In this episode, Jim Garrity explains how depositions by written questions work, and when to use them. Many lawyers have never deposed a witness this way. Garrity argues that this tool has value, and that you should experiment with them to gain both a working understanding of this option and to further expand your deposition skill set. There's a bonus PDF with this episode as well, available free upon request, as explained in the audio. And as always, the show notes contain full case citations to every case mentioned and more. Thanks for listening!

SHOW NOTES

Pueblo of Jemez v. United States of America, et al., 2017 WL 6512230, No. CV-12-800 RB/JHR (D. N. M. Dec. 19, 2017) (outlining procedure for depositions by written questions, and ordering that no lawyers would be permitted to attend)

Pace v. Lewis, 2021 WL 1377923, Case No. 19-22928-CV (S.D. Fla. Apr. 12, 2021) (also outlining, in footnote 4, the procedure for depositions by written questions)

Baker v. Immanual Medical Center, 2007 WL 1797642, No. 8:06 – CV – 655 (D. Nebraska June 19, 2007) (in footnote 3, noting that depositions by written questions are not bound by the same provision of rule 33 that limits the number of interrogatories)

Owens v. Degazio, 2019 WL 4929812, No. 2:16- CV-2750-JAMA K – JMP (rule addressing depositions by written questions does not limit the number of deposition questions that may be asked)

Downing v. Pacific Gas & Electric Company, et al., 2017 WL 11630759, Case No. EDCV 17-1047-DMG-KK (C. D. Calif. Oct. 27, 2017) (rejecting plaintiffs demand that defendant be forced to take her deposition by written questions)

Great American Assurance Company, et. al. v. Ride Solution, Inc., 2019 WL 13023801, No. 3:16-cv-372-J-32JBT (M. D. Florida June 7, 2019) (rejecting demand that newly-added defendant seeking to depose a previously-deposed witness and corporate representative be forced to conduct the depositions by written questions)

Fed. R. Civ. P. 31 (depositions by written questions)

Bonus PDF containing select filings from Pueblo of Jemez v. United States of America (available on request as explained in the episode)

**Added after episode was published**

Lee Roy Hernandez v. Groendyke Transport, Inc., Defendant., No. 3:21-CV-0108-D, 2022 WL 2064886 (N.D. Tex. June 8, 2022) (court rejected defense motion to compel non-parties to answer written questions as if they were interrogatories, saying, "[The notices] do not comply with Rule 31's requirements that an officer take the deponent's testimony and prepare and certify the deposition. See Crawford v. U.S. Dep't of Homeland Sec., 245 Fed. Appx. 369, 382 (5th Cir. 2007) (per curiam) (“Rule 31 of the Federal Rules of Civil Procedure clearly states that an officer is to take responses and prepare the record of depositions upon written questions.”); Dall. Buyers Club, LLC v. Doe-70.181.229.254, 2016 WL 3854547, S.D. Cal. July 15, 2016) (“[I]t is clear that depositions by written questions entail more than mailing questions to the deponents and awaiting their written response.” (internal quotation omitted))."

In this episode, Jim Garrity talks about the sequence and timing of your depositions. Who is allowed to go first? What if the opposing lawyers insist on deposing your client first, and won't agree to dates for your depositions unless you consent? What if your opponents won't agree to any depositions until your responses to their interrogatories are complete? And what if they're the first to notice a deposition of a witness you also need to depose, but they set it six months from now? Can you go ahead and notice the same witness for a deposition before then? Insights and tips abound in this episode. Remember the cases upon which this episode is based appear in the show notes below. Thanks for listening!

NOTES

John Doe v. Orchard Lake Schools, 2021 WL 5711101, Case No. 20-13287 (E.D. Mich. Dec. 2, 2021) (third-party witness associated with defendant had no right to determine the order in which the plaintiffs would take his deposition where witness was merely expressing personal preference)

Navient Solutions LLC v. The Law Offices of Jeffrey Lohman PC, 2020 WL 6381256 (E.D. Virginia June 16, 2020) (defendant had no right to decline to appear for deposition because of perception that plaintiff had not properly responded to discovery requests)

Russell v. Maman, 2020 WL 5943844, Case No. 18-cv-06691-RS (AGT) (N.D. Calif. October 7, 2020) (rejecting party’s effort to unilaterally impose sequence or timing of depositions because of, among other things, disagreements about document productions)

Roth v. 2810026 Canada Limited LTD, Case No., 1:13-cv-00901-FPG-LGF (W.D. New York July 18, 2016) (rejecting arguments by defendant that because it noticed deposition first, it got to go first, and rejecting argument that a party can decline to cooperate in scheduling depositions because of alleged noncompliance by opponent)

Banks v. C.R. Bard, Inc., 2021 WL 1342539, Case No. 17-193-SDD-RLB (M.D. Louisiana April 4, 2021) (allowing plaintiff to be deposed before plaintiff’s positions as information revealed by plaintiff’s testimony was likely to be highly relevant to the examination later conducted of plaintiff’s physicians)

Fed. R. Civ. P. 26(d)(e) (determining that there is no sequence or priority of discovery)

Fed. R. Civ. P. 26(c)(1) (authorizing the court to determine that discovery may be had in a particular order or sequence)

Fed. R. Civ. P. 29 (allowing parties to stipulate to the timing and sequence of discovery)

In this episode, Jim Garrity looks at a tactic expressly allowed by the rules, but almost always prohibited by judges, specifically the reading of the entire deposition of an adverse party's witnesses to the jury. The practice seems authorized by Fed. R. Civ. P. 30(a)(3) and similar language in many state court rules, which say the deposition of an adverse party can be used “for any purpose” at trial. Yet while many lawyers have tried, few have succeeded, if those deponents are available to testify live. Hear what the cases say, and learn about the one exception where courts have allowed the entirety of a deposition to be read whether the deponent is available or not. As always, the cases upon which this episode is based are listed below, with citations and parentheticals. You’re welcome!

SHOW NOTES

Short v. Marvin Keller Trucking, Inc., 2021 WL 5410888 (E.D. Kentucky Nov. 18, 2021) (declining to allow party to read entirety of depositions at trial when those deponents are available to testify live)

Gonzalez Production Systems, Inc. v. Martinrea International, Inc., 2015 WL 5439254, 310 F.R.D. 341 (E.D. Mich. 2015) (declining to allow entirety of depositions to be read at trial where deponents can be called live)

Stansbury v. Hopkins Hardwoods, Inc., 2018 WL 2977439 (W. D. Ky. Mar. 2, 2018) (same; declining to allow admission of entirety of depositions, while allowing their use in part as needed for ordinary impeachment)

AWGI, LLC v. Atlas Trucking Company, LLC, 2019 WL 7298766 (E. D. Michigan December 30, 2019 (declining to allow defendants to read entirety of depositions at trial where witnesses are available to testify live)

Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983 (8^th Cir. 1999) (affirming trial court rulings, saying, amonther things, that precluding a party from reading the deposition testimony of an available adverse party witness is at worst harmless error)

Kellogg v. Wilcox, 286 P.2d 114 (Wash. S. Ct. 1955 en banc) (even where rule allows party to use deposition of adverse party for any purpose, it is not mandatory for a trial court to admit the deposition in evidence whenever offered by the opponent)

Estate of Thompson v. Kawasaki Heavy Industries, Ltd., 291 F.R.D. 297, 2013 WL 1248675 (N.D. Iowa Mar. 14, 2013) (allowing use of corporate representative deposition in its entirety, notwithstanding availability of designee to testify live at trial)

In this episode, Jim discusses the November 18, 2021 decision of the Florida Supreme Court suspending a lawyer who was allegedly caught text-coaching a deponent while testimony was in progress.

As always, keep in mind that our Lessons from the Front Lines episodes report on brand-new decisions, usually issued within a day or two of the podcast episode discussing them. That means that the decisions may still be challenged, revised, withdrawn, or appealed. Most cases spotlighted in this kind of episode are still pending and working their way through the courts.

SHOW NOTES:

The Florida Bar v. Derek Vashon James, 2021 WL 5365639, No. SC20-128 (Fla. Nov. 18, 2021); also available on the Florida Supreme Court website at https://www.floridasupremecourt.org/content/download/806044/opinion/sc20-128.pdf

ADDED AFTER EPISODE AIRED:

In the Matter of Rosin, 212 N.Y.S. 3d 633 (N. Y. S. S. Ct., App. Div. June 11, 2024) (lawyer publicly reprimanded for coaching deponent during remote deposition)

In this episode, Jim Garrity tackles a sometimes-sticky question: How many times do you have to ask an opponent or witness for deposition dates before you can just set them unilaterally? Garrity tells you (a) exactly how many times you should ask for dates before you set them without agreement, and (b) exactly what to say.

Do you have an extra 60 seconds today? Our show production staff would greatly appreciate it if you would use those 60 seconds to go to wherever you get your podcasts and leave us a five-star review. It's the best thing you can do to say thank you. (And thank you in advance for doing it!)

SHOW NOTES

Avista Management v. , Wausau Underwriters Insurance Company, 2006 WL 1562246 (M.D. Fla. June 6, 2006) (federal judge ordered lawyers to appear on courthouse steps if needed to play the child’s game “rock, paper, scissors” to settle deposition scheduling dispute)

Auto-Owners Insurance Company v. McFarland Equipment and Construction Company, Inc., et al, 2010 WL 11619040, Case No. 09-0315-KD-N (S.D. Ala. Feb 23, 2010) (order declining to compel parties to informally cooperate in scheduling depositions, noting that movant seeking order compelling adversary to cooperate in scheduling depositions had not actually noticed the depositions, but could do so as allowed by rule even absent cooperation). The Order declining to compel the parties to informally cooperate is CM/ECF Document 27. The motion to compel deposition dates is CM/ECF Document 21. The opposition papers are at CM/ECF Document 23.

Leitzke v. Kelsey Nicole F/V, et al., Case No. 2:15-CV-00439-TSZ (W.D. Wash. April 27, 2016) (plaintiff’s counsel’s “notice of unavailability” did not operate as a moratorium on discovery, and judge would not exclude deposition taken while plaintiff’s counsel was unavailable and could not participate in deposition)

Chenevert v. Liberty Mutual Insurance Company, Case No. 3:15-CV-00046-JJB-EWD (M.D. Louisiana Aug. 6, 2015) (rules do not require that depositions be set on convenient dates, but rather only upon reasonable notice)

Jackson v. Calone, Case No. 2:16-CV-00891-TLN-KJN (E.D. Cal. filed Apr. 28, 2016) (federal judge invited defense counsel to renew motion for “terminating sanctions” where plaintiff would not agree for medical reasons to submit to deposition),  The February 23, 2018 Order is Doc. 135 on PACER in this case. The defendants' original motion for terminating sanctions, which is an excellent source of case law on sanctions against a party who refuses to submit to deposition, is Document 102-1.

Fed. R. Civ. P. 30(b)

In this episode - one in a recurring series where we share brand new deposition-related court rulings from around the country - Jim Garrity tells you about a ruling just three days ago, where a judge pondered the question whether a plaintiff's lawyer had violated a discovery stay by using a public-records act request to gather information while the stay was in effect. It's similar to a line of cases where courts have said that gathering witness statements in "deposition-like" settings while a stay is in place may be sanctionable. Cases mentioned in this episode are listed in the show notes below. (Psst! While you're here - can you leave our team a 5-star rating where you get our podcasts? It's a fast, free and hugely-appreciated way to say thanks back!)

CASE NOTES:

Encinias v. Sanders, et. al. 2021 WL 5121167, __ F.3d __ , Case No. CV 20-1005 WJ/SCY (D.N.M. Nov. 4, 2021) (court narrowly denies sanctions where lawyer used extra-judicial means to gather information while discovery stay is in effect)

Clerk's Minutes from hearing on Defendant's Motion for Sanctions, Encinias v. Sanders, et. al. 2021 WL 5121167, __ F.3d __ , Case No. CV 20-1005 WJ/SCY (D.N.M. Nov. 4, 2021) (clerk's notes reflecting argument and court commentary during hearing on Defendant's Motion for Sanctions)

Martinez v. Carson, 697 So.2d F.3d 1252 (10th Cir. 2012) (affirming sanctions against lawyer who took "deposition-like" statements from witnesses while discovery stay was in place, saying the gathering of those statements at minimum violated the spirit of the stay)

*(Added post-publication of this episode) Langston v. Town of Chester, etc., No. 14CIV9474NSRLMS, 2018 WL 11425556, at *1 (S.D.N.Y. Jan. 18, 2018), adopted sub nom. Langton v. Town of Chester, No. 14-CV-9474 (NSR), 2018 WL 1353293 (S.D.N.Y. Mar. 14, 2018) (court refused pro se plaintiff's request to gather affidavits from key witnesses while protective order is in place forbidding depositions of same witnesses)

In this episode, Jim Garrity brings clarity to a quandary experienced by many litigators: Can the non-record lawyers of non-party deponents show up at the deposition and actively participate? By objecting, by asking questions, by giving directions to the court reporter, or engaging in colloquy with record counsel? As always, the cases upon which this episode is based are listed in the show notes below. If it looks like our show notes are cut off wherever you get your podcast, click through to our podcast homepage, or to the page where this episode is hosted, to see the complete list. In these show notes there are four cases, three articles, and five citations to rules.

SHOW NOTES

State ex rel. Naes v. Hart, 548 S.W.2d 870, 871 (Mo. App. 1977) (non-record lawyer may not participate in deposition on behalf of non-party deponent other than to confer and object on matters of privilege or self-incrimination only)

Thompson v. Mather, 70 A.D.3d 1436, 1437, 894 N.Y.S.2d 671 (2010) (non-record lawyer for non-party positioned opponents forbidden from objecting to, or otherwise participating in, videotaped pretrial depositions)

St. Louis v. Hrustich, 35 Misc. 3d 1232(A), 953 N.Y.S.2d 554 (Sup. Ct. 2012) (“generally, though a non-party witness has the right to be represented by counsel at a deposition, counsel may not object or otherwise participate in the deposition and less necessary to invoke a testimonial privilege”)

Sciara v. Surgical Assocs. of W. New York, P.C., 104 A.D.3d 1256, 1257, 961 N.Y.S.2d 640 (2013) (“… It is axiomatic that counsel for nonparty witness is not permitted to object or otherwise participate in a trial”)

May I Please Say Something? Horowitz, D., New York State Bar Journal, 83 AUG N. Y. St. B. J. 82 (July/Aug 2011) (opinion piece on prohibition against deposition participation by non-record counsel on behalf of non-party deponents)

No Role Means No Role, Horowitz, D., New York State Bar Journal, 85 MAY N. Y. St. B. J. 16 (May 2013) (opinion piece on prohibition against deposition participation by non-record counsel on behalf of non-party deponents)

More Than a Potted Plant: Five Tips for a Non-Party Deponents’ Counsel, Schaeffer, J., Practice Points, ABA Committee on Pretrial Practice and Procedure (Nov. 29, 2019) https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2019/more-than-a-potted-plant-five-tips-for-nonparty-deponents-counsel/

Texas Rule of Civil Procedure 199.5(d) (providing that deposition examinations shall proceed as an examination at trial)

New York Civil Practice Law and Rules 3113(c) (providing that deposition examinations shall proceed as an examination at trial)

Fed. R. Civ. P. 30(d)(3)(a) (allowing non-party deponent to terminate deposition being conducted in bad faith)

Fed. R. Civ. P. 26(c)(1) (authorizing non-party deponent to seek protective order on the terms and conditions under which deposition will be conducted)

In this episode, Jim Garrity discusses so-called standing objections, where - in theory - the parties agree that defending lawyers need not make continual objections to a specific line of questioning in order to preserve their rights. What factors should you take into account in offering, or agreeing to, a standing objection? Garrity offers a wide range of practical tips to consider.

Cases upon which this episode are based appear in the show notes below. Cases that begin with a double asterisk were added by our research staff after the episode was first aired.

SHOW NOTES

State versus Riley, 2021 WL 1904878, Ct. App. Iowa May 12, 2021) (criminal defendant objected to alleged evidentiary violation, but did not continue objecting to the same or similar questions; held, defense counsel “did not request nor receive a standing objection to the testimony,”, further stating that “the allowance of standing objections in trials at law is ordinarily not to be recommended”)

Goutis v. Express Transport, Inc., 699 So. 2d 757 (Fla. 4^th DCA 1997) (standing objection is narrowly tailored, and is “not sufficient to preserve an objection to statements other than those specific types to which [the standing objection was made]”)

Carlisle v. Normand, 2019 WL 424681 (E.D. La. Feb. 4, 2019) (court noted large number of objections during deposition - 280 form objections in 322 pages - and concluded the objections were “frequent, often unfounded, and were highly disruptive;” held, deponent may be re-examined, questions can be asked that were previously asked, and “if plaintiffs wish to agree to the entry of a standing objection to form, [the defendant] and other participating defendants are required to accept it”)

In re PSE & G Shareholder Litigation, 320 N.J. Super. 112 (Sup. Ct. N.J. 1998) (standing objection resulted in waiver where provisions of procedural rule made assertion of specific grounds for objections mandatory, even though plaintiffs’ counsel offered standing objection and did not ask for specific grounds at any time)

Hosseinzadeh v. Bellevue Park Homeowners Association, 2020 WL 4901674 (W. D. Wash. Aug. 20, 2020) (objections deemed unnecessary considering that defense counsel had been given a standing objection to disputed topics; however, “the objections were also stated concisely in a nonargumentative and nonsuggestive manner, and did not meaningfully interfere with the witness’ ability to answer questions”)

McColm v. Foremost Ins. Co., 2011 WL 3843917 (N.D. Calif. Aug. 30, 2011) (to facilitate depositions in lawsuit filed by pro se plaintiff, court granted plaintiff a standing objection to all questions asked during the deposition)

Rainbow Popcorn Co., Inc. v. Intergrain Specialty Products LLC, 2008 WL 2184116 (D. Neb. May 23, 2008) (court criticized defense counsel because “he would not agree to a standing objection to alleviate the disruption of persistent and unwarranted objections. . .”)

Natural Resources Defense Council, et al. v. Illinois Power Resources Generating, LLC, 2017 WL 6566863 (C.D. Ill. Dec. 14, 2017) (defense counsel’s refusal of an offer of standing objections to a line of questions “did not impede the deposition” and “the court sees no impropriety…”)

Adventist Health System/Sunbelt, Inc. v. Medical Savings Insurance Company, 2005 WL 8159877 (M.D. Fla. Apr. 26, 2005) (court extends right to standing objection to defense counsel as part of broader order imposing conditions on the conduct of depositions)

Synventive Molding Solutions, Inc. v. Husky Injection Molding, 262 F.R.D. 365 (D. Vermont Mar. 13, 2009) (court, noting that plaintiff’s lawyers conduct during deposition “was at times targeted to frustrate the defendant’s attempt to depose a critical witness,” further observed that plaintiff’s counsel “also made repeated references to what was, according to her, a standing objection made at the beginning of the deposition, and found other means by which she could disrupt the questioning, such as by asking that questions be read back on an inordinate number of occasions;” plaintiffs’ counsel objected at least 330 times, and appeared on at least 240 pages of the 350 page transcript, or more than 70% of the pages)

In re Godfrey, et al., 2018 WL 11346518 (S. D. Fla. Sep. 7, 2018) (court noting that witness “could have eliminated the need for a second deposition by answering the deposition questions under a standing objection to questions [on a certain topic]”)

Doe v. Maret, 984 P.2d 980, 985 (Utah 1999), overruled on other grounds by Munson v. Chamberlain, 173 P.3d 848 (Utah 2007) (“at a deposition a question calling for privileged information cannot be answered subject to a later judicial ruling on the propriety of the question”)

**House, et al v. Players' Dugout, et al., 2021 WL 4898071, No. 3:16-CV-00594-RGJ, 2021 WL 4898071, at *9 (W.D. Ky. Oct. 20, 2021) (stressing crucial nature of making of objections at deposition where error is curable, failing which objection is deemed waived)

Fed. R. Evid. 103(b), Rulings on Evidence, Not Needing to Renew an Objection or Offer of Proof (“Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal”)

Why do litigators feel comfortable dismembering emails, and showing deponents only fragments of the actual conversation? More importantly, why do they think it's okay? In this episode, Jim Garrity discusses "rule of completeness" objections, and why you need to make them. As always, be sure to check out the show notes, which contain the authorities on which each episode is based. The show notes below for this episode contain nine references to authorities. If you can't see them all wherever you download your podcasts, be sure to click through to our episode and podcast homepage, where the complete list is always displayed. Thanks for listening!

Cases that begin with a double asterisk (**) were added after the episode was first aired.

SHOW NOTES

**House, et al v. Players' Dugout, et al., 2021 WL 4898071, No. 3:16-CV-00594-RGJ, 2021 WL 4898071, at *9 (W.D. Ky. Oct. 20, 2021) (stressing crucial nature of making of objections at deposition where error is curable, failing which objection is deemed waived)

Fakes v. Eloy, 2014 IL App (4th) 121100, ¶ 88, 8 N.E.3d 93, 110 (“Indeed, the rule of completeness is not limited to discovery depositions but also applies to the following broad range of evidence: “Oral conversations, parts of written or recorded statements or in the nature of addenda thereto, and written or recorded statements neither part of the previously introduced written or recorded statement nor in the nature of addenda thereto may be introduced by an opposing party on his or her next examination of the same witness, whether cross or redirect, provided such evidence tends to explain, qualify, or otherwise shed light on the meaning of the evidence already received”)

Mayor & City Council of Baltimore v. Theiss, 354 Md. 234, 253, 729 A.2d 965, 975 (1999) (to preserve a deposition objection to any error or irregularity that might be cured if a timely objection had been made at deposition, the objecting party must state the ground for the objection before the conclusion of the deposition, so that the opposing party will have a chance to cure or obviate the error or irregularity)

Walker v. Spina, No. CIV 17-0991 JB\SCY, 2019 WL 538458, at *18 (D.N.M. Feb. 11, 2019) (“By allowing the other party to present the remainder of the writing or recorded statement immediately rather than later on cross-examination, this rule avoids the situation where a statement taken out of context “creates such prejudice that it is impossible to repair by a subsequent presentation of additional material”)

Walker v. Spina, No. CIV 17-0991 JB\SCY, 2019 WL 538458, at *19 (D.N.M. Feb. 11, 2019) (nothing that courts have provided guidance on when the rule of completeness applies. See, e.g., United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992); United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1160 (C.D. Cal. 2008)(Pregerson, J.). The United States Court of Appeals for the Seventh Circuit has applied a four-part test to determine whether to allow evidence under rule 106: “(1) does [the evidence] explain the admitted evidence, (2) does it place the admitted evidence in context, (3) will admitting it avoid misleading the trier of fact, and (4) will admitting it insure a fair and impartial understanding of all of the evidence.” Velasco)

State v. Johnstone, 486 S.W.3d 424, 432–33 (Mo. Ct. App. 2016) (“This ‘rule’ holds that a *433 party may introduce evidence of the circumstances of a writing, statement, conversation, or deposition so the jury can have a complete picture of the contested evidence introduced by the adversary.” State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49–50 (Mo. banc 2006) (emphasis added). “This rule seeks to ensure that an exhibit is not admitted out of context.” State v. Jackson, 313 S.W.3d 206, 211 (Mo.App.E.D.2010) (emphasis added). “The adverse party is entitled to introduce or to inquire into other parts of the whole exhibit in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced”)

Fed. R. Civ. P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615”)

Fed. R. Civ. P. 32(a)(6) (“If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts”)

Fed. R. Evid. 106. Remainder of or Related Writings or Recorded Statements (“If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time”)

Fed. R. Civ. P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A)” )

In this episode, Jim Garrity addresses the question whether your deposition subpoena, which contains a specific date and time for appearance, in fact expires (requiring the witness to be re-subpoenaed) if the deposition is postponed to a future date. As always, he ends the episode with incredibly insightful practice tips, including sample language to include in your subpoenas to avoid this expiration-date argument. Check the show notes for the cases upon which this episode is based. And if you'd like to see the sample subpoena Jim Garrity uses that contains the language he recommends you add, email us at DepositionPodcast@JimGarrityLaw.com. Put "Send me Sample Non-Expiring Depo Subpoena" - or something similar, so we'll know which bonus publication you're looking for - in the subject line.

SHOW NOTES:

Guild Associates, Inc. v. Bio-Energy (Washington) LLC, 2014 WL 2767605, No.: 2:13-CV-1041 (S. D. Ohio, Eastern Division June 18, 2014) (court rules, without analysis, that because the date for depositions had passed by the time of the court's ruling on a motion to quash deposition subpoenas and to have a protective order issued, the matter was moot)

HEI Resources East OMG Joint Venture v. Evans, 2009 WL 2601368, 09-CV-00028-MSK-DNV (D. Colorado August 20, 2009) (rejecting argument that because compliance date for document subpoena had passed 19 days before the court ruled on motion for protective order, the subpoena had "expired by its own terms” and there was no longer any binding basis for recipient bank to comply with subpoena that court had power to enforce; determining that "[T]he former argument is made without any citation to supporting authority and is patently without merit”)

Kitchen v. Croll, 2020 WL 1465978, No. 1:16-CV-190 (W.D. Mich. March 26, 2020) (order affirming magistrate's denial of prisoner’s motion to enforce records subpoenas, noting that the magistrate denied the motion to enforce the subpoena as moot because it expired months before the inmate filed his motion to compel; held, without analysis or citation to authority, that "[d]espite Kitchen’s arguments to the contrary, once the time for production passed, the subpoena no longer had any effect. By the time Kitchen filed his motion to enforce the subpoena several months later, the issue was moot, and thus this portion of the appeal will be denied")

Clark v. Hercules, Inc., 2021 WL 4318413, 2:13-cv-794-FtM-29-MRM (M.D. Fla. Jan. 19, 2021) (deposition subpoena June 27, 2019,for July 10, 2019 deposition, which was delayed due to the witness’ illness; motion to compel and enforce subpoena filed July 15, 2020; order enforcing subpoena issued January 19, 2021; held, "Plaintiff's argument that the subpoena is stale because the stated date has passed is meritless. While the subpoena set the deposition for July 10, 2019 this Court has found that a "[A] subpoena presents a continuing duty to appear and does not expire upon its stated date. As a result, despite the date passing, the Court finds that the Trust is still under a duty to appear”)

United States Equal Employment Opportunity Commission v. Hospman LLC, No. 2:15 – CV – 419 – FTM – 29CM, 2016 WL 5942386 (M. D. Florida October 13, 2016) (subpoena presents a continuing duty to appear and does not expire upon its stated date; hence, if the party cancels and reschedules a deposition after issuing a subpoena with a specific date, a witness is still under a continuing duty to appear for a rescheduled deposition)

Shulton v. Optel Corp., 126 F.R.D. 80 (S.D. Fla. Feb. 17, 1989) (subpoena represents continuing duty to appear and does not expire upon its stated date, citing cases from various states and federal jurisdictions)

Functional Pathways of Tennessee, LLC v. Wilson Senior Care, Inc., 2010 WL 11474102, No. 3:10-CV-409 (E.D. Tenn. Nov. 10, 2010) (November 10, 2010 quashing deposition subpoena without citing statutory or decisional authority, saying that because authority deposition was set for November 5, 2010, “[t]his date had now expired and, because "the subpoena is now incorrect in its date, the subpoena is hereby quashed")

Williams & Cochrane, LLP v. Quechan Tribe, etc., 2020 WL 2747116, No. 17-cv-1436-GPC (S.D. Cal. May 26, 2020) (rejecting, without deciding, argument that "deposition subpoena is insufficient because the original deposition notices expired and were not reissued; Court noted that "Plaintiff has not put forward any authority for its position that the subpoena has expired…”)

Wright v. Warden, 2019 WL 643486, No. CV154006830S (Superior Ct. Conn. Jan. 18, 2019) (determining that subpoena for appearance in court was no longer valid because of state statute that provides the subpoena is valid for 60 days)

Rosario v. Starbucks Corporation, 2018 WL 333196, No. 2:16-cv-01951 RAJ (W.D. Wash. January 8, 2018) (in response to defense argument that the plaintiff's notice of subpoena set a date certain for deposition, and that any other date would be unenforceable because the subpoena had expired, court said thar "This argument is unpersuasive; [the defendant] offers no authority in support of its contention that Plaintiff is confined to the deposition date set forth in its Notice of Subpoena…”)

FRCP 45(c) (governing service of subpoenas on nonparties)

Fast Company Magazine, Do Google and Bing Actually Return Billions of Search Results? https://www.fastcompany.com/1748616/do-google-and-bing-actually-return-billions-search-results

Did you know? Our show notes - where we list the cases and other authorities on which each episode is based - are dynamic. That means we're constantly updating and adding to them. As we encounter new cases in our daily deposition research that touch on a topic we've covered, we'll add them to that episode's show notes. These notes are a free, incredibly valuable research bank for you when you encounter an issue we addressed. We'll add an asterisk to case citations that were added after an episode was published, so you can easily see what's new since you first listened to a show. Thanks for listening!

What exactly have your remote video deponents placed in front of them - on their screen, on the floor, on sticky notes, on a second monitor and elsewhere - to help them testify and spew the official line? Do you systematically inquire at the start of your remote depositions? In this episode, Jim Garrity recommends that you always ask about devices and information - within the deponent's reach or eyesight - at the start of all remote video depositions. Want the Deponent-Accessible Device and Information Verification checklist Garrity mentions in the podcast? Email us at depositionpodcast@jimgarritylaw.com and we'll send it free in PDF and Word formats. Thanks for listening!

Trial is approaching, and you learn a witness you planned to call live now isn’t available. You'll need to read or play their deposition testimony instead. That means that you must prove the witness' "unavailability" under the rules. How do you do it? Which rules do you need to analyze? How far in advance of trial do you have to do it? Can you just tell the judge that, last you heard, Peter, Paul, and Mary were leaving on a jet plane, and you don’t know when they’ll be back again, so you’re probably going to read their depositions? Check out this outstanding episode, which discusses Fed. R. Civ. P. 32, Fed. R. Evid. 804, and others you'll need to know, including Fed. R. Civ. P. 43, 45, and Fed. R. Evid. 402, 403 and 602. The good news is, all the analysis has been done for you here. Sit back and listen! And check out the nearly two dozen authorities on which this episode is based, all cited in the show notes below. You're welcome! ( If you don't see our complete show notes - which end with the words END SHOW NOTES - click wherever you see "Go to episode or podcast homepage. That will contain the complete list. Some sites have line or character limits, but our homepage does not.)

P.S.: This episode, as most, took nearly two weeks to produce. And it's free. Can you show our research and production team some love back, by going to wherever you get your podcast and leaving our team as a five-star review? Our technical team says those reviews make a huge difference as to how a podcast is displayed by Apple, Spotify and others. It takes 60 seconds or less. We would so appreciate it. Thank you again.

SHOW NOTES

Castillo-Frias v. Martinez, 2021 WL 2661093 (E. D. New York Jun. 28, 2021) (court allowed witness “who is due to give birth three days before trial” to testimony remotely by video, but denied request to allow use of deposition in lieu of live testimony, in absence of showing of unavailability in fact at the time of trial)

Hopman v. Union Pacific Railroad, 2021 WL 2856607 (E. D. Arkansas July 8, 2021) (six days before start of jury trial, defendant moves for order allowing use of deposition in lieu of live testimony by witness, based on counsel’s unsworn representation in motion that witness lived and worked 400 miles from situs of trial, and would not be within 100 miles of trial location at the time of trial; motion granted, with leave to plaintiff to designate portions of witnesses deposition that plaintiff wants to play)

Fishman v. Liberty Associates, Inc., 196 So.2d 493 (3d DCA 1967) (trial court’s decision to allow deposition in lieu of live testimony based on unsworn representation of counsel affirmed on appeal; held, no error where representations, if made under oath by witness, would have been sufficient to establish unavailability)

Allgeier v. United States, 909 F.2d 869, 876 (6^th Cir. 1990) (stating that catchall “exceptional circumstances” clause in rule defining unavailability requires a circumstance as exceptional as the other grounds of unavailability, namely, death, extreme distance, severe infirmity, imprisonment, illness, or age).

United States v. Berkeley Heartlab, Inc., 2017 WL 6015157 (D. South Carolina December 1, 2017) (order denying request to publish deposition testimony of 17 witnesses in lieu of live testimony; held, nationwide subpoena power under the False Claims Act renders all such witnesses within the subpoena power of the court, such that none are “unavailable” and, further, saying “Nor is being a parent an exceptional circumstance.”)

Lefebre v. Remington Arms Company, LLC,2019 WL 5103492 (W.D. Mich. July 3, 2019) (allowing plaintiff to present expert’s testimony in prior actions where, based on affidavit from expert, said expert was 86 years old, disabled, retired and more than 1,400 miles from site of trial)

Holen v. Jozic, 2018 WL 4518699 (W.D. Washington September 20, 2018) (order allowing plaintiff to take trial depositions of medical providers because plaintiff demonstrated “exceptional circumstances” under rule 32(a)(4), specifically that requiring the doctors to appear live would disrupt their routines, would disrupt patient medical care, and would result in exorbitant expenses to the plaintiff if the doctors had to travel and testify live)

Whyte v. U. S. Postal Service,280 F.R.D. 700 (S.D. Fla. March 21, 2012) (order denying plaintiff’s request to allow treating surgeon to testify by videotaped deposition in lieu of live appearance at bench trial, because treating experts fee to testify live did not constitute “exceptional circumstance” under FRCP 32(a)(4) )

Forbes v. Villa, 2013 WL 12164779 (C.D. California Dec. 3, 2013) (in case alleging excessive force against former inmate, court rejected request under FRCP 32(a)(4) and FRE 804(a)(5) by plaintiff to use deposition of former cellmate where (a) declaration by plaintiff’s counsel in support of the request was not tendered subject to penalties of perjury, (b) where amended declaration did not assert that the information was true, (c) where the assertion that the “foregoing was true” was the first sentence of the declaration, meaning that it could only apply to the case caption, (d) where plaintiff’s counsel did not properly confer about the requested relief before filing the motion, (e) were plaintiff’s subpoena served on the witness did not tender a check for witness or mileage fees, and was thus defective, and (f) where plaintiff knew that witness was about to be released from facility, but did not properly subpoena him, and could not find him thereafter; held, plaintiff failed to show that he engaged in a good faith effort to obtain the witness’ presence at trial, and fact that release and subsequent disappearance of witness was not an “exceptional circumstance” within the meaning of the rule)

VIIV Healthcare Company v. Mylan, Inc., 2014 WL 2195082 (D. Delaware May 23, 2014) (court rejects plaintiff’s request to submit testimony of two fact witnesses by deposition based on unavailability; held, plaintiffs have failed to demonstrate what steps they took to procure witnesses’ presence for live testimony, and while they need not do so, court can take that into account when exercising discretion whether to allow testimony and, further, plaintiffs have not shown that witnesses have pertinent relevant knowledge)

In re Dwek,2010 WL 4918974 (D. N. J. Nov. 24, 2010) (court has broad discretion to determine whether proponent has satisfied unavailability requirement, and mere assertion that witness is unavailable is inadequate; held, bankruptcy trustee satisfied showing by demonstrating that process server attempted service on witness on six different occasions, that witness had lawyer call process server to ask questions, but would not open the door, showing the witness was likely evading service)

AmTrust North America, Inc. v.. KF&B, Inc., 2020 WL 5552522 (S. D. N. Y. September 16, 2020) (plaintiff files anticipatory motion seeking approval to use deposition testimony if nonparty witnesses are more than 100 miles from site of trial, or less but fail to appear after being subpoenaed, and advises court that reasonable efforts will be undertaken to procure their attendance; held, motion is granted as to all witnesses except one, where there has been no proof that the witness is beyond the subpoena power or that any effort has been made to procure his testimony live at trial)

Carbotrade SpA v. Bureau Veritas, 1994 WL 9652 at *2 (S.D.N.Y. Jan. 13, 1994) (discussing, as alternative options, admission of deposition testimony under either rule 32 (a) or FRE 804)

Branning v. Wayne County,2018 WL 1998312 (M.D. Penn. April 27, 2018) (court allows re-deposition by video for trial of key witness despite last-minute nature of request by plaintiff, where witness filed affidavit, with flight information and other travel details, advising he will be out of the country at the time of trial)

Sisneros v. Fisher2010 WL 965330 (D. N. M. February 20, 2010) (court allowed one daughter of injured plaintiff to testify by deposition because she lived more than 100 miles from location of trial, even though other daughter who lived in same household was going to travel to testify in person; held, upon showing of unavailability, nothing more was required, even if the witness testifying by deposition could ride in same car to trial)

Phoenix Technologies Ltd v. VMWare, Inc.,2017 WL 8069609 (N. D. California June 7, 2017) (court allowed defendant to use deposition in lieu of live testimony, despite multiple representations to plaintiff that defendant would call witness live - up through first day of trial - where witness, who was in town to testify, apparently checked out of her hotel and returned home more than 150 miles away)

Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1^st Cir. 1988) (saying that under the case law interpreting rule 32, procuring absence and doing nothing to facilitate presence are quite different things)

Livers v. Schenck, No. 8:08cv107, 2013 WL 5676881 at *3 (D. Neb. Oct. 18, 2013) ( noting that courts will sometimes draw a distinction between the “unavailability” of fact witnesses and expert witnesses, and impose greater obligation on proponent to show reasonable means undertaken to enlist the expert’s services by offering the witness the usual expert witness fee and by trying to secure attendance at trial)

Fed. R. Civ. P. 32(a)(4) (witness unavailability)

Fed. R. Evid. 804 (witness unavailability)

Fed. R. Evid. 45 (subpoenas)

Fed. R. Evid. 43 (remote testimony)

Sample Federal Pattern Instruction on Use of Depositions - 2.2 Use of Depositions: A deposition is a witness’s sworn testimony that is taken before the trial. During a deposition, the witness is under oath and swears to tell the truth, and the lawyers for each party may ask questions. A court reporter is present and records the questions and answers. The deposition of [name of witness], taken on [date], [is about to be/has been] presented to you [by a video/by reading the transcript]. Deposition testimony is entitled to the same consideration as live testimony, and you must judge it in the same way as if the witness was testifying in court. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

END SHOW NOTES

In this episode, Jim Garrity explores the effect of language added by many litigators in their notices that the deposition may be used (apart from discovery purposes) at trial, in lieu of live testimony by the deponent. But does simply declaring this make it so? Does this eliminate the need to prove unavailability before the deposition can be read? Garrity discusses what courts have to say about the ramifications of adding this language, and offers practice pointers both for lawyers who want to maximize their odds of using depositions in lieu of, and for those who want to oppose the use of depositions as a substitute for live testimony. As always, cases upon which this episode is based are in the show notes below. Thanks for following this podcast!

SHOW NOTES

Joseph v. Gibliant, 590 So.2d 841 (1991) (court allowed use of deposition at trial where deposition notice said that it may be used at trial, and where witness had promised to appear without subpoena, but then failed to do so)

Dockery v. State, 504 N.E.2d 291 (Ind. Ct. App. 1977) (allowing deposition at trial where examining party’s notice specifically stated deposition was for use in discovery or at trial)

Descamps v. Kripke, 2000 WL 1434134 (Ohio Ct. App. 2000) (court allowed use of deposition where notice said deposition may be used at trial, where witness had moved to another state, and where there was no evidence proponent of deposition caused witness’ unavailability)

Fishman v, Liberty Associates, Inc., 196 So. 493 (3d DCA 1967) (deposition allowed at trial in lieu of live testimony where notice said deposition may be so used, and where witness traveled beyond reach of court at time of expected testimony)

HCP Properties – Fair Oaks of Fairfax VA LLC v. County of Fairfax, 102 Va. Cir. 160 (deposition allowed at proceeding on merits where notice indicated it may be used in that manner)

Webster v. Holly Hill Lumber Company, 234 S.E.2d 232 (S. Ct. South Carolina 1977) (reversing verdict and remanding for new trial,  finding that there was no agreement to use deposition at trial, even in light of announced “stipulation” at deposition that deposition could be used in lieu of live appearance)

Fed. R. Civ. P. 32, Using Depositions in Court Proceedings, subsection (a)(4), Unavailable Witness

In this episode, Jim Garrity shares a valuable tool for protecting the identities of nonparty deponents and, in the process, protecting their careers, reputations, and families. A deponent who sees that you've taken steps to protect them is a deponent likely to tell you everything they know. Be sure to check out the show notes, as always, for citations supporting the observations in this episode. Please note that not all sites where our podcasts are available will show you the entire list of authorities. If the list you see looks like it's incomplete, click through to our homepage, where you'll be able to get the complete set of citations. Thanks for listening!

SHOW NOTES

Memorandum of Points and Authorities in Support of Plaintiff’s Motion to File Documents Under Seal, In Re: BofI Holding, Inc. Securities Litigation, CM/ECF Document 239-1, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed August 13, 2021) (pages 2-5)

Memorandum of Points and Authorities in Support of Plaintiff’s Motion to File Document Under Seal, In Re: BofI Holding, Inc. Securities Litigation, CM/ECF Document 208-1, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed August 15, 2021) (pages 2-5)

Order Granting in Part and Denying in Part Joint Motion for Determination of Discovery Dispute No. 3 and Granting Motion to Seal, In Re: BofI Holding, Inc. Securities Litigation, CM/ECF Document 227, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed July 27, 2021) (noting that “retaliation is also a significant concern, as employees often rely on connections with, and recommendations or introductions from, former employers throughout their careers”)

Order Reversing in Part the Magistrate Judges Order Granting Motion for Determination of Discovery Dispute, CM/ECF Document 80, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed November 30, 2016)

Plumbers & Pipefitters Local 572 Pension Fund, 2005 WL 1459555 at *7 (noting that “former whistleblowing employees may be subjected to harassment by new employers or dampen their job-searching efforts”)

Federal Trade Commission v. AAFE Products Corporation, No. 17-cv-00575-AJB-JMA, 2017 WL 3721695 at *1 (S. D. Cal. August 29, 2017) (sealing names and residential addresses of nonparties)

Barnes v. Hershey Company, No. 3:12-CV-01334-CRB, 2015 WL 1814293 at 2-3 (N. D. Cal. April 21, 2015) (“The Court is satisfied that the requested reductions are narrowly tailored to remove only the identities of two of Plaintiffs former employees… Disclosure of this information would infringe the[ir] privacy rights…which constitutes a compelling reason for sealing”)

In this Lessons from the Front Lines episode - where we review brand-new deposition-related cases from around the country - Jim Garrity discusses a new ruling that belongs in your research files (and in your briefcase at depositions) on the right and wrong way to make depositions. The opinion, written by a relatively new federal magistrate who took great pains to catalog cases on this topic, contains more than fifty citations to authority from around the country. So it's an excellent opinion to pull out when opposing counsel starts to make obviously-improper objections during your examinations.

SHOW NOTES:

Mitnor Corporation, d/b/a Servpro of the Seacoast v. The Club Condominiums, etc. 2021 WL 3855819, Case No. 5:20–C –125–TKW–MJF (N. D. Fla. August 11, 2021)

Plaintiffs Emergency Motion to Compel, etc., CM/ECF Document 24

Defendant’s Response In Opposition to Emergency Motion to Compel, CM/ECF Document 35

Order Granting Emergency Motion to Compel, CM/ECF Document 43

In this episode, Jim Garrity concludes the Core Essential Series on preparing your clients for depositions by discussing additional topics to cover with your clients, including the possibility of questions about dishonest or illegal acts, the likelihood of a wide range of personal background questions, inquiries about information your client has obtained and whether anyone associated with the adversary has been providing information behind the scenes, and the critical importance of eating and taking regular breaks during the deposition.

Did you know? You can now follow and listen to this podcast on all the major platforms - Audible.com, Amazon Music, iTunes, Spotify and Google Podcasts. Be sure to like and follow so you don't miss a single episode. And we always appreciate a five star review wherever you get your podcasts. It only takes a second, and it’s a great way to say thank you for the time and energy we put into these shows. Have a great week!

In this episode, Jim Garrity continues the series on preparing your clients for depositions. He’ll wrap up this series in the next segment. Today's episode includes pointers to share with your clients about the importance of giving complete answers to lawyers who constantly interrupt, the importance of listening to the entire question, the need to read all documents with great caution, the significance of appreciating that adversaries sometimes do alter documents (and that it may not be obvious), that your clients should not accept the authenticity of documents at face value, that some questions asked may be very personal, and that the examining lawyer is likely to explore your prior litigation history.

Great news! You can now follow and listen to our podcast on Audible and Amazon Music. That's in addition to Apple iTunes, Google Podcasts and Spotify. The podcast is free everywhere it's available, so be sure to subscribe or follow to ensure that episodes are delivered to your device automatically, so you don’t miss a thing!

In this episode, Jim Garrity shares additional critical insights for preparing your clients for deposition. Today's episode includes pointers to share with your clients about how judges, opposing lawyers, and juries use transcripts; appreciating and understanding the difference between answering questions in a social conversation and in a deposition; the importance of saying "I don't know" and "I don't remember" when your clients don't know or don't remember; the importance of sticking to their guns when a lawyer pressures them to change their answer; and the importance of asking for clarification when a question is unclear. Two more episodes to go in this series!

In this fourth installment of Preparing Your Clients for Deposition, Jim Garrity begins sharing critical insights you need to tell your clients about the deposition process: the layout of the room where the deposition will take place, who will be present and where they will be seated, the importance of taking regular breaks to prevent mental exhaustion, and the differences between depositions as seen on TV and depositions in real life. That includes the general obligation to answer every question asked, examination styles (push questions versus pull questions), the reality about the opposing lawyer's role and goal, and the fact that the deposition is not a practice run and may, in fact, be the only time your clients ever tell their story. Lots to cover, and we are just getting started!

In this third installment of our Core Essential series on preparing your clients for deposition, Jim Garrity covers the three building blocks for effective client deposition prep: explaining the deposition process start to finish, explaining the tricks and traps used by opposing lawyers, and conducting mock depositions in the exact style of the examining lawyer. In other words, train as you fight. As always, thank you for listening. We appreciate your support, and would genuinely appreciate it if you would leave a five-star rating wherever you get your podcasts, as a way of saying thank you to our hard-working production staff.

In episode 47, Jim Garrity spoke about the problems you may encounter when entities produce a large number of 30(b)(6) designees on an equally large number of topics (e.g., 29 designees on 30 topics). Today, Garrity covers the difficulties you'll face when an entity produces just a single designee to cover a large number of topics (e.g., one designee on 33 topics). What complications will this cause for you, and how should you deal with it? As always, Garrity offers practical tips for dealing with it. Today's episode is based on Infernal Technology, LLC, et al. v. Epic Games, Inc., 2021 WL 3493495 (E. D. N. C. Aug. 9, 2021). Thanks for listening, and please send a kind thank-you to our production staff by leaving us a 5-star review wherever you get your podcasts.

In this episode, Jim Garrity stresses the importance of always reserving the right to review the transcript of your client's deposition testimony, and provides a fresh example from one of his own cases about the errors that sometimes creep into the transcription of even the best reporters.

CASE NOTES:

CSC Holdings, Inc. v. Alberto, 379 F.Supp.2d 490, 493 n. 1 (S.D.N.Y.2005) (stating that “original deposition answers constitute the admissions of a party, and as such form part of the record evidence”) 

Dore v. Wormley, 690 F. Supp. 2d 176, 178 (S.D.N.Y. 2010) (“Plaintiff's objections to the use of her deposition transcript are belated, conclusory, and unconvincing. Accordingly, the Court disregards Plaintiff's attempt to disavow her deposition testimony and considers the transcript of Plaintiff's deposition testimony admissible evidence”) 

In re: Kugel Mesh Hernia Repair Patch Litig., No. 07-1842ML, 2010 WL 678092, at *2, 2010 U.S. Dist. LEXIS 16538, at *15–17 (D.R.I. Feb. 23, 2010) (reading Rule 30(e) strictly and finding that initial, timely errata sheets that did not include explanations were deficient when explantions were filed three months later).

Pacheco v. New York Presbyterian Hosp., 593 F.Supp.2d 599, 605 n. 1 (S.D.N.Y.2009) (“The failure of a party to request a copy of his own deposition transcript precludes his right to make changes to his transcript.”)

1993 Advisory Committee Notes ro FRCP 30 (clarifying that pre-filing review by the deponent is required only if requested before the deposition is completed. If review is requested, the deponent will be allowed 30 days to review the transcript or recording and to indicate any changes in form or substance. Signature of the deponent will be required only if review is requested and changes are made. 

Ogbon v. Beneficial Credit Servs., Inc., No. 10 CIV. 3760, 2013 WL 1430467, at *2 n. 2 (S.D.N.Y. Apr. 8, 2013) (“[A] deponent is required to sign the deposition transcript only if review of the transcript is requested before the deposition is completed and changes are made by the deponent.”)

*Maeda v. Kennedy Endeavors, Inc., 2021 WL 4134811 (Sept. 10, 2021) (errata sheet struck on technical grounds)

In this episode, Jim Garrity stresses the importance of beginning your first deposition-specific meeting by understanding what your clients THINK about depositions. What do they think they're for? How long do they think it will take? What do they think the opposing lawyers will do with the transcript? Do they know how judges and juries use them? Your clients will always arrive with at least some beliefs - from films, from TV shows, and from friends and family. It's critical to assess their perceptions about depositions, so you know what to clear up on the way to building a powerful, invincible witness.

In this episode - the first in a new series on preparing your clients for deposition - Jim Garrity outlines the initial, essential steps for creating invincible deponents. That includes a deep dive into your client's background, so you're not caught off guard by side issues that could derail the case.

In this episode, we introduce a new line of episodes that will address core essentials of deposition practice, beginning with preparing clients to be invincible witnesses in their depositions.

In this episode, Jim Garrity asks you to ponder the predictability of your approach to examining witnesses, such as the order in which you cover topics, and the similarity of your questions from deposition to deposition. Garrity refers to the cluster of tactics and styles you use as your "deposition profile," and urges you - through a series of rhetorical questions - to consider whether your predictability is allowing adversaries to more effectively prepare their deponents against you.

A listener shared the following scenario with us, and wants to know what to do. Increasingly, and right in the middle of depositions, opposing lawyers ask, "Do you have her phone number?" or "Do you have texts/emails/pictures?" And, commonly, the answer is yes. Virtually all clients now walk into depositions with a cell-phone loaded with actual or potential evidence. Clients who testify by video from home have even more potential evidence at their fingertips. But is a lawyer who demands (in the middle of a deposition) to see a cell phone or other evidence your client has in their immediate possession entitled to see it? Do you have the right to refuse? Jim Garrity answers these questions and, as always, offers practical tips. The show notes below also contain useful case citation with full parentheticals. If you can't see the full citations of all three cases, click through to our homepage. Some sites limit the length of podcast show notes, but our homepage does not.

Thanks for listening! And be sure to subscribe to the podcast to make sure you are set up for automatic downloads of future episodes. Apple has recently changed its procedures. Look for the small arrow in the upper right corner of our podcast episode, click on it, and choose automatic downloads if offered the option. That way, you won't miss anything.

SHOW NOTES

Lafferty, et al. v. Alex Jones, et al., 2022 WL 490381, Sup. Ct. Case No. Xo6UWYCV186046436S (Sup. Ct Connecticut January 28, 2022) (lawyer publicly reprimanded for questions and comments posed to unrepresented, nonparty deponent about whether witness was willing or obligated to search his cell phone during the deposition)

Studio & Partners, s.r.l. v. KI, 2007 WL 896065, at *1 (E.D. Wisc. Mar. 22, 2007 (holding that an informal request for production for documents made at a deposition was not an appropriate discovery request under the federal rules) (citing Roberts v. Americable Intern., Inc., 883 F.Supp. 499, 501 n. 2 (E.D. Cal. 1995)).

Sithon Maritime Co. v. Holiday Mansion, 1998 WL 182785 (D. Kan. April 10, 1998) ("The Federal Rules of Civil Procedure provide necessary boundaries and requirements for formal discovery. Parties must comply with such requirements in order to resort to the provisions of Fed. R. Civ. P. 37, governing motions to compel. Informal requests for production lie outside the boundaries of the discovery rules. Formal requests may be filed under some circumstances, not letter requests. Formal requests require certificates of conferring and service. Letters do not. Formal requests certify representations of counsel under Fed. R. Civ. P. 11(b). Letters do not. Formal requests clearly implicate the duties of opposing parties to respond, pursuant to Fed. R. Civ. P. 34. Letters do not. Formal requests may occasion sanctions. Letters usually do not. To treat correspondence between counsel as formal requests for production under Rule 34 would create confusion and chaos in discovery")

Troutman, Adm'x of the Estate of Charles Troutman, Jr., Deceased, Plaintiff, v. Louisville Metro Department of Corrections et al. No. 3:16-CV-742-DJH, 2018 WL 3873588, at *3 (W.D. Ky. Aug. 15, 2018) ("The common thread throughout Troutman's complained-of discovery requests is that they were all informally made. The informality of the requests serves as the primary basis for defendants' objections, with both defendants essentially stating that they tried to accommodate Troutman's requests as best they could. The informality of the requests is also the reason why Troutman's motion for sanctions based on them must be denied. Federal courts across the country have routinely denied motions to compel on the basis that the discovery requests were informally made. See, e.g., Garrison v. Dutcher, 2008 WL 938159, at *2 (W.D. Mich. April 7, 2008); James v. Wash Depot Holdings, Inc., 240 F.R.D. 693, 695 (S.D. Fla. 2006).) 

In this episode, Jim Garrity discusses a brand-new deposition-related decision from the U.S. Court of Appeals for the Eleventh Circuit, whose jurisdiction spans Florida, Georgia and Alabama. The appeals court held that a party should be able to depose witnesses if there is a reasonable basis to do so, even where the adversary claims the witnesses know nothing, and even if the witnesses themselves file affidavits swearing they know nothing. Witnesses who may have knowledge, the Court held, should be subject to cross-examination, and should not escape scrutiny through the use of an affidavit alone. Garrity ends the episode, as always, with practice tips and observations.

The case is Akridge v. Alfa Mutual Insurance Company, 2021 WL 2520631, Case No.19-10827 (11th Cir. June 21, 2021).

In this episode, Jim Garrity takes a question from one of our listeners. The listener served up a 30(b)(6) topic list covering 30 specific topics. in turn, the entity said, it would produce 29 separate designees. Our listener asks: Can they do this? Is this abusive? Listen in to hear Garrity's response and practice tips. As always, the full citations for cases mentioned in each episode are listed below in the show notes for your quick reference. And if you have questions you would like covered in a future episode, send them in! You can email our production staff at Jim@JimGarrityLaw.com.

SHOW NOTES:

Grahl v. Circle K Stores, Inc, 2017 WL 3812912 (D. Nev. Aug. 31, 2017) (designation of six or seven 30(b)(6) representatives was not excessive in context of facts, but “[Plaintiff’s] concern "about the potential ‘bandying” from having to depose multiple deponents for multiple topics is not lost on the Court”)

Buie v. D.C., 327 F.R.D. 1, 15 (D.D.C. 2018) (Advisory Committee Notes to 2000 revisions to FRCP 30 Rule 30 make clear that durational limit of seven hours apply to each 30(b)(6) designee; however, court may limit duration in its discretion to ensure proportionality)

Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000) (producing an unprepared 30(b)(6) designee is tantamount to producing no witness at all, and is sanctionable)

Your opponent just served its expert disclosures and reports. You then get a deposition notice - they're going to immediately depose their own experts! And since these depositions may be used at trial - experts often meet the test of unavailability - you might be forced to conduct your trial cross-examination prematurely, before you've had a chance to conduct discovery depositions of them. What now? In this episode, Jim Garrity spotlights a June 15, 2021 court ruling in which a federal judge confronted this very situation. The defendant complained the tactic was unfair and thwarted the principles of discovery. The plaintiff disagreed, saying discovery can be conducted in any order, and nothing prevented them from deposing their own experts first. Learn what the judge thought, and listen to Garrity's tips on how to deal with the situation if it arises in one of your cases.

The case in the spotlight is Rebecca Martinez v. Coloplast Corp, et al., 2021 WL 2432156 (N.D. Ind. June 15, 2021).

There are probably few things more irritating, when examining a deponent, than having the defending lawyers repeatedly interrupt and claim they don't understand your questions. It's bad enough when witnesses feign ignorance of the obvious. But the opposing lawyers, too? In this episode, Jim Garrity tackles the subject of lawyers who engage in obstruction-by-colloquy, and how to deal with it. Helpful case citations in the show notes, below. Thanks for listening.

SHOW NOTES

Musto, et al. v. Transport Workers Union of America, AFL – CIO, et al., 2009 WL 116960 (E. D. New York January 16, 2009) (attorney may not “interpret” questions for deponent, or engage in lengthy speaking objections and colloquy; “the witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record”)

Security National Bank of Sioux City Iowa v. Abbott Laboratories, 299 F.R.D. 595 (N. D. Iowa July 28, 2014 (“Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. The witness—not the lawyer—gets to decide whether he or she understands a particular question”; “[w]hile it is impossible to know for certain what a witness would have said absent Counsel’s objections, I find it inconceivable that the witnesses deposed in this case would so regularly request clarification were they not tipped-off by Counsel’s objections”)

Chesbrough et al. v. Life Care Centers of America, Inc., 31 Mass.L.Rptr. 629 (Sup. Ct. Mass Feb. 14, 2014) (“If the deponent does not understand the question, or the meaning of a word or phrase, or even if the deponent has a question about a document, he or she should ask the questioning attorney”)

Applied Telematics, Inc. v. Sprint Corporation, 1995 WL 79237, Civ. A. No. 94–CV–4603 (E.D. Penn. Feb. 22, 1995) (“In addition, plaintiff’s attorney may not object to a question that the attorney does not understand. As stated in Hall, “a lawyer’s purported lack of understanding is not a proper reason to interrupt a deposition.” Nor may the lawyer state for the record what his understanding of the question is. Id. These types of responses by an attorney are irrelevant and suggestive of a particularly desired answer. Id. If the witness does not understand the question, or needs some language further defined or some documents further explained, the witness can ask the deposing lawyer to clarify or further explain the question”)

Peronis v. United States, 2017 WL 696132, Case No. 2:16-cv-01389-NBF (W.D. Penn. Feb. 17, 2017) “ ‘A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness.’ ” Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa. 1993) (quoting Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)). “ ‘There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers")

Community Association Underwriters of America, Inc. v. Queensboro Flooring Corp., 2014 WL 3055358, Civil Action No. 3:10–CV–1559. (M. D. Penn. July 3, 2014) (Under the federal rules, an attorney is not permitted to object to form and demand clarification of a question the attorney claims not to understand; the witness should be permitted to answer the question posed, or to ask for clarification herself if she does not understand the question. See Birdine v. City of Coatesville, 225 F.R.D. 157, 159 (E.D.Pa.2004); Hall, 150 F.R.D. at 530 n. 10. Moreover, “lawyers are strictly prohibited from making any comments ...which might suggest or limit a witness’s answer to an unobjectionable question.” Hall, 150 F.R.D. at 531; see also Deville v. Givaudan Fragrances Corp., 419 Fed. App’x 201, 209 (3d Cir.2011) (affirming Rule 30(d)(2) sanctions imposed when attorney “testified on behalf of her witness by way of suggestive speaking objections”); Birdine, 225 F.R.D. at 159 (objection that deponent “already testified that within five feet was the closest he got” was improperly suggestive). Likewise, “counsel are not permitted to state on the record their interpretations of questions, since those interpretations are irrelevant and often suggestive of a particularly desired answer")