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Pozner, Larry and Dodd, Roger J., Cross-Examination: Science and Techniques, 3d. Ed.

https://www.amazon.com/Cross-Examination-Science-Techniques-Larry-Pozner/dp/1632843919/ref=sr_1_4?crid=2OP2T6EBDBNI3&dib=eyJ2IjoiMSJ9.o49yLDTFRzsh1lO1WhQd4xBgkEuhYLH3obvuBC2GIdpGyzn1i0dg1lEzyMEYoFcB.NPgrs8W1727PEigEc3OXABbQt85juirYS59s5B12ids&dib_tag=se&keywords=pozner+dodd&qid=1772489570&sprefix=pozner+dod%2Caps%2C227&sr=8-4

PACE - an acronym for Primary, Alternate, Contingency, and Emergency - was devised by the U.S. Military to ensure that if the primary plan goes haywire, there is a Plan B: an immediate go-to backup. And a Plan C, and a Plan D. It sharply increases the odds of mission success because there are no debates or delays when one plan fails. Everyone switches to the next layer of redundancy.

Here, Garrity tells you how to apply PACE to deposition scheduling, so that when your primary plan for deposing a witness - say, an in-person deposition - cannot proceed, you (and all other participants) immediately switch to your alternate plans.

As always, thanks for listening to the number #1 podcast in the world devoted exclusively to deposition strategies and tactics for litigators handling civil, administrative, arbitrative, and criminal proceedings.

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McGillvary v Riez, et al., Case No. 22-6430-MAS-JBD, 2025 WL 2962775 (D. New. Jersey Oct. 17, 2025) (memorandum order on, among other things, a motion to suppress the transcript of the plainest deposition and to compel production of the audio recording of the deposition, based on allegations that the transcript contained numerous errors and omissions) 

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Sample preliminary instruction to minimize "You can answer" gatekeeping"

During this deposition, the lawyers may make objections from time to time. For example, you may hear one of the lawyers say objection, or object to the form. These objections are mainly for the court reporter and, if necessary, for the judge later. They’re not signals to you to stop or to wait for permission. The only time you may hesitate is if the objection you’ve heard is “don’t answer that question.” Otherwise, after objection, or if theres no objection, go ahead and answer the question that was asked, after you heard the objection. You should not turn to your lawyer after each question, or wait for your lawyer to say you can answer after each question. Just listen to the question, and if you understand it, answer it in your own words. The only time you should stop answering as if your lawyers objection is along the lines of don’t answer that question, or if you yourself don’t understand the question and need me to rephrase it. Otherwise, you should go ahead and answer the question.

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James, et al. v. Thomas, Case No. 1:24-CV-00061-RGJ-LLK, 2025 WL 2945597 (W. D. Ky. Oct. 17, 2025) (denying motion for protective order sought by three plaintiffs - who reside in New York, New Jersey, and Florida - to avoid traveling to Kentucky for their depositions)

Crutchfield v. Experience Information Solutions, Inc., et al., Case No. 25-CV-5697, 2025 WL 293-8760 (N. D. Ill. Oct. 16, 2025) (denying motion for protective order, filed by Florida-based plaintiff, that sought to avoid an in-person deposition in Chicago)

This confusion can be fatal to a claim if the representative is also a key witness individually and wasn't deposed separately. Today, Jim discusses a brand new court ruling where a federal judge dismissed a claim against an individual defendant (and key witness) who was only deposed as a 30(b)(6) deponent. The question there was, when a 30(b)(6) witness says “I,” who’s really speaking—the individual or the entity? Learn how that 30(b)(6) deposition in Ademi wasn't enough to survive summary judgment, and what every litigator must do to avoid the same trap. Essential listening for anyone taking or defending corporate rep depositions.

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Ademi, et al. v. Central Park Boathouse, LLC, and Dean Poll, individually, No. 22-cv-8535 (S.D.N.Y. Sept. 23, 2025) (summary judgment granted in favor of individual defendant where plaintiff’s counsel only deposed defendant in a 30(b)(6) capacity and, thus, had no testimony from the witness himself)

Fed. R. Civ. P. 30(b)(6) (designated representative rule)

King v. Pratt and Whitney, 161 F. R. D. 275 (S. D. Fla. Apr. 27, 1995) (rule governing representative depositions doesn’t limit scope of questions that can be asked, beyond topic list); Joseph v. Chronister, et al, 2019 WL 8014505, Case No. 8:16-cv-274-T-35CPT (M. D. Florida January 29, 2019) (scope of designated-representative deposition is not strictly confined to topics set forth in notice; further noting the twin benefit of this type of deposition, being that it limits the number of people within a corporation to be deposed, and prevents bandying); See Marksberry v. FCA US LLC, 2021 WL 2142655, No. 19-2724 (D. Kan. May 26, 2021) (lawyers may object to topics as “outside the scope” of that listed on the 30(b)(6) notice, and such objections have been held to be permissible, but the witness “must nevertheless answer the question because Fed. R. Civ. P. 26(b) - not the deposition notice defines the scope of discovery”).

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Zoom community forum reporting audio feed despite activation of mute button (https://community.zoom.com/t5/Zoom-Meetings/Participant-on-mute-yet-I-can-still-hear-them/m-p/142674)

Excerpt from Zoom’s terms of service at https://www.zoom.com/en/trust/terms/ (You agree [that the software and services are provided “as is” and that Zoom makes no guarantee] . . . .that the services or software will...be...error free. . . . [Y]ou will be solely responsible for any damage to you resulting from the use of the services or software. The entire risk arising out of use or performance of the services or software remains with you”)

Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed February 1, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Respondent’s Response to Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed March 11, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Report of Referee, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed April 28, 2025); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Amended Initial Brief (attorney appealing Report & Recommendation of Referee), The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed September 15); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

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Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)

SHOW NOTES

**Added after episode aired**

White v. Lozano, No. 13-24-00336-CV, 2025 WL 1788040, at *9 (Tex. App. June 30, 2025) (court reporter failed to transcribe the depositions or include the video recordings in the appellate record. This was error, but, because White's counsel did not object to the reporter's failure, he cannot now complain of it on appeal)

**Original Case List**

Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)North Carolina v. Johnson, No. COA24-451, 2025 WL 2408913 (N.C. Ct. App. Aug. 20, 2025) (court could not consider arguments in favor of reversal that were based on videotaped testimony played at trial but not placed into the trial record)

G.W. Aru LLC, et al. v. W.R. Grace & Co. No. CV JKB-22-2636, 2025 WL 2402194 (D. Md. Aug. 19, 2025) (court ordered parties to transcript deposition excerpts played at trial, and then file those excerpts by stipulation, where they had not been entered into the docket)

Shumaker v. Alarsi, et al., No. 1:23-CV-4-SA-DAS, 2025 WL 2418386 (N.D. Miss. Aug. 20, 2025) (rejecting motion for protective order, to allow plaintiffs to avoid 900-mile trip for in-person deposition, where the motion lacked any meaningful detail showing good cause for such an order)

Shah v. Fortive Corporation, et al., Case No. 1:22-cv-312 (S.D. Ohio Aug. 21, 2025) (rejecting plaintiff's request to appear remotely where travel to the forum of the litigation would require "40,000 miles of flight over 48 hours"; plaintiff failed to show distinct hardship or expense)

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SHOW NOTES:

Note: All filings listed below are from the case Black v. City of San Diego, Case No. 21-cv-1990-RBM-JLB (S.D. Cal. Mar. 27, 2025)

Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A) (initial application by Plaintiff) PACER Doc. 153

Defendants’ Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 160.

Declaration Of Casey Stark In Support Of Plaintiffs Motion For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP 30(b)(3)(A), PACER DOC. 153-1

Defendant Tutterow’s Notice Of Joinder In Defendant City Of San Diego’s Opposition To Plaintiffs Ex Parte Application For Leave To Conduct Deposition By Video And Prepare Transcript Using Voice Recognition, PACER Doc. 162.

Defendants Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 164

Plaintiffs Reply To Opposition To Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A), PACER Doc. 165

Second Supplemental Declaration Of Casey Stark In Support Of Plaintiff Motion For Leave To Conduct Deposition. Etc., PACER Doc. 170

Defendants Second Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 171

Order (Magistrate Judge) Denying Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology, PACER Doc. 172

Plaintiff’s Notice Of Objection To Order Denying Application For Leave To Conduct Deposition, Etc. PACER Doc. 173 (appealing magistrate judge’s order to district judge)

Defendant’s Response To Plaintiff’s Objection To Magistrate’s Order Denying Claims Application For Leave, PACER Doc. 174

Plaintiffs Opposition To Defendants Response To Player’s Objection To Magistrate’s Order Denying Plaintiff’s Application, Etc., PACER Doc. 175

Order (District Judge) Overruling Plaintiff’s Objections, PACER Doc. 178

Order Granting Joint Motion For Protective Order, PACER Doc. 32 (providing that certain information was to remain confidential)

Modified Protective Order, PACER Doc. 156

Readback.legal (reporting agency dedicated to reducing deposition -related costs; interview of Readback’s Chief Legal Officer in podcast episode 87)

1993 Committee Note to Fed. R. Civ. P. 26 (noting that where a deposition isn't stenographically recorded, transcripts are often later prepared by counsels' own law firms

Fed. R. Civ. P. 30(b)(3)(a) (allowing lawyers to capture deposition testimony by stenographic means only, audio only, video only, or any combination of the three)

FRCP 26(a)(3)(A)(ii) and FRCP 32(c) (providing that if counsel chooses to record a deposition by video only and plan to present it at trial or hearing, they must provide a transcript of the testimony to the other parties and the court)

Readback.legal (innovative and budget-friendly service advertised as "certified, court-admissible deposition service built for legal professionals who need clarity, speed, and accuracy, without relying on outdated stenography")

SHOW NOTES

Smith, et al. v. City of Chicago, etc., Case No. 21-cv-1159, 2025 WL 1744919 (N. D. Ill. June 24, 2025) (denying use of video depo testimony in opening, but allowing it in closing argument that was admitted into evidence during trial, over objections by defendants that permitting video testimony during closing statements would be “unfairly prejudicial because it emphasizes testimony that is presented by video through repetition, and that opportunity does not exist for a live witness”)

Hynix Semiconductor Inc. v. Rambus Inc., No. C-05-00334 RMW, 2008 WL 190990, at *1 (N.D. Cal. Jan. 21, 2008) (denying use of video depo testimony in opening, but would consider allowing reading from transcript; “If the parties wish to read a portion of a deposition transcript in their opening statement, they are to exchange any excerpt with opposing counsel sufficiently in advance of opening statements so that the court can rule on any dispute over use”)

Doe v. City of San Diego, No. 12CV689-MMA (DHB), 2014 WL 11997809, at *6 (S.D. Cal. July 25, 2014) (collecting cases refusing to allow playing of videotaped deposition testimony during opening statements) (“See In re Ethicon, Inc., 2014 WL 505234, at *8 (S.D. W. Va. Feb. 5, 2014) (“[T]he use of video clips during opening statements is precluded as to all parties ....”) (quoting In re Bard, Inc., 2013 WL 3282926, at *8 (S.D. W. Va. June 27, 2013)); Carpenter v. Forest Meadows Owners Ass'n, 2011 WL 3207778, at *7 (“Video recordings of the deposition will not be permitted.”) (emphasis in original); Chopourian v. Catholic Healthcare W., No. 09–2972 KJM, 2011 WL 6396500, at *7 (E.D. Cal. Dec. 20, 2011) (denying the plaintiff's motion to use portions of videotaped depositions during opening statement); Hynix Semiconductor Inc. v. Rambus, Inc., 2008 WL 190990, at *1 (N.D. Cal. 2008) (“Neither side shall use any videotaped deposition testimony in its opening statement.”); but see Sadler v. Advanced Bionics, LLC, at *3 (W.D. Kent. April 1, 2013) (providing that the court “may” consider allowing the parties to utilize videotaped deposition testimony during opening statements); MBI Acquisition Partners, L.P. v. Chronicle Pub. Co., 2002 WL 32349903, at *2 (permitting party to play segments of video deposition in its opening statement))

Beem v. Providence Health & Servs., No. 10-CV-0037-TOR, 2012 WL 13018728, at *2 (E.D. Wash. Apr. 19, 2012) (rejecting request to play videotaped deposition during opening, and rejecting argument by plaintiff that, under Fed. R. Civ. P. 32(a)(3), she may use the deposition of an adverse party “for any purpose,” stating that “What Plaintiff proposes to do, is to introduce evidence during opening statement. The Court will not allow the showing of video deposition excerpts during opening statement. The motion is denied.”)

K.C. ex rel. Calaway v. Schucker, No. 02-2715-STA-CGC, 2013 WL 5972192, at *7 (W.D. Tenn. Nov. 8, 2013) (“there is no per se ban on the use of video excerpts of depositions in closing arguments”; also citing 88 C.J.S. Trial § 300 (2013) (“[T]here is no blanket prohibition against counsel playing selected portions of a videotaped deposition for a jury during closing argument, and trial courts have discretion to permit, or to refuse, the replaying of videotape segments in closing argument.”)

MBI Acquisition Partners, L.P. v. Chron. Pub. Co., No. 01-C-0177-C, 2002 WL 32349903, at *1 (W.D. Wis. Oct. 2, 2002) (allowing use of video depo excerpt in opening, stating, without further discussion, that “Defendants may use excerpts from the video deposition of David Straden during opening argument. Counsel are to advise plaintiff's counsel promptly of the particular excerpts they intend to show”)

Sadler v. Advanced Bionics, LLC, No. 3:11-CV-00450-TBR, 2013 WL 1340350, at *3 (W.D. Ky. Apr. 1, 2013) (preliminarily allowing use of videotaped deposition testimony in opening statements, saying If this testimony is otherwise admissible at trial and is not unnecessarily lengthy, the Court may consider allowing this procedure for both parties”)

Northfield Ins. Co. v. Royal Surplus Lines Ins. Co., No. SACV 03-0492-JVS, 2003 WL 25948971, at *3 (C.D. Cal. July 7, 2003) (subject to further objection and ruling before trial, “The Court is generally of the view that a party in opening statement may use any piece of evidence which the party in good faith believes will be ultimately received at trial. Rule 32(a)(2) of the Federal Rules of Civil Procedure permits the use of a party deposition “for any purpose”) you like the shoes I wore in high school

Smith v. I-Flow Corp., No. 09 C 3908, 2011 WL 12627557, at *4 (N.D. Ill. June 15, 2011) (“The Court denies I–Flow's request to bar use in opening statement of excerpts from video deposition testimony. The Court will expect plaintiffs to disclose by no later than noon on the Friday before the start of trial any such excerpts they intend to use in opening statements and will expect defendants to make reciprocal disclosures by no later than 5:00 p.m. on the Saturday before the start of trial.”)

Fed. R. Civ. P. 32(a)(3) (providing that "An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee...") (emphasis added)

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Order Denying Plaintiff's Motion for Protective Order, Krishmar-Junker v. Kingline Equipment, Inc., Case No. 23-0431-KD-B, 2025 WL 1710041 (S.D. Ala. June 18, 2025) (court refused to issue protective order where plaintiff, who moved cross-country since filing her lawsuit, claimed financial and medical hardships but failed to meet her burden of a particularized showing of harm to justify relief)

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IN RE: UBER TECHNOLOGIES, INC., PASSENGER SEXUAL ASSAULT LITIGATION, No. 23-MD-03084-CRB (LJC), 2025 WL 1393216 (N.D. Cal. May 14, 2025); See Joint Discovery Letter Brief on Plaintiff's 30(b)(6) deposition notice seeking device demonstration is Document 2957; Order Resolving Discovery Letter Regarding Rule 30(b)(6) Depositions is Document 2995.

Section 9.43, Physical Demonstrations By Deponents, p. 357-359, in the book 10,000 Depositions Later - The Premier Litigation Guide For Superior Deposition Practice: A User's Guide and Handbook on Deposition Tips, Tactics and Strategies for Civil, Administrative and Arbitrative Litigation, 4th Edition, 615 pp., by Jim Garrity, Esq., available on Amazon and just about everywhere else books are sold.

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Kilmetis v. Wal-Mart Stores East, LP, No. 24-CV-04452 (JMW), 2025 WL 1332056 (E.D.N.Y. May 7, 2025) (Rule 31 depositions)

Hales v. Cook, et al., No. 1:24-cv45/ZCB, 2024 WL 5690279 (N. D. Fla. December 20, 2024) (on restricting distribution of deposition transcripts)

Rupard, et al. v. County of San Diego, et al., No. 23-CV-1357 CAB (BLM), 2025 WL 1265858 (S. D. Cal. April 30, 2025) (on excluding parties from depositions in their own cases)

Johnson v. Parks Floyd Investments, LLC, No. 2:23-cv-1063 SMD/KRS, 2025 WL 1191785 (D. New Mexico April 24, 2025) (on use of deposition subpoenas duces tecum to parties as a tool to circumvent and shorten the normal period for production of documents)

SHOW NOTES:

The three AI apps we use currently are:

ChatGPT.com

https://x.com/i/grok

Perplexity.ai

SHOW NOTES

Villareal v. Texas, Case No. 24-557, __ US __ (Apr. 7, 2025) agreeing to review ruling denying criminal defendant’s request to confer about his testimony with his counsel during overnight breaks) petition for writ of certiorari at https://www.supremecourt.gov/DocketPDF/24/24-557/331695/20241113121417971_cert%20petition%20Villarreal%20v%20Texas.pdf; Brief in Opposition at https://www.supremecourt.gov/DocketPDF/24/24-557/348537/20250225093718236_250219a%20BIO%20for%20efiling.pdf; Reply Brief at https://www.supremecourt.gov/DocketPDF/24/24-557/351275/20250305130135816_cert%20reply%2024-557%20Villarreal%20v%20Texas.pdf

Allergan, Inc. et al. v. Revance Therapeutics, Inc., No. 3:23-cv-00431, 2025 WL 1006372 (M. D. Tenn. Apr. 3, 2025) (outlining the procedure for questioning witnesses claiming privilege, and holding that foundational questions about the allegedly privileged communications must be allowed to determine whether a privilege exists)

In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case Number 22–MD–03047–YGR (PHK), 2025 WL 1009362 (N. D. Calif. Apr. 4, 2025) (denying request for deposition of a witness in an individual capacity, on basis that deposing party should have combined such a deposition with the 30(b)(6) deposition of the same person)

• You can successfully oppose even otherwise taxable deposition costs, when an adversary prevails, by making these fairness-based arguments
• FRCP 30(b)(6) topic lists must be proportionate to the case, as a court ruled when refusing to evaluate a list of 503 topics
• The rule of sequestration does not apply in federal civil cases and the majority of states, but you may succeed in getting a court to impose it if you can show one of these "plus" factors
• In-person depositions are still a thing, and should not be treated as unusual or requiring an extraordinary showing

As always, thanks for listening! And remember - these episodes are always free and contain no advertising. What's the catch? Only that we'd ask you to leave us a 5-star rating wherever you download your podcasts. Those ratings are deeply motivating to, and deeply appreciated by, our research and production staff. And be sure to check out the book on which this podcast is based - 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Now in its 4th edition at 625 pages, available on Amazon and almost everywhere books are sold.

SHOW NOTES

LUV N' CARE v. LINDSEY LAURAIN, ET AL, No. CV 3:16-00777, 2025 WL 622334, at *8 (W.D. La. Feb. 26, 2025) (while courts cannot award costs not explicitly identified in 28 U.S.C. § 1920, courts do have discretion to deny award of otherwise recoverable costs where fairness or other considerations dictate)

NATHEN W. BARTON, Plaintiff, v. REAL INNOVATION INC. et al., Defendant., No. 3:24-CV-05194-DGE, 2025 WL 606167, at *1 (W.D. Wash. Feb. 25, 2025) See 36-page notice (Case 3:24-cv-05194-DGE Document 51-1 Filed 01/14/25 Page 1 of 36 (contains 503 actual questions, not topics)

MARK WRIGHT-AHERN, Plaintiff, v. THE CITY OF CLERMONT, Defendant., No. 5:24-CV-173-MMH-PRL, 2025 WL 605059, at *2 (M.D. Fla. Feb. 25, 2025) (rule of sequestration does not apply to depositions, absent particularized showing of specific facts warranting the relief; the correct procedure for seeking to exclude a person from deposition is to seek a protective order); see also Order (from same case, awarding fees and explaining sequestration concept in depositions), CM/ECF Document No. 31, filed Jan. 31, 2025)

UNITED STATES OF AMERICA, Plaintiff, v. The M/Y Amadea, a Motor Yacht Bearing Int'l Mar. Org. No. 1012531, Defendant., No. 23 CIV. 9304 (DEH), 2025 WL 754124, at *1 (S.D.N.Y. Mar. 10, 2025) (ordering witness to travel overseas to United States for in-person deposition, finding that while remote depositions are the new normal, there remains nothing unusual about insisting that a key witness appear in person)

In this episode, Jim Garrity spotlights a new ruling on a little-known but powerful tool: the use of depositions as affidavits. As Garrity discusses, a deposition does not need to meet the requirements of trial-oriented Fed. R. Civ. P. 32 (which requires a showing that the party against whom the deposition is offered had notice and a chance to examine the deposition) when it is offered in proceedings that allow testimony by affidavit, such as at summary judgment.

SHOW NOTES

Surety v. Co. v. Dwight A. Herald, et al., Case No. 1:23-cv-00086-GNS-HBB, 2025 WL 627523 (W.D. Ky. Feb. 26, 2025) (deposition/examination under oath of witness taken in underlying state-court personal injury could be used in federal declaratory judgment actions at summary judgment time, as deposition meets form of affidavit)

Diamonds Plus, Inc. v. Kolber, et al., 960 F. 2d 765 (8^th Cir. 1992) (deposition need not be admissible at trial to be properly considered in opposition to motions for summary judgment; deposition inadmissible at trial because one of the defendants did not receive proper notice and did not attend the deposition was properly used to create issues of fact justifying denial of summary judgment)

Hoover v. Switlik Parachute Co., 663 F.2d 964, 966-67 (9th Cir. 1981) (“Rule 56 ... plainly allows consideration of “affidavits” and we find nothing which requires that term to be construed within the limitations of Rule 32(a).”).

First Gaston Bank of North Carolina v. City of Hickory, 691 S.E.2d 715 (Ct. App. N.C. 2010) (citing cases rejecting proposition that FRCP 32 limits use of depositions in proceedings where evidence in affidavit form is admissible; pointing out that to the extent a party objects that they didn’t have an opportunity to cross-examine a witness whose deposition from some other cases being offered, “the same objection can frequently be made as to affidavits filed in connection with motions for summary judgment”)

Tingey v. Radionics, 193 F. App'x 747, 765–66 (10th Cir. 2006) (reversing summary judgment where trial court, relying on FRCP 32, excluded from consideration in opposition to summary judgment a deposition that plaintiff took of physician in separate state proceeding, where defendant was not party to that proceeding and had not been given notice of deposition; depositions can be used as affidavits in proceedings where affidavits are admissible; to illustrate, “[p]arties may file affidavits in support of summary judgment without providing notice or an opportunity to cross-examine the affiant. See Fed.R.Civ.P. 56(c). The “remedy” for this non-confronted affidavit testimony is to file an opposing affidavit, not to complain that one was not present and permitted to cross-examine when the affidavit was signed. For this reason, the Ninth Circuit has permitted a party to introduce deposition testimony for summary judgment purposes against a party who was not present at the deposition, by construing the deposition as an affidavit. Hoover v. Switlik Parachute Co., 663 F.2d 964, 966–67 (9th Cir.1981)”)

Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 751 (11th Cir. 2002) (without analyzing scope and extent of application of FRCP 32, court broadly said that “Depositions are generally admissible provided that the party against whom they are admitted was present, represented, or reasonably noticed, Fed.R.Civ.P. 32(a), and are specifically allowed in consideration of summary judgment. Fed.R.Civ.P. 56(c). A deposition taken in a different proceeding is admissible if the party against whom it is offered was provided with an opportunity to examine the deponent. Fed.R.Evid. 804(b)(1).”)

Fed. R. Civ. P. 56(c)(1)(A) (explicitly allowing citation to depositions for or against summary judgment)

8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2142 (1970))) (as are at least as good as affidavits and should be usable whenever an affidavit would be permissible, even where the conditions or requirements for use at trial under rule 32 are not met) 

SHOW NOTES

People v. Pawar, No. G037097, 2007 WL 477949, at *2 (Cal. Ct. App. Feb. 15, 2007) (“[W]ere they lying” queries are improper if they are merely argumentative. (Chatman, supra, 38 Cal.4th at pp. 381, 384.) In Chatman, the prosecutor asked the defendant how the safe at a store was opened. (Id. at p. 379.) The defendant replied “he could not say; he never touched the safe,” eliciting the prosecutor's query, “ ‘Well, is the safe lying about you?’ “ (Ibid.) The Supreme Court held the question of whether an inanimate object was “lying” was argumentative , defining argumentative inquiry as “speech to the jury masquerading as a question” which “does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Id. at p. 384.))

Faile v. Zarich, No. HHDX04CV5015994S, 2008 WL 2967045, at *3 (Conn. Super. Ct. July 10, 2008) (Webster's. . . in the closest relevant definition, defines “argumentative” as “consisting of or characterized by argument: containing a process of reasoning: controversial”)

Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) (Steven Goode, et al., Texas Practice Series: Courtroom Handbook on Texas Evidence § 611 cmt. 12 (2012); see United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir.N.Y.2005) (defining argumentative as “summation-like remarks by counsel during the presentation of evidence”); accord Eddlemon v. State, 591 S.W.2d 847, 851 (Tex.Crim.App. [Panel Op.] 1979) (trial court did not abuse discretion in finding the question, “You don't believe your own offense report?” argumentative). In other words, an argumentative objection concerns whether counsel is attempting to “argue” the case, not whether the counsel is “arguing” with the witness”)

United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir. 2005) (“During the presentation of evidence one of the most commonly sustained objections is that a particular question is argumentative, Fed.R.Evid. 611(a) advisory committee's note to Subdivision (a) to 1972 Proposed Rules, and any summation-like remarks by counsel during the presentation of evidence are improper and subject as a routine matter to being stricken, Mauet & Wolfson, supra, at 30”)

Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) ("Many common law objections—including the objection of “argumentative”—are incorporated in the Texas Rules of Evidence. The common law argumentative objection is now governed by Tex.R. Evid. 611 which concerns the mode of interrogation and presentation. The argumentative objection is an objection commonly used, but not commonly understood. Pardee argues the objection should have been sustained because the State was “arguing” with the defendant. Argumentative, though, does not concern counsel's demeanor or tone. Professors Wellborn, Goode, and Sharlot explain the argumentative objection as follows: Counsel may not, in the guise of asking a question, make a jury argument or attempt to summarize, draw inferences from, or comment on the evidence. In addition, questions that ask a witness to testify as to his own credibility are improper.")

People v. Chatman, 38 Cal. 4th 344, 384, 133 P.3d 534, 563 (2006) The prosecutor's question about whether the safe was “lying” requires a different analysis. The question was argumentative. An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. The prosecutor's question whether “the safe [was] lying” is an example. An inanimate object cannot “lie.” Professor Wigmore has called cross-examination the “greatest legal engine ever invented for the discovery of truth.” (5 Wigmore on Evidence (Chadbourne rev. ed.1974) § 1367, p. 32.) The engine should be allowed to run, but it cannot be allowed to run amok. An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all. Defendant had already explained he had no explanation for the safe being open. Asking whether the safe was “lying” could add nothing to this testimony”)

People v. Imbach, No. E040190, 2008 WL 510482, at *7–8 (Cal. Ct. App. Feb. 27, 2008) ("The prosecutor asked, “You found that to be inappropriate but not your other son's addiction to child pornography?” When defendant objected that the question was argumentative, the trial court overruled that objection. Defendant asserted the second “argumentative” objection when defendant's mother said she did not know how to answer that question and the prosecutor asked, “Is that because you didn't want to know?” The trial court sustained the defendant's objection to this second question. Both questions are argumentative, because they both are speeches by the prosecutor masquerading as questions. (Chatman, supra, 38 Cal.4th at p. 384.) The trial court should have sustained both objections. However, we cannot say that by asking those two questions the prosecutor engaged in misconduct.")

People v. Peoples, 62 Cal. 4th 718, 793–94, 365 P.3d 230, 288 (2016) (“Defendant observes that the prosecutor asked numerous argumentative questions when cross-examining defense witnesses. To list a few examples, the prosecutor asked defense expert Dr. Lisak, “how many hours are you into them for?” He said to defense expert Dr. Buchsbaum, “Let's quit guessing for awhile and look at the facts.” He said to defense expert Dr. Wu, “It's a pain in the butt to get these test scores.” And he asked prosecution expert Dr. Mayberg, “Did you have a heart attack last night when you looked at the raw data?”)

People v. Burns, No. D081051, 2024 WL 2144151, at *15–17 (Cal. Ct. App. May 14, 2024), review denied (July 17, 2024) (excessive repetition of a question simply to make a point can cross line into improper argument”; “Burns makes a strong argument that the prosecutor's repetitive questioning regarding the drunk tank incident became argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) “An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Ibid.) Instead, it may be aimed at agitating or belittling the witness (People v. Lund (2021) 64 Cal.App.5th 1119, 1148), or designed to engage the witness in an argument (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236)”)

People v. Mazen, No. B300193, 2021 WL 164356, at *5 (Cal. Ct. App. Jan. 19, 2021) The court overruled defendant's argumentative objection to the following question: “Would [accidentally placing the car in neutral] been important information to tell [Morales]?” The court did not abuse its discretion when it overruled the objection. The question sought to elicit relevant testimony regarding defendant's theory that Mario was hit by accident (CALCRIM No. 510). (See People v. Chatman (2006) 38 Cal.4th 344, 384 [“[a]n argumentative question is a speech to the jury masquerading as a question” and does not seek to elicit relevant testimony].)”

People v. Singh, No. H042511, 2018 WL 1046260, at *28 (Cal. Ct. App. Feb. 26, 2018) (“Each question anticipated an answer and was answerable; none was “a speech to the jury masquerading as a question”)

People v. Basler, No. D068047, 2015 WL 9437926, at *23 (Cal. Ct. App. Dec. 23, 2015) ("Fung appears to identify three categories of objectionable questioning during his cross-examination by the prosecutor. The first category involves apparent sarcasm by the prosecutor. For example, after Fung provided additional details about his fight with another inmate while incarcerated, the prosecutor said, “Okay. You left that part out a couple of minutes ago; right?” Referencing the same fight, the prosecutor made light of Fung's claim of self-defense: “Did you have to defend yourself against him, too?” As another example, when Fung was discussing the extent of his injuries following the fight, the prosecutor said, “So, that's about how badly you were hurt? It looked like something you get by falling off a skateboard?” The court sustained objections to each of these questions, and a number of others, as argumentative." Also from Basler: "As we have noted, Fung contends the first two categories of questions were impermissibly argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even want an answer. The question may, indeed, be unanswerable.... An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (People v. Chatman (2006)”)

People v. Nanez, No. F064574, 2014 WL 1928307, at *14–15 (Cal. Ct. App. May 15, 2014) (citing examples of argumentative examination by prosecutor including (a) the prosecutor’s remark “Convenient” when a witness said they did not remember a particular fact, and (b) when prosecutor commented on witnesses testimony by saying “So that’s the lie you’re going with?”, and (c) when prosecutor asked witness “You wouldn’t tell us if you’re lying, of course, right?” and when witness said he would, prosecutor replied “There’s another lie,” causing court to strike prosecutor’s comment from the record)

People v. Strebe, No. D057947, 2011 WL 2555653, at *7 (Cal. Ct. App. June 28, 2011) (trial courses sustained objection to question as argumentative where prosecutor asked witness “Do you remember anything about that evening that might be detrimental to your case?” In essence arguing to jury that witness was lying and only selectively remembered favorable facts)

People v. Higgins, 119 Cal. Rptr. 3d 856, 873–74 (Ct. App. 2011), as modified (Jan. 21, 2011), as modified on denial of reh'g (Feb. 4, 2011) (guilty verdict reversed in part due to argumentative questions; among other jabs; in case where defendant explained his conduct as motived by depression due to death of his daughter’s friend, prosecutor asked, “You'd agree with me that it's pretty pathetic if you're using the memory of a dead 17–year–old kid as an excuse in this trial, wouldn't you? Would you agree with me? Is that the legacy that you want [the dead teen] to have?”; other examples of prosecutor’s argumentative questions included “Oh, the door was unlocked,” and “Isn't that convenient that all of a sudden, right after you've committed the crimes, that that's when you come to?”; further held, “The rule is well established that the prosecuting attorney may not interrogate witnesses solely ‘for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers”)

People v. Dixon, No. D047342, 2007 WL 2745207, at *10 (Cal. Ct. App. Sept. 21, 2007)  Dixon asked Hernandez who had taken the photographs near the time of the injury. Hernandez testified that the audio-visual person at his school had taken photographs of his injury. Dixon then asked, “Is it computer enhancement? Those could be computer enhanced-.” The prosecutor interrupted, “That's argumentative.” The court sustained the prosecutor's objection")

United States v. Browne, No. SACR 16-00139-CJC, 2017 WL 1496912, at *6 (C.D. Cal. Apr. 24, 2017) (For each witness, the Court did not end Defense counsel's cross-examination until it became excessively cumulative and argumentative, at which time the Court was well within its authority to restrain the questioning pursuant to Federal Rule of Evidence 611(a).”)

Beving v. Union Pac. R.R. Co., No. 3:18-CV-00040, 2020 WL 6051598, at *12 (S.D. Iowa Sept. 8, 2020) (Defendant may object to prejudicial or argumentative references to counsel at trial as permitted by the Federal Rules of Evidence. See Fed. Rs. Evid. 403, 611(a)(3).)

FRE 403: Argumentative questions may be viewed as unfairly prejudicial, misleading, or wasting time.

FRE 611(a)(3), Witnesses and Presenting Evidence ((a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

FRCP 30, Depositions, (d) Duration; Sanction; Motion to Terminate or Limit. (3) Motion to Terminate or Limit, (A) Grounds. 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. 

SHOW NOTES

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)

Fed. R. Civ. P. 30(c)(2) (requiring objections not just to evidentiary issues but to a party's conduct, to the manner of taking the deposition, and to any other aspect of the deposition)

Fed. R. Civ. P. 32(d)(3)(B)(i) (requiring objections to errors or irregularities at an oral examination if they relate to the manner of taking the deposition, a party's conduct, or other matters that might have been corrected at that time)

SHOW NOTES

Strategic Use Of (UN)certainty Expressions, Lorson, Cummins and Rohde, Frontiers in Communications, Mar. 18, 2021, https://www.frontiersin.org/journals/communication/articles/10.3389/fcomm.2021.635156/full

The Use of Hedging in Research Articles on Applied Linguistics, Livytska, I., Journal of Language and Cultural Education (July 2019), https://sciendo.com/article/10.2478/jolace-2019-0003

Hedging and Academic Writing: An Analysis of Lexical Hedges, Demir, C., Journal of Language and Linguistic Studies, 14(4) (2018), https://www.jlls.org/index.php/jlls/article/view/812

Linguistic Hedging In The Light Of Politeness Theory, Vlasyan, G., European Proceedings of Social and Behavioural Sciences (2018), https://www.europeanproceedings.com/article/10.15405/epsbs.2018.04.02.98

A Study of Hedges in Courtroom Oral Arguments from the Perspective of Contextual Adaption, Chen and Zhang, International Journal of Multidisciplinary Research and Publications, https://ijmrap.com/wp-content/uploads/2022/02/IJMRAP-V4N8P114Y22.pdf

Hedging in Courtroom Discourse, Lebedeva and Gribanova, http://ial-journal.org/en/node/53

Middleton v. May, et al., Third Report and Recommendation [CM/ECF Doc. 107], Sherrill, J., Case No. 4:08-cv-452-RH-WCS (N. D. Fla. Feb. 9, 2010) report and recommendation adopted, Order Granting Summary Judgment for Defendants, Hinkle, J., [Doc. 109] (“Plaintiff's statement as incorporated in doc. 93-3 is signed under penalty of perjury, although each material statement of fact is an equivocating statement beginning with "Upon information and belief . . . ." Such a statement is not sufficient as evidence and is inadmissible in its present form. A declaration expressing that statements are "true and correct to the best of my knowledge and belief" carries with it the plain implication that the affiant does not know whether the statements are true or not, and does not wish to be held accountable if they are not.6 While admittedly the phrase "best of my knowledge and belief" or "information and belief" is a part of common speech, it equivocates and, therefore, does not meet the requirements of Rule 56(e) that an affidavit "be made on personal knowledge" and "show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e)'s personal knowledge requirements prevents such statement "from raising genuine issues of fact sufficient to defeat summary judgment." Pace v. Capobiano, 283 F.3d 1275, 1278-79 (11th Cir. 2002). Accordingly, Plaintiff's statement of facts and declaration cannot be considered in response to Defendants' summary judgment motion”)

SHOW NOTES

Ratliffe v. BRP U.S., INC., et al., No. 1:20-CV-00234-JAW, 2024 WL 4728898 (D. Me. Nov. 8, 2024) (order denying motion in limine to exclude deposition where witness’ mother assisted deponent while testifying; held, objections to alleged impropriety waived)

Fed. R. Civ. P. 30(d)(3)(A) (allows court relief where deposition is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party)

Fed. R. Civ. P. 32(d)(3)(B) (deeming objections waived if not made during the deposition where objection is to any irregularity in the way the deposition is being conducted)

Fed. R. Civ. P. 26(c) (allowing protective order permitting or forbidding discovery if necessary to ensure fair proceedings)

Fed. R. Evid. 403 (allowing exclusion of evidence on grounds of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence)

United States v. Simmons, 515 F. Supp. 3d 1359, 1364 (M.D. Ga. 2021) (“While “unreasonable” and “oppressive” are not defined under Rule 17, they have a common sense meaning, and courts finding a valid and specific privilege may quash subpoenas on that ground”)

Heartland Hotel Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. CV 07-2147, 2008 WL 11440623, at *8 (W.D. Ark. Aug. 5, 2008) (“Oppressive ” is defined in Webster's Third New International Dictionary as “unreasonably burdensome” and “unjustly severe, rigorous or harsh”)

(By the way, there are a total of 12 cases and rules listed in the show notes. If you don't see them all, click through to our podcast page, and you'll find them there. Some hosting sites truncate show notes to save space. And, if you have a moment, would you please leave us a 5-star rating wherever you're listening to us? It takes less than 30 seconds, but it's a huge incentive for us to put these episodes together. We offer critical expert insights in this podcast, as well as the research to back it up, and it's all free. The 5-star ratings are a great way to send us a thank you back. Thanks!)

SHOW NOTES

B.P. v. City of Johnson City, No. 2:23-CV-71-TRM-JEM, 2024 WL 3461408 (E.D. Tenn. July 18, 2024) (statement that pages were out of order or missing, following objection, wasn’t improper “speaking objection” but, rather, articulated basis for objection; court also found no basis to limit defending lawyers to word “objection” during deposition, as lawyer must state basis for it)

Dino Antolini, Plaintiff, v. Amy McCloskey, et al., Defendants., No. 1:19-CV-09038-GBD-SDA, Not Reported in Fed. Supp., 2021 WL 5411176, (S.D.N.Y. Nov. 19, 2021) (citing cases for proposition that objections should be made using the single word “Objection” unless the basis for the objection is requested; providing numerous examples of alleged speaking objections)

R.D. v. Shohola, Inc., No. 3:16-cv-01056, Not Reported in Fed. Supp., 2019 WL 6134731 (M.D. Pa. Nov. 19, 2019) (in context of pretrial rulings, court declined to grant motion in limine barring speaking objections, saying, “However, because “we deem the question of what constitutes an improper speaking objection, an inappropriate comment on excluded evidence, or an improper ad hominem exchange to be fact bound matters which cannot be determined wholly in the abstract, we will defer further rulings on these motions pending proper objections at trial”)

Fed. R. Civ. P. 30(c)(2) requiring objections to “be stated concisely in a non-argumentative and non-suggestive manner”)

Committee Notes to 1993 Amendments (stating that new paragraph (1) at the time provides that “that any objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner;” rule does not tell us how to make an objection, such as by word “objection”)

Brent v. Cramer, et al., No. CV JKB-22-1349, 2024 WL 3878145 (D. Md. Aug. 20, 2024), fn. 4 (providing examples of alleged speaking objections)

Christie v. Royal Caribbean Cruises, Ltd, No. 20-22349, 2021 WL 2940251 (S.D. Fla. July 13, 2021) (examples of speaking objections)

State Farm Mutual Automobile Insurance Company v. Dowdy, 445 F. Supp.2d 1289 (N. D. Oklahoma July 21, 2006)

In re Stratosphere Corporation Securities Litigation, 182 F. R. D. 614 (D. Nevada 1998) (“This Court can find no better or more succinct definition or description of what is and is not a valid deposition objection than that found in Rule 30(d)(1): “Any objection to evidence during the deposition shall be stated concisely and in a non-argumentative and non-suggestive manner”)

Mitnor v. Club Condominiums, et al., 339 F.R.D. 312, 317-318 (N.D. Fla. 2021) (describing some of the essential characteristics of an improper speaking objection)

Fed. R. Evid. 103 (providing that in order to preserve and objection, a party must timely object or move to strike and state the specific ground for the objection, and less it is apparent by context)

Fed. R. Civ. P. 32(d) (Waiver of Objections)

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)

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)

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)

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)

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

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

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)

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)

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)

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)

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)

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")

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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.”)

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)

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”)

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)

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)

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)

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 HTC Corp. v. Tech. Properties Ltd., 2013 WL 12166376, at *2 & n.9 (N.D. Cal. Sept. 20, 2013). That case relied, in part, see id., 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”)

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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.” Schroer v. United States, 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”)

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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)").

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

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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 Ebin New 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) (citing Kasparov, 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) 

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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)

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

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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)

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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”)

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.

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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[ ]....”)

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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”)

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)

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)

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")

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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)

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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)

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")

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)

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)

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

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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

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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.")

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 Order 2:13-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)

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)

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)

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?”) 

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)

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)

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.

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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”) 

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)

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)

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)

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!

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")

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)

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)

(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.”)

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)

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”)

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)

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)

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))."

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)

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)

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)

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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)

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)

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)

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”)

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)” )

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

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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. Fisher 2010 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

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

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”)

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

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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)

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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).) 

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

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)

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

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")

Today’s episode zeroes in on "If you know" speaking objections and its poisonous cousins, "If you remember," "If you understand the question," "Don’t assume," "Don’t speculate," and so on. They'll wreck your depositions if you don't put an immediate stop to them.

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SHOW NOTES

In re Zantac (Ranitidine) Products Liability Litigation, 2020 WL 6687777, Case No. 20 – MD – 2924 (S. D. Fla. November 11, 2020) (Pretrial Order setting Deposition Protocol for Defendant’s Witnesses and Third Parties, and specifically ordering counsel to refrain from “all comments that could be perceived as instructive to a witness, such as “you can answer if you understand the question” or “you can answer if you know”)

Latele Television, C.A. v. Telemundo Communications Group, LLC et al., 2014 WL 5816585, Case No. 12 – 2 539 – CIV (S. D. Florida, November 10, 2014) (“To avoid any ambiguity, the Undersigned considers an “if you know” comment to a deponent before he or she answers a deposition question to usually be improper coaching, designed to signal the witness to answer that he or she does not know or remember the answer”)

Mills et al. v. General Motors LLC, 2017 WL 4279651 Case No. 2:17-201-RMG (D. S. C. September 22, 2017) (court authorizes redeposition of corporate representative, for two additional days, due to counsel’s alleged failure to comply with the rules governing deposition conduct; “Defendant’s counsel made over one hundred speaking objections. Many were leading. For example, Defendant’s counsel repeatedly objected that a question was beyond the scope of the notice and then instructed the witness to answer “if you know”—clearly inviting the witness to answer “I don’t know.” (E.g., id. at 10 (three times).)

Natural-Immunogenics Corp. v. Newport Trial Group , et al. 2017 WL 10562691, case number SACV 15 – 02034 (C. D. California August 7, 2017) (finding that Special Master properly awarded sanctions against lawyer who lodged numerous argumentative and suggestive objections that coached witnesss or rephrased the questions, including “if you know” objections)

AKH Company, Inc. v. Universal Underwriters Insurance Company , Order Granting Defendant’s Motion for Sanctions 2016 WL 141629, Case No. 13-2003-JAR-KGG (D. Kansas January 12, 2016) (“Outright coaching occurred (e.g., “It’s a ‘yes’ or ‘no’.” “Do you know that or are you assuming?” “Are you making an assumption now or are you assuming?” “If you’re not sure or you don’t know, just say so.” “That’s a new question.” Answer “if you know”).

Lund v. Matthews, et al. 2014 WL 517569, No. 8:13CV144, Order Granting Defendants Motion for Sanctions (D. Nebraska Feb. 7, 2014) (sanctions awarded against plaintiff, and redeposition allowed, based in part on improper objections; held, “It is unnecessary to add “to the best of your ability,” “if you know,” or any other commentary after an objection. From review of the deposition transcript, Lund apparently had no difficulties understanding or communicating in English and was capable of seeking clarification or stating he did not know an answer”)

Hunter v.. GEICO General Insurance Company, 2018 WL 4352823, Case No. 17-05070 (B. D. Louisiana Sep. 12, 2018) “An objection that a question is ‘vague’ is usually, and in this instance was, a speaking objection disguised as a form objection. It essentially expresses a concern that the witness may not understand the question. Only the witness knows whether [he] understands a question, and the witness has a duty to request clarification if needed”)

Mazzeo v. Gibbons, et al., Order Granting Emergency Motion to Forbid Attorney Walter Cannon from Making Improper Objections at Depositions and for Sanctions , 2010 WL 3020021, No. 2:08–cv–01387–RLH–PAL (D. Nevada July 27, 2010) (“If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times: I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, nonargumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question” are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification”)

Continental Casualty Company v. Compass Bank, 2005 WL 8158672, CA 04-0766-CB-C (S.D. Ala. Aug. 8, 2005) (order granting motion for sanctions with regard to conduct of plaintiff’s counsel at depositions, including “Don’t speculate,” “Don’t guess”, and numerous other speaking objections)

Martin A. McDonough v. Kenniston, et al., 188 F.R.D. 22 (D. N. Hampshire Nov. 3, 1998) (“Prior to the 1993 Amendments to Rule 30(d), the Federal Rules of Civil Procedure did not contain specific limitations on the conduct of lawyers during depositions. In his concurrence with the Supreme Court’s opinion in Herbert v. Lando, a case involving a 26 volume, 3,000 page deposition taken intermittently over a year, Justice Powell noted that “discovery techniques and tactics have become a highly developed litigation art—one not infrequently exploited to the disadvantage of justice.” 441 U.S. 153, 179, 99 S. Ct. 1635, 60 L.Ed.2d 115 (1979). By the early 90’s reports in the Second and Seventh Circuit flatly stated that methods of taking and defending depositions were “exercises in competitive obstructionism”¹ and “abusive and unethical.”² Improper directions not to answer, suggestive or coaching objections, and “conferences” with the deponent were the primary evils addressed. Multiple and/or unnecessary objections, statements such as “if you know,” “if you remember,” “if you understand”, etc., prolonged deposition and abusive and harassing deposition questioning were among the other deposition tactics in use”)

Security National Bank of Sioux City Iowa, etc. v. Abbott Laboratories, 299 F. R. D. 595 (N. D. Iowa July 28, 2014) (“When a lawyer tells a witness to answer “if you know,” it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question. For this reason, “[i]nstructions to a witness that they may answer a question ‘if they know’ or ‘if they understand the question’ are raw, unmitigated coaching, and are never appropriate”)

In re Neurontin Antitrust Litigation, 2011 WL 253434, Master Civil Action No. 02–1390(FSH) (D. N. J. Jan. 25, 2011) (describing improper objections, including “speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question”)

In re Fetzima, 2020 WL 6268684, Civil Action No. 2:17-cv-10230 (ES)(SCM) (D. N. J. Oct. 23, 2020) (noting that because “Depositions are the factual battleground where the vast majority of litigation actually takes place,” Court would direct counsel to refrain from objections such as “if you know,” “if you remember,” “don’t guess,” and similar coaching in speaking objections)

SHOW NOTES

Torregano v. Cohen, et al., 2021 WL 1997292, __ So. 3d __ (Ct. App. La. May 19, 2021) (verdict in favor of plaintiff reversed where trial court excluded testimony of non-party defense witnesses who failed to appear for depositions; held, error to blame party for actions of non-party witnesses)

Thompson v. Wagner, et al., 2008 WL 5087963, Case No. 3:2005-375 (W.D. Penn. December 2, 2008) (denying motion to exclude witness who failed to appear for deposition, but allowing party to depose witness if he appears for testimony at trial)

Vu v. Fouts, 924 P.2d 1129 (Colo. Ct. App. 1996) (appeals court declined to reverse trial court order barring defense witnesses from testifying at trial solely because witnesses failed to appear for their depositions; held, no reversible error in exclusion, because defendant failed to proffer their anticipated testimony to trial judge, and failed to provide other evidence upon which appeals court could determine importance of the excluded witnesses)

Card Technology Corporation v. DataCard, Inc., et al., 249 F.R.D. 567 (D. Minn. 2008) (where company executive failed to appear for deposition, court limited the topics on which the executive could testify if he eventually appeared at trial).

SHOW NOTES:

Rodolfo Tecocoatzi-Ortiz, et al. v. Just Salad LLC, 2021 WL 2011913, Case No.: 18-CV-7342-JGK-BCM (S.D.N.Y. May 19, 2021) (judge orders lawyer to produce, for in camera inspection, documents used to prepare his client for deposition, after defense counsel sought court assistance in compelling production)

Johnson v. Baltimore Police Department, et al., 2021 WL 1985014, Case No. ELH-19-698 (D. Maryland May 18, 2021) (lawyer ordered to produce documents used to prepare non-party witness for deposition)

SHOW NOTES

Mcleod v. Llano, No. 17CV6062ARRRLM, 2021 WL 1669732, at *8 (E.D.N.Y. Apr. 28, 2021) Here, Officer Prinston is defendant's partner, witnessed the use of force at issue, and previously was a defendant in this case. Pl.’s Mot. 7. Additionally, plaintiff has shown that Officer Prinston provided inconsistent testimony in the CCRB investigation and the NYPD administrative trial that favored defendant. Id. at 9. These facts sufficiently show that Officer Prinston is a “witness identified with an adverse party")

Doe By Watson v. Russell Cty. Sch. Bd., No. 1:16CV00045, 2018 WL 1089277 (W.D. Va. Feb. 28, 2018) (“The normal sense of a person ‘identified with an adverse party’ has come to mean, in general, an employee, agent, friend, or relative of an adverse party.” Id. (citation omitted); see Ratliff v. City of Chi., No. 10 C 739, 2012 WL 7993412 (N.D. Ill. Nov. 20, 2012). “Whether a former employee is properly considered ‘a witness identified with an adverse party’ is an unsettled inquiry whose resolution is often fact-dependent.” Fehr, 2015 WL 6166627. In analyzing this question, courts have come to differing conclusions based upon the former employee's position and involvement, if any, in the events giving rise to the litigation. Compare Stahl v. Sun Microsystems, Inc., 775 F. Supp. 1397, 1398 (D. Colo. 1991) (finding former employee of defendant to be “identified with an adverse party” because of her former employment and ongoing relationship with a key witnesses who attended the trial on behalf of defendant), with Radice v. Meritor Sav. Bank, Inc., Civ. A. No. 89-6914, 1993 WL 56044 (E.D. Pa. Mar. 2, 1993) (finding that witness, who was a former employee and defendant in the case, was not a hostile witness simply due to his former employment because he had been dismissed as a defendant at summary judgment and “was not involved in the internal process” that led to litigation).

Flores v. Miami-Dade Cty., 787 So. 2d 955, 958 (Fla. Dist. Ct. App. 2001) (A doctor's sharing of a runner with plaintiff's prior counsel, his extensive payments to the runner, and his reciprocal referral arrangement are facts which could reasonably be viewed as creating a bias toward testifying favorably to plaintiffs. Interest and motive of a witness are proper subjects for cross-examination. Id. § 608.5, at 465. The cross-examination was properly allowed)

Harris v. Buxton T.V., Inc., 460 So. 2d 828, 833 (Miss. 1984) (“In sum, the test for determining how closely the witness must be identified with the adverse party before he falls within that rule is variously stated: (1) If the witness' acts or omissions are the predicate for a party's claim or defense, that is, if in a case such as this under the plaintiff's theory of the case the defendant is subject to potential liability in substantial part not just because of his own actions but because of the actions or omissions of the witness in question, then that witness is ordinarily sufficiently identified with an adverse party and may be called as an adverse witness and interrogated by leading questions. (2) If the conduct of the witness plays such an integral part in the transaction or occurrence which is the subject of the action and which gives rise to the defendant's potential liability, so that the defendant, if the plaintiff's primary original claim is successful, would have prima facie a claim for indemnity over against the witness, then again the witness is said to be sufficiently identified with the adverse party so that the witness may be called as an adverse witness and cross-examined”) *** Since the adoption of Rule 611, Fed.R.Ev. in 1975, there has been precious little litigation concerning the issue of who may be considered as “identified with an adverse party”. There are only two decisions emanating from United States Courts of Appeals which address this issue: Ellis v. City of Chicago, 667 F.2d 606 (7th Cir.1981) and Perkins v. Volkswagen of America, Inc., 596 F.2d 681 (5th Cir.1979). The holding of these cases can be summarized as follows: Before the adoption of Rule 611(c), the use of leading questions on direct examination required either a showing of actual hostility or a determination that the witness being examined was an adverse party, or an officer, director, or managing *832 agent of such an adverse party. [citations omitted] These limitations were designed to guard against the risk of improper suggestion inherent in examining friendly witnesses through the use of leading questions. [citations omitted] The drafters of Rule 611(c), however, determined that these limitations represented “an unduly narrow concept of those who may safely be regarded as hostile without further demonstration.” [citation omitted] The new rule was thus designed to enlarge the categories of witnesses automatically regarded as adverse, and therefore subject to interrogation by leading questions without further showing of actual hostility. —Ellis, 667 F.2d at 612–13; see also Perkins, 596 F.2d at 682 (trial court's failure to allow a mere employee of a corporation to be regarded as “identified with the corporation” was incorrect)

United States v. McLaughlin, No. CRIM.A. 95-CR-113, 1998 WL 966014, at *1 (E.D. Pa. Nov. 19, 1998) (“Here, Mr. St. Clair clearly is “identified with an adverse party”—the defendant. See Perkins v. Volkswagen of Am., 596 F.2d 681, 682 (5th Cir.1979) (employee of an adverse party was “identified” with employer). Although I would not call them in cahoots, they were, at the very least, cohorts”)

Washington v. Illinois Dep't of Revenue, No. 01-3300, 2006 WL 2873437, at *1 (C.D. Ill. Oct. 5, 2006) “The normal sense of a person ‘identified with an adverse party’ has come to mean, in general, an employee, agent, friend, or relative of an adverse party.” Vanemmerik v. The Ground Round, Inc., 1998 WL 474106, *1 (E.D.Pa.1998) (collecting cases). As one district court has recognized, “Scholars have warned that, although the rule allows ample room to maneuver, “the courts should be careful before extending this list much further.” Id. (citing 28 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 6168, *6 (1993)). Even if a witness is not an adverse party, or identified with an adverse party, the Court may find the witness to be “hostile” under Rule 611(c). “This classification usually involves a showing by the examining party that the witness is biased against the direct examiner, his/her client or both and often is demonstrated by examples of that witnesses demeanor.” Id. at *2 (citing 28 WRIGHT & MILLER, FEDERAL PRACTICE AND PROCEDURE § 6168, *7 (1993)).

State v. McBeth, 2019 Ohio 59 A witness identified with an adverse party is “a witness aligned with an opposing party because of a relationship or common interest in the litigation.”¹ State v. Fields, 8th Dist. Cuyahoga No. 88916, 2007-Ohio-5060, ¶ 14. “[E]vasiveness is not a prerequisite to finding adversity” in determining whether a witness is identified with an adverse party under Evid.R. 611(C). State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 150. The trial court need not expressly find that a witness is identified with an adverse party in order for the decision to allow leading questions to be affirmed on appeal. State v. Benson, 11th Dist. Portage No. 2001-P-0086, 2002-Ohio-6942, ¶ 25, citing State v. Snyder, 12th Dist. Butler No. 88-04-054, 1989 WL 943, *6 (Jan. 9, 1989). “A witness that identifies himself with an opposing party by prior acts or expressed intentions may be questioned as if on cross-examination by the party calling the witness.” State v. Shepherd, 10th Dist. Franklin No. , 2000 WL 192360, *8 (Sept. 28, 1999), quoting State v. Matthews, 5th Dist. Clark App. No. 96-CA-0011, 1997 WL 593821, *10 (Sept. 26, 1997). “Ordinarily, a trial judge is in a better position to evaluate the attitudes displayed by witnesses.” State v. Stearns, 7 Ohio App.3d 11, 14, 454 N.E.2d 139 (8th Dist.).

Sec. & Exch. Comm'n v. Goldstone, 317 F.R.D. 147, 164 (D.N.M. 2016) The definition of a witness “identified with an adverse party” is broader than the old definition of an “adverse party” in the Federal Rules of Civil Procedure: Rule 43(b) of the Federal Rules of Civil Procedure has included only “an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party.” This limitation virtually to persons whose statements would stand as admissions is believed to be an unduly narrow concept of those who may safely be regarded as hostile without further demonstration.... The phrase of the rule, “witness identified with” an adverse party, is designed to enlarge the category of persons thus callable. 15 Fed. R. Evid. 611, advisory committee notes. Although the precise meaning of a witness identified with an adverse party is not clearly defined, a few relationships fall within its meaning. These relationships include: (i) employee/employer relationships, see Chonich v. Wayne Cty. Cmty. Coll., 874 F.2d 359, 368 (6th Cir.1989)(allowing leading questions on direct examinations of community college's former president and personnel director); Haney v. Mizell Mem'l Hosp., 744 F.2d 1467, 1478 (11th Cir.1984)(“Nurse Williamson, an employee of one of the defendants present when the alleged malpractice may have occurred, certainly was identified with a party adverse to [the plaintiff].”); (ii) romantic partners, see United States v. Hicks, 748 F.2d 854, 859 (4th Cir.1984)(“Clearly [the defendant's girlfriend] was a person ‘identified with an adverse party’ so that interrogation by leading questions was permissible.”); and (iii) law enforcement investigators, see United States v. Tsui, 646 F.2d 365, 368 (9th Cir.1981)(stating that a district court's refusal to permit the defendant to pose leading questions to an IRS investigator was error, albeit harmless error). Courts must be careful, however, not to expand these pre-existing categories. See Suarez Matos v. Ashford Presbyterian Cmty. Hosp., Inc., 4 F.3d 47, 50 (1st Cir.1993)(“We find no case involving the adversary's proposed expert, or suggesting that simply because a party expects favorable testimony from a witness, the opponent is entitled to call him, or her, as hostile.”). They may thus wait until trial to determine whether the witness will actually demonstrate hostility. See Gold, supra, at § 6168 (“[S]ince leading questions can also be justified if the specific witness in question is demonstrably ‘hostile,’ there is no need to make possibly unwarranted generalizations about the types of witnesses who should be presumed immune to suggestion.”); United States v. Brown, 603 F.2d 1022, 1025–26 (1st Cir.1979)(treating a witness as hostile “after a lengthy direct examination (twenty-five transcript pages) during which all leading questions were excluded”). Courts make determinations outside of existing formal categories based in large part on a witness' demeanor at trial. See United States v. Cisneros–Gutierrez, 517 F.3d 751, 762 (5th Cir.2008)(affirming a district court's decision to treat a witness as hostile “given the extent of Edgardo's memory problems, which reasonably appears to have been feigned, and Edgardo's hostility”); United States v. Wiley, 846 F.2d 150, 156 (2d Cir.1988)(treating witness as hostile where he “was unresponsive and deviated from previous statements”). Even witnesses cooperating with the prosecution pursuant to an immunity agreement may nonetheless be designated hostile witnesses to the United States during their direct examinations. See United States v. Diaz, 662 F.2d 713, 718 (11th Cir.1981)(“The record clearly reflects, however, that, despite the grant of immunity, Gelebert's hostility was directed to the government, rather than to Diaz. Previously, Gelebert had testified that he was a very good friend of Diaz and that he had known him for approximately five years[.]”)

Fehr v. SUS-Q Cyber Charter Sch., No. 4:13-CV-01871, 2015 WL 6166627, at *3 (M.D. Pa. Oct. 20, 2015) citing, N.L.R.B. v. Sw. Colorado Contractors Ass'n, 379 F.2d 360, 365 (10th Cir.1967) (finding leading questions appropriate under similar statutory provision because “[b]y virtue of [former employee's] status as the proprietor of one of the respondent firms as well as his former official position within [the Defendant] Association, his interests and sympathies were clearly aligned with those of the other respondent”)

Dudley v. City of Kinston, No. 4:18-CV-00072-D, 2020 WL 7049554, at *5 (E.D.N.C. Dec. 1, 2020) That Moore is Dudley's daughter places her firmly within the category of a witness identified with an adverse party. Vanemmerik v. The Ground Round, Inc., No. 97–5923, 1998 WL 474106 (E.D. Pa. July 16, 1998) (“The normal sense of a person ‘identified with an adverse party’ has come to mean, in general, an employee, agent, friend, or relative of an adverse party.”). There was nothing inappropriate about defense counsel asking Moore leading questions)

Chonich v. Wayne Cty. Cmty. Coll., 874 F.2d 359, 368 (6th Cir. 1989) (allowing leading questions on direct examinations of community college's former president and personnel director)

Stahl v. Sun Microsystems, Inc., 775 F. Supp. 1397, 1398 (D. Colo. 1991) (finding former employee of defendant to be "identified with an adverse party" in part because of her former employment)

Haney v. Mizell Mem'l Hosp., 744 F.2d 1467, 1478 (11th Cir. 1984) (finding that an employee of defendant present when the alleged malpractice may have occurred was identified with an adverse party). The term 'witness identified with an adverse party' is intended to apply broadly to an identification based upon employment by the party or by virtue of a demonstrated connection to an opposing party)

Batte v. Pomeroy, 497 So.2d 1275 (Fla. 4th DCA 1986); Medina; Smith v. Fortune Insurance Co., 404 So.2d 821 (Fla. 1st DCA 1981)

Young v. Metropolitan Dade County, 201 So.2d 594 (Fla. 3d DCA 1967)

Colwell v. Voyager Casualty Ins Co., 251 Ga. 744, 747 (S. Ct. Ga. 1983) (adverse party may only question witness by direct examination)

Ellis v. City of Chicago, 667 F.2d 606, 612 (7th Cir.1981)

Perkins v. Volkswagen of America, Inc., 596 F.2d 681,682 (5th Cir.1979) (error for trial court to rule that employee of defendant would be plaintiff's witness if plaintiff called him)

Erp v. Carroll, 438 So. 2d 31, 36–37 (Fla. Dist. Ct. App. 1983) An adverse witness means only one who gives evidence on a material matter that is adverse, unfavorable or prejudicial to the party calling the witness. See *37 Hernandez v. State, 156 Fla. 356, 22 So.2d 781 (Fla.1945); Johnson v. State, 178 So.2d 724, 728 (Fla. 2d DCA 1965). Cf., Direct Transport Company of Florida v. Rakaskas, 167 So.2d 623 (Fla. 3d DCA 1964), cert. dismd., 176 So.2d 68 (Fla.1965). A knowledgeable but unwilling, reluctant or recalcitrant witness should always be subject to interrogation by leading questions without regard to who called the witness or as to the witness' status as a party or identity with an adverse party or the possible interest the witness may have in the outcome of the case. Conversely, an obviously willing, forthright and candid witness need not, and should not, be led without regard to the witness' formal status or interest or whether the witness is being directly examined by the person calling the witness or cross-examined by anyone else. Thus, as Wigmore concludes, the test for permitting or prohibiting leading questions is ultimately and essentially independent of the superficial circumstance as to which party originally put the witness on the stand. 3A Wigmore, Evidence § 909 (Chadbourne Rev.1970)

Colwell v. Voyager Casualty Ins Co., 251 Ga. 744, 747 (S. Ct. Ga. 1983) (party may not use leading questions on cross-examination of friendly witness after adverse party called the hostile witness on “direct” examination")

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SHOW NOTES:

In Re Testosterone Replacement Therapy Products Liability Litigation, 2021 WL 1611710, Case No. 14 C 1748 (N. D. Ill. Apr. 25, 2021)

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CASES

Bryson v. Button Gwinnett Savings Bank 423 S.E. 2d 691 (Ct. App. Ga. 1992) (plaintiffs complained that trial judge erred in allowing two of defendant bank’s attorneys to question a single witness; held, any error in allowing two attorneys to question witness was harmless, saying “Although we can envision situations in which such “double-teaming” would constitute harmful error, we are not persuaded by. . .the circumstances of this case that it was necessarily error to permit two attorneys to question the same witness”).

In re Cummins, 144 B.R. 426 (U.S. Bktcy Ct W.D. Ark. 1992) (plaintiff sought protective order forbidding more than one attorney for defendant to examine him at deposition; held, “The court agrees that examination by multiple attorneys represent in one party may be oppressive,” citing FRE 611(a) generally but no specific rule that otherwise forbids it)

Caplan v. Fellheimer Eichen Braverman & Kaskey, 161 F.R.D. 32 (E.D. Pa. 1995) (nonparty witness moved for order preventing different lawyer from questioning her when deposition resumed on the second day; held, while local rule limited examination or cross-examination of a witness to only one attorney for a party, unless otherwise permitted by the court, there was no reason to prevent a more senior lawyer from resuming the deposition first commenced by a junior lawyer with the same firm)

Applied Telematics, Inc. v. Sprint Corporation, 1995 WL 79237 (E.D. Penn. 1995) (defendant’s motion for protective order, seeking to limit number of lawyers who could question witnesses, would be granted; held, the examination cross-examination during a deposition proceed in the same manner as at trial, citing FRCP 30(c), and citing FRE 611 for the notion that the mode and order of interrogating witnesses must be to ascertain the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment)

Continental Casualty Company v. Compass Bank, 2005 WL 8158673 (S. D. Alabama 2006) (court declined to sanction defense lawyer for objecting multiple times in depositions being defended by his co-counsel, saying there appeared to be no specific rule forbidding it, and citing the Applied Telematics case)

Bund v. Safeguard Properties LLC, 2021 WL 1546086 (W.D. Wash. 2021) (striking testimony of witness, as sanction for conduct of defense counsel in having second attorney question witness in allegedly harassing manner, citing local rule that limited examination of a witness at trial to one attorney; held, because FRCP 30 says the examination of a witness should proceed as if at trial, and because the local rule in that district limited trial examinations to one attorney, it was improper to have two attorneys conduct the examination in a deposition)

Finjan, Inc. v. CISCO Systems, Inc., 2019 WL 7753437 (S.D. Calif. 2019) (held, defendant in patent infringement case would not be allowed to have two attorneys question the same expert witness, notwithstanding that at least one expert submitted a 2,000 page report, not including exhibits, and that different lawyers for CISCO had expertise in different patents at issue; court acknowledged that CISCO was “correct that there is no written rule categorically prohibiting deposition questioning by more than one attorney”)

Rockwell International, Inc. v. Pos-A-Traction Industries, Inc., 712 F. 2D 1324 (9^th Cir. 1983) (“it was not a per se abuse to have two attorneys ,rather than one, question one of the plaintiffs in a deposition, where plaintiff had two actions pending - one state and one federal - and defendant had different counsel handling each that were combined for purposes of some discovery")

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SHOW NOTES:

Waters v. Hall, et al., No. 1:19-00798-KD-C, 2021 WL 1168695 (S. D. Ala. March 26, 2021) (noting that corporations have the same opportunity to revise earlier testimony as individuals, subject to being stricken as sham contradictions and/or to credibility check challenges at trial)

A & E Prods. Group., L.P. v. Mainetti USA, Inc., No. 01 Civ 10820(RPP), 2004 WL 345841, at *6–*7 (S.D.N.Y. Feb. 25, 2004) (allowing corporate party to introduce declaration of one of its employees that was inconsistent with deposition testimony corporation’s Rule 30(b)(6) representative)

Industrial Hard Chrome Ltd. v. Hetran, Inc., 92 F. Supp. 2d 786, 791 (N. D. Ill. 2000) (explaining that [R]ule 30(b)(6) deposition “testimony is not a judicial admission that ultimately decides an issue. The testimony given at a Rule 30(b)(6) deposition is evidence which, like any other deposition testimony, can be contradicted and used for impeachment purposes”)

W.R. Grace & Co. v. Viskase Corp., No. 90 C 5383, 1991 WL 211647, at *2 (N. D. Ill. Oct. 15, 1991) (deposition corporate party to offer at trial evidence contrary to its corporate representative’s earlier testimony in a Rule 30(b)(6) deposition)

Hyde v. Stanley Tools, 107 F. Supp. 2d 992, 992–93 (E. D. La. 2000) (“[While a] court may disregard an affidavit which directly contradicts an earlier 30(b)(6) deposition... [c]ourts have allowed a contradictory or inconsistent affidavit to nonetheless be admitted if it is accompanied by a reasonable explanation”)

*Santa Clarita Valley Water Agency v. Whittaker Corporation, et al., 2021 WL 4338973 (C.D. Cal. Aug. 13, 2021) (while testimony of 30(b)(6) designees binds entity, it does not prevent entity from correcting or clarifying testimony, like any other witness)

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SHOW NOTES:

Old Republic General Insurance Corporation v. Amtrust International Underwriters Ltd., et al., Case No. 1:20-CV-00778-NONE-JLT, 2021 WL 1164426 (E. D. Cal. March 26, 2021)

Richard Dennis, et al v.. JPMorgan Chase & Co., et al., No. 16-CV-06496 (LAK), 2020 WL 5658624, at *1–7 (S.D.N.Y. Sept. 23, 2020)

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SHOW NOTES:

Durrah v. Bowling Green Inn of Pensacola LLC, 2020 WL 8910886 (N. D. Fla., June 10, 2020) (allowing defendant to withhold video of alleged sidewalk accident until after plaintiff's position; "Plaintiff does not need the surveillance video to establish the substance of her claims. She obviously was present at her own accident and thus has personal knowledge of the relevant facts giving rise to her claims.")

Dehart v.  Wal-Mart Stores East LP, 2006 WL 83405 (W.D. Va. Jan. 6, 2006) (video of plaintiff who alleged injury when struck by items falling off a stock cart ordered produced prior to plaintiff's deposition, because video served both substantive and impeachment purposes)

Muzaffarr v. Ross Dress for Less, Inc. 941 F. Supp.2d 1373 (S. D. Florida April 25, 2013) (can slip and fall accident that allegedly occurred inside defendant store, judge held that "...the videotape at issue depicts the incident giving rise to the Plaintiff's complaint. It could be offered for impeachment value, the primary evidentiary value of such a tape is enough proof of the underlying facts surrounding the incident. Therefore, the videotape should be produced to the plaintiff prior to the deposition.")

Bachir v. Transoceanic Cable Ship Co., 1998 WL 901735 (S.D.N.Y. 1998) (court ruled that defendant could withhold videotape evidence until after plaintiff's deposition if its use of the videotapes will be limited to impeachment; otherwise, defendant must produce such evidence within 10 days of the date of the court's order, and before Plaintiff's deposition).

Pro Billiards Tour Association, Inc. v. R.J. Reynolds Tobacco Co., 187 F.R.D. 229 (M.D. N.C. 1999) (court ordered plaintiff to produce tape recording of meeting with defendant's representatives prior to representatives depositions, finding that recording in question was chiefly substantive, as opposed to impeachment, evidence, which served to show oral contract between parties)

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SHOW NOTES

Fed. R. Civ. P. 31 (authorizing depositions upon written questions)

Fed. R. Civ. P. 26(c)(1)(C) (authorizing court to direct party to use a form of discovery other than what the party has chosen)

Fed. R. Civ. P. 26(c) (authorizing court to issue order to prevent discovery-related harassment, annoyance or oppression)

Kamden-Ouaffo v. Balchem Corp., et al., 2021 WL 1101126, Case No. 2017cv2810, Doc. 82, Order (S.D.N.Y. Jan. 29, 2020) (noting, in context of pro se plaintiff’s efforts to depose high-level executives of defendant, that Rule 31 depositions are “significantly less disruptive than depositions by oral examination” and could “also simplify counsel’s task in protecting privilege implicated” by a deponent’s testimony)

American Standard, Inc. v. Bendix Corporation, 80 F.R.D. 706 (W.D. Missouri 1978) (where plaintiff identified one of its counsel as a relevant witness on a specific issue, court ordered defendant to take deposition of plaintiff’s counsel initially on written questions, to help assess possible privilege issues that would arise in oral deposition)

In today's Lessons from the Front Lines episode - special episodes where we spotlight a brand new court ruling on deposition-related issues - Jim discusses a March 15, 2021 ruling that a lawyer inadvertently (but fully) waived the attorney-client privilege in a deposition where the lawyers had agreed to "the usual stipulations." During the deposition, the deponent was asked to reveal privileged information and, in some instances, volunteered privileged information. There were no objections, and no instructions not to answer. Complete waiver resulted.

Jim discusses the ruling and ends the episode with practical tips to avoid the same fate.

As always, the cases referenced in the episode, or on which the episode is based, are included below in the show notes.

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Cases Mentioned in This Episode:

Shaffer v. Pennsbury School District, 2021 WL 966208, Case No. 20-3415 (E. D. Penn. March 15, 2021) (privilege waived where a lawyer failed to instruct the witness not to answer, and, further, failed to halt witness once it became apparent that witnesses answer was revealing privileged information)

Perrignon v. Bergen Brunswig Corp., 77 F.R.D. 455 (N.D. Cal. 1978) (counsel's failure to instruct a third-party deponent not to respond to question eliciting privileged communication resulted in waiver of privilege)

Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) (even case suggesting draconian limits on lawyer's ability to object at deposition made clear that lawyers should object t disclosure of privileged communications)

Westinghouse Elec. Corp. v. Republic of the Philippines, 951 F. 2d 1414 (3d Cir. 1991) (rejecting selective waiver of privilege)

Fid. & Deposit Co. of Maryland v. McCulloch, 168 F.R.D. 516 (E.D. Pa. 1996) (while attorney-client privilege belongs to the client, a lawyer, as the agent, can be sufficiently negligent in protecting the privilege that waiver results)

Federal Rule of Evidence 502 (on privilege and intentional or inadvertent waiver)

AUTHORITIES ADDED AFTER THIS EPISODE AIRED:

Delotta v. South Broward Hospital District, etc., 2021 WL 6134784 (S. D. Florida January 22, 2021) ( privilege waived by reviewing protected notes during deposition, in absence of assertion of any protection or objections while deposition was in progress)

Thank you for listening. And be sure to check out the book on which this podcast is based: 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, on Amazon: https://www.amazon.com/000-Depositions-Later-Litigation-Deposition-ebook/dp/B07XTDNTNP

SHOW NOTES:

StoryCloud deposition transcription: https://www.Storycloud.co

 Parrot Transcription: https://www.parrothq.com

 Rev: https://rev.com

 Scribie: https://Scribie.com

 TranscribeMe: https://www.TranscribeMe.com

 Buy the book on which this podcast is based: 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, on Amazon: https://www.amazon.com/000-Depositions-Later-Litigation-Deposition-ebook/dp/B07XTDNTNP

In this episode, we ask the next question:  What if another party first notices and takes the deposition of a witness under Fed. R. Civ. P. 30? Will that prevent you from separately noticing and deposing the same deponent later?  Under this scenario, you didn't notice the first deposition, didn't cross-notice it, and for argument’s sake, attended the deposition but did not ask a single question. Instead, you said only "No questions at this time.” Under the federal rules, do you still have the automatic right to depose that witness later, when the timing is better for you?

This episode is based on the Order Granting Defendant’s Motion for Protective Order and Plaintiffs’ Motion for Protective Order, Etc. in the case City of Las Cruces and Doña Ana County v. United States of America, 2021 WL 330062 (D. N. M. Feb 1. 2021).

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Cases for this Episode:

Finjan, Inc. v. Eset, LLC, et al., Case No.: 17-cv-183 CAB (BGS), 2020 WL 7396551 (S. D. Cal. Dec. 16, 2020) (where court had stayed case as to one of six patents at issue, defendant allowed to redepose Plaintiff once stay was lifted, but second deposition would be “strictly narrowed” to single patent not previously covered in first deposition, and time-limited to ensure focus and proportionality; defendant explicitly forbidden from questioning plaintiff about topics covered in first deposition)

MLO Properties, LLC v. City of Cleveland, 1:19-cv-1226, 2020 WL 6818753 (N. D. Ohio June 19, 2020) (plaintiff allowed to re-depose city officials where it it was alleged that city was held crucial documents prior to first depositions; court added that “Plaintiff is cautioned that it is not to cover topics already covered at the October 2019 depositions” and is not to exceed seven hours per redeposed witness, including time spent in each’s first deposition)

Williams v. Benshetrit, et al. Case No. 19-797, 2020 WL 3315982 (E. D. Penn. Jun. 18, 2020) (second deposition of witness allowed where plaintiff’s counsel’s objections and instructions not to answer interfered with conduct of deposition; according to the court, “Defendant estimates that during [the witness’] one-hour deposition, [plaintiff’s counsel “interrupted and interjected himself ... approximately 112 times, ” told the witness “not to answer particular questions without asserting valid grounds for an objection,” “directed [the witness] how to answer,” “insinuated that defense counsel’s motive was to harass, humiliate, or embarrass,” and “unilaterally decided which questions were for a “relevant” purpose and which were not”)

Medina, et al. v. Yoder Auto Sales, et al., 743 So.2d 621 (Fla. 2d DCA 1999) (state intermediate appellate court noting that its rules governing depositions do not forbid multiple depositions of the same witness)

DatabaseUSA.com, LLC v. Van Gilder, et al., No. 8:17-cv-386, 2021 WL 229200 (D. Nebraska Jan. 22, 2021) (redeposition of corporate witness in data misappropriation case denied where (a) examining lawyer’s questions were overbroad and intruded on attorney-client information, and (b) examining lawyer should have rephrased questions based on detailed, narrowly-tailored privilege objections, rather than suspend deposition)

Cargill, Incorporated v. Mountain Cement Company, 891 P. 2d 57 (S. Ct. Wyo. 1995) (second deposition of expert denied where defendant’s prior counsel had also deposed expert; held, no abuse of discretion, especially where the defendant was “armed with over three years of discovery materials”)

Hawkins v. Lucier, 255 A.D. 553 (N.Y. Sup. Ct. App. Div. 1998) (defense effort to compel third deposition of personal injury plaintiff rejected, where defense failed to make “a detailed showing that the injured plaintiff’s prior testimony was inadequate to cover issues raised” by video surveillance after the second deposition)

Lowery v. Noble Drilling Corp., No. CIV-A-96-3968, 1997 WL 675328 (E.D. La. 1997) (second deposition rejected where defendant “waited eight months, until just prior to the final pretrial conference to request leave of Court to re-depose the plaintiff,” and had ample opportunity to obtain information previously)

Kleppinger v. Texas Department of Transportation, 283 F.R.D. 330 (S.D. Texas 2012) (re-deposition of plaintiff allowed, where there were eleven defendants, only one of whom was a party when initial deposition was taken, where new information had been developed, and where examinations would also cover areas not specifically covered in detail during first deposition)

Fresenius Med. Care Holdings, Inc. v. Roxane Labs., Inc., No. 205-CV-0889, 2007 WL 764302, at *2 (S.D. Ohio Mar. 9, 2007) (A court “may deny leave to conduct a second deposition of [a] witness even if relevant documents are produced subsequent to the deposition if the party taking the deposition either failed to request those documents in a timely fashion or chose to conduct the deposition prior to the completion of document discovery;” held, however, that plaintiff could re-depose witness in patent dispute where key document had been withheld and plaintiff only learned of its existence mid-deposition, and where document was not produced until after deposition)

Ganci v. U.S. Limousine Serv., Ltd., No. CV 10-3027 JFB AKT, 2011 WL 4407461, at *2 (E.D.N.Y. Sept. 21, 2011) “Where the deposition is reopened because of newly discovered information, the questioning of the witness is limited to those questions relating to the newly produced information;” held, re-deposition allowed, but limited to two hours and to information learned since first deposition)

Companhia Energetica Potiguar v. Caterpillar Inc., No. 14-CV-24277, 2016 WL 11547499, at *7 (S.D. Fla. June 13, 2016), report and recommendation adopted, No. 14-24277-CIV, 2016 WL 7497339 (S.D. Fla. Sept. 20, 2016) (“CAT's request to exclude Fuentes' expert opinions is significantly undermined by its failure to take advantage of the order permitting it to take Fuentes' deposition again and question him about the specific documents and data he listed in his errata sheet”)

Noel v. St. Paul Fire & Marine Ins. Co., No. CV 17-752, 2019 WL 97090, at *2 (W.D. La. Jan. 2, 2019) (“Defendants' motion papers establish that [questions about the relationship between Plaintiff and certain witnesses] would be unreasonably cumulative and duplicative of the first deposition, during which defendants had ample opportunity to question plaintiff about his relationship with [them]– and did in fact do so – in addition to deposing both the witness and his wife on the same relationship topic. If defendants have developed information concerning the relationship that undermines the credibility of plaintiff's sworn original deposition answers on this topic, their remedy is to impeach him at trial or other hearing, not to ask him additional questions on the same topic about which they already have or could have questioned him;” held, however, that unopposed motion would be granted to the extent of questions about contact between the plaintiff and certain witnesses since the deposition, and about medical care since the deposition)

Babcock Power, Inc. v. Kapsalis, No. 3:13-CV-717-DJH-CHL, 2015 WL 9257759, at *4 (W.D. Ky. Dec. 17, 2015) (re-deposition of plaintiff allowed, but “Plaintiffs are warned that they are not to cover topics already covered at the October 2014 deposition; per plaintiffs' representations to the Court, plaintiffs only seek to depose [the defendant] on the documents produced in August 2015. The deposition shall be limited to two hours”)

Echeverria v. Nevada, No. 314CV00320MMDWGC, 2020 WL 1549734, at *3 (D. Nev. Apr. 1, 2020) (“Nonetheless, as Plaintiffs have offered to make him available, NDOC may depose Mr. Steiner again—provided that deposition is limited in scope to the supplements he made to his initial report. Discovery remains closed in this case in all other respects”)

In re Gorsoan Ltd., No. 17-CV-5912 (RJS), 2020 WL 6891520, at *3 (S.D.N.Y. Nov. 23, 2020) (court allowed third deposition of party, saying “In [the movant’s] favor is the fact that the party deponent] has repeatedly abused the discovery process in an effort to improperly stymie [the movant’s] efforts, and saying about the party’s prior depositions, “[h]er testimony was almost comical in its implausibility and flagrant obfuscation”)

Perry v. Zurich American Insurance Company, et al., 2019 WL 7558133 (E.D. La. 2019) (denying motion seeking “update depositions” of two injured plaintiffs, where purported focus of new depositions was changes in employment, additional medical treatment and changes in medical care; held, information could have and should have been gathered using other discovery methods, and defendant should not have waited until the late stages of the case, and issues can be raised through cross-examination at trial)

Ganci v. U.S. Limousine Serv., Ltd., No. CV 10-3027,2011 WL 4407461, at *2 (E.D.N.Y. Sept. 21, 2011) (citations omitted) (“[w]here the deposition is reopened because of newly discovered information, the questioning of the witness is limited to those questions relating to the newly produced information”)

Bioconvergence LLC v. Attariwala, 2020 WL 3473453 (S.D. Ind. 2020) (second deposition of defendant allowed for the specific purpose of allowing plaintiff to determine defendant’s compliance with court’s prior preliminary injunction; however, subject matter of deposition strictly limited to issue of compliance, and further limited to three hours in duration)

Matter of Tara Crosby, LLC, No. CV 17-5391, 2019 WL 5634182, at *4 (E.D. La. Oct. 31, 2019) (“In order to for the Court to find circumstances warranting the retaking of Claimants' deposition, a change in situation beyond a mere update of Claimants' current physical capabilities, limitations, and employment status and that Petitioners were unable to acquire in the first deposition would need to arise. Without this more drastic change in circumstances, the second depositions would simply be “a rehash of information already disclosed.” Petitioners have made no representation to the Court, at the hearing or in their post-hearing brief, that constitutes such a change in circumstance. As such, the Court finds the mere lapse in time from the taking of Claimants' original deposition to now does not constitute the sort of change in circumstance envisioned by the rules. Thus, the Court finds the second depositions of Claimants Pitre and Herbert unnecessarily cumulative and duplicative”) 

Chevron U.S.A. Inc. v. Aker Mar., Inc., No. CIV.A. 03-2027, 2007 WL 1558710, at *1 (E.D. La. May 30, 2007) (second deposition denied; “Any benefit from permitting yet another deposition on this issue in this case is far outweighed by its burden, particularly at this late stage of a case that has been pending for almost four years”)

Garrett v. Dep't of Corr. of Fla., No. 5:06CV400OC10GRJ, 2007 WL 5844122, at *2 (M.D. Fla. Oct. 1, 2007) (second deposition of Plaintiff denied; “While there is no doubt that Defendant may derive some benefit if it conducts an updated deposition of Plaintiff, the Defendant could have and should have made this request a long time ago and not shortly before trial”)

Karr v. Four Seasons Mar., Ltd., No. CIV.A.02-3413, 2004 WL 797728, at *6 (E.D. La. Apr. 12, 2004) (second deposition denied; “In the instant case, defendants have already deposed Karr and have had ample opportunity by discovery to obtain the information now being sought. They have not provided any evidence that the information sought is not obtainable from some other source that is more convenient, less burdensome or less expensive”)

*Mamani, et al. v. Sanchez de Lozada, 2017 WL 11633120, Case No. 07-22459-CIV-COHN/SELTZER and 08-21063-CIV-COHN-/SELTZER (S.D. Fla. Aug. 7, 2017) (second deposition may be allowed when thousands of additional documents have been produced since initial deposition)

ADDED AFTER EPISODE AIRED:

MD Auto Group, etc., LLC v. Nissan North America, Inc. No. 1:21-CV-01584-CEF, 2023 WL 3251218, at *6 (N.D. Ohio May 4, 2023) (rejecting argument that second-deposition in federal court is inapplicable to 30(b)(6) witnesses, but allowing it where many documents were produced after first deposition; "-90 initially argues that there is a split of authority regarding whether Rule 30(a)(2) applies to successive 30(b)(6) depositions, and it suggests that leave of court may not be required before it takes another 30(b)(6) deposition of NNA. However, cases holding that Rule 30(a)(2) is inapplicable to 30(b)(6) depositions “appear to be the minority view")

Pertinent Cases:

Perry v. Leeke, 488 U.S. 272 (1989) (judge in federal criminal trial could legally preclude criminal defendant from conferring with his counsel during fifteen-minute recess at conclusion of defendant’s direct examination)

McDermott v. Miami-Dade County, 753 So.2d 729 (1^st DCA 2000)(state mid-level appeals court, citing the U.S. Supreme Court decision in Perry, observed that the federal Constitution does not prevent trial judges from barring conferral, between lawyer and criminal defendant, about the testimony while testimony is in progress, and that civil litigants have even fewer rights than criminal litigants)

Hall v. Clifton Precision, a Division of Litton Systems, Inc., 150 F.R.D. 525 (E. D. Pennsylvania, July 29, 1993) (forbidding conferral between lawyers and deponents during deposition, whether on lunch breaks, snack breaks, coffee breaks, recesses, or any other kind of break)

McKinley Infuser, Inc., et al. v. Zdeb, et al., 200 F.R.D. 648 (D. Colo. June 7, 2001) (rejecting Hall’s overly restrictive implications)

Ecker v. Wisconsin Central, Ltd., 2008 WL 1777222 (E.D. Wisconsin April 16, 2008) (rejecting Hall, and noting that in both the Hall and Eggleston cases, the conferrals were unusually excessive in number and often took place while questions were pending)

Eggleston v. Chicago Journeyman Plumber’s Local Union 130, 657 F.2d 890, 902 (7^th Cir. 1981) (imposing restrictions on conferrals between lawyers and deponents during depositions, noting there were an estimated 127 private off the record conferrals between plaintiffs and their counsel, many of which took place before a pending question was answered)

In re Stratosphere Corporation Securities Litigation, 182 F.R.D. 614 (D. Nev. Sept. 15, 1998) (rejecting Hall as going too far, saying that as long as attorneys do not demand a break in between questions and answers, lawyers will not be precluded from conferring with their clients)

Murray v. Nationwide Better Health, et al., 2012 WL 3683397 (C.D. Ill. Aug. 24, 2012) (rejecting Hall’s restrictions, and speaking in positive terms about the Stratosphere approach)

Reynolds v. Alabama Department of Transportation, 4 F. Supp. 2d 1055 (M.D. Ala. Mar. 31, 1998) (no unqualified bar to conferral during testimony, but also no unqualified right to do so)

Order Granting in Part And Denying in Part Motion for Sanctions, etc., In re Outlaw Laboratories, LP Litigation, 2021 WL 124308, Case No. 18-cv-840-GPC (BGS) (S. D. Cal. Jan. 13, 2021)

Motion for Sanctions, etc., CM/ECF Document 269, filed August 10, 2020

Transcript Of Terminated Deposition, CM/ECF Document 269-2

Third-Party Defendant’s Opposition to Motion for Sanctions, etc., CM/ECF Document 273

SHOW NOTES:

(Note: We add new cases on an episode topic as they are published. This episode contains one or more added cases. Scroll to bottom for cases added after this episode was first aired.)

Allstate Insurance Company v. Shah, et al., 2017 WL 1228406 (D. Nevada March 31, 2017) (physicians sued insurance company, a defendant in an underlying action, based in part on its counsel’s deposition questions of the doctors)

Koch v. Pechota, et al., 744 Fed. Appx. 105 (3d Cir. 2018) (video business operator sued opposing counsel, and special referee who oversaw depositions of attorney and operator, based in part on deposition examination that allegedly linked video business to child pornography)

Rabinowitz, et al. v. Wahrenberger et al., 406 N.J. Super 126 (S. Ct. N.J. App. Div. 2009) (lawyer sued for outrage and intentional/negligent infliction of emotional distress after asking father of deceased newborn, in his deposition, if he suspected his wife of murder, negligent homicide or abuse)

Suchite et al. v. Kleppin, et al., 819 F. Supp.2d 1284 (S. D. Fla. 2011) (defense counsel and client sued after deposition in which lawyer asked alleged undocumented immigrants about their immigration status, how they entered the US, about the use of “coyotes” to help bring them across the border, whether they swam, and what they would do if they encountered border patrol)

Utterback v, Trustmark National Bank and Hand Arendall LLC, 2017 WL 5654732 (S. D. Miss. 2017) (law firm and its banking client sued based in part on questions asked by the firm about the criminal background and disbarment of plaintiff; claims included defamation, invasion of privacy, tortious interference with business relationship and intentional infliction of emotional distress)

McCullough, et al. v. Kubiak, et al., 158 So. 3d 739 (Fla. 4^th DCA 2015) (law firm sued after its lawyer allegedly made disparaging comments in a deposition about opposing counsel’s litigation practices in other case, was dismissed)

Sullivan v. Malta Park, et al., 156 So.3d 1200 (Ct. App. La. 2014) (lawyer sued for defamation after asking deposition questions that allegedly insinuated that deponent’s husband, who was defending his wife’s deposition, was or had had an affair with an employee of his law firm)

Nunes v. Herschman, et al., 2021 WL 49908 (Fla. 4^th DCA 2021) (employee subpoenaed for deposition gave unfavorable testimony about his employer and was fired; held, anti-retaliation statute for giving testimony in “judicial proceeding” is inapplicable because deposition, literally interpreted, is not a “judicial proceeding”)

Sussman v. Damian, 355 So.2d 809 (Fla. 3d DCA 1977) (lawyers sued each other for slander based on disputes that allegedly first arose from mid-deposition argument over whether all pertinent documents had been produced)

Myers v. Hodges, 53 Fla. 197, 209, 44 So. 357, 361 (1907) (discussing privilege, review of English cases, and surveying US law)

Freeman v. Cooper, 414 So.2d 355, 359 (La.1982) (noting that “[i]n other jurisdictions, a defamatory statement by an attorney in a judicial proceeding is absolutely privileged, if the statement has some relation to the proceeding,” but in Louisiana the privilege is a qualified one)

Ga. Code Ann. § 51-5-7, Privileged communications

Jar Allah v. Schoen, 243 Ga. App. 402, 405, 531 S.E.2d 778, 781 (2000) (“[a]n attorney at law has a conditional privilege to make, during the progress of a trial, such fair comments on the circumstances of the case and the conduct of the parties in connection therewith as in his judgment seem proper.... The attorney at law is protected by his privilege, on account of words spoken in the discharge of his duty in the regular course of judicial proceedings in the courts, unless express malice is proved”)

T. Leigh Anenson, Absolute Immunity from Civil Liability: Lessons for Litigation Lawyers, 31 PEPP. L. REV. 915, 918-20 (2004)

AUTHORITIES ADDED AFTER THIS EPISODE AIRED:

Clayton v. Tri City Acceptance, et al., 2019 WL 13116556 (W. D. Kentucky Jan. 17, 2019) (state's judicial-proceeding privilege protects communications in any judicial proceeding - including deposition testimony - so long as they are "pertinent and relevant" to the proceeding)

In re Zantac (Ranitidine) Prod. Liab. Litig. No. 20-MD-2924, 2020 WL 6687777, at *1 (S.D. Fla. Nov. 11, 2020) ("Counsel are reminded that this Court considers depositions to be official court proceedings, and the conduct of all participants in depositions shall be in accordance with the customs and practices expected of lawyers and witnesses appearing before this Court, as if each was appearing personally before the Court at the time of the depositions")

ADDED AFTER EPISODE AIRED:

Kasparian v. Roman, No. 22-P-231, 2023 WL 3261675, at *2 (Mass. App. Ct. May 5, 2023) (finding, without analysis, that offensive and potentially libelous comments were made during a "judicial proceeding" and thus were protected by litigation privilege: "In the present case, it cannot be disputed that Roman's comments at the deposition were made during the course of judicial proceedings. Roman's court filings likewise must receive the same protections. See Bassichis, 490 Mass. at 158 (“litigation privilege applies to an attorney's actions during the course of a judicial proceeding, just as it does to the attorney's communications”).

Black v. Woodrick, No. 07-23-00072-CV, 2023 WL 7201147, at *3 (Tex. App. Nov. 1, 2023) judicial proceedings privilege extends to “any statement made by the judge, jurors, counsel, parties or witnesses, and attaches to all aspects of the proceedings, including statements made in open court, pretrial hearings, depositions, affidavits and any of the pleadings or other papers in the case.”)

CASES:

Lee v. California Institute of Technology, 2009 WL 2602438 (C. D. California August 24, 2009) (after magistrate held telephone conference and determined that despite short notice, deposition could proceed, following which plaintiffs sought review of magistrate's ruling and filed protective order; held, since magistrate rejected effort to halt deposition and deposition proceeded, subsequent appeal to district judge for review, accompanied by “motion for protective order,” did not preclude use of deposition, because it was effectively a motion for reconsideration.

Sullivan v. Detroit Police Department, et al., 2009 WL 1689643 (E. D. Michigan June 17, 2009) (failure of defendant to file protective order included application of rule to bar use of deposition at trial)

Mezu v. Morgan State University, 2014 WL 12734011 ( D. Maryland May 13, 2014) (because rule only creates bar if there is no ruling when deposition occurs, it goes without saying a judge can deny the motion and allow a short-notice deposition)

Muldrow v. Harrison, 387 Fed. Appx. 666 (8^th Cir. July 23, 2010) (affirming use of short-notice deposition for impeachment, without detailed explanation)

King v. O’Reilly Automotive Stores, Inc., 2013 WL 4511476 (W. D. Washington Aug. 22, 2013) (agreement that deposition could take place, “subject to objections,” was reached more than fourteen days before deposition; held, even if actual notice was served less than fourteen days before deposition, prior agreement rendered exclusion provision inapplicable)

Mitchell v. Hood, 2015 WL 13048738 (W.D. La. Oct. 19, 2015) (non-party’s motion to quash notice and subpoena served eleven days before deposition granted)

Insurance Safety Consultants, LLC v. Nugent, 2018 WL 4732430 (N.D. Texas Sep. 12, 2018) (“The language of this rule provides no room for discretion;” the prohibition on testimony obtained from a deposition on short notice is mandatory; while Defendant appeared for deposition noticed January 25 for February 2, she timely moved for a protective order, barring use of her testimony in plaintiff’s motion for summary judgment)

L.L. Bean, Inc. v. Bank of America Corporation, et al., 2009 WL 10730642 (D. Maine Dec. 2, 2009) (protective order issued before deposition took place; held, deposition barred by rule 32(a)(5)(A) where original notice allowed just ten days before depositions (Nov. 20 for Nov. 30 deposition), and amended notice likewise allowed just ten days (Nov. 23 notice for December 3 deposition)

Gabriel v. Albany College of Pharmacy and Health Sciences, et al., 2014 WL 3378629 (D. Vermont July 10, 2014) (ruling on motion for protective order takes matter outside rule 32(a)(5)(A))

Richardson v. BNSF Railway Company, 2014 WL 5317866 (E.D. La. October 16, 2014) (acknowledging short-notice rule, and saying 18 days is reasonable)

Gao v. Snyder Companies, et al., 2012 WL 13124728 (C.D. Ill Feb. 7, 2012) (failure to file motion for protective order takes case out of rule 32(a)(5)(A) framework)

Flores v. Wall, 2012 WL 4471106 (D. R. I. Sept. 6, 2012) (less than fourteen days’ notice deemed reasonable)

Bates v. United States, 2014 WL 12823619 (S.D. Ala. Nov. 6, 2014) (must still confer with opposing counsel, under applicable rules, as with any motion for protective order, prior to filing 32(a)(5)(A) motion)

Leys v. Lowe’s Home Centers, Inc., 2009 WL 1911818 (W. D. Mich. July 1, 2009) (court, operating under prior version of rule deeming less than eleven days reasonable notice, rejected deposition of 30 (B) (6) deponent on two grounds, specifically rule 32(a)(5)(A), and also sheer unreasonableness of requiring any entity to hastily prepare 30(b)(6) witness involving complex issues and numerous documents)

Dickinson Frozen Foods, Inc. v. F PS Food Process Solutions Corporation, 2020 WL 2841517 (D. Idaho June 1, 2020) (depositions set on short notice while motion for protective order pending precluded from use in lawsuit)

Liberty Mutual Insurance Group v. Panelized Structures, Inc., 2011 WL 6780875 (D. Nevada December 27, 2011) (motion for protective order granted, and use of depositions by defendant barred, because motion for protective order was timely filed, even if not labeled as an “emergency motion”)

Stevens v. Stieve, 2018 WL 10688349 (W.D. Mich. December 9, 2018) (deposition barred from use by defendant where noticed just three days before scheduled deposition; plaintiff, an inmate, handed his motion to prison officials two hours before the deposition, which the court deemed to constitute filing, and to constitute a pending motion)

Hannah v. Wal-Mart Stores, L.P., 2017 WL 690179 (D. Conn. Feb. 21, 2017) (trial deposition of witness outside subpoena power of parties barred because of rule 32(a)(5)(A)).

Davis v. Lakeside Motor Company, Inc. 2012 WL 12897139 (N. D. Indiana Oct. 24, 2012) (deposition set on seven days notice, to take place on last day of discovery period, barred from use)

Johnson v. Ivey, 2016 WL 4500800 (M. D. Georgia March 22, 2016) (in outlier ruling not cited for proposition anywhere alone) court allowed short notice deposition to be used against the deponent on summary judgment)

Ocanas v. State Farm Lloyds, 2015 WL 12777220 (S. D. Texas July 29, 2015) (deposition noticed four days before close of discovery, if it proceeded, would be barred under the rule)

Automated Transactions LLC v First Niagara Financial Group, 2011 WL 13213256 (W. D. N. Y. May 10, 2011) (court has no discretion to allow use of transcript where deposition was short-noticed and motion for protective order was pending at time of deposition)

Landis v. Galarneau 2010 WL 446445 (E. D. Michigan Jan. 28, 2010) (rule does not remove power of court to deny motion for protective order and allow short-notice deposition)

Bates v. United States, 2014 WL 12823619 (S.D. Ala. Nov. 6, 2014) (rule does not flatly say a deposition on short notice cannot be taken)

Kellogg Company v. FPC Flexible Packaging Corp., 2013 WL 3805670 (W. D. Mich. July 22, 2013) (magistrate judge, before short-noticed depositions took place, granted motion for protective order, and ruled deposition could not be used if it took place as noticed; district judge upheld bar on use of transcript, but only because circumstances of case made short-notice deposition unfair, not because of rule 32(a)(5)(A), because magistrate’s ruling before deposition occurred removed it from reach of the rule)

Committee notes on 1993 amendments:

https://www.uscourts.gov/sites/default/files/fr_import/CV05-1991-min.pdf

Cases Mentioned in, Or Relevant to, This Episode:

Kraese v. Jialiano Qi, etc. 2020 WL 4016250 (S.D. Georgia July 16, 2020) (judge pondered whether defendant's failure to timely respond to plaintiff's motion to re-depose physician could be construed as FRCP 29(a) stipulation, where defense response was forty days out of time)

Kean V. The Board of Trustees of the Three Rivers Regional Library, 321 F.R.D. 448, fn. 7 (S.D. Ga. Jan. 26, 2017) (Generally encouraging parties to make informal stipulations under FRCP 29(a) to take advantage of technology in order to reduce expenses such as travel)

Thomas v. Wallace, Rush, Schmidt, Inc., 2020 WL 3247380 (M. D. La. March 18, 2020) (under local rule, parties could stipulate under FRCP 29(a) to conduct depositions past discovery deadline, as long as it did not interfere with trial date or other court-established deadlines; however, such stipulations do not necessarily include right of either party to file motions to compel after the discovery deadline)

Li, etc. v. A Perfect Day Franchise, Inc., 2011 WL 3895118, Case No. 10-CV-01189-LHK (N.D. Cal. Aug 29, 2011) (parties’ stipulation that defendants’ 30(b)(6) designee could be deposed by videoconference, because designee was in China, precluded later argument by defense that plaintiff had not complied with FRCP 28’s requirements for deposing witnesses in foreign countries; while stipulation made no mention of FRCP 29(a), court cited rule in saying that the stipulation was of the kind authorized by that rule)

Murray v. Nationwide Better Health, et al, 2011 WL 2293376 (C.D. Ill. June 9, 2011) (defendant’s silence in response to pro se plaintiff’s proposal to depose certain witnesses without a court reporter wasn’t consent or a stipulation under FRCP 29(a); held, defendant did not have to object, because it was entitled to have the deposition conducted pursuant to FRCP 28)

Brestan v. Skaggs, 2010 WL 11552887 (C.D. Ill. Jan. 20, 2010) (finding no agreement or stipulation by defense counsel to conduct depositions after the discovery deadline, but, even if such agreement had existed, it would not have overridden the court’s scheduling order)

Burrell v. Allstate Property and Casualty Co., 2015 WL 12979206, Case No. 3:13-cv-493-CWR-FKB (S.D. Miss. Oct. 23, 2015) (defendant allowed to withdraw from FRCP 29(a) stipulation, which would have required defense witnesses to travel nearly 200 miles for their depositions; held, plaintiff’s counsel delayed noticing deposition for 16 months after the stipulation, during which time the proposed deponents had been dropped from the suit)

Stephens v. Fredrickson, 2013 WL 6490701, No. C12–1067RAJ–MAT (W.D. Washington December 10, 2013) (prisoner, attempting to avoid costs, sought agreement from state’s lawyer to allow prisoner to buy audiocassettes, audiotape depositions of prison officials, and pay for transcription, to which defense counsel refused, insisting on procedure under rule 28; court expressed irritation at counsel for refusing to stipulate to alternative method, and hinted at sanctions if counsel did not step up and cooperate).

Richardson v. BNSF Railway Company, 2014 WL 5317866, Case No. 13-5415 (E. D. La. Oct. 16, 2014) (email exchange between lawyers about the date and place for plaintiff to depose defense witnesses was deemed a FRCP 29(a) stipulation; held, defendant sanctioned for unilaterally canceling depositions 5 days before the scheduled date)

Archway Insurance Services, LLC v. Harris, 2013 WL 1405823, No. 2:11–cv–01173–JCM–CW (D. Nev. April 5, 2013) (FRCP 29(a) agreement deemed to have existed when defense counsel agreed to postpone scheduled depositions and work with plaintiff to reset them; even though plaintiff’s counsel did not timely respond to follow-up efforts to reset them, no sanctions were warranted for “failure” of plaintiffs to appear for deposition, since defense agreed they could be reset)

Garza v. Webb County, Texas, et al., 296 F.R.D. 511, Civil Action No. 5:12–CV–153 (S.D. Texas Jan 2. 2014) stating that “two types of stipulations are contemplated by the language of Rule 29 - those that involve only the litigants, and those that require court approval; court approval required whenever a stipulated extension ‘would interfere with the time set for completing discovery, for hearing a motion, or for trial’”)

Tripati v. Corizon Incorporated, et al., 2019 WL 6114593, No. CV-18-00066-TUC-RM (D. Ariz. Nov. 15, 2019) (prisoner’s request for order modifying deposition procedures, on grounds of financial hardship, denied, absent stipulation by opposing party under Rule 29(a) )

Robinson v. Adams, et al., 2010 WL 1948252, No. 1:08-cv-01380-AWI-SKO (E.D. Calif. May 11, 2010) (Court treated prisoners non-compliant notice of taking deposition, using audio and visual recording means but without a court reporter, as a Rule 29(a) request that the defense lawyer perform the duties of a reporter, namely administering the oath and making the announcements required by FRCP 30(b)(5); court ordered defense counsel to confer with the inmate about this procedure come up before the court would make a ruling about how to handle it)

Marvin Lumber and Cedar Company v. SAPA Extrusions, Inc., 2012 WL 12965625, Case No. 10-3881-RHK/LIB (D. Minn. June 8, 2012) (court found emails between counsel to constitute a Rule 29(a) agreement, requiring plaintiff's witnesses to travel several hundred miles to deposition location, well beyond the 100-mile limit imposed by FRCP 45(c)(3)(A)(ii) ) )

Kiera v. Berry et al., 2013 WL 5416900 (S.D. Fla. Sept. 26, 2013) (court observed in context of various motions filed by pro se plaintiffs that Rule 29 (a) is permissive, and does not obligate any party to agree to non-standard deposition protocols)

Eppley v. SAFC Biosciences, Inc., 2020 WL 7353865 (D. Kan. Dec. 15, 2020) (incorrectly citing a Southern District of Florida case, Hernandez, for the proposition that a Rule 29(a) stipulation between the parties can provide four depositions beyond the discovery deadline without court intervention)

Hernandez v. Starbucks Coffee Company, 2011 WL 13173810 (S.D. Fla. Apr. 14, 2011) (noting that Rule 29(a) stipulations in the Southern District of Florida can provide for depositions past the court ordered deadline because of a local rule specifically authorizing it)

Select case cites from this episode:

1. U.S. v. Morgan, 313 U.S. 409, 421-422 (1941) (seminal case) (high-ranking government officials not subject to deposition absent extraordinary circumstances)

2. Keebaugh v. International Business Machines Corporation, 2020 WL 774238 (S.D.N.Y. 2/18/2020) (plaintiff sought depositions of CEO and chief human resource officer; held, while HR chief could be deposed without further delay, deposition of CEO would be delayed pending development of record by plaintiff that CEO had unique personal knowledge or information that could not be provided in identical fashion by lower-level witnesses; court notes that IBM did not file affidavits from either executive to support claims they lacked personal knowledge)

3. Blankenship v. Fox News Network LLC, 2020 WL 7234270, Case No. 2:19-cv-00236 (S.D. W. Va. Dec. 8, 2020) (plaintiff sought to depose two sitting United States Senators; held, apex depositions would not be allowed’ “…Plaintiff has failed to demonstrate “exceptional circumstances” espoused by the Morgan doctrine to justify deposing Senators McConnell and Gardner. . . . has not shown that either of these high-ranking government officials have personal knowledge relevant to this litigation. . . .has not shown that these proposed depositions are essential to his case. . . has not shown that the evidence sought from deposing these Senators is unavailable through any alternative source or less burdensome means. . . . has not alleged that either Senator said anything defamatory, and does not provide an “actual showing” that any conspiracy existed, let alone that these Senators had any knowledge of it”)

4. Motion for Protective Order, Blankenship v. Fox News Network LLC, 2020 WL 7234270, Case No. 2:19-cv-00236 (S.D. W. Va. Dec. 8, 2020) Case 2:19-cv-00236 Document 625 Filed 11/03/20 Page 1 of 18 (contains excellent overview of the law on apex depositions)

5. Byrd v. District of Columbia, 259 F.R.D. 1, 6-7 (D.D.C. 2009) (“Although no standard has been established for determining if an official is high-ranking, courts have held that the Mayor of the District of Columbia, United States Senators, the General Counsel to United States House of Representatives, the Attorney General of the United States and certain high administrative heads are high-ranking officials for this purpose.”) (internal citations omitted)

6. Odom v. Roberts, --- F.R.D. ---- (2020), 2020 WL 7111175, Case Nop. 5:18-cv-271-MCR-MJF and 5:19-cv-253-MCR/MJF (N.D. Fla. December 1, 2020) (held, plaintiffs demonstrated sufficient personal involvement by Sheriff to warrant apex deposition; excellent, comprehensive discussion and case citation in this order)

7. Suzuki Motor Corp. v. Winckler, No. 1D18-4815, 2019 WL 4062353 at *1 (Fla 1^st DCA Aug. 29, 2019) (allowing deposition of chairman of Suzuki Motor Corporation, "[D]octrine is only clearly established in Florida in the government context, with respect to high-ranking government officials”)

This episode is based on the Memorandum Order in Animal Legal Defense Fund v. Kimberly Ann Lucas, d/b/a Farmers Inn, 2020 WL 7027609, Case No. 2:19-cv-00040-PLD (W. D. Penn. Nov. 30, 2020).

The Memorandum Order is PACER docket number 141.

The Plaintiff's Motion for Sanctions is PACER docket number 109. Its Memorandum of Law in Support of the Motion for Sanctions is PACER docket number 110.

The Defendant's Brief in Opposition to sanctions is PACER docket number 120

This podcast is based on the best-selling 450-page field guide, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, now in its 3d edition. Buy it on Amazon, or just about anywhere else you buy your practice materials.

Cases cited in this episode:

Beijing Choice Electronic Technology Co. Ltd. V. Conte Medical Systems USA, Inc., 2020 WL 1701861 (N.D. Ill. April 8, 2020) (use of interrogatory to ask question similar to one previously asked in deposition not improper; discovery methods are complementary, not alternative or exclusive)

Kainz v. Anheuser-Busch, Inc., 15 F.R.D. 242 (N.D. Ill. 1954) (asking same questions in both interrogatories and depositions not necessarily improper; absent showing that complete answers to the interrogatories are contained in the depositions, this burden is not discharged)

Beasley v. Lang, 2018 WL 2072856 (S.D. Miss. May 2, 2018) (court, in compelling defendants to respond to plaintiff’s interrogatories and document requests, specifically ruled “This order does not prevent Plaintiff from asking any questions during the deposition of EF Properties or Mr. Flechas that are related to, the same, or similar to the interrogatories”)

DiSantis v. Smith of Philadelphia, 1987 WL 28537 (E.D. Penn. 1987) (“. . . the various methods of discovery are intended to be cumulative, not alternative nor exclusive;” but party wishing to object to interrogatory in grounds a prior deposition covered it, movant must show abuse or injustice from it)

Hunt v. McNeil Consumer Healthcare, 2013 WL 12231272 (E.D. La. Jan. 15, 2013) (interrogatory questions asked in interrogatories and in depositions were “semantically distinct,” even though the questions shared many similarities; subtle differences in the way the interrogatories and depositions questions were asked justified finding that plaintiff’s testimony in those formats did not conflict)

Rutledge v. Elliott Health System, 2018 WL 851354 (D. N.H. Feb. 13, 2018) (“To the extent Rutledge faults the defendants for failing to ask her follow up questions on these topics during her deposition, she has not shown that a party waives the right to compel a response to an interrogatory by not including the same question during a deposition”)

Sprayberry v. Portfolio Recovery Associates LLC, 2018 WL 10604345 (D. Oregon Feb. 2, 2018) (court rejected plaintiff’s request that defendant be forbidden to ask depositions questions because, the plaintiff contended, the opposing party could ask the same question in an interrogatory or request for admission or obtain the information from another source; court said that answering deposition questions is “. . . certainly no more burdensome that responding to written discovery requests”)

Lowery v. County of Riley, 2009 WL 648928 (D. Kan. 2009) (party cannot avoid answering interrogatories by demanding opponent ask the desired questions in depositions instead )

Richlin v. Sigma Design West, Ltd., 88 F.R.D. 634 (E.D. Cal. 1980) (patently duplicative interrogatories, served in February after extensive depositionsin December,were oppressive and overly burdensome; there was no hint that new information had come to light, or that the pleadings had changed, such to warrant service of the same questions by interrogatory that had been answered fully in deposition; fact that rules allow multiple types of discovery  is “. . . not a license to engage in ‘repetitious, redundant and tautological’ inquiries…”)

SHOW NOTES:

This podcast aired before references to full case citations were moved from the episode itself to the show notes. The following authorities were added after the first airing of this episode:

ChampionX, LLC. v. Resonance Sys., Inc. No. 3:21-CV-288-TAV-JEM, 2023 WL 11156855, at *6 (E.D. Tenn. Oct. 19, 2023) (citing cases for the proposition that "Generic objections to the form of the question are deemed waived. Fletcher v. Honeywell Int'l, Inc., No. 3:16-CV-302, 2017 WL 775852, at *1 (S.D. Ohio Feb. 28, 2017) (“To the extent that counsel made a generic objection to ‘form,’ but failed to specify the basis for the objection, the Court also considers those objections to be waived.” (citations omitted)); see also Henderson v. B & B Precast & Pipe, LLC, No. 4:13-CV-528 CDL, 2014 WL 4063673, at *1 (M.D. Ga. Aug. 14, 2014) (“[I]f a question is propounded in an improper form, the objection should be stated concisely on the record during the deposition in a manner that provides the questioner with a reasonable opportunity to correct the form of the question. Failure to do so waives the objection. Simply stating “objection to form” does not necessarily preserve the objection.”).

SHOW NOTES:

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

SHOW NOTES (Added after original episode publication date)

J & R Passmore, LLC, et al. v. Rice Drilling D, LLC, 2021 WL 4810150 (S.D. Ohio Oct. 15, 2021) (court deemed attorney-client privilege waived as to meeting minutes and emails used by corporate representative to refresh her recollection for the purpose of testifying in deposition)