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Depositions: Key Federal Rules of Civil Procedure

Date: Apr 08, 2002


WHEN DEPOSITIONS MAY BE TAKEN

    • Prior to filing a complaint, a potential party may petition a federal court for an order to depose a potential adverse party on the ground that there is a need to perpetuate testimony before a complaint can be formulated.  Rule 27(a).
    • Prior to the Rule 26(f) Discovery Conference in a case, parties may use depositions to obtain information when (1) stipulated in writing by them; (2) the deposition-taking party certifies and states supporting facts in the deposition notice showing that the deponent is expected to leave the United States and be unavailable unless deposed before that time, or (3) ordered by the court.  Rules 26(d), 30(a)(2)(C).
    • During scheduled discovery in a case, parties may use depositions to obtain information.  Rule 26(a)(5).
    • After judgment during the period when an appeal may be taken or pending appeal, a party may move the trial court to take depositions of witnesses whose testimony is necessary to perpetuate in the event that there will be further proceedings within the trial court.  Rule 27(b).

TECHNICAL LIMITATIONS ON TAKING

    • The parties may alter any procedure or limitation applicable to depositions by written stipulation, with the apparent exception of deposing witnesses who are confined to prison.  Rules 29, 30(a)(2).
    • The court may alter the limits in the Rules as to the number and length of depositions on its own initiative or by granting a motion.  Rule 26(b)(2).
    • No more than 10 depositions each for plaintiffs, defendants, or third-party defendants may be taken in a case without the parties stipulating otherwise in writing or the court granting leave for more.  Rule 30(a)(2)(A).
      • Depositions of organizations under Rule 30(b)(6) should be considered as one deposition, even if multiple witnesses have to be deposed.  Rule 30(a)(2)(A) Advisory Committee Notes (1993 Amendments); Rule 30(d)(2) Advisory Committee Notes (2000 Amendments).
    • No more than one day of seven hours per deposition is allowed.  However, the court “must” allow additional time, consistent with balancing the interests at stake, if needed for a fair examination of the deponent or if any person or circumstance impedes or delays the examination.  Rule 30(d)(2).
      • Only on-the-record time is to be counted.  Reasonable breaks for lunch and other reasons are not counted as part of the seven hours.  Rule 30(d)(2) Advisory Committee Notes (2000 Amendments).
      • Where an organization designates multiple witnesses under Rule 30(b)(6), the 7-hour limit is applicable to each witness.  Rule 30(d)(2) Advisory Committee Notes (2000 Amendments).
      • Factors that may indicate the need for more time include deponents who need interpreters; examinations that will cover an extensive period of time; witnesses failing to review documents sent to them by the deposition-taker to prepare for the deposition; requested documents were not produced; the defending lawyer seeks to examine the witness; and, generally, any deposition of an expert.  Rule 30(d)(2) Advisory Committee Notes (2000 Amendments).
    • If the proposed witness is in prison, leave of court is needed to depose.  Rules 30(a)(2).
    • If the proposed witness already has been deposed in the case, written stipulation or court leave is needed.  Rules 30(a)(2)(B).
    • Qualified persons must be retained to record depositions, administer oaths or affirmations, and do other functions, unless the parties stipulate in writing otherwise.  Rules 28, 29, 30(b)(4).

METHODS FOR COMPELLING, TAKING AND RECORDING DEPOSITIONS 

    • Subpoenas may be used to compel the attendance of non-party witnesses at depositions.  Rules 30(a)(1), 45 (subpoena).
    • Depositions by oral examination may be used by a party to take the testimony of another party or any other person without leave of court.  Rule 30(a)(1)
    • Depositions by remote electronic means (including by telephone) are allowed under written stipulation of the parties or court order.  Rule 30(b)(7).
    • Depositions by written questions may be used by a party to take the testimony of another party or any other person without leave of court.  Rule 31(a)(1).  [Note:  The requirements applicable to this seldom-used method are not discussed further in this paper.]
    • Written questions in lieu of joining oral examination by parties for a deposition noticed by another party may be submitted in a sealed envelope to the recording officer, who shall propound them to the witness and record the answers.  Rule 30(c).
    • Recording by sound, sound-and-visual, or tenography method is allowed unless the court orders otherwise; costs are borne by the taking party.  Rule 30(b)(2).
    • Secondary recording by a method other than (and in addition to) the one designated by the party taking the deposition may be designated by any party with prior notice to the deponent and parties; costs are borne by the party designating the secondary recording.  Rule 30(b)(3).

NOTICE FOR DEPOSITIONS OF INDIVIDUALS AND ORGANIZATIONS

    • Reasonable notice in writing must be given to all other parties by a party seeking to take a deposition upon oral examination, stating the time and place for taking the deposition and the method by which the testimony will be recorded.  If known, the notice must state the name and address of each person to be examined; if not known, a general description is needed to identify the person.  Rule 30(b)(1), (2).
    • If a subpoena duces tecum is to be served on a non-party, it must be attached to the notice with the designation of materials to be produced at the deposition.  Rule 30(b)(1).
    • If a document request is to be served on a party for production at the deposition, it should accompany the notice and conform to Rule 34.  Rule 30(b)(5).
    • If the deponent is an organization, the taker must describe with reasonable particularity in the notice (or subpoena to non-parties) the matters on which the examination is to be taken.  The organization will then designate one or more deponents who will testify on the matters on personal or knowledge acquired from information reasonably available to the organization.  The subpoena to a non-party must advise that organization of its duty to designate a deponent(s).  Rule 30(b)(6).
    • Errors and irregularities in the Notice are waived unless written objection is served promptly on the party giving notice.  Rule 32(d)(1).

RECORDING OFFICER'S ACTIONS (Unless the Parties Have Agreed That No Officer Will Be Used or other Actions of the Officer Will Be Taken)

       
    • The officer must be qualified and not conflicted by an interest in the proceeding or a relationship with an involved party or attorney.  Rule 28 [see for details].
    • Preliminary information on the record must begin with the officer's name and business address; date, time, and place of the deposition; name of the deponent; identification of all persons present, and administration of the oath or affirmation to the deponent.  Where the deposition is recorded non-stenographically, such information except the oath or affirmation must be repeated at the beginning of each tape or unit of other recording medium.  Rule 30(b)(4).
    • Examinations, testimony and objections must be recorded by the officer or at the direction and in the presence of the officer.  All objections of any kind shall be noted on the record, but the examination shall proceed subject to such objections, except where the deponent (1) is instructed not to answer or (2) seeks a protective order against a bad faith or abusive examination.  Rules 26(c), 30(c), (d)(1), (4).
    • Documents and things shown the witness must be marked for identification upon request of a party and be annexed to the record.  Rule 30(f).
    • At the end of the deposition, the officer must state on the record that the deposition is complete and set forth any stipulations made by counsel.  Rule 30(b)(4).
    • Form of the record shall be in a sealed envelope or package endorsed with the title of the action and marked “Deposition of [Witness Name].”  Rule 30(f)(1).
    • Certification of record by the officer shall be in writing and accompany the record of the deposition.  The officer must certify that the witness was sworn and that record is a true record of the testimony given by the deponent.  The certification must state whether the deponent requested to review and sign the transcript or other record and, if so, must append any changes to the record made during the 30-day review period.  Rule 30(e), (f)(1).
    • Delivery of the record shall be to the attorney who arranged for the record.  Rule 30(f)(1).
    • Retained materials by the officer shall include stenographic notes or a copy of the record if the deposition was taken by a non-stenographic method.  Upon payment of reasonable charges, the officer shall provide a copy of the record to any party or the deponent.  Rule 30(f)(2).
    • Objection for disqualification of the officer is waived unless made before the deposition takes place or as soon thereafter as the disqualification becomes known or could be discovered with reasonable diligence.  Rule 32(d)(2).
    • Errors and irregularities in the officer's actions are waived as to the oath or affirmation, transcription, signing, and other ministerial duties, unless a motion to suppress all or part of the deposition is made with reasonable promptness after a defect is discovered or could have been discovered with due diligence.  Rule 32(d)(3)(B), (4).

DEPOSITION TAKER'S ACTIONS

    • Examination may proceed as permitted at trial under the Federal Rules of Evidence, except Fed. R. Evid. 103 (Judge's rulings on evidence, offers of proof, etc.) and Fed. R. Evid. 615 (exclusion of witnesses).  Rule 30(c).
    • Scope of the examinationis limited to non-privileged information that is relevant to the claim or defense of any party.  Rule 26(b)(1).
    • Expansion of the scope of the examination to information that is relevant to the action's subject matter (rather than just relevant to claims or defenses) may be granted for good cause by the court upon a party's request.  Rule 26(b)(1).
    • Requested information need not be admissible evidence, so long as it is (1) relevant to a claim or defense (or to the subject matter of the case, if the court so orders) and (2) reasonably calculated to lead to the discovery of information that is admissible.  Rule 26(b)(1).
    • Privileged and protected information is beyond the scope of what a party may acquire as of right.  This includes information protected by the attorney-client privilege, the attorney work product doctrine, or other recognized protection.  Rules 26(b)(1), (5), 30(d)(1).
    • Motion to Compel may be used to force a deponent to answer a proper question or to force an organization to designate a witness.  Evasive and incomplete answers are treated as failures to disclose.  Rule 37(a)(2)(B), (3).
      • Timing: Where there is a failure to disclose, the taking party may adjourn the deposition to file a motion or may complete the deposition as to other matters and then move.  However, reasonable notice of the filing must be given to other parties and all persons affected.  Rule 37(a), 37(a)(2)(B).


      • Appropriate Court:  A motion to compel a party must be filed in the court in which the underlying action is pending.  A motion to compel a witness that is not a party must be filed in a court in the district in which the deposition is being taken.  Rule 37(a)(1).


      • Certification: A motion to compel must include a certification that the movant has made a good faith effort to confer with the offending person or party to resolve the issue without court action.  Rule 37(a)(2)(B).


      • Sanctions: If the motion is granted, sanctions in the form of paying the movant's related expenses and legal fees may be imposed on the offending party.  If the motion is denied in whole or part, the court may, respectively, impose such sanctions on the movant or apportion expenses between the movant and the other party or person.  Rule 37(a)(4).


      • Protective Order: If the motion is denied in whole or part, the court may issue a protective order under Rule 26(c) against the movant.  Rule 37(a)(4)(B), (C).
    • Abusive or bad faith conduct is subject to sanctions.  Such conduct includes that which unreasonably annoys, embarrasses, or oppresses, or otherwise is unduly burdensome or expensive.  Rule 26(c), 30(d)(4).
    • Objections to the witness or testimony are not waived as to competency, relevancy, or materiality by failure to make them before or during the deposition unless the ground for the objection is one that might be obviated or removed if presented at that time.  Rule 32(d)(3)(A).
    • Objections to errors and irregularities of any kind are not waived unless the ground for the objection is one that might be obviated or removed if presented at that time.  This includes errors and irregularities as to the oath or affirmation; the manner of taking the deposition; the form of questions or answers, or the conduct of the parties.  Rule 32(d)(3)(B).
    • Pretrial Disclosure must be made as to any witness whose testimony is expected to be presented at trial by deposition and, if the deposition was not recorded stenographically, a transcript of the pertinent parts of the deposition must be provided.  Unless the court orders otherwise, this disclosure must be made at least 30 days before trial.  Rule 26(a)(3)(B).

DEPONENT'S AND DEFENDER'S ACTIONS

    • Failure to respond to questions is prohibited except where the deponent (1) is instructed not to answer or (2) seeks protection from a bad faith or abusive examination.  Rule 30(c), (d)(1), (4).
    • Instructions not to answer a question are allowed only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to move for a protective order against bad faith or abusive examinations.  The instruction may be by a party or other person (or counsel thereto).  Rule 30 (d)(1).
      • Sufficient description of the information withheld on grounds of attorney-client privilege, attorney work product, or other protection must be given to the examiner (if he or she asks for it) to enable the examiner to assess whether an asserted privilege or protection is applicable.  Rule 26(b)(5).
    • Motions for a protective order may be sought by the deponent to preclude abusive or bad faith conduct and to seek related sanctions.  Such conduct includes that which unreasonably annoys, embarrasses, or oppresses, or otherwise is unduly burdensome or expensive.  The deponent may leave the deposition to seek the motion within a reasonable time thereafter.  Rule 26(c), 30(d)(4).
      • Applicability to Motions to Compel:  Where the deposition taker has moved to compel an organization to designate deponents under Rule 30(b)(6) or to compel a person or party to answer a deposition question, the target of such a motion may cross-move for a protective order under Rule 26(c) to preclude the deposition taker from continuing to seek such designations or disclosures.  If the motion to compel is denied in whole or part, the court may issue the protective order.  Rule 37(a)(4)(B), (C).
    • Objections at the deposition must be concise, not be argumentative, and not suggest answers.  Rule 30(d)(1).
      • Objections that would be waived if not made ordinarily are the only type that should be made – e.g., those under Rule 32(d)(3) where the grounds could be obviated, removed, or cured by a rephrased question or answer (objections as to form and responsiveness).  Rule 30(d)(1) Advisory Committee Notes (1993 Amendments).


      • Objections to the witness or testimony are not waived as to competency, relevancy, or materiality by failure to make them before or during the deposition unless the ground for the objection is one that might be obviated or removed if presented at that time.  Rule 32(d)(3)(A).


      • Objections to errors and irregularities of any kind are not waived unless the ground for the objection is one that might be obviated or removed if presented at that time.  This includes errors and irregularities as to the oath or affirmation; the manner of taking the deposition; the form of questions or answers, or the conduct of the parties.  Rule 32(d)(3)(B).
    • Cross-examination of the deponent may proceed as permitted at trial under the Federal Rules of Evidence, except Fed. R. Evid. 103 (Judge's rulings on evidence, offers of proof, etc.) and Fed. R. Evid. 615 (exclusion of witnesses).  Rule 30(c).
    • Objections to Deposition Testimony at Trial must be made by a party within 14 days of receipt of the pretrial disclosure that gives notice of the intent to present the trial testimony of a witness by deposition, unless a different time for objections is set by the court.  Such objections, except objections under Federal Rules of Evidence 402 (excluding irrelevant evidence) and 403 (undue prejudice, etc.), are waived if not made during that time.  However, the court may allow untimely objections for good cause.  Rule 26(a)(3).

CUSTODY AND FILING OF DEPOSITION RECORDS

    • Storage of the recordis to be by the attorney who arranged for the deposition.  The storage must protect the record from loss, destruction, tampering, or deterioration.  Rule 30(f).
    • Depositions must not be filed with the court until they are used in the proceeding or the court so orders.  Rule 5(d)

For more information, contact Dick Leighton at (202) 434-4220 or or by email at leighton@khlaw.com.