At last, the opportunity to take your first deposition has arrived. Most likely, you have observed depositions, but now you are in the driver's seat and the responsibility rests on your shoulders. The following is a checklist that may provide some helpful hints and make your first deposition a success.
- Know the rules. Federal Rules of Civil Procedure ("FRCP") Rule 30 covers depositions upon oral examination. As with other rules, this rule will serve as a roadmap and will help you navigate down the highway to taking your first deposition. If the action is in state court, your applicable state rules of civil procedure will have a similar, if not identical, provision. In any event, be familiar with the rules, including the local court rules where the action is filed and the local court rules where the deposition will take place.
- Use literature covering depositions. If your firm has a library with books covering depositions, procedures or different strategy techniques - use them to your advantage. Do your homework and never think that you can learn all that you need to know by observing someone else take a deposition or preparing to take a deposition. If you do not have access to such materials at your fingertips, seek them out at the nearest law library or try to find helpful hints online.
- Who may be deposed. It is essential that you identify which persons may be deposed without leave of the court. FRCP Rule 30(a)(2) allows a party to "take the testimony of any person, including a party, by deposition upon oral examination without leave of court[.]" Generally, most depositions will be able to take place without court intervention, but a number of situations do exist that will require the court's approval of the deposition before they may go forward. By written stipulation the parties may agree to allow for more than 10 depositions to be taken or for a deponent to be deposed more than once. Absent a written stipulation, leave of court is required in these situations. Leave of court also is required if the deponent is confined to prison.
- Deciding whom to depose. The decision to take a deposition requires evaluation of each potential deponent's knowledge of the case and his or her importance to the litigation. It may be that alternative discovery tools such as interrogatories, requests for documents, or requests for admission, may uncover specific information thereby eliminating the need to take a particular deposition.
- When the deposition may occur. FRCP Rule 26(d) states that "except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E), or when authorized under these rules or by order, or agreement of the parties a party may not seek discovery from any source before the parties" have had their meeting as required by Rule 26(f). The Rule 26(f) meeting is to be held "as soon as practicable" but at least 21 days prior to the entry of any scheduling order.
- Persons before whom the deposition may occur. In selecting a court reporter, be sure to secure one who is qualified, reliable, familiar with you or your firm, competent and cost-effective. Ensure that the court reporter has performed a "conflicts check" so that the deposition is not prohibited from going forward due to a technicality. Furthermore, the court reporter should be able to administer the oath and take the deposition. FRCP Rule 28(a) details who may take depositions within the United States; FRCP Rule 28(c) details those persons who are disqualified from taking depositions. State rules may vary, so be sure to be familiar with them.
- Notice. Every deposition must be properly noticed. "A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action." Failure to provide notice to all parties may prevent your deposition from occurring or cause it to be taken again. FRCP Rule 30(b)(1). By rule, the notice must contain specific information. The notice must contain the date and time of the deposition, the location in which it is to occur, and the name and address of each person to be deposed, if known. If the name and address of the deponent is unknown, a general description sufficient enough to identify the person is required. If you require the party deponent to bring documents, you must provide a request in compliance with FRCP Rule 34 for the production of documents along with the notice. If you desire a non-party deponent to produce any documents, you must attach to the notice a subpoena in accordance with Rule 45 which contains the "designation of the materials to be produced." In addition to serving the notice, send a copy to the court reporter, and call to reserve their services.
- Strategic location. Choose a location that provides you with the best strategic advantage after you have determined which places are contemplated by the discovery rules. Rule of thumb is to choose a location within the rules, but kind to you. If the deposition is to be taken out of town, try to use the offices of an attorney with whom you are familiar or at a court reporting service. If unable to secure a conference room at one of those locations, the next best place may be a meeting room at a hotel or the airport. Be sure to reserve a meeting room that contains a telephone, writing materials and beverages and one that is spacious enough to accommodate all parties that will be present.
- Methods to record the deposition. By rule, the party taking the deposition must state in the notice the means by which it will be recorded. Unless otherwise ordered by the court, "the deposition may be recorded by sound, sound-and-visual, or stenographic means." FRCP Rule 26(b)(2). If you desire another means by which to record the deposition, prior notice must be given to the deponent and the other parties. FRCP Rule 26(b)(3). State rules can vary; one state may allow a deposition to be "recorded by sound" i.e., your opposition's tape recorder. The key is the notice should state how the deposition should be taken.
- Who pays for the deposition. The FRCP designate that the party "taking the deposition shall bear the cost of the recording." If taking multiple depositions on the same day, be sure to schedule them appropriately so that the court reporter is not idle between depositions. It is better to have the deponent waiting on you than you waiting on the deponent. The client will appreciate you making wise use of the court reporter's time, thereby, reducing the overall cost of the action.
- Sending subpoenas. Subpoenas are not necessary if you are deposing a party deponent. If you are taking the deposition of a non-party deponent, you should serve a subpoena in accordance with FRCP Rule 45. Remember to send a check covering the witness and mileage fees with the subpoena.
- Calendaring the deposition. It is absolutely necessary that the dates for the deposition are maintained on your firm's docket, if any, and any other calendars kept by you, your secretary or paralegal. By rule, if the party giving the notice of the taking of the deposition fails to attend and another party attends in person or by attorney, you may have to pay the other party its "reasonable" expenses, including attorneys' fees. FRCP Rule 30(g).
- Scope of depositions. The federal rules (and some state counterparts) permit broad discovery including deposition questions, which should be designed to elicit admissible evidence. However, the questions themselves need not produce answers which are admissible at trial. FRCP Rule 26(b). The rules allow for questions which may seek any information which is arguably relevant to the subject matter of the claims or defenses in the litigation.
- Confirm the court reporter. A day or two before the deposition, you or your staff should call the court reporter to confirm the date, time and location of the deposition.
- Preparing for the deposition. An essential part to taking your first deposition, of course, is being prepared. You must possess a good working knowledge of the facts, your position, your opponent's position and any elements of proof necessary to sustain your claim or defense. Formulate a substantive outline with the matters to be covered in the deposition organized in some type of discernible fashion: (a) by legal issues, (b) by time period or (c) by contentions. If you prepare a script, don't be married to it. Be flexible and able to deviate from the pre-determined path, so you can explore statements made by the deponent and cover other areas that you may not have considered at first.
- Taking the deposition by telephone. By written stipulation or order of the court, a deposition can be taken by telephone or other remote electronic means. FRCP 30(b)(7). This may not be an ideal manner in which to take your first deposition, but the situation could arise.
- Preparing to handle objections. FRCP Rule 30(c) states that objections "to the qualifications of the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other aspect of the proceedings" are to be noted; but the deposition is to continue. The objections should be made in a non-argumentative and non-suggestive manner. A deponent may be instructed not to answer only to preserve a privilege, to enforce a limitation set by the court or to present a motion under Rule 30(d)(4). FRCP Rule 30(d)(1). If you run into problems, it may be necessary for the court to intervene. It is a good idea to have the number of the Federal Court Magistrate Judge assigned to the matter to resolve such disputes. If in state court, the telephone number of the judge presiding over the matter will be necessary. Often you may find that the mere suggestion of involving the court will quickly resolve the matter.
- Don't forget about the "little things." While preparing for the deposition, it may be natural to line up contention questions with the intent of tearing down your opponent's theory of the case or fully funding your position. However, don't lose sight of this one question, "what is this case all about?" A simple question, no doubt, but a very important one nonetheless. The history of the case, what is known about the case and its vulnerable aspects matter greatly and need to be uncovered prior to taking any deposition.
- Documents and Deposition Exhibits. It is essential that you have a clearly organized file with copies of the file's pertinent materials into a form suited to the deposition. Be sure that the file contains all relevant materials and that those materials are in the right place. Organize the documents into a coherent structure which allows the attorney "quick access" to the desired information or documents. Also, be sure that any "documents" are bates stamped and reorganized into a usable form. Depending on the case, it may make sense to organize potential exhibits chronologically or by topic. If you will be using exhibits and asking questions about those exhibits, prior to the deposition be sure to have enough copies for all parties prior to the deposition. It's also a good idea to have extra copies for the court reporter, deponent and counsel.
- The role of computers. In today's technologically savvy world, virtually all attorneys have access to computers in their practices. Use them. Computers can store and organize vast quantities of data thereby allowing you to have access to all information relevant to the case. In today's environment, an extremely competitive market has emerged for litigation software with software tailored specifically for deposition practice. If your firm has this type of software, learning how to use it and using it effectively will be to your advantage. If your firm does not, it may not be a bad idea to inquire about this kind of product.
This list is intended to help you get out of the gate running. Without question, the most important point on this checklist is the one entitled Know the Rules. If you rely on your staff to assist you in preparing for your first deposition or any deposition, remember that at the end of the day the "ball lies in your court." Be sure that you are knowledgeable of and familiar with any and all aspects of the preparation, especially the rules.
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About the Author
Mr. Mason is an associate with Spilman Thomas & Battle, PLLC in its Charleston, West Virginia office. His practice areas are consumer lending and general litigation. Mr. Mason is a member of the American Bar Association Young Lawyer Division.
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