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June 07, 2019 Articles

Depositions: Seven Surprising Facts

There are some things that seem obvious to a veteran lawyer that the novice lawyer does not necessarily appreciate.

By Tara Paulson

Although depositions may not be all that glamorous or exciting, they are the centerpiece of discovery in civil litigation and have the potential to make or break your case. In fact, pretrial testimony is often the determinative factor in the settlement value of a case and, likewise, a party’s willingness to settle. Knowing the high stakes involved in taking a successful deposition and in effectively defending a deposition, countless young attorneys have sat down to take their first deposition with roughly the same amount of dread (a lot) and the same amount of practice (none whatsoever).

“Taking a deposition is easy,” a wizened trial lawyer once told me. “Just ask a lot of questions.” In a loose sense, he was right. However, there are some things that seem obvious to a veteran lawyer that the novice lawyer does not necessarily appreciate. Furthermore, there are techniques that veteran lawyers have developed through years of practice that make their deposition procedures feel like second nature. This article seeks to dispel some of the common misconceptions about depositions that plague attorneys at all levels, and also shed light on the deposition process for younger attorneys who are just getting their footing.

Who Can Attend a Deposition?

A party has a right to attend all depositions and to have an attorney attend. A court cannot exclude a party or a party’s attorney from a deposition. Additionally, an organization that is a party has the right to have a designated person attend a deposition on its behalf. Other witnesses can attend the depositions of other deponents. Witnesses are not automatically excluded from a deposition simply by the request of a party.

Many attorneys believe that depositions are private and that “outsiders” may be excluded as a matter of right. However, according to the language of the rules, depositions are not closed proceedings; rather, they are part of the public disposition of civil litigation, of which the trial is also a part. (As a practical matter, however, no one may be present without being invited if the deposition examination occurs in the private offices of the attorneys.)

Members of the public, relatives of the witnesses, members of the media, and counsel not of record in the instant case are not excluded by virtue of any rule but may be excluded by a protective order issued by the court. Fed. R. Civ. P. 26 (c)(1)(E). In order to sequester witnesses, Rule 26(c)(1)(E) of the Federal Rules of Civil Procedure requires a party to seek a protective order before the depositions begin and to establish good cause in order to exclude a nonparty from a deposition. If the party seeking the court order makes the requisite showing, the court may issue an order “designating the persons who may be present while the discovery is conducted.” Id. If exclusion is sought, consideration should be given as to whether the excluded witness(es) should likewise be precluded from reading, or being otherwise informed about, the testimony given in the earlier depositions.

The existence of Rule 26(c)(1(E) forecloses discussion on the question of whether nonparties may be excluded from a deposition because it would make little sense to recognize the specific authority of the court to limit those who may attend a deposition if depositions were normally closed proceedings.

Is Stipulating “Pursuant to the Rules” Appropriate?

Under the Federal Rules of Civil Procedure, attorneys have the power to stipulate to changes in literally all of the rules governing depositions, absent a contrary court order. Fed. R. Civ. P. 29 (requiring, however, that a stipulation extending the time for any form of discovery must have court approval if it would interfere with the time set for completing discovery, for hearing a motion, or for trial).

Despite this grant of broad power, many depositions begin with the attorney or court reporter saying, “Usual stipulations, counsel?” The problem in stipulating to “the usual” stems from the issue that stipulations may vary from jurisdiction to jurisdiction, and even from court reporter to court reporter. There are no stipulations that are in such widely accepted use that they could meaningfully be called usual. Agreeing to usual stipulations results in neither attorney knowing what, if anything, he or she just stipulated to.

When asked to join in the usual stipulations at the start of a deposition, the best response is, “We can stipulate that this deposition is being taken pursuant to the Federal Rules of Civil Procedure” in a federal case. Stipulating in this fashion means that

a)      all deposition testimony recorded by stenographic means must be transcribed;

b)      errors and irregularities of any kind occurring at the deposition that might be cured if promptly presented are waived unless a specific objection to them is timely made during the deposition; and

c)      the witness has 30 days to read and review the transcript and make any changes he or she deems appropriate, and other matters within the rules.

By stipulating in this manner, you will know what you are agreeing to and be able to refer to the express language of the rules if any questions or doubts arise concerning deposition procedures.

What Objections Must Be Made?

In civil litigation, an objection-free deposition is unheard of. Attorneys pepper the transcripts with objections, many of which are unnecessary or improper. Conversely, attorneys sometimes waive objections by failing to raise them in a deposition.

Under Federal Rule of Civil Procedure 32(d)(3)(B), an objection to an error or irregularity at an oral examination is waived if (i) it relates to the manner of taking the deposition, the form of a question or answer, the oath or affirmation, a party’s conduct, or other matters that might have been corrected at that time; and (ii) it is not timely made during the deposition. There is a common misconception that these rules apply only to objections about the impermissible way in which a question is asked. But the rule is far broader than that. The rule includes any “error or irregularity,” such as defects in the oath, misconduct of the parties, and “other matters” that might be cured if an objection is promptly presented.

An attorney is required to object to defects that are immediately curable—that is, irregularities that opposing counsel can correct at the deposition. These defects can include procedural matters, such as the manner of taking a deposition; the form of questions or answers; the oath or affirmation; and the conduct of the parties. Timely objections are necessary, for instance, where a question is leading, vague or unintelligible, mischaracterizes prior testimony, calls for speculation, or constitutes a compound question. Problems can also arise with answers. If the attorney taking the deposition believes that the witness has not provided a responsive answer, the attorney should object accordingly.

Not all immediately curable defects relate to matters of form or procedure. Generally speaking, the rules place value on resolving problems as soon as they arise, and many substantive defects can be corrected simply by rewording questions. Consider this example, in which a plaintiff in an auto collision case is being deposed:

Defendant’s counsel: Was the traffic light at the intersection red, yellow, or green at the time your car was struck by defendant’s car?

Plaintiff’s counsel: Objection, lack of foundation.

Defendant’s counsel: As you approached the intersection where your car was struck, did you observe the traffic light facing you?

Plaintiff: Yes.

Defendant’s counsel: And what color was the traffic light?

Plaintiff: Green.

Here, the objection permitted the defense attorney to pose the question correctly and move on. If the plaintiff’s counsel had failed to object, that objection would have been waived.

Incurable defects, however, cannot be resolved by a simple rephrasing. If an attorney asks about irrelevant matters, the questions will usually be objectionable no matter how the attorney poses them. For such an incurable defect, a timely objection is not necessary. Instead, opposing counsel can raise these incurable objections when the deposition testimony is offered at trial or as an exhibit to a motion.

When Can You Direct the Deponent Not to Answer?

A statement much too frequently made by a party’s counsel during a deposition is, “I object to that last question, and I instruct my client not to answer it.” This impeding declaration is usually swiftly met with the sharp response, “Certify the question.” (“Certifying” a question is actually unnecessary because Federal Rule of Civil Procedure 37(a)(3)(B) provides that “a party seeking discovery may move for an order compelling an answer if . . . ” a deponent fails to answer a question propounded or submitted under Rule 30(b) or Rule 31.)

It is not always appropriate to instruct the deponent not to answer, however, as Rule 30(c) provides that “testimony is taken subject to any objections.” Fed. R. Civ. P. 30(c)(2). As a general rule, absent questions calling for privileged information or questions calling for an answer that would violate an existing court order restricting the disclosure of certain information, it is wholly improper for counsel to instruct a witness not to answer questions asked during an oral deposition. See, e.g., Protective Nat’l Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267 (D. Neb. 1989). The rationale behind this rule lies in the fact that the “harm caused by being required to take additional depositions of a witness who fails to answer a question based on an improperly asserted objection far exceeds the mere inconvenience of a witness having to answer a question which may not be admissible at the trial of the action.” W.R. Grace & Co., 74 F.R.D. 80, 84 (W.D. Okla. 1977).

For situations in which a deponent fails to answer a deposition question, Rule 37(a)(2) provides that the deposing counsel may apply for an order compelling discovery either to the court where the action is pending or to the court in the district where the deposition is being taken. If the motion to compel is granted, the court can require the deponent to pay the moving party the reasonable expenses incurred in obtaining the order, including attorney fees, unless the court finds that the opposition to the motion was substantially justified or that the award of expenses would be unjust.

Does the Deponent Have to Read and Sign?

There are two schools of thought regarding whether to request reading and signing of the transcript if the deponent is your client.

One school of thought is to make case-by-case determinations. The rationale is that if the witness has corrected the transcript before trial, any deviation from the deposition testimony at trial becomes extremely difficult.

The other school of thought is to have the client read and sign in every instance. Proponents of this school of thought believe that the value of this approach outweighs the benefit of perhaps getting more leeway for the client to explain deposition testimony at trial because (1) it focuses the client on the testimony that was given when it was fresh and (2) it allows a witness who misunderstood the deposition question to correct his or her answer.

What Can Be Changed on a Correction Sheet?

Under Rule 30(e), the deponent or a party must be allowed 30 days to review and correct the transcript or recording if requested by the deponent or a party before the deposition is completed. Fed. R. Civ. P. 30(e). Under Rule 32(d)(4), “[a]n objection to how the officer transcribed the testimony—or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition—is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known.” Id. R. 32(d)(4).

Pursuant to this rule, corrections may relate to form, such as spelling; or to substance, such as where the deponent testified that he was driving 40 miles per hour and changes the transcript to state that he was driving 25 miles per hour. If a party witness makes extensive substantive changes to the deposition so that the deposition is incomplete, the deposition may be reopened to allow questions about the substance of the testimony as well as about the reasons for the changes, and the costs may be charged to the witness. See Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981).

Most courts allow the opposing party to present to the jury the deponent’s original answer notwithstanding a proper correction, but the corrected answer must also be presented. In effect, the court allows the deponent to be impeached by the inconsistent statement even though Rule 30(e) expressly reserves the right to make changes. The point is that the right to make corrections and changes is not a panacea for poor preparation. Still, a correction reduces the effects of impeachment because the rules specifically provide for making corrections in this manner.

Can You Take More Than One Rule 30(b)(6) Deposition?

Under Rule 30(b)(6), a party may name a corporation, partnership, association, or governmental agency as the deponent and designate the matters on which the party requests examination; and the organization must then name one or more of its officers, directors, managing agents, or other persons to appear and testify on its behalf with respect to matters known or reasonably available to the organization. Fed. R. Civ. P. 30(b)(6). The organization may designate a person other than an officer, director, or managing agent, but only with that person’s consent. Thus, an employee or agent who has an independent or conflicting interest in the litigation—for example, in a personal injury case—can refuse to testify on behalf of the organization.

There are differing opinions on how many Rule 30(b)(6) depositions can be taken of a single entity. The leading viewpoint on this issue concludes that nothing in the text, history, or purpose of Rule 30 supports the conclusion that “for purposes of” the prior judicial approval requirement for successive depositions, Rule 30(b)(6) depositions should be treated differently from depositions of individuals. See State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 254 F.R.D. 227 (E.D. Pa. 2008). Dissimilar treatment would be inconsistent with the overall treatment of corporations and individuals under Rule 30. Id. Not surprisingly, one of the leading treatises on federal practice has concluded that “[t]he rule requiring leave of court to take a second deposition applies to an entity that is deposed pursuant to Rule 30(b)(6). Even though a party may be deposing a different corporate representative, it is still seeking a ‘second’ deposition of the entity.” 7 Moore’s Federal Practice § 30.05[1][c], at 30-30.3 (3d ed. 2005).

Tara Paulson is a partner at Rembolt Ludtke in Lincoln, Nebraska.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).