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December 21, 2021

Handling Unexpected Situations at a Deposition

By Irina Kobylevsky, Kruzhkov Russo PLLC

Practical Law Litigation is a trusted resource for up-to-date developments in the law. For more information on Practical Law Litigation, visit their website.

Thank you to our friends and TIPS sponsor, Thomson Reuters, for sharing this article with us.

A Practice Note, excerpted for use in this newsletter, that explains how a deposing attorney should handle unexpected situations that threaten to disrupt a deposition. Topics covered include how to deal with difficult opposing counsel and witnesses and what to do when witnesses do not show up to the deposition, assert their Fifth Amendment right not to answer questions, or lie under oath. Counsel should keep in mind that reasonable attorneys may disagree on the best way to proceed when an unanticipated situation arises.

Preparing for the Deposition

Review the Relevant Procedural Rules

It is critical for an attorney who is taking a deposition to be familiar with all relevant procedural rules before the deposition begins.

Where to Find the Rules

To find the rules that apply to depositions in a particular case, attorneys should review:

  • Rules 26 to 32 of the Federal Rules of Civil Procedure (FRCP).
  • The district court’s local rules in the district where the case is pending and where the deposition is being conducted, if different.
  • The judge’s individual rules.
  • The court’s website for relevant standing orders.
  • Any case-specific orders and stipulations.

The court’s local rules and judge’s individual rules often govern conduct at a deposition (for example, S.D.N.Y. and E.D.N.Y. L. Civ. R. 30.4 (a defending attorney must not initiate a private conference with the deponent while a question is pending, except to determine whether a privilege applies)). The deposing attorney should either bring hard copies of the relevant rules to the deposition, or be able to quickly access the rules online if necessary.

Deposition Conduct Under the FRCP

All depositions in federal court cases must comply with the FRCP, which provides that:

•       preserve a privilege, such as the attorney-client privilege;

•       enforce a limitation ordered by the court; or

•       present a motion to terminate or limit the deposition.

( 30(c)(2).)

Bring the Judge’s Rules and Contact Information

Events or conduct by the witness or opposing counsel during a deposition may require an attorney to contact the judge for a ruling. For example, the deposing attorney may seek a ruling from the judge if the defending attorney’s uncivil behavior prevents the deposing attorney from eliciting the testimony the attorney is entitled to under the FRCP.

Attorneys should bring the judge’s telephone number and individual rules to the deposition. When calling the judge, an attorney should:

  • Follow the judge’s rules on calling chambers with a discovery dispute.
  • Succinctly explain the issue to the clerk (or other person who answers the phone) and the judge.
  • Explain why the judge should make a definitive ruling over the phone rather than during motion practice after the deposition has ended.

Judges are generally unwilling to spend a significant amount of time hearing a deposition-related dispute over the phone. Therefore, the attorney initiating the call should be brief and articulate exactly what relief the attorney is seeking and why the judge should grant the relief sought.

Have a Colleague on Stand-By

An attorney attending a deposition should ask a colleague to be available by phone or email during the deposition in case something unexpected happens, especially if the attorney has limited experience taking and defending depositions. The attorney can request a quick break during the deposition to consult with a colleague about the best way to proceed. The colleague can also research a rule or issue, if necessary, while the deposition proceeds.

Unexpected Situations

Occasionally, a witness does not appear for a deposition that was properly noticed well in advance of the deposition date.

What to Do at the Deposition

If the witness is more than 15 minutes late and neither the witness nor the defending attorney (if the witness has one) has contacted any of the attorneys working on the case to explain the absence, the deposing attorney should:

  • Call the defending attorney to ask if the witness is appearing for the deposition and, if so, when the witness is expected to arrive. If the deposing attorney cannot speak directly with the defending attorney, the deposing attorney should:

•       leave a voicemail for the defending attorney, asking for a return call as soon as possible;

•       ask the defending attorney’s secretary or assistant whether the attorney and client are on their way; and

•       send the defending attorney an email asking whether they intend to appear.

  • Call and email the witness directly (only if unrepresented by counsel) to ask whether the witness intends to appear.
  • Tell the court reporter, videographer, and other attendees that the deposing attorney is trying to contact the defending attorney or witness.

If the defending attorney (or an unrepresented witness) states that the witness is not appearing for the deposition, or if efforts to contact them have failed and more than a half hour has passed since the deposition was scheduled to begin, the deposing attorney should ask the court reporter to go on the record. Once on the record, deposing counsel should:

  • Introduce themselves and identify the name of the represented party.
  • State:

•       the date and time;

•       the name and docket number of the case;

•       that they are at the scheduled deposition of a witness in the case, identifying the witness by name and title;

•       the name of every person who appeared for the deposition, including the court reporter and videographer;

•       that counsel issued a deposition notice and properly served it on every party;

•       that counsel properly served the witness with a subpoena, if the witness is a nonparty;

•       the date and time the deposition was noticed to begin;

•       that counsel was not informed before the deposition that the witness would not appear;

•       that neither the witness nor the defending attorney appeared for the deposition or contacted deposing counsel or any of the other attendees to explain their absence; and

•       the steps taken to contact the defending attorney or the witness.

  • Mark as exhibits:

•       the deposition notice (and subpoena, if the witness is a nonparty);

•       the affidavit of service showing that the deposition notice or subpoena was served on all parties to the case and the witness (if the witness was subpoenaed);

•       any relevant written correspondence about the time and place of the deposition; and

•       any stipulations or court orders requiring the witness to appear for the deposition.

  • Ask the other attendees if they would like to make a statement on the record.
  • Reserve all rights, including the right to:

•       notice the deposition for another date and time;

•       move to compel the witness to appear for the deposition; and

•       seek sanctions against the witness and the defending attorney, including reimbursement of attorneys’ fees, travel costs (if any), and the costs incurred in hiring the court reporter and videographer, reserving the conference room (if applicable), and providing refreshments.

To be prepared for a motion to compel or for sanctions, the deposing attorney should:

  • Request a copy of the transcript from the court reporter.
  • Keep a record of all phone calls made to the defending attorney and the witness immediately after the deposition was scheduled to begin.
  • Print or otherwise save copies of all emails sent to the defending attorney and the witness regarding their absence at the deposition and their responses.
  • Keep a file of invoices from the court reporter, videographer, conference room facility, and refreshments provider.

What to Do After the Deposition

After the court reporter, videographer, and other attendees leave, deposing counsel should immediately draft a letter to the defending attorney:

  • Seeking an explanation for why the witness failed to appear at the deposition.
  • Enclosing a revised deposition notice or subpoena that reschedules the deposition for a specific date and time.
  • Seeking reimbursement for all costs incurred.
  • Reserving the right to seek sanctions, including under FRCP 30(d) or 37(d).

If the no-show witness is a nonparty who was subpoenaed to testify, deposing counsel should follow the same procedures at the deposition, but may adopt a different approach after the deposition. Often, an attorney who subpoenas a nonparty witness for a deposition is seeking helpful testimony and may not want to alienate, anger, or threaten the nonparty witness with sanctions. Deposing counsel must consider the best approach to convince the witness to appear for the rescheduled deposition.

The Uncooperative Witness

The witness may appear for the deposition with an uncooperative attitude. Deposing an uncooperative witness can be frustrating, especially when the defending attorney is either unable or unwilling to intervene. For example, a witness may:

  • Refuse to answer questions without a valid reason (such as to protect a privilege).
  • Be rude to the deposing attorney.
  • Take unnecessarily long pauses before answering each question, knowing that the FRCP limits a deposition to seven hours.
  • Otherwise act inappropriately during the deposition.

When faced with an uncooperative witness, the deposing attorney should:

  • Maintain a composed, polite, and professional demeanor.
  • Stay on the record and ask the witness the prepared questions.
  • Request that the defending attorney speak to the witness privately to advise the witness of the consequences of obstructing a deposition.
  • Make a record to submit to the court in connection with a motion to compel testimony or for sanctions. For example, if a witness appears to be taking long pauses after each question and deliberately answering questions slowly to run down the clock, the deposing attorney should note this behavior on the record, especially if the deposition is not being videotaped.
  • Inform the witness that if the witness continues to act inappropriately, the deposing attorney may:

•       ask the court to bring the witness back for another deposition; and

•       request sanctions against the witness and the defending attorney (see AI Labs Inc. v. Gatti, 2017 WL 934599, at *2-3 (N.D. Cal. Mar. 9, 2017) (case dismissed as sanction for improper conduct in discovery, including inappropriate behavior by witness and defending attorney at depositions); Bank v. HTFC Corp., 248 F.R.D. 182, 184-85 (E.D. Pa. 2008) (witness and defending attorney sanctioned when the witness insulted the deposing attorney and swore during the deposition and the defending attorney did not discourage it)).

The Forgetful Witness

A witness may claim not to remember the answers to most of the questions posed at the deposition. “I don’t recall” is an appropriate response to a question only if the witness truthfully does not remember. A witness who repeatedly testifies to not remembering the relevant facts of the case may be evading the questions.

In this situation, the deposing attorney should persistently attempt to get more helpful responses from the witness. The deposing attorney may:

  • Ask follow-up questions.
  • Show the witness a document and ask if the document refreshes the witness’s recollection about a particular event.
  • Tell the witness about testimony other witnesses have given and ask if that refreshes the witness’s recollection.

The witness may insist that the witness does not recall the answer to a question. If that happens, the deposing attorney should make sure that the transcript shows that the witness could not recall the answer to the question after the attorney attempted to refresh the witness’s recollection. A clear transcript will be useful to the deposing attorney if the witness claims to remember the answer later in the proceeding or at trial.

The Unrepresented Witness

Witnesses occasionally appear for depositions without an attorney. For example, a nonparty witness who does not have the inclination or the resources to hire an attorney may testify at the deposition without the benefit of counsel.

The deposition of an unrepresented witness generally should proceed as any other deposition. However, because the witness does not have an attorney giving advice during the deposition, the deposing attorney should:

  • Give clear instructions to the witness at the beginning of the deposition. For example, the deposing attorney should explain that:

•       the witness is under oath just as if this were testimony given in court before a judge;

•       the testimony is being recorded by the court reporter;

•       the witness should testify based on personal knowledge;

•       the witness must answer questions verbally rather than with gestures, which are incapable of being recorded by the court reporter;

•       the deposing attorney does not represent the witness and ethically cannot give legal advice during the deposition; and

•       the witness may ask for a break at any time except when there is a question pending.

  • Confirm on the record at the beginning of the deposition that the witness is testifying without an attorney present.
  • Ask whether the witness:

•       consulted with an attorney about the deposition and, if so, the attorney’s name;

•       spoke to anyone else about the deposition and, if so, who, and what was said; and

•       brought any documents to the deposition.

  • Mark the deposition notice or subpoena as an exhibit and ask:

•       whether the witness received it;

•       when and how the witness received it; and

•       whether the witness reviewed it before the deposition.

  • Ask exactly what the witness did to locate any documents that were requested to be produced.
  • Explain that the witness will have a chance to read the transcript and make any necessary corrections after the deposition has concluded.
  • Refrain from giving legal advice to the witness. If the witness asks for advice, the deposing attorney should reiterate that the deposing attorney does not represent the witness and explain that it is inappropriate and unethical to provide legal advice about the case or the deposition.

The Witness Who “Takes the Fifth”

The deposing attorney should know the parameters of a witness’s Fifth Amendment rights. If, either at the outset or during the course of a deposition, the witness refuses to answer questions and asserts a Fifth Amendment privilege against self-incrimination, the deposing attorney must leave the deposition with a transcript that reflects precisely the topics that the witness agreed or refused to testify about after invoking the privilege.

Basics of the Fifth Amendment Privilege

Before a deposition, the deposing attorney should review the basics of the Fifth Amendment privilege. For example:

•       prohibiting the witness from testifying about the same subject matter at trial (see Life Ins. Co. v. Richards, 541 F.3d 903, 910 (9th Cir. 2008));

•       permitting the jury to infer a reasonable adverse inference about the invoking party (see v. Jasper, 678 F.3d 1116, 1127 (9th Cir. 2012); v. Palmigiano, 425 U.S. 308, 318-19 (1976)); or

•       staying the civil case until a related criminal case is resolved (see, Inc. v. Premier Holidays Int’l, Inc., 385 F.3d 72, 77 (1st Cir. 2004)).

Leave the Deposition with a Useful Transcript

A witness who invokes the Fifth Amendment right not to testify can derail the deposition, especially if the invocation takes the deposing attorney by surprise. To avoid this result, and to increase the likelihood that the deposition transcript will be useful to the deposing attorney for strategic purposes later in the proceeding, the deposing attorney should:

  • Ask the defending attorney or witness whether the witness intends to assert the Fifth Amendment privilege in response to questions regarding specific topics, or most or all questions at the deposition.
  • Take a break and consult with a colleague who is working on or familiar with the case to determine the best way to proceed.
  • Make a clear record of the specific questions and topics that the witness refuses to answer based on the privilege. The judge may have to review the deposition transcript to determine whether:

•       the witness properly invoked the privilege;

•       the witness waived the privilege;

•       to award relief to the party whose questions were not answered by a witness claiming the privilege; and

•       the witness’s invocation of the privilege may be read or shown to the jury (see, 678 F.3d at 1125 (plaintiff permitted to show the jury videotaped testimony of a witness repeatedly taking the Fifth during the deposition)).

The Witness Who Changes Testimony After a Break

After a break during the deposition, the witness may state on the record that the witness wants to clarify or change testimony given before the break. In this case, the deposing attorney’s response depends on whether the jurisdiction permits the deposing attorney to ask the witness about the substance of off-the-record conversations with the defending attorney after the deposition began. Courts are divided on whether conversations between a witness and the defending attorney during breaks in a deposition are privileged.

Some courts prohibit a witness and the defending attorney from discussing the substance of testimony already given or anticipated to be given, unless the conversation is to decide whether to assert a privilege (see, for example, D. Del. LR 30.6). In these jurisdictions, it is likely that conversations between a witness and the defending attorney during breaks in a deposition are discoverable (see v. Berwick Hospital Co., 2016 WL 907714, at *3-5 (M.D. Pa. Mar. 2, 2016) (conferences between the witness and the defending attorney other than to determine whether a privilege applies are prohibited during the deposition and during recesses, and are a proper subject for inquiry by deposing counsel); v. Old Navy, 2009 WL 2391282, at *4 (D.N.J. July 31, 2009) (text messages between the witness and counsel during a video conference deposition violated 30 and were not protected by the attorney-client privilege)).

Other courts, however, have held that a witness’s off-the-record consultation with an attorney during a break is protected by the attorney-client privilege (see v., LLC, 2014 WL 3507366, at *1 (S.D.N.Y. July 7, 2014) (the rules of the court do not limit discussions between an attorney and client during a deposition other than when a question is pending); Infuser, Inc. v. Zdeb, 200 F.R.D. 648, 650 (D. Colo. 2001) (consultations between a witness and counsel during deposition breaks, including lunch and overnight recesses, ordinarily are appropriate and privileged); re Stratosphere Corp. Secs. Litig., 182 F.R.D. 614, 621 (D. Nev. 1998) (the right to consult with counsel during a break in a deposition should not be jeopardized absent a showing that a witness or the attorney is abusing the deposition process)).

If a witness seeks to change the deposition testimony after a break, the deposing attorney should ask:

  • Whether the witness testified truthfully before the break.
  • To either:

•       repeat everything the witness and the witness’s attorney said during the break, if the jurisdiction permits inquiry into the substance of the witness’s conversations with counsel during breaks in a deposition; or

•       confirm that the witness spoke to an attorney during the break, if the jurisdiction does not permit inquiry into the substance of the witness’s conversations with counsel during breaks in a deposition.

  • The reasons for changing the testimony.
  • How the witness would like to change the testimony.

During questioning, the deposing attorney should characterize the witness’s new testimony as a change in testimony rather than a clarification.

The Witness Who Brings Documents to the Deposition

A witness may surprise the deposing attorney (and often the witness’s own counsel) by taking out a document and referring to it or reading from it during the deposition. 612 of the Federal Rules of Evidence states that a witness in a civil case who uses a writing to refresh the witness’s recollection while testifying must produce the writing to the adverse party for inspection. 612 is applicable to deposition testimony under 30(c) (see re Methyl Tertiary Butyl Ether (”MTBE”) Prods. Liab. Litig., 2012 WL 2044432, at *2 (S.D.N.Y. June 6, 2012)).

If the witness refers to a document during testimony and does not claim that the document is privileged, the deposing attorney is entitled to inspect it (see v. Meister Brau, Inc., 57 F.R.D. 11, 13 (N.D. Ill. 1972)). However, if the witness claims that the document is protected by a privilege, such as the attorney-client privilege or work product doctrine, courts consider many factors to determine whether the document should be produced, including whether:

  • Production of the document is necessary for a fair examination of the witness.
  • The witness’s review of the document impacted the testimony.
  • The witness authored the document.
  • The party seeking production is engaging in a fishing expedition.

(See re MTBE Prods. Liab. Litig., 2012 WL 2044432, at *3; Painting Co. v. O.W.B. Corp., 103 F.R.D. 407, 409 (W.D. Pa. 1984) (witness required to disclose the parts of an otherwise privileged document that he read from during his deposition).)

If a witness references a document during the deposition, the deposing attorney should ask to see it. If the witness hands over the document, the deposing attorney should:

  • Carefully review it.
  • Make a copy of it and mark it as a deposition exhibit.
  • Show the witness the document and ask:

•       who prepared it;

•       why it was prepared;

•       who has read it;

•       what it means;

•       the substance of conversations the witness had with anyone else about the document; and

•       whether it refreshed the witness’s recollection during the deposition.

If the witness refuses to hand over the document on the basis that it is protected by a privilege, the deposing attorney should:

  • Ask the defending attorney to explain on the record the exact nature of the privilege asserted.
  • Ask the witness:

•       who prepared the document;

•       why the document was prepared;

•       who else looked at the document;

•       whether the witness discussed the document with counsel; and

•       whether the document refreshed the witness’s recollection during the deposition.

  • Consider calling the judge for a ruling if, based on the witness’s testimony, the document appears to be important.
  • Make a statement on the record reserving the party’s right to:

•       make a motion requesting production of the document; and

•       reopen the deposition to ask the witness questions about the document if the court orders the witness to produce it.

Handling Difficult Opposing Counsel

The presence of difficult opposing counsel at a deposition can be frustrating and decrease an attorney’s effectiveness in taking a deposition. Before the deposition begins, attorneys should be familiar with the relevant jurisdiction’s local rules and case law governing disruptive conduct at a deposition. Knowing what conduct is acceptable and unacceptable during a deposition increases the likelihood that any issues are resolved quickly and to the parties’ satisfaction.

When dealing with a difficult adversary during a deposition, an attorney should:

  • Remain composed and professional.
  • Attempt to stop the misconduct and salvage the deposition by:

•       informing opposing counsel that their behavior (or their client’s behavior) violates the FRCP or other applicable rules;

•       asking opposing counsel to stop disrupting the deposition; and

•       threatening to seek relief from the court if the misbehavior continues.

  • Identify the misconduct on the record for future use:

•       during a conference call with, or hearing before, the judge;

•       in a motion to compel deposition testimony or for a protective order; or

•       in a motion for sanctions.

  • Contact the judge for a ruling if necessary.

Excessive Objections

A defending attorney in a deposition may object to every question, disrupting the flow of questions and answers. The deposing attorney generally should ignore the defending attorney’s objections and direct the witness to answer the questions. If the defending attorney repeatedly objects to proper questions, the deposing attorney should:

Speaking Objections

Under the FRCP, objections during a deposition must be stated concisely in a nonargumentative and nonsuggestive manner ( 30(c)(2); Corp. U.S. v. Alfay Designs, Inc., 2012 WL 3536987, at *10 (E.D.N.Y. Aug. 13, 2012)). This means that the defending attorney is not allowed to make speaking objections (see v. Matthews, 2014 WL 517569, at *4 (D. Neb. Feb. 7, 2014)).

Federal courts have cited the following as examples of improper speaking objections:

  • ”If you know.”
  • ”Don’t guess.”
  • ”You’ve answered the question.”
  • ”Do you understand the question?”
  • ”Calls for speculation.”
  • ”Question is vague and ambiguous.”
  • Objections that engage the deposing attorney in extensive conversation.

(See v. N. Tool & Equip. Co., 2012 WL 5286933, at *1 (S.D. Miss. Oct. 24, 2012); Corp. U.S., 2012 WL 3536987, at *3; v. Gibbons, 2010 WL 3020021, at *2 (D. Nev. July 27, 2010).)

In practice, defending attorneys often make objections that some courts consider improper speaking objections. The deposing attorney should note for the record each time opposing counsel makes an improper speaking objection.

Improper Instructions Not to Answer

Instructions not to answer are specifically addressed in the FRCP, which states that a defending attorney may instruct the witness not to answer a deposition question only when necessary to:

  • Preserve a privilege.
  • Enforce a limitation ordered by the court.
  • Present a motion to terminate or limit a deposition because it is being conducted in bad faith, or a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.

( 30(c)(2), (d)(3)(A); v. Union Pacific R. Co., 2014 WL 2860271, at *2 (S.D. Cal. June 23, 2014) (a deponent may not refuse to answer a question based on a relevance objection); Ins. Corp. v. ACEO, Inc., 275 F.R.D. 490, 491 (N.D. Ill. 2011) (it is improper to instruct a witness not to answer a question other than to preserve a privilege).)

If the defending attorney improperly instructs the witness not to answer a question, the deposing attorney should:

  • Ask if the witness is going to follow the defending attorney’s instruction not to answer the question. A witness may decide to testify over counsel’s objections.
  • Inform the defending attorney that the proper procedure is to:

•       object to the question on the record;

•       permit the witness to answer the question; and

•       move to exclude the testimony at trial.

(See v. Tibbetts, 2007 WL 638436, at *3 (D. Conn. Feb. 27, 2007).)

  • Be aware that the defending attorney may end the deposition only if the defending attorney:

•       contends that the deposition is being conducted in bad faith or to annoy the witness; and

•       promptly applies for a protective order from the court after ending the deposition (see v. Dobson, 476 F.3d 462, 468 (7th Cir. 2007) (attorney sanctioned for instructing the witness not to answer harassing questions and then failing to move for a protective order); v. Moroni Feed Co., 2015 WL 1467587, at *5 (D. Utah Mar. 30, 2015)).

Unprofessional Behavior

Judges frown on unprofessional conduct during a deposition, such as when counsel:

  • Scream or raise their voice.
  • Make improper gestures, such as finger pointing, eye rolling, or smirking.
  • Make rude, disparaging, or otherwise inappropriate remarks to the witness or other attorneys.

(See v. Caribbean Petroleum Corp., 123 F. Supp. 3d 276, 279-81 (D.P.R. 2015) (male plaintiff’s counsel sanctioned for inappropriate remarks made to female defense counsel at a deposition); v. Sears/Kmart, 2010 WL 3911487, at *7 (S.D.N.Y. Sept. 13, 2010) (plaintiff’s attorney sanctioned for uncivil behavior at a deposition, including yelling at defense counsel and an interpreter); v. Coatesville Area Sch. Dist., 2009 WL 2973044, at *3 (E.D. Pa. Sept. 16, 2009) (plaintiff’s counsel sanctioned for using foul language, making disparaging personal remarks about defense counsel, and deliberately disrespecting the witness).)

An attorney faced with opposing counsel whose behavior is unprofessional must make a record of the improper conduct if it is not obvious from the transcript or videotape. For example, an attorney should note for the record if the opposing attorney is:

  • Screaming, because it will not be reflected in the transcript of a deposition that was not videotaped.
  • Making inappropriate gestures, because it will not be reflected in a written transcript and the camera at a videotaped deposition is typically focused only on the witness.

The information in this article was excerpted from Practice Note, Depositions: Handling Unexpected Situations at a Deposition (Federal), which includes a discussion of how to handle unexpected situations from the defending attorney's perspective and how to proceed if an emergency causes a deposition to end early. The full practice note is among the more than 65,000 resources available at the Thomson Reuters Practical Law website.

About the Author

Irina Kobylevsky joined Practical Law from Kruzhkov Russo PLLC, where she was Counsel and focused primarily on commercial and business litigation. Before that, she was an associate at Gusrae Kaplan Nusbaum PLLC and Kaplan Fox & Kilsheimer LLP. Her experience includes representing clients in contentious disputes between business owners, appraisal proceedings, and securities fraud class actions. Irina is a Senior Legal Editor with Practical Law’s Litigation team.

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