Depositions

Question 1

When can depositions be taken

Answer 1

Depositions can be taken any time during the discovery period. Leave of court or agreement is required if the deposition is to be taken outside of the discovery period.

Question 2

When to give written notice

Answer 2

• Written notice must be given a “reasonable time” before the deposition is taken
• If the deposition will include a request for production (subpoena duces tecum), 30 days notice is required.

Question 3

Who must be noticed of Deposition on Oral Examination

Answer 3

• The notice must be served on all parties or their LRs.
• If the deponent is a non-party, the notice served on them must include a subpoena.

Question 4

Required content of the notice on Oral Examination

Answer 4

• Identity of the witness to be deposed
  
  • If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must - a reasonable time before the deposition - designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. The selected person(s) must testify as to matters that are known or reasonably available to the organization.
• The time and place of deposition
  
  • The time & place must be reasonable.
  • Acceptable Locations
  • The county of the witness’s residence;
  • The county where the witness is employed or regularly transacts business in person;
  • The county of suit if the witness is a party;
  • The county where the witness was served with the subpoena, or w/in 150 miles of the place of service, if the witness is not a resident of TX or is a transient person
  • By telephone; or
  • Any other convenient place directed by the court in which the cause is pending.
• Whether alternative means of conducting & recording the deposition will be used
  
  • E.g. telephone or other electronic means
• Identify persons attending the deposition
  
  • Attendees other than the witness, parties, spouses of parties, counsel, employees of counsel, and the officer taking the oral deposition should also be identified (but this can be done in a separate document). If other parties intend to bring others into the deposition, they must also give reasonable notice of their identity.
• If a non-party is the deponent, the notice must include a subpoena

Question 5

Compelling Appearance

Answer 5

• Party Deponents – service of notice upon party or attorney is sufficient to require party, party’s agents or employees, or person’s subject to party’s control to attend a deposition, give testimony, and produce documents & other tangibles.
• Non-party Deponents – The subpoena can be issued by the clerk of the ct, a LR, or any certified ct reporter, & served by anyone over 18 that is not a party.

Question 6

Objections before the Deposition Begins

Answer 6

• Any party or non-party witness may object to the time, place, manner, or general scope of the dep. by filing a motion for a protective order or motion to quash the notice of deposition. If the motion is filed by the 3rd business day after service of the notice, an objection to time and place stays the dep. until the ct rules on the motion. Motions based on other objections do not stay the dep.; it goes forward absent an agreement or ct order postponing it.
• The ruling on a motion for protective order is w/in the tc’s discretion; however if the discovery sought is acceptable in “scope” then the party seeking protection must present evidence showing “a particular, specific & demonstrable injury y facts sufficient to justify a protective order.”

Question 7

Examinations and Cross-Examinations

Answer 7

• Witness placed under oath
• Party noticing the deposition examines the witness first, and then other parties have the opportunity to examine.
• No “side” can examine or cross-examine for more than 6 hours
• A party may serve written questions in lieu of participating in oral examination.

Question 8

Conduct, Objections, and Instructions to the Witness: Conduct

Answer 8

• Same demeanor as trial
• Private conferences between witness and his attorney shall not be conducted during deposition except to determine whether a privilege should be asserted

Question 9

Conduct, Objections, and Instructions to the Witness: Objections during depositions

Answer 9

• You can’t object to a question just because it would be inadmissible at trial. The standard here is the “scope” of discovery.
• Objections to questions are limited to “objection, leading” & “objection, form”. Objections to answers are limited to “objection, nonresponsive”. These objections are waived if not stated as phrased during the oral deposition. These objections give the questioning party an opportunity to rephrase the question during and the answering party a chance to respond, curing any potential problem with admissibility that may arise at trial.
  
  • Leading objection: A LR might object to leading questions at a dep. Although it is not improper to ask a leading question in a discovery deposition, it is improper to ask a leading question to one’s own witness at trial. Thus, parties at the dep. should make the proper objection at the deposition so that they can object to its admissibility into evidence. If they failed to make the proper objection at the dep., the objection nth the form of the question is waived, and the questioner can use the testimony at trial if it is otherwise admissible.
  • This strictly refers to objecting when a party is leading their own witness. You are allowed to lead on cross exam.

Question 10

Conduct, Objections, and Instructions to the Witness: Instructions not to answer

Answer 10

• An attorney may instruct a witness not to answer a question during an oral deposition only if necessary to preserve a privilege, comply with a court order or these rules, protect a witness from an abusive (harassing) question or one for which any answer would be misleading, or secure a ruling pursuant to paragraph (g) (suspending the dep.).
  
  • This rule helps LRs prevent the client from accidentally waiving a privilege.
  • Whether the privilege is valid or not can be brought b/f the ct on a motion to compel or motion for protective order, while the rest of the dep. is suspended pending the ruling. If the ct determines that the material is not privileged, the dep. will resume.

Question 11

Suspending the Deposition

Answer 11

A party or witness can suspend if time limits have expired or the deposition is being conducted or defended in violation of the discovery rules

Question 12

Recording the Deposition

Answer 12

• The “Deposition officer” must record the deposition. Generally must be recorded stenographically by certified shorthand reporter.
• Generally, the dep. may be recorded by other means only if the dep. is also recorded stenographically. A nonsten. recording can be conducted w/o a contemporaneous sten. recording only if the parties or their LRs record the dep.
• The dep. officer also administers the oath to the witness.

Question 13

Transcription of the Deposition

Answer 13

• Deposition officer submits the deposition transcript to the witness for review, correction, and signature
• Court reporter then files and serves a certificate of transcript’s authenticity and amount of time used by the parties at deposition
• Ct reporter then delivers the original dep. to the party that asked the first question at the dep.
• The original is available (through custodial attorney) to other party for inspection and copying

Question 14

Motion to Suppress

Answer 14

• A party may object to irregularities in the way the dep. officer handled the dep. by filing a motion to suppress the dep.
• If court reporter has complied with delivery requirements, motion must be filed at least one day before case is called to trial to preserve any objections to a stenographic transcript of the deposition
• Motion to suppress a nonstenographic recording must be filed at least 30 days before trial

Question 15

Agreements Concerning Deposition Procedure

Answer 15

• Must be made part of the record, or part of the deposition itself.
• Beware of the “usual agreements” – may be peculiar in different localities. If you are unaware, only agree to the “TRCP rules.”

Question 16

Supplementing the Deposition

Answer 16

• No general duty to supplement deposition testimony
• Deposition rules provide for witness to make corrections when signing the transcript, but make no reference to supplementing dep. testimony.

Question 17

Using the Deposition at Trial

Answer 17

• Admissible at trial or any other hearing against any other party who was present or represented at the dep. or had reasonable notice thereof.
• It is admissible a/g a party joined after the dep. is taken if that party has an interest similar to parties who attended the dep., or, if the party had a reasonable chance to redepose the deponent, but failed to do so.
• The depositions are read into the record in Q & A form and the rules of evidence are applied to each Q & A as though the witness were testifying live.
• Read into record in question and answer form

Question 18

Depositions on written questions

Answer 18

• Witness responds under oath
• Not “written discovery” so Rules 193 and 197 do not apply
• Deposition notice and attached direct questions must be served 20 days before the deposition
• Within 10 days after service, any party may object to the direct questions and serve cross-questions

Question 19

Foreign depositions

Answer 19

• Rule 201 allows a deposition to be taken in another state or country for use in a case filed and pending in Texas state court.
• Deposition is noticed to be taken in the other jurisdiction – If a subpoena is needed, Texas court will issue a document to the foreign jurisdiction

Question 20

Depositions before suit or to investigate claims

Answer 20

Under Rule 202, a person may file a petition for the sole purpose of taking a deposition to perpetuate his own testimony or that of another person for purposes of an action that he anticipates may be filed in the future or to investigate a potential claim or suit.

Question 21

Apex Depositions

Answer 21

• An Apex dep. is a dep. of a corporate officer.
• When a party wants to depose a corporate officer, and the officer objects (via motion for protective order) accompanied with an affidavit denying knowledge of relevant facts, the TC should first determine whether the party seeking to depose has arguably shown that the officer has any unique or superior personal knowledge of discoverable information. This means that there must be some showing beyond mere relevance, such as evidence that a high level executive is the only person with personal knowledge of the info sought or that the exec arguable possesses relevant knowledge in greater or quality or quantity than other available sources.
• If there is not a showing of unique or personal knowledge, the tc should grant the motion for protective order & first make the party seeking deposition try to obtain the information through less intrusive means.
• After making a good faith effort to otherwise obtain the discovery, the party seeking to depose may attempt to show (1) that there is a reasonable indication that the official’s deposition is calculated to lead to the discovery of admissible evidence, & (2) that the less intrusive methods are unsatisfactory, insufficient, or inadequate.