Depositions Flashcards
1
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Depositions
A
- A deposition is the recorded examination of a live witness under oath before a qualified oath administrator, usually called a “court reporter”. This tool may be used to depose parties to the case, as well as nonparty witnesses.
- There are three different types of depositions permitted by the FRCP:
- FRCP 30: Depositions by Oral Examination
- FRCP 31: Depositions by Written Questions
- FRCP 27: Depositions to Perpetuate Testimony
- Unless otherwise stipulated by the parties or ordered by the court, the parties are permitted only 10 depositions per side (10 per plaintiffs, 10 per defendants).
2
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The Rule 30 Deposition
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This is by far the most commonly used deposition tool – it is used in pretty much every civil lawsuit. The oral deposition is a wonderful discovery tool because it allows the lawyer to get information directly from the witness, unfiltered by a lawyer.
- FRCP 30 depositions typically happen in conference rooms attended by the deponent (person being deposed), the lawyer who “noticed” the deposition, the lawyers for the other parties, and a “court reporter” who takes down every word everyone is saying and ultimately generates a written transcript of the entire proceeding. The “deposing” lawyer gets to ask questions within the scope of discovery of the witness or party being deposed, and the witness/party answers those questions. Other lawyers have the right to make objections, and to ask their own questions after the deposing lawyer has asked all his questions.
- Pursuant to the Rule, the maximum duration for any one deposition is 7 hours, but the parties could stipulate to more time. In the absence of a stipulation, a party could file a motion with the court seeking more time for the deposition.
- If the deponent is a party to the action, the attorney need simply serve him and the parties with reasonable written notice of the time and place for the deposition in order to schedule it.
- If the deponent is a non-party, then he must be subpoenaed to appear at the deposition using the subpoena process described in FRCP 45.
- The Rule permits a party to depose a person only ONE time, absent leave of the court or stipulation of the parties. Leave will likely be granted if you can show that the evidence you seek could not have been obtained during the first deposition through no fault of your own.
- The deponent can be compelled to bring documents to a deposition by including a description of the documents in the notice.
3
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The “30(b)(6)” Deposition
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This is a frequently used device with corporate parties
- Sometimes a party needs information relevant to the case from a corporate party, but doesn’t know the identity of the person within the corporation who is competent to testify about these matters.
- FRCP 30(b)(6) allows the party to serve a notice or subpoena of deposition on the corporation without designating any particular employee to testify, and including a list of topics upon which the party wants information. It is then incumbent on the corporation to identify the person or persons within the corporation who will appear to testify regarding these topics.
4
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Objections
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- During a deposition, the attorney for the opposing party has the right to make objections to questions asked by the deposing attorney. Objections can properly be made to questions that are outside the scope of discovery (irrelevant, or seeks privileged information), or because they are overly argumentative, or vague and unclear, or violate certain evidentiary rules (e.g., lacks foundation).
- With two exceptions, the deposing attorney is entitled to an answer from the witness to his question even if the defending attorney objects. This is due to the fact that there is no judge in attendance to rule on the objections, and we don’t want the deposition to just stop, or possibly valid questions to go unanswered because an objection has been made (the objection might be baseless).
- This means that the deposing attorney can simply say, “objection noted, I’ll take the answer”. And the witness must then respond to the question. The objection is preserved in the written transcript, and if necessary, the parties can argue about its validity at a later time in front of the judge.
- The two exceptions: Questions calling for privileged information, and questions calling for an answer that would violate a court order. With these two types of questions, the defending attorney can object to the question and instruct the deponent not to answer. And the deponent will then not answer the question.
5
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The Rule 31 Deposition:
A
This is a deposition by written questions. The deposing attorney serves written questions on the deponent and the other parties in advance of the date set for the deposition, after which any of the other parties may also serve written questions on the deponent and the parties.
- The deponent appears at the place, date and time for the deposition in front of the oath administrator (court reporter), who reads all of the written questions to the deponent, and the deponent answers them live.
- This tool is a cost-saver. It would most likely be used when the deponent is geographically distant from the forum state and the parties don’t want to incur the cost of traveling to the deponent for a Rule 30 deposition.
- The Rule 31 deposition is rarely used.
6
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The Rule 27 Deposition:
A
Permits discovery by deposition before the litigation commences in order to perpetuate (preserve) testimony. A person seeking such pre-complaint discovery must show all of the following:
- That the matter regarding which the deposition is sought will be within the subject matter jurisdiction of a federal court when the lawsuit is filed;
- That the person is unable for good cause to bring the lawsuit at the present time in any court; and
- That there is a substantial danger that the testimony sought will be lost or will become unavailable before the lawsuit can be filed.
7
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FRCP 32(a): Use of Depositions
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- Deposition testimony (as recorded by the court reporter in a written transcript) is often used to support motions or responses to motions.
- May be used at trial to impeach the testimony of live witnesses.
- May be used at trial in lieu of live testimony when a witness is unavailable to testify at trial (for example, due to death, illness, imprisonment, beyond reach of process).
8
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Rule 35: Physical & Mental Examinations
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On the motion of a party to litigation, a court can order another party to undergo a physical or mental examination.
- Moving party must show (1) that there is good cause for the examination, and (2) that the physical or mental condition sought to be examined is in controversy.
- Applies only to parties, or those in the custody or legal control of the party. Can’t get an examination under this rule of a mere witness.
- For example, minor children are in the custody of their parents for purposes of examination when the parents sue for injuries to their children.
- The moving party must show that each condition as to which examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.
- Pleadings alone are sufficient to meet these requirements when the party to be examined has affirmatively put his condition into controversy.
- For example, if a plaintiff is seeking emotional distress damages against the defendant, the defendant will be able to get an order for a Rule 35 examination by a psychiatrist.
- Where the party has NOT affirmatively put his condition into controversy, the moving party must provide additional evidence to establish “good cause”.
- Note: This is the ONLY DISCOVERY DEVICE (other than the FRCP 27 pre-litigation deposition) that requires a court order … except that if the parties stipulate to the exam, no court order is necessary.
9
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FRCP 36: Requests for Admissions
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- Establishes a procedure whereby one party may serve requests for the admission of certain facts on another party, who is then obligated to investigate and either admit, deny with specificity, or object to each request.
- A matter that is admitted under Rule 36 is deemed to be conclusively established, and the admission can be relied upon to prove the fact admitted at trial.
- Applies only to matters of fact, not matters of law, and can be served only on parties to the action, not on nonparties.
- No limitation on number of requests to admit that you can make.
- As with interrogatories and requests to produce, a party has 30 days from service to respond to requests for admission. FAILURE TO RESPOND IN A TIMELY FASHION IS DEEMED AN ADMISSION!!!
10
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Duty to Supplement:
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- Each party is under a continuing duty, without need for request from any other party, to supplement or correct disclosures under 26(a), as well as responses to discovery requests if the party learns that the prior disclosures or responses were incomplete or incorrect.
- The duty applies only if the corrective information has not otherwise been made known to the other parties during the discovery process.
- For example, both parties may learn about the error and receive corrective information at the same time through deposition testimony.
11
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FRCP 26(c): Protective Orders
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This rule provides the courts with the authority to curb particularly invasive discovery.
- Permits a judge to enter – upon a showing of good cause – “any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”
- The rule presumes that the court will do a balancing test – it won’t simply disallow all discovery that is annoying, embarrassing, or oppressive. Instead, the court will balance these factors against the importance of the evidence.
- If court determines that annoyance, embarrassment, oppression, or undue burden outweigh the importance of evidence, it will enter an order limiting the discovery.
- A party could file a motion for a protective order when faced with improper discovery requests – overly burdensome, seeking irrelevant information – as an alternative to objecting in response to the request. This is usually not done.
- More commonly, a party seeks a protective order because, although the information sought is well within the scope of proper discovery, disclosure would be embarrassing or damaging.
- For example, in an employment discrimination lawsuit, confidential salary and promotion information regarding other employees is relevant, but there are concerns about disclosure of such sensitive personal information.
- For example, in litigation over product design, trade secret information might be relevant but disclosure of such information could harm the company’s competitive position in the marketplace.
- Protective orders could be entered that prohibit disclosure of certain information entirely or, more commonly, that limit disclosure to protect the disclosing party from damage that wholesale disclosure might cause.
- Example: A protective order might limit disclosure of trade secret information to the parties and their attorneys in the particular lawsuit, and the parties and attorneys are thereby bound to keep the information confidential.
- FRCP 26(c) requires that the party or person seeking a protective order seek concurrence from the opposing party in the relief sought by the motion BEFORE filing it.
- In other words, the party who wants the protective order must try to reach agreement on the terms of the order first with the other parties – see if they can all stipulate to the order so that the court doesn’t have to resolve the issue. Goal – judicial economy.
12
Q
Enforcement of Discovery Obligations
FRCP 26(g):
A
- Provides that every disclosure, discovery request, discovery response, and discovery objection must be signed by at least one attorney of record. If the party is unrepresented by an attorney, then the party must sign.
- Initial disclosures and pre-trial disclosures under FRCP 26(a): The attorney’s or unrepresented party’s signature constitutes a certification to the best of the signer’s knowledge, information and belief – formed after reasonable inquiry – that the disclosure is complete and correct.
- Discovery requests, responses or objections: The attorney’s or unrepresented party’s signature certifies that, to the best of the signer’s knowledge, information and belief, formed after reasonable inquiry:
- The document is consistent with the FRCP and existing law, or with a good faith argument for extension, modification or reversal of existing law, or for the establishment of new law;
- The document has not been imposed for any improper purpose, such as to harass, delay, or needlessly increase the cost of litigation; and
- The discovery is not unreasonable or unduly burdensome or expensive, given nature of the case, the discovery already conducted, the amount in controversy, and the importance of the issues at stake in the litigation.
13
Q
Enforcement of Discovery Obligations
Sanctions for certification made in violation of the rule:
A
- Can be imposed on the attorney, the party, or both.
- Issue of an alleged violation can be raised by motion of a party or sua sponte by the judge.
- The court has discretion in determining what kinds of sanctions are appropriate. Typically, they will include expenses incurred by the moving party because of the violation, including attorney’s fees.
14
Q
Rule 37(a) – Motion to Compel
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- If an opposing party (or nonparty witness) fails to make full disclosure required by the rules, or fails to respond to a valid discovery request, the party seeking discovery can file a motion under this rule asking the court to compel the noncompliant party (or person) to produce the requested information.
- Example**: The motion may be filed after an opponent fails to make automatic disclosures required by FRCP 26(a), fails to respond to discovery served pursuant to the discovery rules, fails to show up for a properly noticed deposition, or makes an improper or incomplete disclosure or discovery response.
- A motion to compel must be accompanied by a certification that moving party has in good faith conferred or attempted to confer with other party in an effort to resolve the dispute without court intervention.
- NOTE: This is in contrast with FRCP 26(g), which does not require the moving party to attempt to work things out with the other side first.
- The victorious party on a motion to compel is entitled to recover the expenses it incurred as a result of the discovery dispute, including a reasonable attorney’s fee, from the losing party. The award of expenses is mandatory unless:
- The moving party failed to confer with the opponent prior to filing the motion; OR
- The losing party shows that its conduct was substantially justified; OR
- Other circumstances render the award of expenses unjust.
- Note: These exceptions tend to swallow the rule, with the result that expenses are rarely awarded.
15
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Rule 37(b)
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- Provides sanctions for failing to comply a discovery order of the court. Sanctions may be sought by motion or ordered sua sponte. The rule lists the various sanctions that can be imposed:
- Deem facts established: The court may deem as established certain facts that the moving party was seeking to establish.
- Prohibit evidence: The court may refuse to allow the disobedient party to introduce certain matters into evidence, or to support or oppose certain claims.
- Strike Pleadings: The court may strike any pleading or portion of a pleading.
- Issue A Stay: The court may stay further proceedings until the discovery order is obeyed.
- Dispositive Ruling: In extreme situations, the court may dismiss an action or portions of the action. The court may also enter judgment against the party.
- Contempt: Court may treat the failure to obey its order as contempt of court.
- The above list of sanctions is not exhaustive – the court has broad discretion to enter any order that is just. In practice, though, courts general stick to the sanctions listed.
- A court will also typically require the party not complying with the court order and/or the party’s attorney to pay all expenses, including reasonable attorney’s fees, incurred by the party moving for sanctions as a result of the nonmoving party’s failure to comply with the discovery order.
