How To Prepare For Take and Use A Deposition

HOW TO
PREPARE FOR,
TAKE, AND USE
A DEPOSITION
BY DANIEL P. DAIN
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About the Authors
Daniel P. Dain is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner, P.C.
(www.bdlwtg.com) in Boston, Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real
estate developers and property owners in litigation and administrative matters. He also maintains a commercial
litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel
for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant
District Attorney in Middlesex County, Massachusetts. He has written and lectured in the areas of trial practice,
deposition skills, land use litigation, and premises liability law. He was an editor of the Journal of International
Law at Michigan Law School.1
James Berriman is the Chief Executive Officer of Evidox Corporation in Boston, Massachusetts. He wrote Chapter
11 on Depositions and Technology. Evidox provides litigation technology support to law firms and companies.
Before founding Evidox in 2006, Mr. Berriman was a trial lawyer and Director of Litigation Technology at
Goodwin Procter LLP. He founded that firms Litigation Technology Group, which grew to include a team of 15
specialists. He coded and implemented the firms litigation case-management system, and established the firms
scanning and digitizing labs, its e-discovery review facilities, and its trial technology systems. Mr. Berriman has
provided in-courtroom electronic trial services in a number of prominent cases, including U.S. v. Martha Stewart
and Peter Bacanovic (nationwide front-page coverage), USAID v. Harvard University (largest claim ever asserted
against Harvard), Acon v. Inverness (regarding the patent that covers one-step home pregnancy test kits),
PharmaStem v. ViaCell (regarding the patent that covers preservation of umbilical cord blood and stem cells), and
Citizens National Bank v. Citizens Bank (regarding the rights to the Citizens bank name). He has written and
lectured in the area of litigation technology.
1
Mr. Dain would like to thank his colleague Dan Pasquarello, and his legal intern, Mark Andersen, a law student at Boston College, for their
assistance in the preparation of the 2008 update.
Table of Contents
Chapter 1 Who Should Be Deposed: When, Where and How
100 Depositions: The Myth and the Reality

101 Who, When, Where and How?
110 Should You Take a Deposition?
111 Goals of Taking a Deposition
112 Alternatives to Taking a Deposition
113 Failure to Disclose Information
120 Who Should Be Deposed?
121 Adverse Parties and Coparties
122 Independent Witnesses
123 Expert Witnesses
124 Use of Rule 30(b)(6) Designation of Witnesses
125 Limitations on Taking Depositions
130 When and Where Should Depositions Be Taken?
131 When Can Depositions Be Taken?
131.1 Taking Depositions When a Motion to Dismiss for Lack of Personal Jurisdiction Has Been Filed
131.2 Discovery in Aid of Judgment or Execution
132 Priority of Depositions
133 Sequence of Deposing Witnesses
134 Strategy of Timing and Sequence of Depositions
135 Depositions for Use as Substantive Testimony
136 Where Should the Deposition Be Taken?
137 Locale in Which to Take the Deposition of a Nonparty
Sample: Motion for Leave to Take Deposition More Than 100 Miles From Witnesss Residence,
Employment or Place of Regular Business
138 Locale in Which to Take the Deposition of a Party
138.1 Multi-Jurisdictional Practice
139 Stipulations Among Counsel
140 What Type of Deposition Should Be Taken?
141 Video Depositions
142 Telephone Depositions
143 Audio Depositions
144 Video Conference Depositions
144.1 How Video Conference Technology Works
144.2 Specific Uses for Video Conference Depositions
145 De Bene Esse Depositions
150 Suggested Source Materials
Chapter 2 Procedures for Setting Up a Deposition
200 Procedures for Setting Up a Deposition

210 Setting Up the Deposition of a Party
Sample: Notice of Deposition
210.1 Opposing Date of Deposition
Sample: Motion for Protective Order for Deposition
210.1.1 Does the Filing of a Motion for a Protective Order Automatically Stay the Deposition?
210.2 Opposing Location of Deposition
Sample: Motion for Protective Order for Location of Deposition of Samuel P. Bigshot
210.3 Opposing Deposition on Ground That Witness Lacks Relevant Information
211 Noticing the Deposition of an Officer, Director or Managing Agent of a Party
Sample: Notice of Deposition of Officer, Director or Managing Agent of a Party
211.1 Opposing the Taking of a Deposition of an Officer, Director or Managing Agent of a Party
211.2 Corporate Officers
Sample: Motion for Protective Order Prohibiting Deposition of Samuel P. Bigshot
211.3 Deposing Party Attorneys
212 Noticing a Deposition Pursuant to Rule 30(b)(6)
Sample: Notice of Deposition Pursuant to Fed. R. Civ. P. 30(b)(6)
212.1 Objecting to Rule 30(b)(6) Deposition
Sample: Motion for Protective Order to Limit or Modify Notice of Deposition Under Fed. R.
Civ. P. 30(b)(6)
212.2 Outline for Beginning a Deposition of a Witness Designated by Organization Under Rule
30(b)(6)
213 Requesting Production of Documents From a Party Deponent
Sample: Notice of Deposition and Request for Documents
213.1 Objecting to a Notice of Deposition Requesting Production of Documents
213.2 Responding to a Request for Production of Documents in a Notice of Deposition
213.3 Rule 45 Subpoena Duces Tecum Cannot Be Used to Circumvent the 30-Day Party Document
Production Time Frame
214 Checklist for Setting Up the Deposition of a Party
220 Setting Up the Deposition of a Nonparty
221 Using a Subpoena Duces Tecum to Compel Production of Evidence or to Permit Inspection
Sample: Motion for Relief With Respect to Subpoena Duces Tecum and Objection Thereto
Sample: Subpoena Duces Tecum
222 Serving a Subpoena
Sample: Acceptance of Service
223 Failure to Serve a Subpoena
224 Subpoenaing a Nonparty Under Rule 30(b)(6)
226 Checklist for Setting Up the Deposition of a Nonparty
227 Redeposing a Witness
230 Miscellaneous Deposition Situations
231 Setting Up an Audio or Videotaped Deposition
Sample: Notice for Recording Deposition by Videotape
Sample: Stipulation for a Videotaped Deposition
Sample: Order for Recording Deposition on Oral Examination by Videotape
231.1 Opposing Videotape of Deposition
Sample: Opposition to Motion for Order Permitting the Reporting of a Deposition on Videotape
232 Setting Up a Telephone Deposition
233 Setting Up Foreign Depositions
234 Using an Interpreter
Sample: Order Appointing Interpreter
240 Costs of the Deposition
241 Costs of Expert Witnesses
242 Attorneys Fees and Expenses of Depositions
243 Fact Witness Costs and Expenses
244 Offering Inducements to Secure Cooperation of Fact Witnesses
250 The Court Reporter
251 Using Computerized Deposition Transcripts
260 Stipulations With the Opposing Attorney and Nonparty Witnesses
Sample: Stipulation Pursuant to Rule 29 for Taking a Deposition
270 Discovery Conferences
Sample: Discovery Conference Order
Sample: Report of Parties Planning Meeting
Chapter 3 Who Can and Should Attend a Deposition
300 Who Can and Should Attend a Deposition

310 Who Can Attend a Deposition
311 Attendance of Multiple Attorneys for a Party or a Witness
320 Rules Governing the Exclusion of Spectators From a Deposition
321 Rule 26(c) Motions to Exclude Spectators From Attending a Deposition
Sample: Motion for a Protective Order to Exclude Spectators From Deposition
322 Rule 615 as Parallel Authority for Excluding Spectators From a Deposition
323 Rule 29 Stipulations to Exclude Spectators From Attending a Deposition
330 Excluding Parties and Other Individuals From Attending a Deposition
331 Excluding Parties From a Deposition
332 Excluding the Public and Press From a Deposition
333 Excluding Spectators to Protect Confidential Information and Trade Secrets
334 Excluding Spectators in Antitrust Actions Brought by the Government
335 Excluding a Corporate Partys Representative From Depositions
340 Procedures for Obtaining a Protective Order
Sample: Motion for a Protective Order to Exclude Witnesses From Deposition
350 Who Should Attend the Deposition
Chapter 4 Preparing to Take or Defend a Liability or Damages Deposition
400 Preparing to Take or Defend a Liability Deposition

410 Preparing to Take a Deposition
411 Defining the Key Areas for Examination
412 Reviewing Key Pleadings and Applicable Law
413 Reviewing Prior Discovery and All Factual Information at Your Disposal
414 Preparing a Chronology of Key Fact Events, a Cast of Characters, and Witness Files
415 Discussing the Upcoming Deposition With Your Client and Cooperative Witnesses
416 Discussing the Upcoming Deposition With Opposing Counsel
416.1 Visit Site
417 Defining Your Objectives
418 Preparing Exhibits for the Deposition
419 Consideration of Opposing Counsel
419.1 Creating a Deposition Outline
420 Preparing to Defend a Deposition
421 Procedural Issues
422 Preparing Yourself to Defend the Deposition
423 Preparing to Assert Privilege
430 Preparing Your Witness to Be Deposed
431 Introducing Your Witness to the Deposition Process
432 Techniques for Preparing Your Witness to Answer Deposition Questions
432.1 Homework for the Witnesss Preparation
432.2 Emphasize the Form of the Answer to the Question
433 Using a Checklist for Witness Preparation
434 Refreshing Your Witnesss Recollection
435 Conducting a Practice Examination
436 Representing the Witness
436.1 Representing the Corporate Employee
437 Timing
438 Preparing the Problem Witness
438.1 Avoiding the Dangers of Assumed Facts
438.2 Handling the Untrustworthy Witness
439 Preparing for the Video Deposition
440 Hints for Handling the Tricky Examiner and Tricky Questions
441 Examples of Tricky or Objectionable Questions
450 Preparing Specific Witnesses for Their Depositions
451 Preparing a Party to Be Deposed
452 Preparing a Friendly Nonparty to Be Deposed
453 Preparing a Corporate Officer to Be Deposed
454 Preparing a Deponent Designated Under Rule 30(b)(6) to Be Deposed
454.1 Attorney-Client Privilege and the Rule 30(b)(6) Witness
455 Preparing to Defend the Deposition of an Uncooperative Witness
456 Preparing an Expert Witness to Be Deposed
470 Liability Witness Deposition Outlines
471 Preparing Your Deposition Examination
472 Order of the Deposition Proceedings
473 Sample Outlines
473.1 Outline for Deposing the PlaintiffAutomobile Case
473.2 Outline for Deposing the DefendantAutomobile Case
473.3 Outline for Deposing EyewitnessAutomobile Liability Case
473.4 Outline for Deposing PlaintiffPremises Liability Case
473.5 Outline for Deposing Defendant Owner or OccupierPremises Liability Case
473.6 Outline for Deposing Defendant Citys Superintendent of StreetsPremises Liability Case
473.7 Outline for Deposing the Defendant PhysicianMedical Malpractice Case
473.8 Outline for Deposing the Defendants Design EngineerProduct Liability Case
473.9 Outline for Deposing PlaintiffTenant in Residential Mold Case
480 Damage Witness Deposition Outlines
481 Outline for Deposing Injured Plaintiff on Damages
482 Outline for Deposing Treating Physician
490 Outline for Deposing Plaintiff in a Land Use Case to Establish Lack of Standing
495 Outline for Deposing Defendant-Judgment Debtor on Income and Assets Under Fed. R. Civ. P. 69(a)
Chapter 5 Procedures for Taking and Defending a Deposition
500 Procedures for Taking and Defending a Deposition

510 Setting the Stage for the Deposition
511 The First Moments
512 Objecting to Persons Present
513 Proceeding When Counsel for Deponent Is Not Present
514 Working With the Reporter
515 Using Exhibits
516 Video and Audio Depositions
516.1 Procedures for Audio Visual Depositions Under the Uniform Audio Visual Deposition Act
517 Telephone Deopositions
518 Discovery Deposition vs. Deposition for Use at Trial
520 Beginning the Deposition
521 The Oath
522 Stipulations and Orders
530 Introductory Examination
531 Explaining the Deposition Process
532 Identifying Documents Produced by the Witness
533 Discovering Impediments to Answering Questions
534 Asking About the Witnesss Preparation for the Deposition
534.1 Strategic Considerations Affecting Scope
535 Rule 30(b)(6) Witnesses
540 Procedures During the Deposition
541 Going Off the Record
542 Recesses
542.1 Recesses Under Rule 30(d) and Rule 37(a)(1)
543 Length of Deposition Days
545 Obtaining Court Orders During the Course of the Deposition
546 Marking and Identifying Exhibits
547 Procedures for Dealing With the Problem Defending Lawyer
548 Maintaining a Clear Record
549 Instructions Not to Answer
550 Concluding Your Examination
551 Cross-Examination and Redirect Examination
552 Post-Deposition Matters
553 Arrangements for the Exhibits
554 Closing the Deposition
560 Finalizing the Deposition
561 Corrections and Signature
561.1 Correction Sheets
Sample: Correction Sheet
561.2 Corrections to a Rule 30(b)(6) Deposition
561.3 Corrections by the Deposing Attorney
561.4 Reopening a Deposition for Examination With Respect to Correctional Amendments to the
Deposition Transcript
Sample: Motion for Order to Re-Open Deposition of Samuel P. Bigshot
562 Certification and Filing
563 Indexing
Sample: Deposition Summary
Sample: Issues/Subject Deposition Summary
564 Supplemental Answers
565 Protective Orders
566 Index to Deposition Videotape
Sample: Index to Deposition Videotape
Chapter 6 Techniques for Taking an Effective Deposition
600 Techniques for Taking an Effective Deposition

610 Techniques for Questioning the Witness
611 General Techniques for the Substantive Examination
612 Obtaining a Broad Picture of the Witnesss Knowledge
613 Pinning Down the Witness
614 Summarizing the Witnesss Testimony
615 Special Situations
615.1 The Evasive or Argumentative Witness
615.2 The Forgetful Witness
615.3 The Talkative Witness
615.4 The Neutral Witness
615.5 Language Difficulties
616 Questioning About Exhibits
620 Your Demeanor During the Taking of the Deposition
621 The Witnesss Demeanor
630 Dealing With the Defending Attorney
631 Dealing With Objections
632 Dealing With Narrow Objections
633 Dealing With Instructions Not to Answer the Question
634 Dealing With an Obnoxious Defending Attorney
635 Motions to Compel Answers
Sample: Motion to Compel Answers at Deposition
636 Examination Upon Assertion of Attorney-Client Privilege
637 How to Deal With Requests for Recesses
638 Examination of Witness Upon Assertion of the Work Product Privilege
640 Concluding the Deposition
Chapter 6A Techniques for Deposing an Expert Witness
600A Techniques for Deposing an Expert Witness

610A Legal Research of Issues
620A Written Discovery of Expert Witness Opinions
Sample: Interrogatory to Identify Expert Witness and Opinions
621A Expert Witness Document Discovery
622A Expert Work Product
622.1A In-House Experts
622.2A Asking Expert Opinion Questions of Lay Witnesses
623A The Experts Preservation of Evidence
630A General Outline of Expert Deposition
631A Qualifications Under Federal Rule of Evidence 702
632A Impeachment of Qualifications
632.1A The Experts Process for Preparing the Expert Report
633A The Experts Understanding of Case Related Facts
634A Differing Factual Assumptions
635A Basis for Each Opinion of the Expert
636A Scientific, Technical or Specialized Knowledge Under Federal Rule of Evidence 702
637A Authoritative Treatises
638A Expert Opinions
638.1A Support for Your Experts Opinions
639A Scope of Examination of Expert Witnesses
639.1A Examining a Party as an Expert Witness
639.2A Scope of Expert Witness and Consultants Privileged Knowledge
639.3A Putting It All Together Into a Deposition Outline
640A Sample Outlines
641A Outline for Deposing Expert EngineerProduct Liability Case
642A Outline for Deposing Medical Negligence Defense Expert
643A Outline for Deposing Accident ReconstructionistAutomobile Negligence
644A Outline for Deposing ArchitectPremises Liability
645A Outline for Deposing a Real Estate Appraiser
646A Outline for Deposing Environmental ProfessionalDisposal Site Remediation
650A Preparing Your Expert Witness for His or Her Deposition
Chapter 7 Making and Responding to Objections
700 Making and Responding to Objections

710 Scope of Witness Examination: Relevance to Claim or Defense of a Party
711 Court Imposed Limits on the Allowable Scope of Discovery
712 Inquiry Into Insurance Coverage
713 Inquiry Into Preparation for the Deposition
714 Inquiry Into Matters of Credibility
715 Rule 30(b)(6) Scope of Examination
720 Objecting to the Deposition Procedure
721 Objecting to Notice and Qualifications of the Reporter
722 Objecting to Completion and Return of the Deposition
723 Objecting to Requests for Production of Documents
730 Objecting to Improper Questions
731 Objections That Are Waived if Not Made
732 Objections That Need Not Be Made Before Trial
733 Objections to Summaries of Evidence
734 Objections to Hypothetical Questions
734.1 Objections to Questions Eliciting Expert Testimony Prior to Disclosure
740 Instructing a Witness Not to Answer the Question
741 Techniques for Dealing With Instructions Not to Answer
742 Instructing a Witness Not to Answer as a Bar to Testimony at Trial
743 Certifying Questions for the Court
750 Objecting to Questions Beyond the Scope of Discovery
751 Objections to Embarrassing or Harassing Questions
752 Objections by the Attorney for the Nonparty Witness
753 Objections by Multiple Attorneys
754 Objections by the Examining Attorney
755 Objections to Questions Outside the Scope of the Rule 30(b)(6) Designated Subject Matters
760 Objections Based Upon Privilege
761 Attorney-Client Privilege
761.1 Was the Purpose of the Communications to Obtain Legal Advice?
761.2 Were the Communications Kept Confidential?
761.3 Has the Privilege Been Waived?
761.4 Tactics for Dealing With Assertion of Privilege
761.5 Note on Use of Assertions of Privilege
761.6 Assertions of Privilege and Verified Complaints
762 Work Product Privilege
762.1 Documents Reviewed Prior to Deposition
Sample: Motion to Compel Deposition Preparation Materials
762.2 Practical Considerations Regarding Work Product Objections
762.3 Communications Between Insured and Insurer
763 Privilege Against Self-Incrimination
764 Discussions With the Witness in Preparation for Deposition
765 Other Objections Based on Privilege
766 Contesting an Asserted Privilege
767 Documents Reviewed by Witness in Preparation for, or During Deposition
770 Checklist of Objections
771 Form of Objection and the Response
Chapter 8 Defending the Deposition
800 Defending the Deposition

810 Final Preparation for the Deposition
811 Reviewing Your Objectives in Defending the Deposition
820 Preliminary Matters at the Deposition
821 Before the Deposition Begins
822 Audio and Video Depositions
824 Handling Requests for Documents at the Deposition
830 Conduct of the Deposition
831 Making Objections
831.1 Objection Strategy
832 Demeanor
832.1 Your Demeanor
832.2 Your Witnesss
832.3 Your Opponents
832.4 Coaching Objections
833 Recesses and Conferences
834 Duration of Depositions and Length of the Deposition Day
835 Actions During the Course of the Deposition
835.1 Objections, Motions to Strike, Instructions Not to Answer
835.2 Clarification of Questions and Answers
835.3 Conferences With the Witness and Recesses
835.4 Defending the Witness
835.5 Maintaining a Clear Record
Sample: Motion to Terminate Deposition fo rBad Faith
836 Deposition Related Sanctions
840 Dealing With Problem Witnesses
841 The Talkative Witness
842 The Argumentative Witness
843 The Forgetful Witness
844 Language Difficulties
845 Correcting Inaccurate Testimony
850 Cross-Examining the Witness
871 Learn From the Deposition
Chapter 9 Special Deposition Situations
900 Special Deposition Situations

910 Depositions Before Commencement of Civil Action or Pending Appeal
Sample: Petition to Perpetuate Testimony
911 Procedural Requirements for Depositions Taken Prior to Commencement of an Action
Sample: Notice of Deposition to Perpetuate Testimony
912 Depositions Pending Appeal
Sample: Motion to Allow Deposition of Susan B. Verysick to Perpetuate Testimony Pending Appeal
913 Use of Rule 27 Depositions
914 Other Perpetuation of Testimony
920 Out-of-District Depositions
921 Out-of-District Depositions of Parties
922 Out-of-District Depositions of Nonparties
923 Local Rules Governing Out-of-District Depositions
924 Practical Considerations
925 Out-of-State DepositionsState Court Civil Actions
925.1 Obtaining Process
925.2 Procedures Necessary in Forum
930 Depositions in Foreign Countries
Sample: Commission to Deposition Officer
931 Foreign Depositions by Stipulation
932 The Law of the Foreign Jurisdiction
933 Subpoena of United States Citizens Abroad
934 The Reporter
940 Depositions in Foreign Civil Actions
950 Depositions of Government Officers and Employees
951 Depositions of Politicians
960 Depositions Upon Written Questions
961 Cross-Examination of Witnesses by Written Interrogatories
970 Appeal of Discovery Orders
980 Depositions in Arbitration Proceedings
981 Procedures for Deposing in Arbitration
Chapter 10 Using the Deposition at Trial
1000 Using the Deposition at Trial

1010 What Depositions May Be Used at Trial
1011 Using a Deposition Taken in the Same Civil Action in Which It Is Sought to Be Used
1011.1 Using a Deposition Taken Prior to the Substitution of Parties
1011.2 Using a Deposition Taken Prior to the Joinder of Additional Parties
1011.3 Using a Deposition When a Subsequent Deposition of the Deponent Has Been Taken
1011.4 Using a Corrected Deposition
1011.5 Using an Unsigned Deposition
1011.6 Using a Deposition Not Fulfilling the Procedural Requirements
1012 Using a Deposition Taken in Another Proceeding
1012.1 Using a Deposition Taken in an Earlier Civil Action Involving the Same Parties and Subject
Matter, as Permitted by Rule 32(a)
1012.2 Using for Nonsubstantive Purposes a Deposition Taken in Another Proceeding as Permitted by
the Federal Rules of Evidence
1012.3 Using as Substantive Evidence a Deposition Taken in Another Proceeding
1012.4 Using a Deposition Taken in a Foreign Civil Action
1012.5 Using a Deposition Taken in Administrative Proceedings
1012.6 Using a Deposition Taken in a Foreign Country
1020 Purposes for Which a Deposition May Be Used at Trial
1021 Using the Deposition of an Adverse Party
1021.1 Determining Whether a Deponent Is an Adverse Party
1021.2 Using the Deposition of Adverse Party for Any Purpose
1021.3 Using the Deposition of an Adverse Party to Impeach or Contradict the Adverse Partys
Testimony
1021.4 Using the Deposition of an Adverse Party as Substantive Evidence
1021.5 Using the Deposition of an Adverse Party to Refresh His Recollection
1022 Using the Deposition of a Nonadverse Party
1022.1 Using the Deposition of a Nonadverse Party as Substantive EvidenceThe Unavailable Witness
1022.2 Using the Deposition of a Nonadverse Party Witness to Impeach or Contradict
1022.3 Using the Deposition to Refresh the Recollection of a Nonparty Witness
1023 Catchall Provision Allowing Use of Deponents Deposition
1024 Using a Partys Own Deposition
1030 Procedure for Introducing Deposition Testimony as Substantive Evidence
1031 Designation of Deposition Testimony to Be Introduced
1032 Publishing Designated Portions of the Deposition and Ruling on Objections
1032.1 Using Summaries of Deposition Testimony
1034 Using the Deposition of the Witness Who Is Unavailable
1035 Laying the Foundation for Using the Deposition of an Unavailable Witness
1036 Procedure for Using the Deposition to Refresh Recollection
1040 Objecting to the Admissibility of Deposition Testimony as Substantive Evidence
1041 Technical Objections Relating to the Taking, Transcribing, and Completion of a Deposition
1042 Testimonial Objections
1043 Other Objections to Admissibility
1050 Tactics in Using Depositions at Trial
1051 Tactical Considerations in Using the Deposition for Impeachment
1051.1 Laying the Foundation for Impeachment With the Witnesss Deposition
1051.2 Impeaching the Inconsistent Testimony
1051.3 Other Methods of Impeachment
1052 Tactics in Using the Deposition to Refresh the Witnesss Recollection
1053 Tactics in Using the Original or Corrected Transcript
1054 Introducing Additional Parts of the Deposition
1060 Checklist of Matters to Cover With the Court Concerning Using Depositions at Trial
Chapter 11 Depositions and Technology
1100 Depositions and Technology: Overview

1110 Deposing the Electronic Record-Keeper
1111 Overview and Objectives
1112 Essential Definitions
1113 General Approach to E-Discovery
1114 Preparing for the Deposition
1115 Assessing the Witness
1116 Privilege and Objections
1117 Specific Deposition Topics
1117.1 Overview of Procedures
1117.2 Document Retention and Destruction Policies
1117.3 Litigation Preservation Instructions and Efforts
1117.4 Harvesting of Electronic Documents
1117.5 Processing Prior to Attorney Review
1117.6 Other Topics
1118 Conclusion
1120 Deposition Technology Tools
1122 Deposition Preparation Tools
1122.1 Document Search and Review Tools
1122.2 Transcript Search and Review Tools
1122.3 Case Organization Tools
1123 Deposition Taking Tools
1123.1 Real-Time Transcript Tools
1123.3 Collaboration Tools
1124 Tools for Using the Deposition
Appendix A: Full Text of the Hague Convention on the Taking of Evidence

Abroad in Civil or Commercial Matters
Table of Cases
Index
Chapter 1
Who Should Be Deposed: When, Where and

How


113 Failure to Disclose Information
131.1 Taking Depositions When a Motion to Dismiss for Lack of Personal Jurisdiction Has Been Filed
134 Strategy of Timing and Sequence of Depositions
Sample: Motion for Leave to Take Deposition More Than 100 Miles From Witnesss Residence,
Employment or Place of Regular Business

The taking and defending of depositions is one of the most important responsibilities a litigating attorney has. Each
witness potentially holds the key to the success (or failure) of the clients cause. Yet, no process in the law is more
misunderstood by the average client.
To a client, depositions are about money. The phrase, taking a deposition means witness fees, court reporter fees,
camera operator fees and transcription fees to a client. It means paying for lawyers plane tickets and hotel bills. It
means hour stacked upon hour of attorneys fees, all for the sake of coercing a potential witness into telling now
what he will ultimately tell at trial anyway. In this mindset, a client can be quick to question the necessity of this
pre-trial device. In every case, the answer is the same: Your clients cause may be decided on the outcome of a
single deposition.
Depositions bring the controversy to life. They turn lists of names that seem to exist only in pleadings and docket
sheets into living, breathing witnesses. As an attorney conducting a deposition, it is your job to take the words of
these witnesses and make them the centerpiece of your clients case. This book will show you how to do it.

Depositions require the most thought, preparation, and skill of any other pretrial activity. Yet many lawyers set and
take depositions with very little advance consideration of when or whom to depose. This is a terrible mistake. If you
wait until shortly before the court-imposed discovery cut-off to begin taking any depositions, you will seriously
jeopardize your chances at trial, needlessly increase costs, and make further discovery much more difficult.
If you delay depositions merely because you have not finished neatly indexing produced documents, you may over-
organize and miss the most critical information easily obtainable through key depositions. If you permit your
opponent to take up most of the available calendar by setting his own depositions, you will be greatly frustrated
later as you try to catch up and find that opposing witnesses know the issues and traps better than your witnesses
did. Thus, the timing of depositions, order of depositions, and identity of proposed deponents are matters you
should attend to from the very beginning.
At the time the case is filed or served, you should prepare your own written proposed deposition order and deadline
schedule. Deciding whether, who, and when to depose at the very outset of the case forces you to think not about
theories but about the case. It is no doubt important that proper theories or defenses be pled, but the case is the
witnesses and their documents. Is it possible to know at the beginning of a case who and in what order to depose? In
most cases, yes.
Even at the beginning you will know those few key questions which are begging for answers: Why did you think
you were excused from performing? Did my client admit anything to you? How fast were you driving? They
are the questions which cause a hush to fall over the conference room after hours of monotonous questioning. The
answers are usually preceded by incorrect objections, improper instructions, or suspicious restroom breaks. The key
questions may be simple or somewhat complex, but they are usually quite obvious upon adequate reflection.
At the beginning of almost any case, you will generally know not only what to ask, but whom to ask. Consideration
of the key questions, together with the type of case, will guide your planning. For example, you are prosecuting a
product liability case. One of the key questions may be: Did the defendant company ever give pre-manufacture
consideration of the potential danger from this design? Given that key question and the type of defendant, you can
make a realistic and sensible deposition decision as follows:
The internal information is probably not available from industry or public sources;
Deposition(s) of company personnel will be required;
The exact identity of the right personnel is unknown; and
Documents on the subject are likely to be voluminous and complex.
From this you decide you need depositions and discovery in this order:
(1) Written document requests seeking research and development documents on the design;
(2) Deposition of 30(b)(6) designee(s) to authenticate and explain documents; and
(3) Deposition of person(s) in research and development to answer the key question and others relating to the
design.
You should never approach two cases with the same deposition plan. Nor, obviously, should your plan be inflexible
given the many changes to be expected as the case progresses. Despite the vagaries and uncertainties, however,
basic principles and predictable rules generally apply. It is possible to plan sensibly, keeping costs and objectives in
mind. This chapter will help you focus on the issues to consider before serving a deposition notice on opposing
counsel.

The first step in the deposition process is to determine whether you need to take a deposition at all. This basic
question is too often overlooked. A deposition should only be taken after thoroughly weighing its advantages and
disadvantages.
This rule applies even if it is your witness who has been noticed. As part of your preparation to defend a deposition,
you must determine whether it was properly noticed, whether counsel has chosen the appropriate format, witness,
and location for the deposition, and whether he is justified in taking the deposition. Do not allow your opponent to
indiscriminately take whatever deposition he wants at whatever time and place he chooses.
You will normally want to take the deposition of key witnesses associated with the opposing party or those who are
otherwise hostile to your clients case. However, what about witnesses whose testimony is tangential or cumulative
or who can be relied upon to testify upon behalf of your clients claims without the need of a deposition? Should
you depose everyone in sight? Can your client afford the cost?
As you proceed through the discovery process, you will have to make difficult decisions about who should be
deposed and who need not be deposed. Your analysis will depend upon your discovery goals and the costs of using
depositions to achieve those goals.

Depositions are unique among the various means of formal discovery because they permit direct questioning and
follow-up without opposing counsel structuring the response to your inquiry. They are valuable tools if used for
their proper purposes, which include:
To educate yourself regarding your opponents evidence, claims and legal theories, and to uncover
weaknesses in your opponents evidence.
To discover the identity of other witnesses, evidence, or documents which might help you prepare your case.
To explore your opponents complex or technical documents that are not self-explanatory.
To force admissions from your opposing party.
To enable you to better evaluate the case for settlement.
To evaluate witnesses, including their ability to handle cross-examination and their potential impact on the
finder of fact.
To adduce evidence for a dispositive motion such as a motion for summary judgment.
To commit adverse witnesses to specific testimony.
To educate the opposition as to weaknesses in its case and to foster settlement.
To perpetuate testimony for trial, e.g., the witness may die, or be absent from the jurisdiction at the time of
trial.
To show the other side that you are on top of the case and actually getting ready for trial.
Each of these purposes provides a strong reason to take a deposition. In too many cases, however, a lawyer will
proceed to take a deposition without considering its purpose. To his surprise, the deposition turns out to be
unnecessary or even harmful to his case.

In the development of a discovery plan, there are several alternatives to consider before noticing a deposition.
1. Mandatory Disclosures
Be aware of the applicability of the mandatory disclosure requirements of Rule 26(a). Effective December 1,
2000, a party is subject to mandatory disclosure without waiting for a discovery request. Under the new
amendment, a party is required to disclose information about people, documents and tangible things that it may
use to support its claims or defenses, unless solely for impeachment. Rule 26(a) is no longer subject to a
mandatory opt-out provision. The 2000 amendment invalidates not only formal local rules but also a judges
informal standing orders that create exceptions to mandatory disclosure. These disclosure requirements
include:
A. Initial Disclosures: Under Rule 26(a)(1), the initial mandatory disclosures require:
The identity, location and subjects of information of each lay witness that the disclosing party may use to
support its claims or defenses, unless solely for impeachment;
Copies or a description by category and location of all documents and tangible things that the disclosing
party may use in support of its claims or defenses, unless solely for impeachment;
A computation of damages, together with copies of nonprivileged documents upon which the
computation is based; and,
Copies of liability insurance policies.
These initial disclosure requirements, generally made within 10 days following the meeting of counsel
pursuant to Rule 26(f), were designed to be the functional equivalent of court-ordered interrogatories. The
information provided by this disclosure should allow you not only to prepare a case for trial or other
resolution, but also to develop an effective discovery plan.
In cases where witnesses or documents are voluminous, the parties can agree to forego this disclosure.
However, when the parties do forego disclosure, the court can order an exchange of similar information to
manage the case under Rule 16.
A party can object to a Rule 26(a) disclosure as inappropriate but it must make that objection during a
Rule 26(f) scheduling conference and include the objection in the Rule 26(f) report. If the party does not
object, the information must be disclosed within 14 days.
Lastly, a party may still file written discovery requests and discovery motions to obtain what opposing
counsel is not required to disclose under Rule 26(a). Of course, because mandatory disclosure does not apply
to witnesses or documents that a party does not intend to use in support of its case, you may wish to issue
written discovery tailored to the case.
B. Expert Witnesses: Rule 26(a)(2) provides for the mandatory disclosure of the identity of expert witnesses to
be used at trial. In addition, you are required to exchange a written report, prepared and signed by each
expert witness, that discloses:
A complete statement of all opinions the expert will express as well as the reasons for the opinions;
The data or other information the expert considered in forming the opinions;
Any exhibits that will be used as a summary or in support of the opinions;
The experts qualifications, including a list of publications within the last 10 years;
The compensation paid for preparation and testimony; and,
A list of all cases in which the expert has testified as an expert witness, in trial or by deposition, during
the last 10 years.
Under new Rule 26(a)(1), a party may seek a court order to vary the disclosure time for experts;
otherwise, expert witness disclosures will generally be made within 90 days before the trial date. Mandatory
disclosure of expert witness information is extremely important in the implementation of your discovery
plan, especially in the evaluation of the desirability or necessity of deposing your adversarys experts.
Practice Tip: Mandatory Disclosures

Effective December 1, 2000, a party is subject to mandatory disclosure of lay witnesses and expert
witnesses without a formal written discovery request under Rule 26. Many states have also adopted
mandatory disclosure rules. If you are accustomed to issuing written interrogatories and production
requests to the opposing party regarding expert witnesses, then you may wish to seek leave of court to
propound such discovery. You may also wish to seek a court order to modify the expert disclosure date
and establish an expert discovery schedule.
C. Pretrial Disclosures: Rule 26(a)(3) contains mandatory pretrial disclosures, including:

The identification of witnesses, whether previously disclosed or not, who are expected to testify at trial;
The designation of witnesses whose testimony will be offered by way of deposition; and,
An appropriate identification of each document or exhibit, including summaries or other evidence,
expected to be offered at trial.
These pretrial disclosures generally occur when discovery has already been cut-off, but the late disclosure
of a previously unknown witness may prompt you to move the court to allow you to depose a potentially
harmful witness.
D. State Rules: The majority of states patterned their discovery statutes on the Rules, but only a few have
adopted the mandatory disclosure requirements embodied in Rule 26(a). See Ariz. Civ. Rule 26.1, and
Colo. Civ. C.P. Rule 26.
2. Interrogatories to a Party Under Rule 33
With the advent of statutory and judicially mandated disclosure programs, interrogatories seeking objective
data may be unnecessary. However, if your jurisdiction does not require initial disclosures, interrogatories are
still an efficient and economical tool to elicit information. Since interrogatories seek the collective knowledge of
the adverse party and counsel, you can use them to obtain:
The identification and knowledge of percipient witnesses;
A description of documentary evidence relevant to the litigation;
The identification of expert witnesses including their opinions and the basis thereof; and
The contentions and supporting information of the adverse party.
Often being less intrusive than the deposition process, the use of interrogatories may be necessary if you seek
discovery directly from certain potential witnesses such as opposing counsel or the head of a corporation.
However, some jurisdictions place limits on the number of interrogatories that you can propound, so use them
judiciously, and not when the information sought is subjective in nature.
3. Request for Production of Documents to a Party Under Rule 34
As with interrogatories, a request for production of documents is unnecessary under the mandatory initial
disclosure requirements of Rule 26(a)(1). In the absence of mandated disclosure, a request for production of
documents under Rule 34 represents an inexpensive means to obtain documents and records in the possession of
your opponent.
4. Request for Admissions Under Rule 36
As part of an effective discovery plan, request for admissions under Rule 36 cannot be overemphasized.
Unlike other discovery tools, there is generally no limit as to the number of requests that can be propounded.
Since an aim of discovery is to obtain admissions from the opposing side, carefully tailored requests of facts,
opinions, or the application of law to fact, can be a powerful tool to achieve this goal. You can obtain binding
admissions on things like the authenticity of documents and signatures, applicability of company policies,
insurance coverage, dates of events, presence of witnesses, etc. By obtaining key admissions, depositions may
well be shortened or unnecessary.
5. Informal Witness/Party Interviews
Prior to the filing of suit or discovery, consider interviewing a nonparty or associated witness in an informal
setting. Interviews not only help in the analysis of your case, but you may be able to commit the witness to a
specific version of the facts through the use of a prepared affidavit for the witnesss signature, or a signed
witness statement obtained in person by an investigator or legal assistant. The rules regarding informal
interviews with witnesses become more complicated when the witnesses you want to interview are current or
former employees of an organization represented by counsel, that is, a party or potential party to a lawsuit. In
general, rules of professional conduct prohibit an attorney from communicating ex parte with another party that
is represented by counsel regarding the subject matter of the representation, absent consent of the counsel. But
when that opposing party is an organization, it becomes complicated to whom the prohibition of ex parte
communication extends. May an attorney interview the current or former employees of an organizational
opponent without first notifying counsel for the opponent?
Courts faced with this question generally start with the rule of professional conduct applicable in the relevant
jurisdiction and then from there try to craft parameters for ex parte communications so as to effectuate the
dictates of those rules of professional conduct. Not surprisingly, this is a rapidly evolving area of the law, and it
is essential that before you endeavor to seek informal discovery from current or former employees of your
opponent, you should carefully review the latest law from the applicable jurisdiction.
Some courts have adopted a bright line rule prohibiting any communication, without notice to opposing
counsel, with current or former employees of the party-opponent. For example, in adopting such a bright line
rule, the United States District Court for the District of New Jersey, in Public Service Electric and Gas Comp. v.
AEGIS, 745 F. Supp. 1037 (D.N.J. 1990), looked first at the ABA MODEL RULES OF PROFESSIONAL CONDUCT
4.2:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other
lawyer or is authorized to do so by law or a court order.
Id. at 1039. The Court then examined the Comment to Rule 4.2, which clarifies that where the represented party
is an organization, then the prohibition extends to any individuals (1) who held a managerial role, (2) whose acts
or omissions in connection with the matter could be imputed to the organization, or (3) whose statements could
be considered an evidentiary admission by the organization. Id. The Court next observed that it is impossible for
an attorney contemplating conducting an ex parte interview to know, beforehand, whether statements of the
targeted witness might be imputed to the organization. As such, adoption of a bright line rule prohibiting
communications with former employees (and, by implication, current employees) was the only way to guard
against overreaching by the investigating party. Id. at 1042.
The Seventh Circuit, in Weibrecht v. Southern Illinois Transfer, Inc., 241 F.3d 875 (7th Cir. 2001),
interpreted the same ABA MODEL RULE OF PROFESSIONAL CONDUCT 4.2, but did not find that a bright line rule
was necessary. Instead, the court found that whether ex parte communications with current employees (it did not
address former employees) is appropriate should be addressed on a case by case basis by analyzing each of the
three criteria set forth in the commentary to Rule 4.2. While the decision in Weibrecht gives attorneys
considering informal discovery from current or former employees of an organizational opponent greater latitude
than the bright line prohibition adopted in AEGIS, it is not a wholly comforting decision in its failure to provide
any clear guidelines for lawyers to follow.
Courts in Massachusetts recently, interpreting the MASSACHUSETTS RULE OF PROFESSIONAL CONDUCT 4.2
(which varies from the ABA model rule), have embraced an even more permissive standard. In Messing,
Rudavasky & Weiliky v. President and Fellows of Harvard College, 764 N.E.2d 825, 833 (Mass. 2002), the
Massachusetts Supreme Judicial Court found that the ban against ex parte communications with current
employees extends only to those with managerial responsibilities who have the authority to commit the
organization to a position regarding the subject matter of representation. In Clark v. Beverly Health and
Rehabilitation Services, Inc., 797 N.E. 2d 905 (Mass. 2003), the same court held that an attorney seeking to
interview former employees need not, under Rule 4.2, notify counsel for the organizational opponent. Of course,
if the former employees have retained their own counsel, the restrictions of Rule 4.2 would still apply.
Practice Tip: Questions to Ask at the Beginning of Any Ex Parte Interview of a Former
Employee of Your Opponent
As described above, some jurisdictions do permit ex parte interviews of former employees of your
opponent under certain circumstances. Those that do permit such interviews, however, typically place
certain limits on the interviews. Here the attorney: (1) may not conduct an ex parte interview of the former
employee if the former employee has retained his or her own counsel; (2) may not inquire into privileged
communications made during the course of the former employment; and (3) may not ask questions that
may reveal trade secrets or other confidential information learned in the course of the former
employment. See, e.g., PPG Industries, Inc. v. BASF Corp., 134 F.R.D. 118 (W.D. Pa. 1990). Because of
these restrictions, it is advisable at the beginning of any ex parte interview with a former employee to ask
the following questions:
1. Are you represented by your own counsel?
2. If you believe that the answer to any question that I ask you today may reveal the substance of any
written or spoken communication between you and any lawyer for your former employee that you
had during the course of your former employment, I want you to tell me that before you answer the
particular question. Do you understand?
3. If you believe that the answer to any question that I ask you today may reveal any trade secret or
other confidential information of your former employer that you learned during the course of your
former employment, I want you to tell me that before you answer the particular question. Do you
understand?
113Failure to Disclose Information
As newly amended, Rule 37(c)(1) provides:
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1) or to
amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted
to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.
Under Rule 26(a), discoverable information which is subject to mandatory disclosure includes witnesses, documents
and tangible things that a party may use to its claims or defenses, unless solely for impeachment. The Advisory
Committee on Civil Rules defined the term use to include presentation in discovery. Importantly, the obligation
extends to all documents that a party intends to use in questioning a witness during a deposition, and it applies to
witnesses and documents that a party intends to use if the need arises. However, mandatory disclosure does not
expressly require disclosure of work product or specification of individual documents but merely disclosure of
documents by category and location. Intel Corp. v. VIA Tech., Inc., 204 F.R.D. 450, 452 (N.D. Cal. 2001). Further,
mandatory disclosure is inapplicable to a witness that the disclosing party does not intend to call as a witness at trial.
Gluck v. Ansett Australia Ltd., 204 F.R.D. 217, 221 (D.D.C. 2001).
Some courts have already imposed sanctions under the newly amended Rule 37(c)(1) for failure to comply with
mandatory disclosure. For example, in Biltrite Corp. v. World Road Markings, Inc., 202 F.R.D. 359 (D. Mass.
2001), the court held that the failure of the defendant to disclose the true identity and address of the corporations
president warranted sanctions. The court noted that the obvious purpose of Rule 26(a) is to give the opposing party
information as to the identification and location of persons with knowledge for purposes of being deposed. Id. at
362.
Rule 26(e) further requires the parties to make supplemental mandatory disclosure if the original disclosure was
incomplete or incorrect. In Nicholas v. Pennsylvania State University, 227 F.3d 133 (3rd Cir. 2000), the court
excluded the plaintiffs videotaped evidence that had not been timely disclosed because late disclosure would
compromise defendants pretrial discovery preparation. The court observed that Rule 37(c)(1) was amended in 2000
so that sanctions can be imposed when a party fails to comply with its duty to supplement. Id. at 148.
Thus, at the time of a discovery deposition an opposing partys failure to comply with mandatory disclosure should
result in an objection to counsels use of undisclosed documents or tangible things, unless directly related to
impeachment only.

Under the Rules, you can depose any person whose attendance can be obtained by notice, subpoena or by agreement
of counsel. In most cases, the difficulty lies in choosing who should be deposed. You will normally want to take the
deposition of the opposing party or, if that party is a corporation or association, of one or more of its officers or
employees who were most directly involved in the subject matter of the dispute. You may also want to take the
depositions of principal nonparty witnesses. Beyond those persons, weigh carefully the costs and benefits of
deposing other, lesser involved, witnesses. The questions you should answer before scheduling each deposition are:
What benefits do I anticipate from taking the deposition? Do these benefits outweigh the potential disadvantages?

Often, the first witness you will want to depose is the adverse party or the knowledgeable agents of the adverse
party. Thus, in the simplest case, the plaintiff deposes the defendant and the defendant reciprocates. If the case is
more complex, following the deposition of the opposing party, you may take the depositions of the other co-parties
or their agents. The plaintiff will typically depose party defendants, since defendants will refrain from deposing
each other in the absence of filed or contemplated cross-claims. Defendants will, of course, join in taking the
depositions of the plaintiff or plaintiffs. These witnesses generally have the most knowledge relevant to the dispute.
You will want to take these depositions to learn the facts underlying your opponents case, obtain admissions, and
pin down adverse testimony.
In many cases, these party and co-party depositions are the only ones taken. Other witnesses either do not exist or
are handled using other methods. In other words, you want to start with the witnesses who have the most knowledge
and whose testimony you need to pin down. Normally these are adverse witnesses closely connected to the events
which gave rise to the litigation.
Courts exercise discretion as to whether to permit discovery by a defendant of absent plaintiff class members. See
Morgan v. United Parcel Serv. of Am., Inc., No. 4:94-CV-1184, 1998 U.S. Dist. LEXIS 20197, at *3 (E.D. Mo. Oct.
16, 1998) (Discovery of absent plaintiff class members is appropriate when necessary and helpful to the proper
presentation and correct adjudication of the principal suit); M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 103
F.R.D. 635 (D. Mass. 1984) (discovery of absent class members is permissible upon showing that the discovery is
(i) relevant to resolution of common questions; (ii) tendered in good faith; (iii) not unduly burdensome; and (iv) not
readily available from other sources). But see On the House Syndication, Inc. v. Federal Express Corp., 203 F.R.D.
452, 456 (S.D. Cal. 2001) (discovery of absent class members disfavored); Adkins v. Mid-America Growers, Inc.,
141 F.R.D. 466, 468 (N.D. Ill. 1992) ([T]he idea of a class action and individualized discovery do not fit together
well. If joinder of all parties is impracticable, propounding discovery like interrogatories, depositions, and
requests to produce on an individual basis is even more impracticable.).

In most cases, there are witnesses who do not belong by legal affiliation, employment, or relation to either litigant.
Independent witnesses, however, are usually anything but. Despite their seeming lack of interest in or connection
with the litigation, most witnesses do choose sides and can become a forceful advocate on behalf of one of the
litigants. When confronted, attacked or challenged, they tend to become more entrenched to one version of the facts
or party.
In deciding whether to depose these independent witnesses, you should carefully review any prior statements the
witness made that were obtained by the partys investigators or that are contained in documents such as police and
accident reports. Is the testimony truly important to your case? Will the witness be available at trial? Can you
discredit the witnesss version? Where you have little or no information as to the witnesss knowledge, should you
secure a statement from the witness through an investigator before incurring the expense of a deposition?
An independent witness clearly aligned with the opposing side should be treated in the same manner as an adverse
party or agent. Generally, you should depose an adverse independent witness:
in order to eliminate the element of surprise by uncovering damaging testimony before trial;
to evaluate demeanor and credibility during cross-examination;
to expose weaknesses in testimony;
to extract favorable admissions and facts; and
to confine the witnesss overall testimony.
Unlike adverse witnesses, you should avoid taking the depositions of favorable or friendly independent
witnesses. This decision will probably be academic since your adversary will likely opt to depose independent
witnesses adverse to his or her case. Nevertheless, you may decide to depose a friendly witness where:
the witness will be unavailable at trial (which may also necessitate a videotaped deposition);
the witness is likely to forget (e.g., an elderly person, or a police officer who will perform many other
investigations prior to trial or where trial is several years from the incident);
the witness is suspect since the witness has met or will meet with opposing counsel;
the witness is reluctant because the witness does not want to be involved, or refuses to meet or talk with
you;
the witness has important information needed by your expert in forming his or her opinions;
the deposition will facilitate settlement; and
you need to create a factual record for a dispositive motion such as a summary judgment motion.
Practice Tip: Factors in Deposing an Independent Witness

In weighing whether to depose an independent witness, you should consider the following factors:
The importance of the testimony in the development of your case;
The presence or absence of prior statements by the witness;
Whether the witness is adverse or favorable to your case;
The availability of the witness for trial; and
The goals of the deposition, i.e., evaluate demeanor, tie-down testimony, facilitate settlement,
develop facts for expert opinions or a record for dispositive motion.
Many lawyers treat adverse experts as adverse parties, that is, in the absence of very special circumstances, they
simply depose them all. This is extremely costly and often damaging and unnecessary. Remember that juries seldom
accept all the testimony of paid experts, even if they are not cross-examined; and they are usually confused by
experts jargon.
Furthermore, your response to any expert is likely to be another expert who, without much assistance from you, can
show the deficiencies and inconsistencies of your opponent. Also, in most cases, the experts prior depositions and
publications are available from public sources or other lawyers. Thus, much of what might be accomplished by
deposition can be accomplished in other easier ways.
Rather than automatically take every adverse experts deposition, you should affirmatively conclude that a
deposition is warranted or desirable based upon a review of your opponents mandatory disclosure obligations or
responses to written discovery. In light of the recent amendments to Rule 26, you must carefully examine the
version of the rules that govern in your jurisdiction to determine what disclosures and discovery of expert opinion is
permissible.
Under the current version of Rule 26(a)(2), expert testimony is subject to mandatory disclosure which must be
made, in the absence of a court order or stipulation, at least 90 days before the trial date or the date the case is to be
ready for trial or, if the evidence is intended solely to contradict or rebut evidence on the same subject matter
identified by another party, within 30 days after the disclosure is made by the other party.
Parties are now required to disclose not only the identity of persons who may testify under Federal Rules of
Evidence 702, 703, or 705, but also any written report, signed by the witness, for experts who are specifically
retained. The report must contain:
A complete statement of all expert opinions together with the basis and reasons for the opinions expressed,
The data and other information that the expert considered,
Exhibits,
The witnesss qualifications,
A list of all publications that the witness authored within the past 10 years,
The compensation to be paid, and
A list of any other cases in which the expert has testified as an expert at trial or deposition within the
proceeding 4 years.
Since the report required by Rule 26(a)(2)(B) is intended to set forth the substance of the direct examination of
the expert witness, the required disclosures are intended to assist the lawyer in the determination of whether an
experts deposition is needed.
While the interrogatory approach has acknowledged disadvantages (see Official Comments to Rule 26(a)(2)(A)), a
remedy under Rule 37 may be available for inadequate, evasive or incomplete responses. This is especially true if
your judge is inclined to prohibit or limit expert testimony which is not disclosed.
Practice Tip: Expert Witness Depositions

Prior to initiating expert witness depositions, consider the following:
Are you subject to mandatory disclosures under local court rules requiring the identification of
experts and production of expert reports or opinions?
If not, have you received interrogatory answers from your opponent which have disclosed trial
experts, their opinions and their grounds to be expressed at trial?
What is the relative importance of the deposition? Do you need to depose your opponents experts
in order to better prepare yourself for trial by providing additional information to your expert to
explain or rebut adverse opinions, to limit the scope of the experts trial testimony and to extract
damaging admissions or concessions from your opponents experts?
Do the costs (including your experts deposition) outweigh the relative importance of deposing the
other sides expert?
Rule 26(b)(4)(A) allows for depositions of expert witnesses without a court order. However, the deposition may not
be taken until the attorney who has designated the expert has provided opposing counsel with the mandatory
disclosures report.
Even though most state discovery statutes are patterned in whole or in part on the Federal Rules, many states have
adopted the mandatory expert disclosure requirements of Rule 26(a)(2). Nearly all states allow for the pretrial
discovery of experts through the use of interrogatories, depositions (without a prior court order) or both.
Practice Tip: Mandatory Expert Disclosures

Many state jurisdictions have not implemented the disclosure requirements of Rule 26. Carefully
review the Rules which apply to your case.
In light of mandatory expert disclosures and depositions, with or without court order, there are still considerations
you should weigh in deciding whether an experts deposition is actually needed. The following are factors to
consider:
1. What are the total costs of the first deposition? Remember, if you take one opposing experts deposition, all
experts on both sides are likely to be deposed. You must therefore consider all experts, not just the time and
costs of the first expert.
2. Does your expert require further exploration of his or her opponents opinions? If not, the deposition may be
unnecessary and your expert is adequately prepared to respond. If so, can the explanation be obtained
through mandatory expert disclosures or written discovery?
3. Have you taken adequate steps (such as a motion to compel or in the alternative, to exclude) to guard against
the experts surprise opinions, tests, analyses, or studies at trial? Have you obtained or can you obtain an
exclusionary order from the judge based upon the scope of your opponents disclosures? If not, can you
really limit the experts testimony through a deposition? This will generally depend upon the skill and
completeness of your questioning.
4. If you can obtain an exclusionary order, do you wish one? Any such order will likely be reciprocal and you
may prefer your own experts to enjoy some flexibility.
5. Have you obtained or can you obtain sufficient impeachment material from other depositions or published
work? Often you will not reveal such material in a deposition anyway and seldom can you obtain this
material in a deposition.
6. Can you find all of the underlying data for the experts opinion without a deposition? Often the most critical
and harmful information is not the opinions themselves but the basis for the opinions, such as otherwise
inadmissible information or hearsay. Federal Rules of Evidence 703 may allow the inadmissible to be
admitted under some circumstances. See, generally, 3 J. WEINSTEIN AND M. BERGER, WEINSTEINS
EVIDENCE, 703[02] (Supp. 1983); American Universal Ins. Co. v. Falzone, 644 F.2d 65, 66 (1st Cir. 1981).
This concern alone may justify an experts deposition.
7. Is the expert likely to prepare or use extensive charts, videography, or illustrative exhibits? If so, does the
mandatory disclosure report, with reference to exhibits, provide you with sufficient insight into his or her
thinking without a deposition? Should you get some hint of the experts thoughts and preparation in advance
of trial through a thorough deposition? This allows you to respond in kind and avoid being the party with the
least impressive and convincing visuals at trial.
8. Is your opponent balking at a deposition, preferring instead to supply overly verbose expert reports or
interrogatory answers? This may mean that the expert does not support your opponents case entirely and
would admit so under cross-examination. Even more significant are commencement or continuation of
settlement negotiations conditioned upon not taking the experts deposition under the guise of avoiding
costs? Under such circumstances, the deposition may be critical before considering or finalizing any -
settlements.
9. Are there answers, analyses, or studies which your expert cannot explain? Perhaps the opposing expert is
better qualified or has done a more extensive investigation. If so, the first to depose the other has a decided
advantage in either limiting the less knowledgeable expert or exploiting and incorporating work done by the
more knowledgeable expert.
10. Will the deposition force both your opponent and his or her expert to better prepare? Noticing an experts
deposition will, like nothing else, create a flurry of intense preparation. See 112. A seasoned expert will
expect a deposition and will likely delay significant work on the case until shortly before it occurs.
11. In evaluating costs, do you need your expert to be present at the deposition? Or, do you at least need the
expert to assist with the preparation of your questioning?
12. Do you have a clear understanding with your opponent(s) concerning the experts fees? See 241. Typically
the opposing lawyer pays for deposition time, but not preparation time. The amount of the fees and amount
of paid time should be decided by written stipulation before, not after, the deposition. Do you know the
experts hourly rate or daily rate, and have you seen any published fee schedules as substantiation? If you
have agreed to pay the opposing expert, have your opponents agreed to the same terms for your experts?
13. Are you able to prevent or restrict the deposition of your expert? If so, attempt to have the court limit
questioning into known sensitive areas such as prior cases, gross income, privileged information supplied by
counsel, consultation with experts retained but not expected, to be called, etc.

Where you seek to obtain deposition testimony from a corporation, partnership or governmental agency, it is
unlikely that you know the identity of the most knowledgeable witness on the issues related to the dispute. To avoid
the difficulties encountered by both sides in determining the appropriate witness, Rule 30(b)(6) allows the
examining party the option of having the entity designate one or more witnesses who are capable of providing the
information sought. Rule 30(b)(6) provides:
A party may in the partys notice and in a subpoena name as the deponent a public or private corporation or a
partnership or association or governmental agency and describe with reasonable particularity the matters on which
examination is required. In that event, the organization so named shall designate one or more officers, directors, or
managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person
designated, the matters on which the person will testify. A subpoena shall advise a non-party organization of its
duty to make such a designation. The persons so designated shall testify as to matters known or reasonably
available to the organization.
By its language, a Rule 30(b)(6) notice of deposition or subpoena is limited to non-individuals such as a
corporation, partnership, association or governmental agency. The notice or subpoena to such an entity need only
describe the subject matters or topics for examination with reasonable particularity. The burden imposed by this
specific requirement is substantially the same as that imposed in responding to interrogatories or requests for
production of documents.
Once served with a Rule 30(b)(6) notice of deposition or subpoena, a number of duties are imposed upon the
responding entity, especially where that entity is a party to the litigation. Obviously, you cannot depose a
corporation itself. As a result, the corporation appears vicariously through its designee, whose responses are binding
upon the corporation. The corporation has an affirmative duty to designate one or more persons to satisfy the topics
for examination contained in the notice of deposition. Thus, the corporation must make a conscientious and good
faith effort to designate persons having knowledge of the matters sought by the examining party. See U.S. v.
Taylor, 166 F.R.D. 356 (M.D.N.C. 1996).
Because Rule 30(b)(6) imposes a duty on a corporation to select individuals to testify on its behalf, it would appear
that the organization does not have to designate or produce a specific individual, as long as the person designated is
knowledgeable concerning the subject area. Sanders v. Circle K Corp., 137 F.R.D. 292 (D. Ariz. 1991) (In sexual
harassment suit, corporation not required to designate the former employees direct supervisor as the corporate
spokesman; sanctions ordered against Plaintiff for frivolous motion to compel personal defendant employee to act
as 30(b)(6) witness). However, the examining party can notice the deposition of a specific officer, director or
managing agent of a party entity under Rule 30(b)(1). Stone v. Morton Intern, Inc., 170 F.R.D. 498, 503 (D. Utah
1997).
Practice Tip: Rule 30(b)(6) Depositions

Applies only to non-individuals such as corporations, associations and governmental agencies;
Need only describe the topic areas of examination with reasonable particularity;
Requires deposed entity to select knowledgeable persons to testify on designated areas;
Requires deposed entity, especially corporate party, to investigate and prepare designated persons
from information reasonably available, including corporate documents and past employees;
Answers, including subjective beliefs and opinions, by corporate designated individual are binding
upon the corporation;
Subjects entity to possible sanctions for failure to properly designate or prepare individual for
deposition.
Not only is a corporate entity required to designate a knowledgeable individual, but a duty to investigate, prepare
and produce is also imposed. The duty to prepare a Rule 30(b)(6) designee goes beyond matters personally known
to that designee or matters in which that designee was personally involved. See Buycks-Roberson v. Citibank
Federal Sav. Bank, 162 F.R.D. 338, 343 (N.D. Ill. 1995). In the event that the corporation has no current employee
with sufficient knowledge on the requested areas, the party is nonetheless obligated to prepare an individual to give
complete, knowledgeable and binding answers. Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb.
1995). This duty to investigate and prepare a witness may include:
corporate documents, including memoranda which is arguably attorney-client or attorney work product
privileged materials;
information from past employees; or
any other source reasonably available to the corporate entity. U.S. v. Taylor, 166 F.R.D. 356, 361 (M.D.N.C.
1996); Federal Deposit Insurance Corp. v. Butcher, 116 F.R.D. 196 (E.D. Tenn. 1986).
The duty to investigate and prepare is not restricted to matters that are purely factual in nature. The designee may
be required to respond to questions including those concerning the subjective beliefs and opinions of the
corporation. Lapenna v. Upjohn Co., 110 F.R.D. 15, 20 (E.D. Pa. 1986).
Practice Tip: Use of Rule 30(b)(6) Deposition Notices to Identify Sources of Electronic
Discovery
If you have received what you deem to be an inadequate response to a request for electronic
documents from an opponent that is an organization with multiple employees, you should consider
serving a Rule 30(b)(6) deposition notice aimed at the organizations efforts to identify electronic
information responsive to the document requests. You may want to include as topics:
The organizations efforts to respond to the request for electronic documents.
Who is responsible within the organization for maintaining electronic records.
The organizations electronic record retention policy.
The organizations practice for storing electronic records.
How the organizations electronic information is backed-up.
Whether individuals use different methods for storing electronic records, such as on desktops or
laptops, flash drives, or personal data assistants (PDAs).
What computers, servers, and data storage systems were searched.
What search tools were used or search words employed.
How the organization sorted electronic records identified by the search tools or search words.
How deleted electronic records are stored.
The organizations efforts to recover deleted electronic records.
The testimony you receive on these topics will then form the basis for further negotiations on electronic
document production or for a motion to compel.
Sometimes a witness designated to testify on behalf of an organization will not know the answer to a question that
properly falls within the categories listed in the Rule 30(b)(6) deposition notice. This could be for one of two
reasons: (1) the information is known or available to the organization, but its designee has not been adequately
prepared; or (2) the information is not known to the organization.
If you are taking a deposition and a Rule 30(b)(6) witness professes not to know the answer to a question, you need
to determine whether the reason fits into the first or second category. Thus, you should ask questions such as the
following:
If you wanted to find out the answer to my question, how would you do it?
Who would you talk to?
Are any of them available today? Could you call them on the phone today?
Are there any documents you would want to consult in order to answer my question?
Where are those documents?
Do you know if they were produced in response to written discovery?
If the responses to these questions reveal that the reason for the professed lack of knowledge falls within category 1
(witness not adequately prepared), then the organization has not met its responsibility under Rule 30(b)(6). The
organization may be required to reproduce the witness after further preparation or produce another witness capable
of giving binding testimony on behalf of the organization. Note, however, that where the witness is unprepared on
only a few discrete questions, courts have found that calling in an entirely new witness would be unduly
burdensome and have ordered compromises, such as submitting deposition questions to be answered in writing. See,
e.g., Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 137, 142-43 (D.D.C. 1998). Where courts have found
that the witnesss inability to answer the questions was the result of a general lack of preparation for the deposition,
courts have imposed sanctions under Rule 37 as if the party had failed to produce a witness at all. See Bank of New
York v. Meridien Biao Bank Tanzania, 171 F.R.D. 153, 151 (S.D.N.Y. 1997); Constellation NewEnergy, Inc. v.
Powerweb, Inc., No. 02-2733, 2004 U.S. Dist. LEXIS 15865 (E.D. Pa. Aug. 10, 2004) (Imposing sanctions under
Rule 37 after stating, that the 30(b)(6) witness may have been unprepared is no excuse .... We find that [the
witness] failed to appear in a meaningful way for that portion of the Rule 30(b)(6) deposition which discussed [a
particular issue of the case].).
The result is different if the Rule 30(b)(6) witnesss inability to answer a question is due to a lack of information on
the part of the organization. Organizations, like individuals, may claim a lack of institutional memory (particularly
when the relevant individuals within the organization have since left) or knowledge. See Dravo Corp. v. Liberty
Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb. 1995) (If [the organization] does not possess such knowledge so as to
prepare [its designees], then its obligations under Rule 30(b)(6) obviously cease, since the rule requires testimony
only as to matters known or reasonably available to the organization. (citing the rule)). In such a circumstance,
however, the organization may be bound by its inability to answer a question and may be precluded, absent a good
excuse, from presenting evidence at trial going to the question asked during the deposition. See Taylor, 166 F.R.D.
at 362 (I[f] a party states that it has no knowledge or position as to a set of alleged facts or areas of inquiry at a
Rule 30(b)(6) deposition, it cannot argue for a contrary position at trial without introducing evidence explaining the
reason for the change.); Rainey v. Am. Forest and Paper Assoc., 26 F. Supp. 2d 82 (D.D.C. 1998) (Unless it can
prove that the information was not known or was inaccessible, a corporation cannot later proffer new or different
allegations that could have been made at the time of the 30(b)(6) deposition.).
During the actual deposition of a Rule 30(b)(6) designee, the scope of objections is the same as any other deponent.
If the examination goes outside the requested areas, there is some dispute as to whether an objection on that ground
would be proper. The better approach would seem to allow for these questions even though they are technically
beyond the defined areas of inquiry. See, King v. Pratt & Whitney, 161 F.R.D. 475 (S.D. Fla. 1995). See 715.
Before the deposition begins, the corporate party and its counsel should examine the notice of deposition to
determine whether there are objectionable categories that require an informal attempt to limit the areas of deposition
that might require a motion for a protective order under Rule 26(c). See 154 (objecting to a Rule 30(b)(6)
deposition).
Practice Tip: Outside Inquiry During the Deposition

The reality is that even when the organizations counsel in good faith prepares the designated Rule
30(b)(6) witness on each of the categories listed in the deposition notice, there are bound to be questions
that the attorney did not anticipate and on which the witness is not prepared, but the answers to which are
otherwise known to the organization. In such a circumstance, it may be in both parties interest to have
the witness try to ascertain during a break an answer to the question posed. The examining attorney gets
an answer to the question, and the defending attorney avoids the prospect of having to bring in another
witness on a different day to answer a question that falls within a noticed category.

Rule 30 expressly provides limitations on the number of depositions that can be taken as well as the number of
times a witness may be deposed. In the absence of a court order or stipulation between the parties, Rule 30 now
provides for a presumptive limit of ten (10) depositions by the plaintiff, defendant or a third-party defendant. A
deposition taken under Rule 30(b)(6) [deposition of corporate entity] should be treated as a single deposition even
though more than one individual may be designated to testify. In multiple party cases, it is expected that the parties
will confer and agree as to which depositions are most needed. If disputes cannot be amicably resolved, counsel can
request that the court resolve the dispute or permit additional depositions. These changes were designed to ensure
judicial review under the standards articulated in Rule 26(b)(2). The changes also require counsel to develop a
mutually cost-effective discovery plan for the case.
The ten (10) deposition limit of Rule 30 may be altered either by court order or by local rule. Leave to conduct
additional depositions, or to reduce the number of depositions, should be guided by the following factors: 1)
whether the deposition is unreasonably cumulative or duplicative, 2) whether the party has had ample opportunity to
discover the information it seeks, and 3) whether the burden or expense of the proposed discovery outweighs its
likely benefit and its importance in resolving the issues. See Rule 26(b)(2).
Where a party believes that a witness whose testimony is considered necessary for trial may not be available for
trial, the party may take what is called a de bene esse deposition in order to preserve that witnesss testimony for
trial. Such deposition testimony, if the party against whom it would be offered has the opportunity to appear at the
deposition and to examine the witness, is admissible as an exception to the hearsay rule under Fed. R. Evid.
804(b)(1). If the party seeking the de bene esse deposition can show that the witness really may not be available at
trial and that the purpose of the deposition is to preserve testimony, then most courts will permit the deposition even
if the deposition limit has already been reached. Thus, for example, in Bouygues Telecom S.A. v. Tekelec, Inc., 238
F.R.D. 413 (E.D.N.C. 2006), the court found that the partys characterization of a proposed deposition as de bene
esse in order to exceed the deposition limit set in the case management order was not a sham, where the witness
lived in a foreign country and expressed an unwillingness to voluntarily appear for examination. Id. at 415. The
court further observed the difference between a discovery deposition and a deposition meant to preserve testimony
for trial.
Rule 30 also places a limit on the retaking of a deposition of someone who has previously given a deposition in
the action. Rule 30(a)(2)(B) requires leave of court if any witness is to be deposed in the action more than once.
This limitation does not apply, however, where the deposition has been temporarily recessed for the convenience of
counsel or the deponent. If you are defending a deposition in a jurisdiction without time limits (see Federal Rules of
Civil Procedure 30(d)(2), which imposes a one day and seven hour limitation on depositions in cases pending in
federal court), be wary of examining attorneys who appear to be at the end of their questioning, but who
nevertheless suspend the deposition to a later unscheduled date. The examining attorney probably wants to wait to
get the transcript from the first day and then take time to reflect on whether further examination is merited. Such a
tactic is an abuse of the principle that a witness cannot be deposed a second time without leave of court. If at the end
of the day the examining attorney announces an intention to suspend the deposition until a later unscheduled date
and you believe the attorney is essentially at the end of his or her examination, politely ask what the attorney has left
to cover. If the attorney refuses to answer, as is likely, you are establishing a record to seek a protective order or to
defend against a motion to compel if you refuse to produce your witness for additional days. If you are hesitant to
get the court involved too quickly, offer to bring the witness back the next day so that the examining attorney cannot
benefit from a long period of reflection.
Some courts, following the distinction between discovery and de bene esse depositions have allowed a second
deposition of a witness for the purpose of preserving his or her testimony for trial. See, e.g., In re Norplant
Contraceptive Products Liability Litigation, No. MDL 1038, 1996 WL 42053, *7 (E.D. Tex. Jan. 19, 1996).
However, in cases such as Tutu Water Wells Contamination CERCLA Litigation, 189 F.R.D. 153 (1999), courts
have refused to permit second depositions of witnesses where there was no barrier to the examining partys ability
fully to develop the witnesses testimony during the first deposition.

The timing and sequence of depositions should always be the product of a well thought out and cohesive discovery
plan. The factors to consider in determining when to take depositions include:
When can the depositions be taken?
What is the most effective sequence for deposing various types of witnesses, and
At what stage of your pretrial preparation should depositions be taken?

Rule 26 contains limitations as to when any discovery, including the taking of depositions, can be commenced. Rule
26(d) now provides that unless authorized by another Rule, local rule, order or the agreement of the parties, a party
may not seek discovery from any source until the mandatory discovery meeting of Rule 26(f) has been conducted.
As a result, except in limited circumstances, leave of court must be obtained if a party seeks to take a deposition
before this discovery planning meeting. Rule 26(f)s meeting to develop a discovery plan, along with the
submission of a written report, is mandatory. The timing of this meeting will generally vary in accordance with your
particular jurisdiction and the date of any Rule 16(b) scheduling conference.
The practical effect of Rule 26(d) is to remove some of your discretion and strategy in conducting expedited
discovery following the filing of or answer to a complaint. This stay applies to formal discovery only; it has no
effect upon obtaining interviews from potential witnesses or other informal means of acquiring evidence in your
case.
Practice Tip: Stay on Discovery

Not every jurisdiction has adopted the stay on discovery embodied in Rule 26(d). Check your
jurisdictions rules as to its applicability as well as local court rules which may modify the Rules on
commencement of depositions.
The only exception set forth in Rule 30 is where the notice of deposition contains a certification, with supporting
facts, that the person to be deposed is expected to leave the United States and will be unavailable for examination in
this country unless deposed before that time.
While not every provision of Rule 30(a)(2)(A)-(C) has been adopted on a national basis, the Rules allowing for
either party to initiate depositions have. Nevertheless, some state jurisdictional rules may follow former Rule 30 as
to when the plaintiff may commence a deposition. Under the former Rule, the plaintiff was restricted from taking a
deposition until 30 days after service of the complaint on any defendant unless: (1) a defendant had commenced
discovery; (2) a deponent was leaving the district where the action was pending; or (3) upon an order of the court.
131.1 Taking Depositions When a Motion to Dismiss for Lack of Personal Jurisdiction Has
Been Filed
When the defendant has filed a motion to dismiss for lack of personal jurisdiction pending determination of that
motion, the scope of discovery properly may be limited to whether the court has jurisdiction over the defendant.
However, pending such determination, the court has jurisdiction over a defendant so as to require the defendant to
respond to discovery under Rules 26-37, although it might be jurisdiction only as to discovery related to the in
personam jurisdiction issue. Gleneagle Ship Management Co. v. Leondakos, 581 So.2d 222 (Fla. App. 2 Dist.
1991), juris. accepted, 587 So.2d 1328 (1991).
In limited circumstances, depositions are permitted even after judgment. Fed. R. Civ. P. 69(a) provides in part: In
aid of the judgment or execution, the judgment creditor or a successor in interest when that interest appears of
record, may obtain discovery from any person, including the judgment debtor, in the manner provided by the
practice of the state in which the district court is held. See Credit Lyonnais, S.A. v. SGC Intl, Inc., 160 F.3d 428,
430 (8th Cir. 1998) (The right to conduct discovery applies both before and after judgment.); United States v.
McWhirter, 376 F.2d 102, 106 (5th Cir. 1967) (The scope of post-judgment discovery is very broad to permit a
judgment creditor to discover assets upon which execution may be made.).
A judgment creditor (or successor) may proceed under either state or federal discovery rules and can take advantage
of all permitted forms of discovery, including depositions. See, e.g., El Salto, S.A. v. PSG Co., 444 F.2d 477, 484
(9th Cir. 1971) ([A] judgment creditor proceeding under Rule 69(a) may utilize either state practice or the Federal
Rules for taking depositions.); Fuddruckers, Inc. v. KCOB I, L.L.C., 31 F. Supp. 2d 1274, 1279 (D. Kan. 1998);
Notes of Advisory Committee on 1970 Amendments (The amendment assures that, in aid of execution on a
judgment, all discovery procedures provided in the rules are available and not just discovery via the taking of a
deposition.). As the rule notes, discovery is not limited to inquiry of the judgment debtor. See British Intl Ins. Co.
v. Seguros La Republica, S.A., 200 F.R.D. 586, 589 (W.D. Tex. 2000) (Rule 69 expressly authorizes discovery
from any person, not merely the judgment debtor.).
Note that an appeal from a judgment may, depending on the jurisdiction, either automatically or via motion, stay
enforcement of a money judgment. The appeal does not, however, generally automatically stay discovery under
Fed. R. Civ. P. 69(a). See, e.g., Laborers Nat. Pension Fund v. ANB Inv. Management, 26 F. Supp. 2d 1048 (N.D.
Ill. 1998). Instead, a defendant seeking to stay Rule 69(a) discovery pending appeal may need to demonstrate to the
trial court a likelihood of success on the appeal, and a balancing of the harms if discovery proceeds pending the
appeal. See, e.g., United States v. Campbell, 73 Fed. Appx. 382, 383 (10th Cir. 2003). If the trial court does not stay
the discovery and orders compliance with the discovery requests, that decision is typically interlocutory and not
immediately appealable. See, e.g., Cent. States, Southeast & Southwest Areas Pension Fund v. Express Freight
Lines, Inc., 971 F.2d 5, 6 (7th Cir. 1992).

A frequent conflict arises when one side sets a deposition on a date before a previously set deposition. The attorney
who noticed the earlier deposition will often claim priority because that deposition was set first.
No Automatic Priority: The Federal Rules specifically state there is no right of priority based on date of
notice. ([T]he fact a party is conducting discovery ... shall not operate to delay any other partys
discovery.) See Advisory Committee Notes, 1970 Amendment, Rule 26(d). Many states have similar
provisions. See, e.g., CAL. CODE CIV. PROC. 2019(c).
Scheduling Order May be Available: However, a court always has the authority to regulate the manner in
which discovery proceeds, including the sequence of depositions. A court may regulate the order in which
depositions are taken, to maintain priority. Sprague Electric Co. v. Cornell-Dubilier Electric Corp., 4 F.R.D.
113 (D. Del. 1944).
Local Custom or Rule: As a practical matter, many attorneys informally respect priority in the setting of
depositions, unless a deposition is set so far ahead in time as to effectively interfere with the other partys
ability to conduct discovery. Local rules may also be determinative or reflective of likely rulings in this
regard.

The sequence in which you depose witnesses can be very important. Too often, you discover new information about
a witness who has already been deposed, but was not questioned concerning that particular subject. If you consider
re-deposing that witness, you may confront an objection by your opponent under Rule 26(c). Your client also may
object to the cost, particularly if the deposition must be taken out of state. These problems emphasize not only the
importance of being thorough when you take a deposition, but also the importance of the order in which you take
depositions.
In determining the order in which to depose witnesses, consider deposing the person you anticipate has the most
knowledge about the case first. This person is more likely to tell you who else has knowledge about the case, and he
should be able to provide you with the background information which should help when you take additional
depositions. Moreover, if it becomes desirable to re-depose the first witness, a court will be more likely to allow you
to do so over your opponents objection if the witness is a key participant in the controversy.
Although every case is different and the sequence of depositions will vary greatly depending upon the issues,
schedules of witnesses and the desirability of any given deposition, the customary sequence of depositions can be
generalized as follows:
Adverse party or parties concerning principal claims;
Witnesses identified by adverse party as persons with knowledge and who by legal affiliation are associated
with adverse party;
Adverse parties or related parties on cross-claims or third-party claims;
Rule 30(b)(6) designees on specific issues or documents important to the case;
Any important witness whose testimony should be perpetuated;
Hostile independent witnesses;
Neutral witnesses whose testimony cannot otherwise be obtained;
Friendly witnesses whose testimony is important as foundation; and
Opposing experts.
Unfortunately, sometimes the more depositions you take, the longer your list of additional needed depositions
becomes. Remember to let your key questions and issues guide you to the important witnesses and generally try to
work from those with the most knowledge to those with the least.
Ordinarily, a court will not interfere with the parties desired sequence. But see Rolscreen Co. v. Pella Products of
St. Louis, Inc., 145 F.R.D. 92, 98 (S.D. Iowa 1992) (Court required that defendant complete deposition of two
persons with greater knowledge prior to taking the deposition of the third person).
134 Strategy in Timing and Sequence of Depositions

The sequencing and timing of your depositions are often as important as your choice of whom to depose. Early in
the case you should prepare a deposition schedule as part of your overall discovery plan. Some of the factors which
should be considered include:
Do you want to depose an adverse witness before he has had an opportunity to review your clients
documents?
If you are concerned about a witnesss testimony being tainted by his review of your clients documents
(e.g., notes of meetings and telephone conferences), you may want to take the deposition of that witness
before the due date of your clients response to a request for production of documents. Alternatively, you
may want to seek a protective order under Rule 26(c) prohibiting the revealing of those documents or the
contents thereof to the witness until after his deposition is concluded.
Do you want to depose an adverse witness before or after the adverse party has responded to your request
for production of documents?
In most cases, it is better to review your opponents documents before commencing deposition. In some
cases, however, your deposition may be far more effective if taken early and before the deponent has had a
chance to carefully review his own files. It is often far more effective to strike quickly and catch your
opponent unprepared than to follow the normal course of written discovery before depositions. Opposing
counsel often will anticipate having substantial lead time before he needs to become prepared to defend a
deposition. Your ability to take a second deposition of a witness, after receipt of your opponents documents,
is limited by Rule 30(a)(2)(B) which would require leave of court to retake a deposition.
Is there a logical and helpful sequence to the examination of the witnesses you want to depose?
The testimony of one witness may raise areas for examination of other witnesses, and there is a distinct
advantage to scheduling your depositions in a logical sequence. For example, you may want to begin the
sequence by deposing people having general knowledge regarding the overall controversy, or regarding the
activities of your opponent. Based upon what you learn there, you may develop a sequence of additional
depositions focusing in on individuals with specific knowledge.
Less important witnesses are deposed after the more important.
The case may settle, or the first depositions may convince you that additional depositions are unnecessary.
Do you want to hear the testimony of your own witnesses and nonparties before taking your depositions?
Your opponents examination of your witnesses may teach you about his theories and strategies and may
assist you in preparing your questions for his witnesses.
If there is a tracking order placing a deadline for the completion of all fact discovery, it may be advisable to
schedule depositions with enough time remaining under the tracking order for you to serve supplemental
document requests for any documents identified during depositions that were not otherwise responsive to
existing document requests.

In some instances, the need for a deposition for use of substantive testimony will not be known until shortly before
trial. For example, an emergency arises which will not enable a particular witness to be present at the trial. Even
though the time for discovery has expired, the taking of a deposition for use in lieu of personal appearance may be
proper. For example, where a partys conventional deposition has been taken as a part of discovery by the opposing
counsel, but the illness, etc., of the party precludes a party from attending and testifying at trial, it may be error for
the court to refuse to allow a video deposition to be taken.
In our view, the courts refusal, under the facts here, to permit the video deposition effectively denied this plaintiff
her day in court. While a video taped deposition may not as effectively present the testimony of a party who can
testify in person, it is far better than an adversarial discovery deposition or even a traditional testimonial
deposition. It allows the fact finder to observe demeanor and thereby better determine credibility disputes, and
allows an ill party to present his or her case in a logical, explanatory and effective manner.
Voelker v. Cherry Creek School District No. 5, 840 P.2d 353 (Colo. App. 1992), revd on other grounds, 859 P.2d
805 (Colo. 1993).

Where the deposition should be taken is a consideration that is important both in terms of cost considerations and
tactics. Thus, travel, particularly where overnight stays are involved, can substantially increase expenses and legal
fees charged to your client. Similarly, consider whether you want the deponent to be deposed in a locale in which he
feels strange or is comfortableeither may be advantageous or disadvantageous to you, depending upon the
particular circumstances. Consider whether your client may want to attend the deposition with you. Does the
location of the deposition affect the ability of that person to attend?
Hence, when setting up a deposition, consider very carefully where the deposition should be takendefine the pros
and cons of each available locationand then select the location that is in the best interest of your client.

Often you will have no option as to the district or state in which to take the deposition of a nonparty witness. For
example, if you want to take the deposition of a nonparty who will not voluntarily travel to the desired location, you
are limited to those areas within the reach of the subpoena power for appearance at that location. Specifically, Rule
45 (b)(2) provides:
(b) Service
(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at
any place within the district of the court by which it is issued, or at any place without the district that is within 100
miles of the place of the deposition ... specified in the subpoena or at any place within the state where a state statute
or rule of court permits service of a subpoena issued by a state court of general jurisdiction sitting in the place of the
deposition ... specified in the subpoena. When a statue of the United States provides therefor, the court upon proper
application and cause shown may authorize the service of a subpoena at any other place ....
Thus, service of the subpoena on the deponent may be made upon the deponent:
Any place within the judicial district of the court by which it is issued;
Any place within 100 miles of the place of deposition;
Any place within the state where the court issuing it sits where a state statue or rule of court permits service
of a subpoena issued by a state court of general jurisdiction;
Any place a statute of the United States authorizes service.
However, the conclusion that service can be accomplished does not mean that the proposed location for the
deposition is allowable. Rule 45(c)(3)(A)(ii) (to which Rule 45(b)(2) is expressly made subject) provides:
(3)(A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it
...
(ii) requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the
place where that person resides, is employed or regularly transacts business in person ....
Thus, a nonparty witness (any witness other than a party or officer of a party) can be required to appear to be
deposed only at locations within 100 miles of the witnesss residence, place of employment, or place of regular
transaction of business in person. A place of transacting business in person refers to locales where it would not be a
major inconvenience to the witness to travel an additional 100 miles; it usually refers to a place where the deponent
regularly is in the course of his business. Similarly, travel of up to 100 miles from ones residence or place of
employment is presumed to be a reasonable burden. Rule 45(e) expressly provides that adequate cause for failure to
obey exists when a subpoena purports to require a nonparty to attend at a place not within the limits of Rule
45(c)(3)(A)(ii).
Note, however, that Rule 45(c)(3)(A) merely provides that the court shall quash or modify the subpoena if it calls
for attendance more than 100 miles from the nonpartys residence, place of employment, or regular transaction of
business in person on timely motion. If such a motion is not timely made, the subpoena is valid and enforceable.
Of course, if the witness will appear without a subpoena, the parties may proceed with the deposition at any location
under Rule 29. If the witness agrees to appear without a subpoena, do you need the stipulation of opposing counsel?
Probably not, but he can seek a protective order. Also, if the witness does not appear, you may be liable for
opposing counsels attorneys fees and expenses for attending. See 223.
If the deponent can be properly served, but the deposition will be held more than 100 miles from the deponents
residence, employment or place of regular transaction of business, rather than waiting to see if the deponent objects
to the subpoena, it is better to obtain a court order.
Sample: Motion for Leave to Take Deposition More Than 100 Miles From Witness's Residence,
Employment, or Place of Regular Business1
UNITED STATES DISTRICT COURT
DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
BIG BUSINESS, INC., )
)
Defendant. )
______________________________________)
MOTION FOR LEAVE TO TAKE DEPOSITION

MORE THAN 100 MILES FROM WITNESS'S RESIDENCE,
EMPLOYMENT, OR PLACE OF REGULAR BUSINESS
Pursuant to Fed. R. Civ. P. 45(c), Plaintiff, John D. Harmed, moves the Court for
an order requiring Witness, Robert D. Nonparty, of 10 Main Street, Bucolic, State
55555, to attend a deposition noticed for a location more than 100 miles from Mr.
Nonparty's residence, place of employment, or place of regular business. In
support of this motion, Plaintiff states that:
1. Mr. Nonparty lives approximately 110 miles away from the site of the noticed
deposition, and therefore outside the 100-mile radius for compulsory
deposition attendance.
2. Mr. Nonparty is the technician who first inspected the machinery after it
malfunctioned, and Plaintiff has substantial need for Mr. Nonparty's
testimony.
3. Defendant has agreed to transport the machinery in question and make it
available for inspection at the location noticed for the deposition; due to
the size and weight of the machinery, the expense of making it available at
another location would be extreme and cause undue hardship to Plaintiff.
4. Plaintiff will ensure that Mr. Nonparty will be reasonably compensated for
the extra distance he is being asked to travel for the deposition.
WHEREFORE, the fact that the deposition location is more than 100 miles from Mr.
Nonparty's residence, employment, or place of regular business is not so
burdensome as to justify modification or quashing of the subpoena. For the
foregoing reasons and those set forth in the Memorandum of Law submitted herewith,
Plaintiff respectfully requests that the Court issue an order requiring Mr.
Nonparty's attendance at the deposition location noticed.
JOHN D. HARMED,
By his attorney,
_______________________
Timothy P. Attorney
ATTORNEY & LAWYER, P.C.
5 Main Street
Metropolis, MA 55556
Dated: _______________
MEMORANDUM OF LAW
While motion practice varies between jurisdiction, a memorandum of law in support of the motion is generally
preferred.

There is no rule defining where the deposition of a party must or can be taken. The only limitation upon locale is the
right of the party to be deposed to seek a protective order under Rule 26. Continental Federal Savings and Loan
Assn v. Delta Corp. of America, 71 F.R.D. 697 (W.D. Okla. 1976). However, upon application for a protective
order under Rule 26(c) to preclude the deposition at the location designated in the notice, the courts have defined
general rules regarding the locations for depositions of parties.
Generally, a deposition notice may require that a plaintiff attend his or her deposition in the district where the case
was filed. See Gibbs v. National R.R. Passenger Corp., 170 F.R.D. 452, 453 (N.D. Ind. 1997). WRIGHT AND
MILLER, FEDERAL PRACTICE AND PROCEDURE, CIVIL 2D 2112 (1994). The Plaintiff, having chosen the forum of
the lawsuit, should expect to appear for any legal proceedings in that forum. Moreover, the court has the discretion
to order a plaintiff to pay defendants attorney fees and expenses incurred as a result of deposing the plaintiff
outside the forum where suit was filed. See Haviland & Co. v. Montgomery Ward & Co., 31 F.R.D. 578, 580
(S.D.N.Y. 1962). However, with the advent of telephone and video conference depositions, a plaintiff can obtain
relief under Rule 30(b)(4). Jahr v. IU Intern. Corp., 109 F.R.D. 429, 430-431 (M.D.N.C.1986) (upon giving a
legitimate reason for taking a deposition telephonically, the movant is not required to show an extraordinary need
for this type of deposition; burden shifts to opposing party as to why such a deposition would not be appropriate).
Note, however, that if plaintiff is an organization and you seek to depose an employee who is not an officer,
director, or managing agent, then, absent consent of counsel, you must subpoena that employee and the normal
rules regarding how far you can compel a witness to travel pursuant to a subpoena that would apply. See, e.g.,
Archer Daniels Midland Co. v. AON Risk Services, Inc., 187 F.R.D. 578 (D. Minn. 1999) (ordinary employees [of
plaintiff] are subject to the general rule that a deponent should be deposed near his or her residence, or principal
place of work.). Thus, if plaintiff corporation is based in Colorado, but brings suit in California, then defense
counsel can depose plaintiffs officers, directors and managing agents in California, but, absent agreement, must
depose plaintiff corporations normal employees wherever they are subject to subpoena, most likely Colorado.
A defendant, on the other hand, is an involuntary participant in the litigation. As such, different considerations for
the place of a deposition are applicable. In the absence of consent or a showing of exceptional circumstances, a
defendant is entitled to insist upon being deposed in the district where he or she resides (see Undraitis v. Luka, 142
F.R.D. 675 (N.D. Ind. 1992)), or in locations where the defendant would be subject to a subpoena. That may include
the district forum depending upon defendants place of residence, business and other related factors. Where the
defendant is a corporation, and you are deposing a corporate officer or designee under Rule 30(b)(6), the deposition
should occur at the corporations principal office and place of business. However, courts have denied protective
relief to corporations whose representative is already residing in or visiting the forum where the deposition is to be
held. M & C Corp. v. Erwin Behr Gmbh & Co., KG, 165 F.R.D. 65, 67 (E.D. Mich 1996).
A minority of jurisdictions have recently begun to loosen the general rule that a plaintiff cannot compel an out-of-
state defendant to travel to the forum for a deposition. Rather, these courts have sought to balance a series of factors
to determine the most appropriate location for the deposition, including the location of counsel, the number of
depositions sought, the likelihood of discovery disputes that might necessitate court intervention, whether the
witness in question is a frequent traveler, whether the defendant has filed a permissive counterclaim, and, as a catch-
all, the equities of the matter. See, e.g., Rapoca Energy Co. L.P., v. AMCI Export Corp., 199 F.R.D. 191 (W.D.Va.
2001); Smith v. Shoe Show of Rocky Mount, Inc., No. 00-30141-MAP, 2001 WL 1757184 at *2-3 (D. Mass. Apr.
26, 2001).
Setting depositions for Counterclaimants can be problematic. When defendants file a compulsory counterclaim, they
continue to have the protection of sitting for depositions where they reside, while defendants who file third-party or
permissive actions do not enjoy this protection. See Gibbs v. National R.R. Passenger Corporation, et al., 170
F.R.D. 452, 453-454 (N.D. Ind. 1997).
General rules aside, your main considerations in determining the deposition location will undoubtedly be governed
by the twin factors of convenience and cost. Where you practice will usually be the most convenient and
economical place for the deposition. Other factors such as client preferences, site inspections or the availability of
documents may well influence your decision in the selection of the most appropriate place for your deposition.
Practice Tip: Paying for a Witness to Travel

Rather than traveling to a witnesss locale, consider, in appropriate cases, offering that the parties
share the cost of paying the witness to travel to the forum. This cuts travel expenses in half and
eliminates attorney travel time. Many witnesses will gladly agree to the free trip.
Practice Tip: Deposing Witness Where Witness Works

You would be surprised how often counsel representing a witness noticed or subpoenaed for
deposition will offer to make the witness available for deposition in a conference room in the place where
the witness works. If that location has any nexus with the case being litigated, do not pass up this
opportunity. There are essentially two advantages to deposing a witness at that witnesss place of
employment. First, if the witness does not know the answer to the question, ask the witness if there is any
document the witness could look at or fellow employee the witness could talk to during a break to get the
answer. If the answer is yes and the documents and co-workers are present at the place of employment,
it is hard for the witness and his or her counsel to avoid a request that such an inquiry be made during a
recess. Second, getting to visit a witnesss place of employment may afford the opportunity for an
informal view of the premises. Look around while on the premises. Observe whose office is next to
whose. How far away are the secretarial stations? There are insights to be gained from such
observations. If there is a dispute over the manufacture of widgets, or plaintiff was injured by factory
equipment made by your client, and the factory is in the same place as the deposition, ask for a tour.
Your request may not be granted, but there is nothing lost from asking.

Where witnesses are located in different states, issues of multi-jurisdictional practice arise. Taking or defending a
deposition is part of the practice of law (for example, paralegals are not allowed to take or defend depositions);
hence, taking or defending a deposition in a particular jurisdiction is practicing law in that jurisdiction. This raises
the question: Must you be admitted to the bar, at least pro hac vice, of the jurisdiction in which you intend to take or
defend a deposition?
As a technical matter, the answer is yes, and failure to be so admitted could expose you to sanctions. In a series of
cases, a client engaged counsel from a jurisdiction different from the jurisdiction in which the action was pending.
When that counsel then appeared for depositions without first being admitted pro hac vice, and the other side later
complained, courts have found that counsel from outside their jurisdiction had engaged in the unauthorized practice
of law. For example, in Adams v. Bellsouth Telecomms., Inc., No. 96-2473, 2000 U.S. Dist. LEXIS 22255, at *18-
19 (S.D. Fla. Nov. 20, 2000), the United States District Court for the District of Florida wrote:
[Attorney] made no such effort to appear pro hac vice. That is notwithstanding the fact that he actively appeared at
no less than four depositions and actually conducted direct examination in at least three of them It is the
opinion of this Court that [the attorneys] actions and active participation brings him within the jurisdiction of this
Court with regard to the imposition of sanctions.
See also, e.g., Reshard v. Main Line Hosp., Inc., No. 02-1787, 2003 U.S. Dist. LEXIS 6372, at *20-23 (E.D. Pa.
April 16, 2003); Silverman v. Browning, 414 F. Supp. 80, 82 (D. Conn. 1976) (granting injunctive relief prohibiting
attorney from participating in deposition until he had complied with the rules and statutes pertaining to the
admission of out-of-state attorneys); Hoechst Celanese Corp. v. National Union Fire Ins. Co., 623 A.2d 1099, 1114
(Del. Super. Ct. 1991) (holding out-of-state counsel must comply with the pro hac vice requirements before
attending deposition).
What the aforementioned cases have in common is that they each arose in the jurisdiction in which the action is
pending. Far more common, although the rules are less clear, is where counsel for each party is admitted in the
jurisdiction in which the action is pending, but one of the parties wants to depose a witness in a jurisdiction in which
some or all of the attorneys are not admitted. In such a circumstance, in order for all the lawyers to get admitted in
that jurisdiction for the sole purpose of conducting a single deposition, local counsel would have to be retained, a
new action would have to be opened, and then a motion for admission pro hac vice would have to be made. That is
a lot of process (and expense) for one or a few depositions. As a practical matter, this is almost never done.
In August 2002, the American Bar Association issued a Report of the Commission on Multi-Jurisdictional Practice.
The Report recognized that where lawyers seek to conduct a deposition in a jurisdiction where the underlying action
is not pending, the conduct of law in that jurisdiction is ancillary to a pending litigation. The Commission wrote:
It is generally recognized that work of this nature, insofar as it does not involve appearances in court by the out-of-
state lawyer, is and should be permissible. It would be exceedingly costly and inefficient for a party to retain
separate counsel in every state in which work must be performed ancillary to a pending litigation, and requiring
parties to do so would not serve any regulatory interest, since lawyers in litigation are generally supervised
adequately by the courts before which they appear. The Commission therefore recommended that the ABA Model
Rules of Professional Conduct be amended to specifically permit lawyers to provide temporary services in
jurisdictions in which they are not admitted if such services are ancillary to pending litigation in a jurisdiction in
which they are admitted and in which they have entered an appearance. For a listing of jurisdictions that have
adopted either the ABAs suggested revisions to Model Rule 5.5 or something similar, see
www.abanet.org/cpr/mjp-home.html.

Federal Rule of Civil Procedure 29 provides in pertinent part, Unless otherwise directed by the court, the parties
may by written stipulation modify other procedures governing or limitations placed upon discovery. As a
practical matter, the logistics of depositions are usually dealt with through agreements among counsel. It is a good
idea at the beginning of discovery to have a conversation with opposing counsel; brainstorm about what discovery
issues might come up, and then work out mutual rules to govern the discovery process. Among the deposition-
related topics you may want to discuss are order of witnesses, location of depositions, length of depositions, and
who can attend depositions. If you anticipate expert discovery, discuss early in the case with opposing counsel
whether each side will have to produce drafts of expert reports and communications between counsel and the
testifying expert. Agreement among counsel early in the process is a proven way to avoid later conflict.

The typical deposition is held before a certified court reporter, either in an attorneys conference room or at a court
reporters office. Normally, the court reporter will record the testimony using a stenotype machine and prepare a
transcript of the proceedings shortly after the deposition. This provides counsel with an accurate transcription of the
testimony given by the witness as well as any statements made by counsel. The transcript can be submitted to the
court or read to a jury at trial as appropriate. See Chapter 10.
Under Rule 30, you have a number of alternatives in the selection by which the deposition can be recorded. Rule
30(b)(2) allows for the recording of a deposition by sound, sound-and-visual, or stenographic means.
Unlike the former rules, Rule 30(b)(2) permits the noticing party to choose the method of recording, without
permission of the court or agreement of the parties, by specifying in the notice of deposition itself the method or
methods by which testimony will be taken. If taken by nonstenographic means, any party may arrange for the
transcription to be made from the recording.
While the noticing party has the option to select the manner of the recording of the deposition, Rule 30(b)(3)
provides that any party may designate another method to record the deposition testimony in addition to that
specified in the notice of deposition. This rule merely requires that counsel gives prior notice to both the deponent
and the other parties.
Both of these Rules attempt to allocate the costs associated with the method or methods by which deposition
testimony is recorded. Rule 30(b)(2) places the initial cost of the method of recordation on the party noticing the
deposition. If another party seeks an additional method of recording, after notice, that party is responsible for the
expense of the additional record or transcript, unless otherwise ordered by the court. See Rule 30(b)(3).
In selecting the type of method, cost is often a primary consideration. A videotaped deposition, coupled with a
stenographic record, is clearly more expensive than simply a stenographic deposition. A telephonic deposition is
obviously much cheaper than the expense associated with traveling to another location. An audiotaped deposition,
without a transcript, is normally the least expensive form of deposition.
You should note that if you choose to record your deposition only by videotape or audiotape, you still may be
required to obtain and produce a transcript of the deposition. If the deposition is to be offered as evidence at trial or
as part of a dispositive motion under Rule 56, you will be required to produce a transcript of that deposition. Rule
26(a)(3)(B)s pretrial requirements include a designation of witnesses whose testimony is expected to be presented
by deposition and, if by nonstenographic means, a transcript of the pertinent portions of the deposition testimony.
Rule 32(c) also requires that if deposition testimony is offered in a nonstenographic form, that party shall provide
the court with a transcript of those portions of the deposition.
Moreover, there are additional burdens associated with nonstenographic means of recordation. Rule 30(f)(1) and (2)
adopt the widely followed no filing rule, which requires the attorney who arranged for the transcript or recording
to maintain the original transcript or recording. Further, Rule 30(f)(1) requires the attorney to store any recording
under conditions that will protect against loss, destruction, tampering, or deterioration. If you fail to safeguard the
videotapes or audiotapes from tampering or deterioration, you may face problems down the road in terms of
admissibility of those videotapes or audiotapes. The deposition officer is also obligated to retain stenographic notes
and copies of any recordings of any depositions that were taken by nonstenographic means.
Finally, the method of recordation must ultimately be guided by the intended use of that deposition. If the deposition
is intended to be offered at the time of trial or as part of some dispositive motion, some form of stenographic record
will ultimately be required. Videotaped deposition, in conjunction with a stenographic deposition, is generally a far
more effective presentation of evidence before a jury and often before a court. Not only does the videotaped
deposition preserve the subtle nuances that occur at a deposition, the video deposition is often an effective control
over disruptive opposing counsel, which records visually and audibly his or her every act and verbal inflection.
While the rules provide a number of alternative methods and potentially less expensive methods of recording
depositions, the attorney noticing the deposition must take into account the cost, burden and intended use of the
deposition in the decision as to how and in what form to take the deposition.

The most popular alternative to the traditional stenographic deposition is to record it by videotape. Video
depositions are expressly permitted under Federal Rule of Civil Procedure 30(b)(2) and by the rules of most states.
A videotaped deposition can be replayed to a court or jury, who can actually see the witness as he or she testifies
and, at your choice, the examiner as he questions. Videotapes of depositions may be used at civil trials for any of the
purposes permitted for stenographically recorded depositions. See Fiber Systems International, Inc. v. Roehrs, 470
F.3d 1150, 1160 (2006). The biggest drawback to videotaping is that it can be expensive. The cost of the transcript
as well as the videotape can substantially increase the cost of a deposition.
A videotaped deposition is used most often when the witness will be unavailable for trial. Without question, a
videotaped deposition is far more effective at trial than a reading of a deposition transcript. See Weseloh-Hurtig v.
Hepker, 152 F.R.D. 198 (D. Kan 1993) (Videotaped depositions are considered a superior means of presenting the
testimony of an absent witness, because they allow the jury to better assess the witnesss credibility). Jurors and
judges are accustomed to watching television, and they will pay more attention to a video presentation than to a
reading of a transcript into the record. Moreover, a video deposition gives a judge or jury a chance to observe a
witnesss demeanor and his verbal and nonverbal responses to the questions. If you seek to accredit your witness,
this may be crucial. Likewise, it may be an effective means to discredit a witness who would otherwise not be
present at trial. Lastly, while most stenographers are extremely reliable, an audio/video tape is even more reliable.
A videotaped deposition may also be an effective means to present a deposition involving demonstrative evidence.
If the witness will be referring to certain charts or graphs, the testimony will be far more meaningful on videotape
because the chart or graph can be shown while the witness testifies. By the same token, if the witness will be
reenacting certain events such as those leading to an accident, a written transcript would not do justice to his
testimony. See Roberts v. Homelite Div. of Textron, Inc., 109 F.R.D. 664 (N.D. Ind. 1986) (Video deposition
allowed to show reenactment of accident).
Video depositions also may be useful to control a cantankerous opposing counsel. From time to time, you will be
confronted by an opposing counsel who does everything possible to disrupt your questioning and the testimony of
the witness. Objections recorded in a deposition transcript often lose the flavor and the stridency of the actual
eventwords without the accompanying inflection become relatively tame; words without the accompanying body
language appear less disruptive. You may find that your opponent tones down such disruptive tactics when a video
camera is used because he knows that his conduct can be demonstrated to a judge at a later motions hearing.
Video depositions also have disadvantages. Aside from being more expensive, they require the additional step of
arranging and setting up the equipment. (Many stenographers provide this service.) Moreover, the witness may be
more effective on paper if his demeanor and appearance are not favorable. In contrast, if you are deposing such a
witness, you will usually want to depose him by videotape so that the jury will be able to see him.
Rarely should you use a video deposition as a substitute for stenographic recording of testimony. If you intend to
use the deposition for trial or a dispositive motion you will need to provide the court with a stenographic record or
transcript of the proceeding. Moreover, the stenographic record will allow you to locate specific testimony, without
reviewing the entire tape, helping you to impeach a witness through the video deposition. You may well want to
obtain edited portions of the video in advance of trial, not only to expedite trial, but to impress upon the jury your
preparedness.
Inasmuch that most state discovery statutes are patterned on the Rules, video depositions, with few exceptions, are
permitted without a court order. However, if a motion is required, courts have generally granted these motions. See,
Burlington City Board of Education v. O.S. Mineral Products Co., Inc., 115 F.R.D. 188, 189 (M.D.N.C. 1987).
A motion for leave to take a videotaped deposition should set forth information regarding the individual who will be
recording the deposition, the method of the recording, and the method of preserving the videotape. Courts have
broad discretion to fashion appropriate orders to insure trustworthiness and accuracy. See Kallen v. Nexus Corp., 54
F.R.D. 610 (N.D. Ill. 1972). Some of the factors to be considered in preparing a motion for leave to take a
videotaped deposition include:
Balance of hardships: Cherry Creek School Dist. No. 5 v. Voelker, 859 P.2d 805 (Colo. 1993) (denial of
request where a video deposition would have required continuance of the trial).
Who will be authorized to conduct the videotaped deposition? They should be authorized to take an oath and
to certify the correctness and completeness of the recording.
Whether the proceedings will also be recorded by conventional stenographic means.
Matters relating to the staging and photographic technique to be used. In one case, the court directed that the
party taking the deposition make the determination regarding use of a zoom lens, the angle of a camera, and
the proper background, subject to objection by the defending counsel. See Roberts v. Homelite Div. of
Textron, Inc., 109 F.R.D. 664 (N.D. Ind. 1986).
Whether the person recording the videotaped deposition will prepare an index showing when testimony was
given. This can be done on the video screen itself, by requiring that the time be shown in the corner of the
tape.
The person administering the oath to witnesses and to the operator, or a clerk, should keep a record of
objections during the deposition so that quick reference to the tape can help the judge rule on objections
before trial. In addition, the original should be preserved and a copy made for editing after the judge rules on
motions and objections made during the deposition.
Who shall be permitted to attend the videotaped deposition.
How the original of the videotaped deposition shall be preserved pending trial. See also 230, infra.
Both federal and state courts have disallowed the taking of video depositions in several circumstances,
including circumstances involving inadequate witness portrayal, mechanical failure, and abuse by parties
taking the video deposition. See, e.g., Spraglin v. MHK Assoc., 43 Cumb. 97 (Cumb. Co. Pa. 1993); Bogan
v. Northwestern Mutual Life Ins. Co., 145 F.R.D. 642 (S.D.N.Y. 1993).
Even in those jurisdictions in which leave of court is not required for a video deposition, a party may always seek a
protective order from the court to limit or preclude a video deposition. For example, in Posr v. Roadarmel, No. 03
Civ. 01660 RJH, 2006 WL 3746673 (S.D.N.Y. Dec. 21, 2006), the court affirmed the magistrates decision to
preclude plaintiff from videotaping the deposition of one of the defendants. Counsel for the deponent argued that
plaintiff intended to embarrass the witness by broadcasting the videotape of the deposition on local access
television. Citing Fed.R.Civ.P. 26(c), prohibition against the use of discovery to annoy, embarrass, or oppress, the
District Court ruled that the magistrate had the discretion to prohibit the videotaping of a deposition. Id. at *3. In
Oklahoma v. Tyson Foods, Inc, No. 05-CV-329-TCK-SAJ, 2007 WL 54831 at *1 (N.D.Okla. Jan. 5, 2007), the
court permitted the videotaping of a deposition, but upon motion by the deponent concerned that the deposing party
intended to use the videotape in advertising, issued an order prohibiting the use of the videotape outside of the
litigation without prior leave of the court.
In criminal cases, because of the Confrontation Clause, the prosecution will normally only be permitted to introduce
the videotaped deposition of an unavailable witness if the defendant and defense counsel were afforded the
opportunity to attend the deposition and to cross-examine the deponent. See, e.g., State v. Hill, No. 2002-CA-00046,
2007 WL 60668 at *4 (Ohio App. 5 Dist. January 5, 2007); Phillips v. Bradshaw, No. 5:03 CV 875, 2006 WL
2855077, *49 (N.D. Ohio Sept. 29, 2006) ([i]t is irrelevant that the face-to-face confrontation occurred during the
deposition rather than during trial. What is important is that the confrontation occurred as [the witness]
testified).
Practice Tips for Video Depositions:

There are some differences between preparing to take or defend a deposition that will be videotaped
versus one that will be recorded by stenographic means only. Make sure you are familiar with any local
rules in the jurisdiction in which the deposition will be taken. For example, in some states such as
Pennsylvania, local rules require that objections be made off the videotape. If you are going to be
defending a deposition, preparing your witness on demeanor and presentation is all the more important.
Finally, at the beginning of a videotaped deposition, it is good to make sure that the court reporter and the
videographer synchronize their time/date stamps in advance of taping, something that will ease the
preparation of the video for presentation at trial.
Advantages
Cost savings: Take a deposition in an hour over the phone, instead of flying thousands of miles to the
deponents domicile. This savings can vastly increase available attorney hours and expenses which can be
better allocated elsewhere.
Scheduling convenience: It is far easier to schedule depositions when counsel do not have to travel;
cancellations are less likely. This may be important if trial is coming up quickly.
Less burdensome: The actual lack of face to face confrontation between questioner and deponent make it
less threatening for the witness.
Disadvantages
For critical depositions: The lack of actual face to face confrontation may be prejudicial. Getting the feel
of the witness and being able to see and pick up on physical cues which lead to more questions may be too
important to forego.
Client cannot face accuser: Sometimes it is useful to encourage a deponents honesty by having the party
attend and look them in the eye. See 350, infra. This cannot be done in a telephone deposition.
Inability to observe spontaneous reaction: Although these reactions may not make it into the record, they
can be useful.
Practice Tip: Telephone DepositionsBalancing the Costs

Where the witnesss testimony is marginal to your preparation or presentation of the case, carefully
balance the costs of actual confrontation with the ease and expense of a telephonic deposition.
1. When permitted
Federal Rule: Permit by stipulation, or by motion. Fed. R. Civ. P. (30)(b)(7).
State Court Rules: Vary, but few prohibit and almost all permit by stipulation.
States with no express rule: Absent express rules, most states provide that the court has general authority to
regulate the manner in which a deposition is taken. See, e.g., CAL. CODE CIV. PROC. 2019b (West 1993).
2. Grounds for taking
Telephone depositions are often requested to avoid travel, financial or other hardship by a party or attorney.
See Dunlap-McCuller v. Riese Organization, 980 F.2d 153 (2d Cir. 1992), cert. denied, 114 S. Ct. 290
(Telephonic depositions are proper where witnesses were greater than 100 miles from place of trial or out of the
country, even in the middle of trial). Several courts have held that a telephone deposition may be ordered upon
showing of any legitimate reason to hold depositions by telephone. See, e.g., Jahr v. IU Intern. Corp., 109
F.R.D. 429, 430-431 (M.D.N.C.1986).
3. Grounds for opposing
Documents: Voluminous or complex documents (such as illustrations, blueprints, etc.) may make the deposition
difficult.
Nonresident Plaintiffs: At least one court has ruled that it will not order a telephone deposition when it is used
to allow a plaintiff to avoid appearing in the forum court. Clem v. Allied Van Lines Intl, 102 F.R.D. 938
(S.D.N.Y. 1984). However, several other jurisdictions rejected this ruling. See Jahr v. IU Intern. Corp., 109
F.R.D. 429, 430-431 (M.D.N.C.1986); Anguile v. Gerhart, 1993 WL 414665 (D.N.J. 1993).
Marginal Cost Savings: Where the travel savings is marginal, the court may find that the inherent
disadvantages of the telephone deposition (e.g., in handling documents) justify denial.
Other Circumstances that result in untrustworthy or inaccurate testimony. See generally Rehau v. Colortech,
145 F.R.D. 444 (W.D. Mich. 1993) (citing Fed. R. Civ. P. 26).
4. Location of Court Reporter
Physical Presence Rule: Some states require that the court reporter must be in the physical presence of the
deponent. Va. R. Sup. Ct. 4.5(b)(7)(1993); S.C.R.CIV. PROC. 30(b)(7). Most statutes do not specify on which
end of the telephone line the reporter should be. See generally Bywaters v. Bywaters, 123 F.R.D. 175 (E.D. Pa.
1988).
Requirement of Oath May Determine: Some jurisdictions require that the oath must be administered by
someone in the actual presence of the deponent, Fed. R. Civ. P. 30(b)(7), but this does not always have to be a
court reporter. See generally Jahr v. IU Intern. Corp., 109 F.R.D. 429 (M.D.N.C.1986).
Accuracy Consideration: Having the reporter with the deponent also provides the highest assurance for
accuracy of testimony, since the reporter hears the witness better.
5. Other Factors to Remember
When you are not at the deposition, it is difficult to know whether anyone is coaching the witness. An
observer may be needed.
Practice Tip: Offering a Telephone Deposition as a Concession

Involved in a discovery dispute over your right to a deposition? Consider offering to take it by phone.
Deponents and their counsel are far more likely to waive procedural defects if the client can testify on his
or her turf, and a comfortable distance from you. This may beat a trip to court to decide.
Documents need to be pre-identified and exchanged. This can be done prior to the deposition or by fax as
the deposition proceeds. Note that facsimile transmission may be too slow and can sometimes be unreliable.

Rule 30(b)(2) allows for a deposition to be audiotaped without agreement of opposing counsel or a prior court
order. The principle advantage of an audiotaped deposition is that it can eliminate the cost of a transcript. It may
also be more effective than simply reading a transcriptthe jury will get the opportunity to listen to the witnesss
voice and to hear how the answers are given.
Whatever advantages are provided by an audiotaped deposition are almost always outweighed by its disadvantages.
Like other means of nonstenographic recordation, you will need to provide a stenographic record of the audio
deposition for purposes of trial or in conjunction with a dispositive motion. (See 140). If the purpose of the
deposition is to preserve testimony, recordation by a stenographic record in addition to videotape is preferable to an
audio only deposition.
With few exceptions, most state statutes allow for audio depositions in addition to videotaped and traditional
stenographic means for recording a deposition.

A new method of discovery is the use of video conference technology, which allows parties to conduct face to face
depositions without actually being in the same location as the deponent, or even opposing counsel. Unlike
videotaped or telephonic depositions, this live video option provides the best of both mediums, offering direct,
visual communication between the parties and maximum flexibility of scheduling. At present, the primary obstacle
to wide use of this deposition tool is knowledge of its existence by the legal community. However, as the
technology improves and costs come down, virtual depositions are certain to revolutionize the discovery process.
Lawyers who are unfamiliar with this new discovery tool (particularly those representing criminal clients) may find
themselves at a disadvantage to those who make use of it.
Like videotaped depositions, video conference depositions (also known as virtual depositions) use a video camera
and monitor. However, virtual depositions add computer technology to split the image on the monitor into as many
as four pictures. This allows the various parties in a deposition to be in as many as four different locations during
the deposition, and still be able to see what is happening. The task of connecting the different actors in a
deposition can be accomplished in several ways, such as via satellite transmission, closed circuit transmission, and
Internet/telephony transmission.
Satellite transmission, in which parties use an elaborate wireless network to relay data, currently offers the highest
quality image. On the other hand, Internet/telephony transmission, in which parties use ground-based
telecommunications equipment provided by their local telephone or Internet service providers, offers easier access
from the users place of business and lower cost. Both technologies offer the ability to use whiteboards, or space
on the monitor to mark documents and visual exhibits with special pens. This feature enables deponents and
counsel to indicate electronically at an exhibit, just as one would point at an object with a finger.
Satellite and Internet/telephony connections can be used simultaneously (i.e., one party using satellite, the other
using Internet/telephony); however, the normal practice is to use the same technology on both ends of the
conference. Closed circuit connections, consisting of direct cable links between locations, tend to be the most
secure, but are better suited for other legal proceedings (e.g., criminal hearings and conferences between courtrooms
and isolated prison facilities). Quality among the different products varies, and counsel must take care that they use
facilities and equipment that do not distort the appearance or demeanor of deponents and attorneys, as required by
Rule 30(b)(4).
All of these options are expensive. A top of the line Internet/telephony system currently has a retail cost of
approximately $19,000.00 and recurring costs of as much as $100.00 per month (plus the cost of making calls),
while satellite facility rental can cost upwards from $250.00 an hour, depending on location. However, some
commercial providers are beginning to offer flat monthly charges to rent video conference equipment and an
Internet/telephony connection, at a fraction of the cost of purchase. One company that provides this service is
NuVision Technologies, Inc. (http://www.nuvisiontech.com). Moreover, in addition to commercial outlets,
educational institutions and even courthouses are beginning to make these facilities available for hire, which should
bring costs down industry wide.
Practice Tip: Minimum Technology Requirements for Effective Video Conferencing

Image clarity during video conference deposition is tremendously important. If the parties cannot see
each other well, the value of the video conference deposition is lost. More importantly, if clarity is poor,
the deposition may be inadmissible if recorded. For this reason, persons employing the technology should
ensure that their equipment meets these minimum standards:
Hardware and software that meets all major video conference protocols (H.320, T.120, H.263 and
H.323);
27" monitor (larger if depicting multiple images simultaneously);
Communication bandwidth of at least 128kbps (384kbps or higher recommended);
Full duplex audio (so all parties can speak and be heard at the same time).

Situations which call for video conference depositions are not as rare as one might think; here are some examples:
A. Civil Depositions:
Picture the following situation: A product liability lawsuit was filed in the Northern District of Illinois, where the
defendants corporate headquarters are located. However, both plaintiff and his attorney reside in Atlanta, Georgia.
Pursuant to Rule 30(b)(6), plaintiffs attorney sends notice to the defendant corporation that he would like to depose
a corporation representative who is knowledgeable of the design for the disputed product. The deposition is to be
held at plaintiffs office in downtown Atlanta and mechanically transcribed by a court reporter. The defendants
designated representative turns out to be a key engineer who operates the defendant corporations manufacturing
plant in Singapore. Defendants corporate counsel in Chicago, Illinois, informs plaintiff of this designation.
The disparate location of the parties creates problems for both sides of the litigation. Plaintiff, who thought they
would be liable only for the witnesses statutory $40 per diem, the cost of one night in a hotel, and a discount airline
ticket to and from Chicago, now are faced with what would amount to an all expenses paid vacation from Singapore
and back. Defendants client also has problems, in that the corporation will lose the witnesss productivity during
his travel time, as well as be obliged to pay for defense counsel to appear at the deposition and work with the
designated witness. The alternativetravel to Singaporewould probably be even more expensive for all parties.
As a result, this three-hour deposition will likely cost both sides several thousand dollars andfor the defendant at
leastseveral days of productivity.
Conducting the deposition by telephone is an option. As we have seen, however, this method also presents many
difficulties. The main problem, of course, is that direct visual contact would be lost. To start with, plaintiffs counsel
and his client would be unable to observe the manner of a likely hostile witness as he testifies. The lack of face to
face contact would also make it difficult for the attorney to go over visual exhibits (such as pictures, product
diagrams and blueprints) with the witness. Lack of visual contact also prejudices the defendants counsel, since he
would not be able to assess whether this key witness would be effective or damaging at trial. Moreover, this absence
of joint observation of documents would slow the pace of the deposition, as each party assures the other that they
are all referring to the same exhibit. Administering the oath would be problematic, in that an officer should be in the
same place as the deponent. Also, to be sure that the proceedings are recorded correctly, the services of a
stenographer would be required in Singapore. Both the oath and recordation of the proceedings would have to
comply with the rules of taking depositions in Singapore, in accordance with the Hague Convention on the Taking
of Evidence Abroad in Civil or Commercial Matters. See 28 U.S.C. 1781. See also 932 and Appendix A.
Instead, plaintiff proposes that all parties use satellite facilities, which are located in Singapore, Chicago and
Atlanta, to conduct the deposition. He does so with a revised deposition notice pursuant to Rule 30(b)(3), and a
discussion with defendants counsel. The defendant corporation, who was unhappy about potentially losing the use
of its key engineer for several days, agrees. Defense counsel, not anxious to prepare and advise his deponent-client
by telephone, concurs.
As this example shows, video conferencing alleviates most, if not all, of the problems associated with long-distance
depositions. All of the parties are virtually together, able to observe each others demeanor, and to examine
common exhibits with ease. Oath taking and transcription is simplified; the officer administering the oath need not
be physically present with the deponent. Scheduling remains almost as simple as a telephone deposition, although it
still depends on the parties being at a location with access to video conferencing technology. The visual proceedings
are recordable, using a video tape recorder at one or more of the sites. Finally, and most important, the parties save
time and money by avoiding unnecessary travel and lost productivity.
In addition to Rule 30(b)(6) depositions, virtual depositions are also useful for non-party deponents who cannot
otherwise be compelled to travel to the deposition site. Suppose, for example, that the witness in the above example
was not defendants current employee but rather a former employee that Paul wanted to depose for other reasons.
As a citizen of Singapore, the former employee would be under no obligation to appear anywhere in the United
States to be deposed. Aside from traveling to Singaporeand taking the risk of being liable for defendants
attorneys fees if the deposition proved irrelevanta video conference deposition is the only viable option.
In short, video conferencing, and its ability to make long distance discovery as convenient as an exchange of
interrogatories, is no less than revolutionary.
B. Criminal Depositions:
The usefulness of virtual depositions is not limited to civil practice. In fact, this type of discovery has to date made a
more significant mark on criminal jurisprudence, such as when witnesses are unavailable for trial. When
exceptional circumstances exist, Fed. R. Crim. Proc. 15(a) allows government prosecutors or defense attorneys
the opportunity to depose witnesses in order to preserve their testimony at trial. This situation usually arises when
witnesses are outside the United States and cannot be compelled to attend trial.
From a government perspective, taking a foreign criminal deposition is further complicated by a defendants
constitutional right to face to face confrontation of witnesses, particularly when the defendant is in custody. Fed. R.
Crim. Proc. 15(b) requires the officer having custody of the defendant to produce him at the examination and keep
the defendant in the presence of the witness during the examination. However, the custodian of federal prisoners,
the U.S. Marshall Service, lacks jurisdiction to hold detainees outside of the U.S. To comply with international law,
custody of the prisoner must be transferred to the government where the deposition is set to take place. Security
concerns and/or outright refusal by the local authorities to accept custody of the defendant has often made such
depositions untenable, if not impossible.
Recently, however, video conference depositions have been used to resolve the impasse. Several jurisdictions have
interpreted Fed. R. Crim. Proc. 15(b) to require only that the government make a good faith, diligent effort to secure
the defendants physical presence at the deposition and, failing this, employ procedures that are adequate to allow
the defendant to take an active role in the deposition proceedings. See U.S. v. McKeeve, 131 F.3d 1, 8 (1st Cir.
1997); and U.S. v. Medjuck, 156 F.3d 916, 920 (9th Cir. 1998). (In Medjuck, the government traveled to Canada to
obtain deposition testimony for a conspiracy trial. The Ninth Circuit Court of Appeals permitted the government to
conduct the Canadian deposition, and leave the defendant in the United States, while allowing him to observe the -
proceedings via live video feed and a live, private, telephone connection with his attorneys who attended the
depositions.)
The opportunity to take virtual foreign depositions cuts both ways. Defendants who can demonstrate exceptional
circumstances may also, in the courts discretion, conduct overseas discovery by waiving the right of confrontation,
or by persuading the court to order the type of visual link approved in Medjuck. In practice, such discovery is rare,
considering that defendants, like the government, must meet rigorous relevancy and admissibility tests in order to
proceed. See U.S. v. Tolliver, et al., 61 F.3d 1189 (5th Cir. 1995); U.S. v. Omene, et al., 143 F.3d 1167 (9th Cir.
1998); see also, Harrell v. State, 709 So.2d 1364 (Fla. 1998).
At the least, defendants counsel must carry out a holding action, pressing the government to prove that (1) a foreign
deposition is necessary, and (2) that the defendants Sixth Amendment Confrontation Clause rights have been
satisfied.
A sample government motion for leave to take a video conference deposition follows.
IN THE FEDERAL DISTRICT

FOR THE CENTRAL DISTRICT OF ILLINOIS
URBANA DIVISION
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) No. 99-CR-000
)
ALEJANDRO QUIROGA, )
)
Defendant. )
MOTION FOR LEAVE TO TAKE FOREIGN VIDEO

CONFERENCE DEPOSITION
TO PRESERVE TESTIMONY
NOW COMES the UNITED STATES OF AMERICA by Assistant United States Attorney, JANE
DOE, and for its motion pursuant to Federal Rule of Criminal Procedure 15(a) and
states:
1. That this matter is currently scheduled for trial within the next thirty
(30) days.
2. That the alleged victim of this offense, Peter Berger, is a resident of
Sttgardt, Germany and a citizen of Germany.
3. That the Government has diligently sought to obtain the appearance of the
said witness at the trial of this cause by a written voluntary request that
the said witness appear.
4. That the said witness is beyond the jurisdiction of the Court and no lawful
process can compel the said witness to appear and attend at trial. Further,
that the said witness has refused to appear voluntarily.
5. That the foregoing constitute exceptional circumstances pursuant to Federal
Rule of Criminal Procedure 15(a) to justify the preservation of the said
witnesss testimony because of the likelihood that said witness will not
appear at trial.
6. That the United States Attorneys Office has made arrangements through the
University of Illinois College of Law to use a video conferencing facility
located in that institution which will permit the Defendant, his counsel,
the United States Attorney, and a court reporter to all be physically
present in Champaign, Illinois with the witness and his attorney being
simultaneously present at a video conferencing facility located in
Sttgardt, Germany on February 15, 1999 at 9:00 a.m. Central Standard Time.
The witness has indicated that he is agreeable to this procedure and will
voluntarily appear to give testimony relevant to this cause at that time.
7. That a transcribed record of said deposition will be made, a videotaped
record of said deposition will be made, and at a trial of this cause the
transcript and videotape will be available for admission as relevant,
probative evidence in this case.
8. That this request for Court approval of the taking of said video conference
deposition is in the interest of justice, and not for the purposes of delay.
WHEREFORE, the UNITED STATES OF AMERICA prays that the Court would enter an Order
approving and ordering the taking of the video conference deposition of Peter
Berger on February 15, 1999 at the University of Illinois College of Law Video
Conferencing Center and for such other relief as the Court deems just and
appropriate.
UNITED STATES OF AMERICA, Plaintiff

By: ____________________________________
JANE DOE,
Its attorney
Defense counsel should ask the Court to require the format suggested in this example whenever the government
seeks leave to take a foreign deposition. In addition, defendants counsel should, themselves, consider the
advantages of employing the technology when appropriate. It is not difficult to see that video conference
depositions make it that much easier for a defendant to obtain vital testimony that would be otherwise unavailable.
C. Habeas Corpus Proceedings
Besides criminal actions, virtual depositions can be a useful tool for processing habeas corpus petitions. As courts
try to balance prisoners rights to habeas protection against the avalanche of mostly meritless petitions, virtual
depositions promise an effective, cost efficient method of obtaining discovery. As one Fifth Circuit Judge recently
wrote:
It is probable that the explosion of technological advancement will be determinative of many of the vexing potential
problems raised by the district courts search in this troubling area of [habeas corpus] litigation. Courts are no
longer restricted to a choice between live testimony and a transcription of a deposition read to a jury by attorneys.
Tools now available, such as video depositions and video teleconferencing, may greatly impact on the fundamental
fairness of trials for an absent litigant. Latiolais v. Whitley, 93 F.3d 205, 211 (5th Cir. 1996) (J. Parker, Concurring).
Judge Parkers observation is a prophetic statement, not only for habeas proceedings, but also for the discovery
process in general. As attorneys become more familiar with the technology, they can vastly improve their access to
long-distance discovery, and with less expense.

Some courts have recognized a distinction between discovery depositions and what are called de bene esse
depositions, meant to preserve testimony for trial from witnesses likely to be unavailable at trial. Federal Rule of
Civil Procedure 32(a)(3) and Federal Rule of Evidence 804(b)(1) permit a party to use for any purpose at trial, the
transcript from a deposition at which a witness, unavailable for trial, was subject to examination by the party against
whom the transcript is being offered. Thus, a de bene esse deposition is one taken after a party learns that the
witness may not be available for trial, and for the purpose of preserving testimony for use at trial.
This distinction, however, between a deposition taken for the purpose of discovery versus for the purpose of
preserving testimony for trial is not recognized by any civil rules. See Tatman v. Collins, 938 F.2d 509 (4th Cir.
1991). Note that the concept of de bene esse depositions meant for the specific purpose of preserving testimony for
trial is expressly recognized by Federal Criminal Rule of Procedure 15 (A party may move that a prospective
witness be deposed in order to preserve testimony for trial. The court may grant the motion because of exceptional
circumstances and in the interest of justice.) See, e.g., United States v. Cannon, No. 05-3019, 2007 WL 251134
(8th Cir. Jan. 31, 2007) (affirming denial of defendants motion for leave to take a deposition under Fed. R. Crim. P.
15 on the ground that the movant had failed to demonstrate that the witnesss testimony would not be cumulative of
the expected testimony of other witnesses who were available for trial).
As we will discuss in this book, there are many reasons why a party might want to depose a witness: discovery,
preserving testimony, developing impeachment material, evaluating a witnesss credibility and presentability,
posturing for settlement, securing admissions for use in a dispositive motion, and others. In any one deposition, the
examining attorney may have multiple overlapping goals. Thus, once a deposition is scheduled, you should ask
questions that further each of your deposition goals: ask questions intended to elicit information that you do not
already know, ask questions intended to pin the witness down, and ask questions intended to establish bases for a
dispositive motion. If the answers are such that you think you might want to use them for trial, make sure that your
question was not objectionable; if need be, reframe your question so that you are comfortable that the answer you
receive will be admissible at trial. In other words, for regularly scheduled depositions, do not go into them thinking
that they are either discovery or de bene esse depositions. Think of them as whatever will further your goals. By
the close of discovery and by the time you reach any limits set on the number of witnesses you may depose, be sure
that you have secured anything you will need at trial from adverse witnesses.
So when might you want to take a de bene esse deposition? Most commonly, it is when you learn after the close of
discovery or after a limit on the number of depositions is reached, that a friendly witness will no longer be available
for trial. You will still need leave of court (or assent from opposing counsel), but you can explain to the court in
support of your motion that you had not previously scheduled the witnesss deposition because you had reason to
believe that the friendly witness would voluntarily appear for trial. If the witness is not friendly, then you will have
a tougher time convincing a court to excuse your failure either to have previously noticed the witnesss deposition at
all, or, if the deposition had taken place, to have fully developed that witnesss testimony during the initial
deposition. Even if the court grants such leave to retake an adverse witnesss deposition, the court may limit your
use of the deposition. For example, in Lier v. Saint Marys Medical Center, No. 259596, 2006 WL 2708590 (Mich.
App. Ct. Sept. 21, 2006), the Court of Appeals of Michigan affirmed the trial courts decision to preclude a party
from using testimony developed in a de bene esse deposition in opposition to a motion for summary judgment.

Eble, Videotape Depositions in Federal Court, 92, No. 1 Case & Comment 3 (Jan-Feb, 1988)
Annotation, Closed-Circuit Television Witness Examination, 61 A.L.R. 4th 1155 (1988)
Tuite, Block That Deposition, 77 ABA Journal 88, (July 1991)
Salomon, et al., Countering a Move to Depose, 14 Natl L.J. 23 (Dec. 9, 1991)
Cymrot, The Forgotten Rule, 18, No. 3 Litigation 4 (Spring 1992)
Wilson, et al., Questions Beyond The Scope: Defending Against The Fed. R. Civ. P. 30(b)(6) Sneak Attack, 26
Colo. Law. 87 (July 1997)
Salmi, Dont Walk the Line, Ethical Considerations in Preparing Witnesses for Depositions and Trial, 18 Rev.
Litig. 135 (Winter, 1999)
Dickerson, The Law and Ethics of Civil Depositions, 57 Md. L. Rev. 273 (1998)
Kerper, et al., Rambo Bites the Dust: Current Trends in Deposition Ethics, 22 J. Legal Prof. 103 (Spring 1998)
Gottshall, Protecting the Corporate Executive from Deposition, 27 Brief 54 (Winter, 1998)
Henke, et al., The Taking and Use of Video Depositions: An Update, 17 Rev. Litig. (Winter 1998)
Motherway, et al., IICLE Illinois Civil Practice Volume II, Chapter 1, Deposition and Discovery, (August,
1997)
Grenig, Stipulations Regarding Discovery Procedure, 21 Am. J. Trial Advoc. 547 (Spring 1998)
Pope, et al., Discovery on Wits borrowed from the adversary: Deposition of the Trial Attorney, 65 Def.
Couns. J. 285 (April 1998)
Annotation, Use, in Federal Criminal Prosecution, of Deposition of Absent Witness Taken in Foreign Country,
as Affected by Federal Rules of Criminal Procedure 15(b) and (D) Requiring Presence of Accused and That
Deposition Be Taken in Manner Provided in Civil Actions, 105 A.L.R. Fed. 537 (1991)
Chapter 2
Procedures For Setting Up a Deposition


210.3 Opposing Deposition on Ground that Witness Lacks Relevant Information
Sample: Notice of Deposition of Officer, Director or Managing Agent of a Party
211.1 Opposing the Taking of a Deposition of an Officer, Director or Managing Agent of a Party
212.1 Objecting to a Rule 30(b)(6) Deposition
Sample: Motion for Protective Order to Limit or Modify Notice of Deposition Under Fed. R.
Civ. P. 30(b)(6)
212.2 Outline for Beginning a Deposition of a Witness Designated by Organization Under Rule
30(b)(6)
213.3 Rule 45 Subpoena Duces Tecum Cannot be Used to Circumvent the 30-Day Party Document
Production Time Frame
221 Using a Subpoena Duces Tecum to Compel Production of Evidence or to Permit Inspection
231.1 Opposing Videotape Deposition

As a general rule, a deposition is initiated by service of a notice of deposition on all other parties. If the deponent is
a nonparty, you may need to serve him with a subpoena and you may want to request that documents be produced.
In other cases, the procedure can be less formal. Do not forget to make the necessary arrangements with a court
reporter well in advance of your deposition.

The federal and all state rules require written notice in order to set a deposition. The amount of and form of written
notice required varies.
Federal Rule of Civil Procedure 30(b) requires that you give reasonable notice to all other parties of your intention
to take a deposition. In many cases, the local rules of a particular jurisdiction will set a minimum amount of time for
reasonable notice, such as five business days. See Local Rule 4.3(a) (D. Del.); Local Rule 403 (D. Colo.). If the
notice is mailed, Rule 6 requires that an additional three days be added to the period of notice.
Practice Tip: Picking Mutually Convenient Dates
Although a party noticing a deposition may do so without the consent of those affected, Bogan v.
Northwestern Mutual Life Ins. Co., 152 F.R.D. 9, 11 (S.D.N.Y. 1993), it is often a good idea to try to
obtain approval of the dates from all involved. Some local rules require or encourage such cooperation. If
time is of the essence, trying to get cooperation beforehand improves ones standing if the scheduling
matter ends up before a judge.
Your notice of deposition must be in writing and must state the time and place for taking the deposition and the
name and address of each person he examined. Jou Jou Designs, Inc. v. JOJO Ligne Internationale, Inc., 821 F.
Supp. 1347 (N.D. Cal 1992) (notice addressed to name of defendants business was sufficient); Jackson v.
Woodford, No. 05cv513, 2007 WL 2023551 (S.D. Cal. July 11, 2007) (subpoena was held invalid because it failed
to specify the time and place for the deposition). If the identity of the deponent or his address is not known, you
must provide a description sufficient to identify the person or the particular class or group to which the person
belongs. If you have requested documents, you must specify the documents requested.
A sample notice of deposition which meets the requirements of Rule 30(b) follows:

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
NOTICE OF DEPOSITION
TO: O. Posing Counsel

30 Ash Street
Metropolis, State 55556
PLEASE TAKE NOTICE that under Fed. R. Civ. P. 30(b)(1), Plaintiff, John D. Harmed,
through his counsel, will take the deposition upon oral examination of Samuel P.
Bigshot, 20 Grand Estates Lane, Suburb, State 55557. The deposition will take
place on Tuesday, April 1, 2008, beginning at 9:30 a.m. at the offices of Attorney
& Lawyer, P.C., 8 South Street, BigCity, State 44444, before a notary public or
other officer authorized by law to administer oaths. The deposition will be
recorded by stenographic means and continue from day-to-day until completed. You
are invited to attend and cross-examine.
JOHN D. HARMED,
By his attorney,
________________________
Timothy P. Attorney
5 Main Street
Dated: _______________
Although the Rules do not require it, try to coordinate dates for depositions with the schedules of opposing counsel
and the deponents. This is not only a matter of common courtesy, but of common sense. Both sides will likely take a
number of depositions, and it is far more convenient for both you and your opponent to come to some agreement
regarding deposition scheduling. If the matter is approached in a reasonable fashion, both counsel can usually reach
a satisfactory agreement.
Indeed, opposing counsel is entitled to a date that does not conflict with his other obligations and gives him time to
prepare for the deposition, provided that he does not simply remain unavailable. See C&F Packing Co. v.
Doskocil Companies, 126 F.R.D. 662 (N.D. III. 1989).
If an agreement cannot be reached, there is little alternative but to notice the deposition and proceed on that basis. If
the date chosen by an opponent is unsatisfactory to you, and you are unable to resolve the matter through discussion
with counsel, your only alternative is to move for a protective order under Rule 26(c).
Your motion for a protective order should not only specify the nature of the problem, but must include a statement
of your attempts to resolve the dispute without the need for the courts intervention. Rule 26(c) requires that a
motion be accompanied by a certification that you have in good faith either conferred or attempted to confer with
the other affected parties to resolve the dispute. Moreover, the motion should suggest alternative dates for the
deposition, which preferably should be in close proximity to the date initially noticed.
The Rules provide no specific guidelines for resolution of such a motion. As a general matter, trial courts have wide
discretion to resolve discovery disputes, but judges generally do not like to deal with these issues. If your witness
has unavoidable conflicts, the motion likely will be granted. Likewise, if you have other commitments, such as a
trial, the court will look favorably upon your motion. Where the problem is less significant, and you can rearrange
your schedule, the court is less likely to grant your motion.

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION FOR PROTECTIVE ORDER FOR DEPOSITION

Pursuant to Fed. R. Civ. P. 26(c)(1)(B), Defendant Big Business, Inc., moves the
Court for a protective order quashing the notice of deposition and holding that
the deposition of Samuel P. Bigshot shall be postponed until a date mutually
satisfactory to the parties.
Mr. Bigshot is the Chief Executive Officer of Defendant, Big Business, Inc. In
noticing a deposition date for Mr. Bigshot, Plaintiff's counsel made no attempt to
contact counsel for Big Business, Inc., to schedule a mutually acceptable time. On
the date noticed for his deposition, Mr. Bigshot will be out of the country for a
previously-scheduled business trip to inspect the foreign off-shore production
sites of Big Business, Inc. Undersigned counsel informed Plaintiff's counsel that
it is not possible for Mr. Bigshot to reschedule his business trip and attempted
to arrange for another deposition date. The parties have been unable to agree to a
rescheduled deposition date and Plaintiff insists upon going forward with the
deposition on the date noticed. As a result, Defendant hereby moves for a
protective order quashing the notice of deposition and requiring Plaintiff to make
reasonable efforts to find a time acceptable to all parties for such deposition.
BIG BUSINESS, INC.,
By its attorney,
_______________________
O. Posing Counsel
30 Ash Street
Dated: _______________
DECLARATIONS
Include an appropriate declaration setting forth relevant facts and your attempts to informally resolve the deposition
date prior to making motion. See Form, 137.
MEMORANDUM OF LAW
Include a memorandum of law in support of motion and the relief sought. See 151.
You have just filed your motion for a protective order or to quash. The deposition is scheduled to start in a week.
What do you do?
In some jurisdictions, by local rule, the deposition is automatically stayed pending a ruling by the court on the
motion. See, e.g., Local Rules of the Civil Courts of Dallas County, Texas 2.12(b); Local Rules of Civil Practice
and Procedure of the United States District Court for the District of Delaware Rule 30.2; but see Uniform Local
Rules of the United States District Courts for the Northern and Southern Districts of Mississippi (It is incumbent
upon the party seeking the protection of the court to obtain a ruling on the motion prior to the scheduled
deposition.).
In other jurisdictions, you are not off the hook just by filing the motion. See, e.g., Rice v. Cannon, No. A06A2449,
2007 WL 102148 (Ga. Ct. App. Jan. 17, 2007) (Merely filing motions for a protective order did not relieve the
[deponents] from the duty to appear at their depositions.) The case of Goodwin v. Boston, 118 F.R.D. 297 (D.
Mass. 1988) provides a good illustration of what can happen when the attorney stops paying attention after filing a
motion to quash a deposition notice. There, plaintiffs noticed a deposition and defense counsel moved to quash five
days later. By the date of the deposition, the court had not taken any action, so two of the plaintiffs took the day off
to attend the deposition and the stenographer showed up. When defense counsel and the witness did not appear,
plaintiffs counsel moved for sanctions. The court allowed the motion:
When it appears that a Court is not going to be able to decide a motion to quash or a motion for protective order
before the date set for a deposition, counsel for the movant should contact counsel for the party noticing the
deposition and attempt to reach an agreement staying the deposition until after the Court acts on the motion to
quash and/or the motion for a protective order. If agreement cannot be reached, it is incumbent on counsel for the
movant to file a motion to stay the deposition until the Court acts on the motion to quash and/or for a protective
order and to alert the clerk to the need for immediate action on the motion to stay.
Id., cited with approval in United States v. Fesman, 781 F. Supp. 511, 514 (S.D. Ohio 1991); Cahn v. Cahn, 626
A.2d 296, 300 (Conn. 1993).
The attorney in Goodwin was sanctioned for apparently doing nothing after filing the motion to quash. But what if
the attorney had followed all of the courts suggestionscalling opposing counsel in an attempt to reach an
agreement, and, if unsuccessful, petitioning the court for a stay in conjunction with a call to the clerk in the hope of
prodding quick actionand still there was no ruling on the eve of the deposition? In this circumstance, the attorney
would be faced with a conundrum: show up with a witness that you believe should not be deposed or at least not
deposed on the particular date, or do not show up and risk sanctions. The authors suggest that if you have proceeded
with diligence to protect your rights but through the inaction of the court you are left with no ruling on your motion,
you place a final call to opposing counsel and follow it up with a letter informing opposing counsel that you will not
be showing up with your witness at the deposition at the time and place noticed. At this point, if the attorney who
noticed the deposition does not call off the court reporter, and subsequently shows up expecting a witness and
counsel from the other side, the court would most likely have little sympathy for a motion for sanctions, since the
attorney could have easily avoided incurring the expenses of showing up for a deposition that the attorney had been
warned was not going forward.
Where the attorney opposing the deposition has acted with all diligence, the equities would be against the noticing
attorney who unnecessarily incurs costs before the court has ruled on the motion for a protective order or motion to
quash. See Alexander v. Fed. Bureau of Investigation, 186 F.R.D. 78, 87 (D.D.C. 1998). By contrast, if the attorney
opposing the deposition has plenty of time to file a motion for a protective order or motion to quash, but waits until
the last minute to file the motion and then fails to show up at the deposition, courts tend to have little sympathy,
viewing the maneuver as litigation by ambush. See Barnes v. Madison, No. 02-50937, 2003 U.S. App. LEXIS
22733, at *43-44 (5th Cir. Nov. 4, 2003) (holding the attorney was not justified in not showing up for deposition
after filing motion for protective order on Friday before Mondays deposition); In re Hollar, 184 B.R. 243, 246
(Bankr. M.D.N.C. 1995) (The last-minute motion for a protective order did not excuse debtors from their
obligations to comply with the order of the court.); American Health Systems, Inc. v. Liberty Health System, Civ.
A. No. 90-3122, 1991 U.S. Dist. LEXIS 469, at *9 (E.D. Pa. Jan. 15, 1991) (denying a motion for protective order
because the defendant filed his motion on the very day of the deposition, failed to appear at the deposition, and did
not have the professional courtesy to inform the opposing party of the pending motion).
In sum, as with so much of legal practice, use common sense, communicate with opposing counsel, and before
seeking sanctions from the court, make sure you have clean hands.
Reaching an agreement on the location of a deposition may present a more difficult problem than agreeing on its
timing. If the parties all reside in the same district, depositions are usually held at counsels office. (The practice
varies from jurisdiction to jurisdiction on whether the deposition is held at the noticing or defending attorneys
office.) A dispute often arises, however, if the deponent is out-of-state and the deposing attorney tries to force him
to come into the district. Similarly, an attempt to take a video deposition at the scene of an accident or at some other
location away from counsels office may become a matter of dispute.
Disputes over the place of a deposition, like those over its timing, should be resolved by agreement between the
parties. Each attorney has a strong personal interest in cooperating with opposing counsel, because each of you will
need concessions from the other during the course of the litigation. If the matter cannot be resolved through good
faith negotiations, your only alternative is to move for a protective order under Rule 26(c).

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION FOR PROTECTIVE ORDER
FOR LOCATION OF DEPOSITION OF SAMUEL P. BIGSHOT
Pursuant to Fed. R. Civ. P. 26(c), Defendant, Big Business, Inc., moves the Court
for a protective order prohibiting the taking of the deposition of Samuel P.
Bigshot at the noticed location; the offices of Attorney & Lawyer, P.C., 8 South
Street, BigCity, NH 44444.
This is an action against Big Business, Inc., which is headquartered at 25 State
Street, Metropolis, MA 55556. Mr. Bigshot is the Chief Executive Officer of Big
Business, Inc., and has many pressing demands upon his time for the operation of
the business. Defendant has agreed to make Mr. Bigshot available for deposition,
but requiring his attendance at a deposition in another state is an undue burden.
This is further supported by the fact that Attorney & Lawyer, P.C., has a local
office in Metropolis that could easily be used for such deposition. Therefore,
noticing a deposition location at a considerable distance from Mr. Bigshot's place
of business and residence when a more convenient location is available is
harassing and inappropriate. The parties have been unable to agree to a
rescheduled deposition location and Plaintiff insists upon going forward with the
deposition as noticed.
WHEREFORE, Big Business, Inc., requests that the Court grant a protective order
quashing the deposition of Samuel P. Bigshot at the noticed location and requiring
the Plaintiff to find a reasonable alternative. Defendant is willing to provide
space for such deposition at their corporate headquarters at no expense to
Plaintiff.
BIG BUSINESS,
INC.,
By its attorney,
_______________________
O. Posing Counsel
30 Ash Street
Dated: _______________
DECLARATIONS
Motion should include appropriate declarations setting forth relevant facts for motion and informal attempts to
resolve the dispute without the courts intervention.
MEMORANDUM OF LAW
Include memorandum of points and authorities justifying the relief requested in the motion.
210.3 Opposing Deposition on Ground That Witness Lacks Relevant Information
Witnesses have sometimes sought protective orders on the ground that they have no relevant information, and
therefore permitting such depositions to proceed would be a waste of time. In such a case, the moving party has the
burden of demonstrating to the court that the proposed deponent truly has nothing to contribute. Courts tend to not
be particularly sympathetic to such motions, figuring that part of the purpose of depositions is discovering which
witnesses do have relevant information. See Van Den Eng v. Coleman Co., No. 05-MC-109, 2005 WL 3776352 (D.
Kan. Dec. 14, 2005) (the normal practice of this Court is to deny motions that seek to entirely bar the taking of a
deposition); Steadfast Ins. Co. v. Auto Marketing Network, Inc., No. 97 C 5696, 1999 WL 300231 (N.D. Ill. May
3, 1999) (We begin with the proposition that it is rare to preclude a deposition altogether, or to dictate in advance
what specific topics may be explored.)
The case of In re Deposition Subpoenas of Garlock, No. M8-85, 2006 WL 3499431 (S.D.N.Y. Dec. 5, 2006) is
instructive. There, the court observed that an order barring the taking of a deposition is most extraordinary relief.
Id. at *2. It stated:
Movants seek to create the impression that the proposed deponents know nothing of relevance and that the
deposition subpoenas are pure harassment. They attempt to do so, however, by artful drafting. They never actually
say that the deponents know nothing relevant to the pending action. Rather, they say that the deponents do not
recall ever having communicated with the Plaintiffs or having performed any work for them This is too cute for
words, and that is putting the matter kindly.
Id. See also, e.g., American High-Income Trust v. AlliedSignal, Inc., No. 02 Civ. 2506, 2006 WL 3545432
(S.D.N.Y. Dec. 8, 2006) (party seeking protective order has burden of demonstrating lack of knowledge and undue
burden). Thus, in the rare cases where a court will grant a motion for a protective order against the taking of the
deposition at all on the ground that the witness knows nothing, the moving party will have supported its motion with
affidavits establishing lack of knowledge by more than merely conclusory statements, and will make at least some
showing that the party seeking the deposition is doing so for harassment or other improper reasons or that
permitting the deposition to proceed would place an undue burden on the proposed deponent.
Note, however, that courts are more receptive to motions for protective orders regarding so-called apex depositions
of high-ranking corporate officials uninvolved in the events underlying the litigation. See section 211.2 below.

Rule 30 provides for two different ways to obtain deposition testimony from a corporate, business or governmental
entity. First, there is always the option to name, in the notice of deposition, a specific officer or agent. Second, Rule
30(b)(6) provides that a party may name a corporation, business or governmental entity as a deponent and describe
with reasonable particularity, within the deposition notice, those matters on which the examination is requested.
Upon receipt of a notice under Rule 30(b)(6), the corporate entity is required to designate one or more officers,
directors, managing agents (or persons who consent to testify) to testify on its behalf and may state, for each person
designated, the matters on which he or she will testify.
Courts have interpreted Rule 30(b)(6) as requiring the business entity to make a good faith effort to not only
designate persons having knowledge of the matters sought by the examining party, but also to prepare the
designated persons in order to give full, complete and straight forward answers to the questions relating to the
relevant subject matters. Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70 (D. Neb. 1995); SEC v. Morelli, 143
F.R.D. 42 (S.D.N.Y. 1992). In the event that the business entity fails to produce a witness for deposition, the court
may impose appropriate sanctions under Rule 37(d), including the striking of pleadings, entering judgment,
monetary sanctions or exercising its contempt powers. Moreover, if the corporate entity presents an unprepared
witness or a witness lacking knowledge upon motion, it may be required to produce another designee for deposition,
as well as pay monetary sanctions. Buycks-Roberson v. Citibank Federal Sav. Bank, 162 F.R.D. 338 (D. Ill. 1995).
You may sometimes find it difficult to determine whether a particular deponent qualifies as an officer, director or
managing agent of a party. In some instances, courts have held that an outside director of a corporate partywho is
not involved in its day-to-day operationsis not a director for purposes of Rule 37(d) and 30(b). Similarly,
employees are seldom designated as managing agents and do not otherwise qualify as such merely by virtue of their
status as employees. Courts have considered the following factors in determining whether an individual is a
managing agent:
What is the deponents official title?
What are or were the deponents powers, responsibilities and duties, particularly with respect to the
litigation?
Does or did the deponent have the right to exercise judgment and discretion in dealing with corporate
matters?
Are there persons in higher authority who are in charge of the particular subject matter of the deposition?
Can the deponent be depended upon to comply with his employers direction to give testimony?
Does the deponent presently identify with the interests of his employer, and not the opposing party?
See 4A MOORES FEDERAL PRACTICE 30.55 at 30-72. Note that the person must qualify as a managing agent at the
time the deposition is taken. Bon Air Hotel, Inc. v. Time, Inc., 376 F.2d 118 (5th Cir. 1967). On occasion,
individuals have gone so far as to tender their resignations in order to avoid the courts power to compel their
attendance as an officer, director or managing agent.
Excellent analyses of whether a person is a managing agent of a party for purposes of Rules 30(b) and 37(d) are
found in Sugarhill Records Ltd. v. Motown Record Corp., 105 F.R.D. 166 (S.D.N.Y. 1985); and Tomingas v.
Douglas Aircraft Co., 45 F.R.D. 94 (S.D.N.Y. 1968).
If you are uncertain about an individuals position with a party, the safer practice is to serve that individual with a
subpoena or to make appropriate arrangements with opposing counsel to have that individual appear pursuant to
notice. Opposing counsel will often agree to produce employees who do not qualify as officers, directors or
managing agents because most employees would prefer not to be served with a subpoena and because counsel will
anticipate receiving the same consideration in return.
Sample: Notice of Deposition of an Officer, Director or Managing Agent of a Party
[CASE CAPTION] Case No.___________
Notice of Deposition
OF ____________________
Date: ___________
Time: ___________
Place: ___________
TO ALL PARTIES AND TO THEIR

RESPECTIVE ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE THAT ON (date) at (time) at (place), (name of noticing party)
will take the deposition of (name of deponent) as an officer, director or managing
agent of (name of party) and whose business address is [insert address]. The
deposition will be taken before [insert name of court reporter], a certified court
reporter and will continue day to day until completed.
Dated: ___________ [SIGNATURE]

Attorneys for ____________
Note that while under Rule 37(d) you can compel any party or officer, director or managing partner of a party to
appear for deposition by service of notice of deposition, only a party or officer of a party under 45(c)(3)(A)(ii) can
be compelled to appear for deposition by subpoena more than 100 miles from the place where he resides, is
employed or regularly transacts business in person.
211.1 Opposing the Taking of a Deposition of an Officer, Director or Managing Agent of a
Party
There are two principal reasons why you might wish to oppose the taking of the deposition of an individual as an
officer, director or managing agent of your client. First, your client has the obligation to produce such a person for
the deposition at such place as it is noticed, subject to obtaining a protection order. For example, under Rule 30(a)
the plaintiff and its officers, directors and managing agents generally must appear for deposition in the forum, even
if the place of business or residence is 1,000 miles away. Compare Rule 45(c)(3)(A)(ii). On the other hand, a
nonparty witness can be compelled to appear only within 100 miles from the place where that person resides, or is
employed or regularly transacts business in person. See Rule 45(c)(3)(A)(ii) and 135.1, supra.
A second reason is that the testimony of an officer, director or managing agent of a party generally is deemed to be
an admission of that party. Thus, you may have no objection to the taking of the individuals deposition or to
producing the individual at the designated location, but not as an officer, director managing or agent of your
client.
One question that comes up is whether an officer, director or managing agent of a parent or a subsidiary to a
corporate party is considered a party and therefore susceptible to depositions in the forum, regardless of its
location. Although the issue has been raised in only a few reported cases, the apparent rule is that officers, directors,
and managing agents of subsidiary corporations with no managerial control or oversight over their parent
corporations are not considered parties, while those at the parent to a party subsidiary are considered parties.
In In re Johnson and Johnson, 59 F.R.D. 174 (D. Del. 1973), an American party sought sanctions for the failure of
officers of the opposing partys corporate subsidiary to appear for depositions noticed to take place in the litigation
forum. The court denied the motion finding that the officers of the subsidiary, who lived and worked in Connecticut
and Norway, were not party officers and could not be compelled to travel for their depositions. The court stated
that it found no authority which permits a corporate veil to be pierced for the purpose of Rule 45. The Court
declines to take this novel approach. Id. at 178. Similarly, in Ronald A. Katz Technology Licensing, L.P. v. Verizon
Communications, Inc., No. CIV.A. 01-5627, 2002 WL 31356302 (E.D. Pa. October 16, 2002), the court refused to
compel the depositions of officers of a partys subsidiaries. The court reasoned that there is no reason to believe
that either of these two gentlemen exercise any managerial control over [the parent party]. While they may be
managing agents of a [party] subsidiary, this does not give them any direct relationship with the [party]. Id. at *6.
By contrast, in Rehau, Inc. v. Colortech, Inc., 145 F.R.D. 444, 445 (W.D. Mich. 1993), a party wanted to depose in
the forum officers of the other partys parent corporation located in Europe. The court compelled the depositions
reasoning that these foreign-based officers did exercise control over the subsidiary party; however, the court stated
that due to their distance from the forum, the witnesses could insist on being deposed telephonically, rather than
having to travel to the United States. Id. at 446-47.
Under the Rules, officers of a corporation are not immune from being subjected to the deposition process. However,
Apex depositions (depositions of corporate officers at the apex of the corporate hierarchy) entail tremendous
potential for abuse and harassment, as well as coercing settlement. Crown Cent. Petroleum Corp. v. Garcia, 904
S.W.2d 125, 128 (Tex. 1995). In the absence of the exhaustion of less intrusive methods of discovery, courts are
likely to grant a motion for protective order prohibiting depositions of senior officers who possess little or no
relevant information. Liberty Mutual Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282 (1992).
The federal decisions in this area have tended to concentrate upon prior discovery efforts before subjecting a
corporate executive to the rigors of deposition. For example, in Salter v. Upjohn, 593 F.2d 649 (5th Cir. 1979), a
protective order conditionally prohibiting the deposition of Upjohns president was upheld since the plaintiff
attempted to depose the president prior to deposing any lower level employees. The protective order left the plaintiff
with the ability to take the deposition if the testimony of other more knowledgeable employees proved to be
unsatisfactory.
In Mulvey v. Chrysler Corp., 106 F.R.D. 364 (D.R.I. 1985), the plaintiff attempted to depose Lee Iacocca,
Chryslers president and chairman. The court noted that because Iacocca is a singularly unique and important
individual who can be easily subjected to unwarranted harassment and abuse, he has a right to be protected, and
the courts have a duty to recognize his vulnerability. Id. at 366. In light of Iacoccas declaration claiming ignorance
of the facts sought, the court required the plaintiff to first propound written interrogatories, while reserving the
option to order a deposition if warranted by the interrogatory answers.
A similar approach was taken by the court in Baine v. General Motors Corp., 141 F.R.D. 332 (M.D. Ala. 1991),
where the plaintiff sought to depose a vice president on issues related to a faulty restraint system. In granting a
protective order, the court found that the deposition would be unduly burdensome without first establishing that the
information could not be obtained by less intrusive discovery. Plaintiff was required to depose lower level
employees and to serve written interrogatories to the high-level executive to determine whether his knowledge was
superior to those employees. See also Travelers Rental Co., Inc. v. Ford Motor Co., 116 F.R.D. 140 (D. Mass.
1987); Armstrong Cork Co. v. Niagara Mohawk Power Corp., 16 F.R.D. 389 (S.D.N.Y. 1954) (court refused
deposition notice of nine officers and six directors with no personal knowledge); Marisco v. Sears Holding, No. 06-
10235, 2007 WL 1006168 (E.D. Mich. Mar. 29, 2007) (stating that proponent of deposition of high-level decision
makers who are removed from the daily subjects at issue in the litigation, have burden of demonstrating that
proposed deponents have unique personal knowledge of the subject matter); Cardenas v. Prudential Ins. Co., No.
99-1421, 2003 WL 21293757 (D. Minn. May 16, 2003 ([C]ourts frequently restrict efforts to depose senior
executives where the party seeking the deposition can obtain the same information through a less intrusive means,
or where the party has not established that the executive has some unique knowledge pertinent to the issues in the
case.).
Practice Tip: Apex Depositions

A protective order prohibiting a deposition of a high-level corporate officer will usually be granted
where:
The party seeking the deposition has failed to exhaust less intrusive means of discovery such as
depositions of lower-level employees through a Rule 30 notice or a corporate designee under Rule
30(b)(6) and the use of written interrogatories;
The officer provides a declaration attesting to no personal knowledge;
The party seeking the deposition cannot establish a colorable showing that the officer has
necessary, unique or superior knowledge.
The potential for discovery abuse through apex depositions has not escaped the attention of the state courts. In
Liberty Mutual Ins. Co. v. Superior Court, 10 Cal. App. 4th 1282, 1289 (1992), the court addressed the problem by
stating:
[W]hen a plaintiff seeks to depose a corporate president or other official at the highest level of corporate
management, and that official moves for a protective order to prohibit the deposition, the trial court should first
determine whether the plaintiff has shown good cause that the official has unique or superior personal knowledge of
discoverable information. If not, as will presumably often be the case in the instance of a large national or
international corporation, the trial court should issue the protective order and first require the plaintiff to obtain the
necessary discovery through less intrusive methods. These would include interrogatories directed to the high-level
official to explore the state of his or her knowledge or involvement in plaintiffs case; the deposition of lower level
employees with appropriate knowledge and involvement in the subject matter of the litigation; and the
organizational deposition of the corporation itself, which will require the corporation to produce for deposition the
most qualified officer or employee to testify on its behalf as to the specified matters to be raised at the deposition ....
Should these avenues be exhausted, and the plaintiff make a colorable showing of good cause that the high-level
official possesses necessary information to the case, the trial court may then lift the protective order and allow the
deposition to proceed.
See also, Crown Cent. Petroleum Corp. v. Garcia, 904 S.W.2d 125, 128 (Tex. 1995); Monsanto Co. v. May, 889
S.W.2d 274 (Tex. 1994); Broadband Communications Incorporated v. Home Box Office, Inc., 549 N.Y.S.2d 402
(A.D.1, 1990).
If you represent a corporation receiving an Apex deposition notice, you should determine whether:
The corporate officer has any first-hand knowledge concerning the case;
Depositions of lower-level officers or employees were already taken and whether this officers knowledge, if
any, is superior or merely duplicative of the other employees knowledge;
Other employees may be better suited to provide the information sought by deposition;
Less intrusive and burdensome discovery has already been conducted.
After exploring these foundational issues, contact opposing counsel in order to extract a withdrawal of the
deposition notice and reach an agreement as to how the requesting party can obtain the information through other
means. If you cannot reach an informal resolution of the deposition, you will probably be forced to file a motion for
a protective order under Rule 26(c). Your motion should not only provide a factual statement as to why the
deposition is inappropriate, but a certification concerning your attempts to resolve the dispute prior to bringing a
motion.

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION FOR PROTECTIVE ORDER
PROHIBITING DEPOSITION OF SAMUEL P. BIGSHOT
Pursuant to Fed. R. Civ. P. 26(c), Defendant Big Business, Inc., moves the Court
for a protective order prohibiting the deposition of Samuel P. Bigshot.
The underlying action concerns a slip-and-fall accident that occurred at the
Metropolis, MA, retail store of Big Business, Inc. Plaintiff has not requested
discovery of any person employed at the store in question, but instead first seeks
to depose Mr. Bigshot, the Chief Executive Officer of Big Business, Inc.
Corporate officers at the apex of the corporate hierarchy, while not immune from
deposition, should not be subjected to depositions unless there has been an
exhaustion of less intrusive methods of discovery. See Liberty Mutual Ins. Co. v.
Superior Court, 10 Cal. App. 4th 1282 (1992). "Apex" depositions, like the one
sought here, entail great potential for abuse and harassment given the many other
responsibilities of such corporate officers. See Crown Cent. Petroleum Corp. v.
Garcia, 904 S.W.2d 125, 128 (Tex. 1995).
Plaintiff has not attempted to obtain the discovery that he purportedly seeks from
any lower-level employees who are more likely to have relevant information. While
Mr. Bigshot is amenable to discovery if Plaintiff can demonstrate that its
discovery requests are not met through other means, the present request is both
premature and inappropriate, and it presents an undue burden on Mr. Bigshot and
Defendant.
The parties have been unable to resolve this dispute and Plaintiff insists upon
going forward with the deposition of Mr. Bigshot. Therefore, Big Business, Inc.
requests that the Court grant a protective order quashing the deposition of Samuel
P. Bigshot until Plaintiff has pursued discovery by less obtrusive means, can
demonstrate that such alternative discovery is insufficient, and that discovery in
this matter can be furthered by deposition of Mr. Bigshot.
BIG BUSINESS, INC.,

By its attorney,
________________________
O. Posing Counsel
30 Ash Street
Dated: _______________
DECLARATIONS
The motion should include a declaration of the witness attesting to lack of personal knowledge and your declaration
as to state of prior discovery and informal attempts to resolve the disputed deposition.
MEMORANDUM OF LAW
Include a memorandum of points and authorities supporting the protective order. See 153.1.
There are no per se rules against noticing and taking the deposition of attorneys for opposing parties. See Fed. R.
Civ. P. 30(a)(1) (A Party may take the testimony of any person, including a party, by deposition (emphasis
added)); Prevue Pet Prods., Inc. v. Avian Adventures, 200 F.R.D. 413, 418 (N.D. Ill. 2001) (The Federal Rules of
Civil Procedure do not create a blanket immunity that exempts attorneys from ever being deposed.); Walker v.
United Parcel Services, 87 F.R.D. 360, 361 (E.D. Pa. 1980) (It is clear that no special privilege or immunity
shields a person from deposition simply because he or she is an attorney, or even an attorney for a party to the
suit.). In particular, a party may examine an attorney for an opposing party regarding facts learned through non-
legal, non-litigation responsibilities, including corporate, business, managerial, public relations, advertising,
scientific, and research and development responsibilities. United States v. Philip Morris, Inc., 209 F.R.D. 13, 17
(D.D.C. 2002). Should the deposition questioning get into areas protected by the attorney-client privilege or the
attorney work product doctrine, counsel defending the deposition should instruct the witness not to answer; disputes
as to the propriety of such an instruction may be resolved after the fact through a motion to compel testimony. See
Hunt Intl Resources Corp. v. Binstein, 98 F.R.D. 689, 690 (N.D. Ill. 1983) (The more appropriate method is to
allow the deposition to be taken and permit the attorney to claim privilege in the face of certain questions, if
necessary.); Shiner v. American Stock Exchange, 28 F.R.D. 34, 34-35 (S.D.N.Y. 1961) (It seems that plaintiffs
motion is premature. It is better to wait until specific questions are asked and either answered or objected to before
the court rules.). See 761.
However, when the attorney representing the opposing party in connection with litigation has been noticed for
deposition, the risk of abuse is apparent. We view the increasing practice of taking opposing counsels deposition
as a negative development in the area of litigation, and one that should be employed only in limited circumstances.
Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir. 1986). Concerns with permitting litigation
counsel to be deposed include a chilling effect on communications between client and attorney if the attorney is
readily subject to being deposed, interference with time that should otherwise be devoted to preparing a case for
trial, imposition of additional time and cost to the litigation process, and risk of disqualification if the attorney is
transformed into a witness. Apart from these practical concerns, courts also seem to be concerned with the practice
on another level: Taking the deposition of opposing counsel disrupts the adversarial system and lowers the
standards of the profession Id.; see also Advance Sys., Inc. of Green Bay v. APV Baker PMC, Inc., 124 F.R.D.
200, 201 (E.D. Wis. 1989); Kerr v. Able Sanitary and Environmental Servs., Inc., 295 N.J. Super. Ct. App. Div.
147, 155 (1996) ([W]e are mindful that attorney depositions frequently interfere with the adversarial process by
inviting delay, disruption, harassment, and perhaps even disqualification of the attorney from further representation
of the client in the underlying litigation.).
Thus, where the deposition notice is of litigation counsel, then the notice itself constitutes good cause for obtaining
a Rule 26(c), Fed. R. Civ. P., protective order, shifting the burden to the party noticing the deposition to establish
the propriety and need for such a deposition. Advance Sys., 124 F.R.D. at 201. To meet this burden, many courts
have applied the Shelton Test and required the party noticing the deposition to establish as a precondition to
proceeding with the deposition: (1) no other means exist to obtain the information than to depose opposing
counsel; (2) the information sought is relevant and nonprivileged; and (3) the information is crucial to the
preparation of the case. Shelton, 805 F.2d at 1327. See, e.g., Niagara Mohawk Power Corp. v. Stone & Webster
Engineering Corp., 125 F.R.D. 578, 593 (N.D.N.Y. 1989) (The law on this issue seems to be moving toward a
position where courts generally will permit the deposition of opposing counsel only upon a showing of substantial
need and only after alternate discovery avenues have been exhausted or proven impractical.); Dunkin Donuts, Inc.
v. Mandorico, Inc., 181 F.R.D. 208, 210 (D.P.R. 1998) (Numerous federal courts have adopted [the Shelton
test].).
This heightened protection for litigation counsel extends to both outside counsel handling the litigation and in-house
counsel managing the litigation. Epling v. UCB Films, Inc., 204 F.R.D. 691, 694 (D. Kan. 2001) (granting motion
for protective order to prevent deposition of in-house lawyer, noting that the fact that the in-house attorney was not
counsel of record in the lawsuit was not determinative, but concluding that the attorney has acted as a legal
advisor to Defendants in connection with this litigation and that he is responsible for managing the lawsuits, and
hence the protective order was merited).

If the adverse party is a public or private corporation, partnership or association, or a governmental agency, you
may wish to notice the deposition of the entity rather than of any particular individual in that entity. One reason for
doing so is because you want to discover certain information but do not know who in the entity knows it. Rule
30(b)(6) provides one method to accomplish this task.
Under Rule 30(b)(6) you may designate the subjects upon which you wish to examine and require the adverse party
to designate the appropriate persons for you to depose. See Chapter 1.
A sample notice of deposition under Rule 30(b)(6) follows.
Notice of
Deposition OF
(NAME OF CORPORATE
ENTITY)
[FED. R. CIV. P. 30(b)(6)]
Date: ___________
Time: ___________
Place: ___________
TO ALL PARTIES HEREIN AND TO THEIR

will take the deposition of (name of corporation, association or governmental
agency), before (name of court reporter), a certified court reporter and will
continue from day to day until completed.
Pursuant to Fed. R. Civ. P. 30 (b)(6), (name of deponent) shall designate one or
more officers, directors, managing agents or other persons who consent to testify
on its behalf to be examined on the following matters:
1. [SET FORTH EACH
2. TOPIC FOR EXAMINATION
3. WITH REASONABLE PARTICULARITY]

Remember that your opponent will scrutinize your Rule 30(b)(6) deposition notice, looking for ambiguities in your
designation. See 154, 212.1. You may decide that you wish to designate subject areas for the deposition in
general terms, such as all facts supporting claims of damages, or all facts supporting the allegations of
comparative negligence.
Generally, however, in cases involving complex or technical matters, it is worth your time to develop narrowly
drafted subject areas. You do not want to find out at the deposition that the designated witnesses do not have
knowledge of the specific areas in which you are most interested. If you know or can ascertain those areas, do so
before the deposition and include them in your notice. The notice can also include general catch-all descriptions to
protect you from being too narrow and missing the opportunity to make a broader scope inquiry. For example, if
you are involved in a case involving engineering or construction standards, your 30(b)(6) designations should
include a list of all of the specific areas under investigation, such as:
1. The origin of and authority for the construction standards, specifications, and plans for the [project, building,
road, etc.].
2. Specifications, engineering criteria, design and construction standards and legal requirements for [concerned
aspect of the construction project].
3. Change order numbers [__________], including the reasons for such changes and any documentation
relating to such changes, including plans, as built drawings, billings, correspondence, etc.
4. Specifications, engineering criteria, design and construction standards and legal requirements for inspection,
testing, approval, and documentation of approval for [concerned aspect of construction project].
5. All federal, state, and local regulations, legal or engineering standards or requirements applicable to
[concerned aspect of construction project].
Such narrowly drafted subject areas should be coupled with general catch-all requests, such as:
(1) All other facts relating to the completion of the project.
(2) All facts supporting your contention of [waiver, payment, unavoidable circumstances, etc.].
(3) All other rules, guidelines, regulations, contractual requirements, or specifications pertaining to the
project.
The Rules do not require one person to be designated to address all aspects of your 30(b)(6) notice. This is
particularly true where the target of your deposition is a large organization. If several individuals appear as the
designees, make sure that during the depositions the record clearly shows what subject areas each witness is
responding to. This ensures that at trial other witnesses (allegedly more familiar with or in charge of that subject) do
not disavow testimony which you believed under the rule would be binding upon the organization.
Upon receipt of such a notice of deposition, the adverse party must designate one or more individuals to testify in its
behalf as deponent for each subject defined in the notice as to matters known or reasonably available to it.
Of course, upon receipt of a 30(b)(6) notice of deposition, a party cannot simply refuse to designate a person or wait
for the deposition to object to certain subject matter designations. Rather, the correct procedure is to file a motion
for a protective order under Rule 26(c). Equal Employment Opportunity Commission v. Thruston Motor Lines, Inc.,
124 F.R.D. 110 (M.D.N.C. 1989).
Similarly, the selection of the designee lies solely with the noticed party; the noticing party cannot require a specific
person to be designated. Cleveland v. Palmby, 75 F.R.D. 654 (W.D. Okla. 1977). In Booker v. Mass. Dept of Pub.
Health, 246 F.R.D. 387 (D. Mass. 2007), the noticed corporation put forward a witness who lacked personal
knowledge and had not been adequately prepared on the noticed deposition topics. The court found that the party
taking the depositions remedy was for the corporation to either produce a new witness or to properly prepare the
first designated witness. However, ultimately, it was up to the corporation to pick its own witness. The noticing
party, may not impose [its] belief on [the organization] as to whom to designate as a 30(b)(6) witness. Id. at 389.
A Rule 30(b)(6) designation that was held sufficient called:
for a person knowledgeable about claims processing and claims records, and general file keeping storage and
retrieval system of defendant.
Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 125 (M.D.N.C. 1989), affd, 907 F.2d 1138 (4th Cir. 1990);
see also Mitsui & Co. (U.S.A.) Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62 (D.P.RR. 1987). With
such a generalized description, the deposing party would find it difficult to object if the deponent produced had
merely general overview knowledge.
212.1 Objecting to a Rule 30(b)(6) Deposition
A Rule 30(b)(6) deposition, especially where the entity is a corporate party, is an effective tool to obtain and
simplify discovery. Due to the obligations imposed upon the responding corporate entity, the procedure also carries
with it the potential for substantial abuse.
If you receive a Rule 30(b)(6) notice of deposition (which may include a request for production of documents),
discuss with your client the full scope of information reasonably available for each area on which examination is
requested. A clear understanding of the designated matters is the first step in preparing for a Rule 30(b)(6)
deposition. In doing so, you should determine:
Are the areas for examination described with sufficient particularity so that they are understandable? While
some topic areas may be sufficiently clear, others may not.
Do they include areas for examination that seek information arguably irrelevant to the litigation?
Are the areas for examination sufficiently narrow so that an unreasonable burden is not imposed upon your
client in responding?
If your answer to any of these questions is no, you should contact the opposing counsel in an attempt to clarify,
narrow or eliminate any areas of examination of concern to either you or your client. In the event that your efforts to
resolve your concerns with your adversary are not fruitful, consider filing a motion for a protective order under Rule
26(c). If you proceed with the Rule 30(b)(6) deposition, without first having filed a motion for protective order, the
court may find a waiver to any objections on the face of the notice of deposition or subpoena.
Sample: Motion for Protective Order to Limit or Modify Notice of Deposition Under Fed. R. Civ.
P. 30(b)(6)

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION FOR PROTECTIVE ORDER TO LIMIT OR

MODIFY NOTICE OF DEPOSITION UNDER
Fed. R. Civ. P. 30(b)(6)
Pursuant to Fed. R. Civ. P. 26(c), Defendant Big Business, Inc., moves the Court
for a protective order limiting or modifying the notice of deposition served by
Plaintiff.
Plaintiff has served a notice of a Rule 30(b)(6) deposition upon Defendant
requesting a deponent to testify about Defendant's "overall business functions."
Plaintiff's request is too vague and lacks sufficient particularity to allow
Defendant to designate an appropriate witness. Further, plaintiff seeks testimony
relating to "factory delivery routes, schedules and timetables." As this action
pertains to alleged discrimination, the requested information bears no relevance
to the action. Deciphering Plaintiff's vague and disparate subject matters in
Plaintiff's notice of deposition and designating and preparing a witness that is
able to testify about them imposes an unreasonable burden on Big Business, Inc.
Big Business, Inc., has made good faith efforts to resolve this conflict without
court action, but has received no clarifications from Plaintiff. Defendant,
therefore, requests a protective order quashing Plaintiff's notice of deposition.
BIG BUSINESS, INC.,

By its attorney,
________________________
O. Posing Counsel
30 Ash Street
DECLARATION
Include declaration setting forth factual information for motion and all good faith attempts to resolve informally
without judicial intervention.
MEMORANDUM OF LAW
Your motion should include a memorandum of points and authorities in support of the requested relief.
212.2 Outline for Beginning a Deposition of a Witness Designated by Organization Under
Rule 30(b)(6)
Because an organization that has received a notice of deposition or subpoena under Rule 30(b)(6) may designate
more than one witness to give testimony on its behalf, it is important to begin such depositions by asking each
witness about which examination topics the witness has been designated. If the witness does not know, some of the
questions below can be asked on the record of the organizations counsel.
1. Do you appear today consenting to be designated as a witness to give testimony on behalf of [organization]?
2. Are you also appearing today in your personal capacity?
3. [Mark deposition notice as exhibit.] Please take a look at Exhibit __. I draw your attention to the list of
examination topics attached to the deposition notice. About which of these topics are you being put forward
to give testimony on behalf of [organization]?
4. Do you understand the testimony you will be giving in your capacity as designee for [organization] will be
considered the testimony of [organization] with respect to the topics on which you have been designated?
5. As the designee of [organization], do you also understand that you have an obligation to give responses to
my questions that are binding on [organization]?
6. What did you do to prepare to testify about each of the topics?
7. Who else within [organization] has knowledge of these topics?
8. If there are any questions today that the answer to which would be within the knowledge of [organization],
but which you are unable to answer, are there other officers, directors, or other agents of [organization] with
whom you could consult today?

Apparently in disregard of Rule 34, which governs the production of documents from parties, some attorneys seek
the production of documents in conjunction with their notice of deposition to a party. Rule 30(b)(5) provides:
The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the
production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to
the request.
Rule 34 allows a party a minimum of 30 days to respond to a request for production. A notice of deposition need
only give reasonable notice of a time to appear and as few as five business days may be sufficient.
Can you avoid the 30-day minimum requirements of Rule 34 by noticing a deposition under Rule 30(b)(5)? The
Rule would suggest that a 30-day notice would be required in order to comply with the procedural requirements of
Rule 34. However, there is no clear answer. Leading commentators suggest that the drafters of the Rules intended to
allow parties to use the shorter time period under Rule 30 but that the language of the Rule suggests otherwise. See
8 WRIGHT AND MILLER, FEDERAL PRACTICE AND PROCEDURE, Civil 2108 at 396. There is no compelling case law
either way on the issue. For practical purposes the answer may depend on the volume of the request. If the
documents are few and are closely related to the deposition to be taken, the reasonable notice requirements of
Rule 30(b) may apply rather than the 30-day notice requirements of Rule 34. See Advisory Committee Notes to
1970 Amendments which state that the intent is to abolish restrictions on obtaining documents from a party. Where
large numbers of documents are sought, it would seem the time provisions of Rule 34 should apply.
A notice of deposition combined with a request for production of documents should be in the following form:
Notice of Deposition
OF ______________ AND
REQUEST FOR
PRODUCTION OF
DOCUMENTS AT
DEPOSITION
Date: ___________
Time: ___________
Place: ___________

will take the deposition of (name of deponent) whose address is __________.
Deposition will be taken before (name of court reporter) by a certified court
reporter, and will continue day to day until completed.
Pursuant to Fed. R. Civ. P. 30(b)(5), the (name of deponent) is requested to
produce at the deposition the following specified documents:
1. [DESCRIBE EACH DOCUMENT OR CATEGORIES OF DOCUMENTS WITH REASONABLE
PARTICULARITY]
The procedure for objecting to a request for production of documents in a Notice of Deposition is the same as
objecting to any other request for production under Rule 34. Again, while the Rules do not make explicit the timing
and manner of the objections, discretion suggests objecting no later than the time of the deposition and in
accordance with the requirements of Rule 34.
Rule 34(b) provides:
The party upon whom the request is served shall serve a written response .... The response shall state, with respect
to each item or category, that inspection and related activities will be permitted as requested, unless the request is
objected to, in which event the reasons for objection shall be stated.
Rule 30(b)(5) provides that the request for production in a Notice of Deposition of a party is made in compliance
with Rule 34 .... Hence, a response to a request probably should be made in accordance with Rule 34. It is unclear
whether, if the deposition is scheduled more than 30 days in the future, a response must be made within 30 days.
Similarly, it is unclear whether a written response must be made, or whether an oral response on the record during
the deposition will suffice. The authors suggest a conservative approach: if the deposition is within 30 days after
service, either file written objections prior to the deposition, or at the beginning of the deposition orally state the
objections.
213.3 Rule 45 Subpoena Duces Tecum Cannot Be Used to Circumvent the 30-Day Party
Document Production Time Frame
Federal Rule of Civil Procedure 34 provides 30 days for a party to produce documents in response to a properly
served document request. Sometimes a party finds itself in need of documents from the opposing party in less than
30 days. Can the party use the more liberal timing rules of a Rule 45 subpoena duces tecum to secure documents
from a party in less than 30 days? Generally, no. Rather, if circumstances dictate the need for a quicker turnaround
on a document production, the party should first call opposing counsel to try to reach an accommodation, and,
should that not be productive, seek a shorter time frame from the court under Rule 34(b).
In addressing the question, some courts simply hold that a Rule 45 subpoena is never appropriately served on a
party. For example, in Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996), the court denied a motion to
compel the production of documents requested via a Rule 45 subpoena on a party, noting that, Rule 45, to the
extent it concerns discovery, is still directed at non-parties and that Rule 34 governs the discovery of documents in
the possession or control of the parties themselves. See also Alper v. United States,190 F.R.D. 281, 283 (D. Mass.
2000) (Rule 45 could not be used to secure documents from a partys expert witness since such documents are
considered to be in the possession or control of the party and hence Rule 34 is the appropriate mechanism to
secure their production); Littman v. Walgreen Eastern Co., No. Civ. A 96-30018, 1998 WL 812399, *1 (D. Mass.
1998) (finding that a Rule 45 subpoena is unnecessary to take the deposition of a party or of an officer, director,
or managing agent of a party); Contardo v. Merrill Lynch, Pierce, Fenner & Smith, 119 F.R.D. 622, 624 (D. Mass.
1988) (In sum, a party cannot secure documents from an opposing party by serving a deposition subpoena duces
tecum on an employee of the opposing party commanding production of the partys documents at the deposition
unless the provisions of Rule 34, F.R.Civ.P., are followed.).
Other courts accept that a Rule 45 subpoena can be served on parties, but cannot be used as a mechanism to
circumvent the timing requirements of Rule 34. This was the holding in Joiner v. Choicepoint Services, Inc., No.
1:05CV321, 2006 WL 2669370 (W.D.N.C. Sept. 15, 2006). The court stated that:
Plaintiff correctly states that this district has held that a subpoena duces tecum can be served upon both a party and
non-party under Rule 45. However, use of a subpoena duces tecum under Rule 45 to bypass the requirements of
Rule 34s guidelines on document disclosure is unthinkable.
Id. at *5. See also Hardin v. Belmont Textile Machinery Co., No. 3:05CV492, 2007 WL 2300795, *2 (W.D.N.C.
2007); McLean v. Prudential S.S. Co., 36 F.R.D. 421 (E.D. Va. 1965).
Clear date with opposing counsel (if possible).
Arrange reporter.
Arrange location.
Serve notice of deposition:
With request for documents;
30(b)(6) designation.

If the deponent is not a party or an officer, director or managing agent of a party, you may compel his attendance
only by the issuance and service of a subpoena upon him. Under Rule 45(a)(2), a subpoena for attendance at a
deposition shall issue from the Court for the district designated by the Notice of Deposition as the district in which
the deposition is to be taken. However, the actual issuance by the Court is either by the clerk or by an attorney
authorized to practice in the district. The contents of the subpoena are specifically defined by Rule 45(a)(1). Form
DC 9 is the official form of the subpoena distributed by the federal courts and should generally be used. However, a
typewritten form which contains the substance set forth in Rule 45(a)(1) will suffice.
The Rules do not specify how long in advance of the deposition a subpoena must be served on a nonparty witness.
Under Rule 30, you are required to give reasonable notice to every other party to the action of the deposition. The
local rules of some courts also require that a minimum notice be given to the witness which can range from 48 hours
to substantially longer. If a subpoenaed witness is required to appear upon short notice, and there is no good reason
for doing so, the court likely will be receptive to a motion for a protective order under Rule 26(c).
As a practical matter, it is often better to clear the date with the witness and advise him of the impending subpoena.
It is rarely to your advantage to have the witness hostile because he has been given no warning of the deposition and
has conflicting demands upon his time.
Procedural matters relating to the deposition of a nonparty are normally governed by the rules and procedures of the
Court that issued the subpoena. See Rules 45(c)(1), 45(c)(3)(A), 45(e) and 26(c). Under Rule 45(a)(2), a subpoena
issues from the Court for the district designated by the Notice of Deposition as the district in which the deposition is
to be taken. Under Rule 45(c)(3)(A), the witness can be required to attend only at a location within 100 miles of the
place where the deponent resides, is employed or regularly transacts business in person. The 100-mile radius is
usually calculated not on the basis of as the crow flies but on the basis of actual travel miles. Note that a subpoena
issued under Fed. R. Civ. P. 45 may be served on a witness outside the issuing jurisdiction, including in another
state, provided that the witness is still within the 100-mile limit. See, e.g., Wallace Products, Inc. v. Falco Products,
Inc., 193 F. Supp. 520, 523 (E.D. Pa. 1957).
If you want to compel the attendance for deposition of an out-of-state witness in a state court action, the rules of the
state in which the witness is located or may be served will control. Most states have a statute or rule that governs the
issuance of subpoenas for deposition in an out-of-state civil action. These statutes, while varying, generally provide
for issuance of a subpoena or subpoena duces tecum by the courts of that state upon presentation to the court of a
notice of deposition or a certified request by the forum court for the issuance of a subpoena. Many state statutes also
have provisions specifying the place where the witness may be deposed.
The 1991 amendments to Rule 45 appear to have eliminated the provision of old Rule 45(d)(2) that the court could
order the deposition taken at any convenient place. Even absent such express power, however, the court probably
has inherent power to so order.
For a sample form to motion for issuance of subpoena more than 100 miles from place of residence, see Form 137.
Practice Tip: Subpoenaing Non-Parties vs. Third-Parties

Lawyers sometimes imprecisely talk about serving a subpoena on third-party witnesses, when they
really mean non-party witnesses. Third-parties are parties under Fed. R. Civ. P. 14. Their depositions
can be initiated simply by serving a notice under Fed. R. Civ. P. 30(b). Non-party witnesses cannot be
compelled to appear for a deposition absent service of a subpoena.
221 Using a Subpoena Duces Tecum to Compel Production of Evidence or to Permit

Inspection
Under Rule 45(a)(1), a subpoena may command the deponent to produce evidence or to permit inspection. There is
little authority as to what constitutes evidence, but it may be subject to the Rules of Evidence insofar as relevancy,
etc. Certainly, evidence includes the description formerly used in Rule 45 of books, papers, documents or other
tangible objects which relate to the subject matter of the lawsuit. Logically, the scope of discovery under Rule 26(b)
should govern. If a subpoena duces tecum is to be served, the designation of the materials to be produced must be
set forth in or attached to the Notice of Deposition. Rule 30(b)(1).
A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of
business or shall organize and label them to correspond with the categories in the demand. Rule 45(d)(1). When the
information subject to a subpoena is withheld on the claim that it is privileged or subject to protection as trial
preparation materials, the claim shall be expressly made and be supported by a description of the nature of the
documents, communications or things not produced that is sufficient to enable the demanding party to contest the
claim. Rule 45(d)(2). Subject to those provisions, a person commanded to produce and permit inspection and
copying may, within 14 days after service of the subpoena, or before the time specified for compliance if such time
is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to
inspection or copying of any or all of the designated materials or of the premises. If the objection is made, the party
serving the subpoena shall not be entitled to inspect or copy the materials or inspect the premises, except pursuant to
an order of the court which issued the subpoena. If objection has been made, the party serving the subpoena may,
upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an
order to compel production shall protect any person who is not a party or an officer of a party from significant
expense resulting from the inspecting and copying commanded.
While Rule 45 requires that such motions be made in the court that issued the subpoena, under Rule 26(c), the
alternative of making the motion in the district where the action is pending may survive.
Subpoenas to U.S. citizens abroad are governed by 28 U.S.C. 1783. (Procedures for taking depositions in foreign
countries are discussed in Chapter 9.)
If proper objection is made as set forth above, all discovery with respect to the subpoenaed documents is suspended
and may proceed thereafter only pursuant to an Order of the Court from which the subpoena was issued. Once an
objection is made, it is up to the party serving the subpoena to resolve the objection with the subpoenaed person or
to file a motion with the court which issued the subpoena.
A sample motion by a witness who has been served with a subpoena duces tecum follows.

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION FOR RELIEF WITH RESPECT

TO SUBPOENA DUCES TECUM AND OBJECTION THERETO
Pursuant to Fed. R. Civ. P. 45(b), Smallco, Inc., moves the Court to quash or
modify the subpoena duces tecum on the grounds that it is unreasonable and
oppressive. Smallco further requests that the Court order Plaintiff to advance
reasonable costs necessary for the fulfillment of said subpoena.
The subpoena duces tecum requests over 5,000 documents pertaining to Smallco's
store operations over an eight-year period to be produced within six calendar
days. These documents are located in multiple offices and in offsite storage
locations. Plaintiff's request is unduly burdensome and does not allow Smallco
enough time to locate, compile, and organize such documents. Therefore, Smallco
requests this court to quash such subpoena or modify it to provide adequate time
to fulfill the request.
Smallco further requests that Plaintiff advance the costs necessary for it to
produce such documents. A reasonable estimate of such cost is $5,000.
SMALLCO, INC.,
By its attorney,
_____________________
I.M. Protective, Esq.
10 Elm Street
Dated: _______________
[CAPTION]
_______________________________________________________________
DEPOSITION SUBPOENA DUCES TECUM

_______________________________________________________________
DEPOSITION SUBPOENA DUCES TECUM
THE PEOPLE OF THE STATE OF COLORADO
TO: Lorton Engineering Company, by Matthew Barnes, President
You are hereby commanded to appear at the place, date, and time specified below to
testify at the taking of a deposition in the above-entitled case.
1. Location: Thompson & Thompson
558 17th Street, Suite 2900
Denver, Colorado 80202
2. Date/Time: August 28, 20__
9:00 a.m.
You are also commanded to bring with you the following document(s) or object(s)
now in your custody or control:
1. Any documents describing the role, purpose, functions, activities, expertise
of Lorton Engineering with respect to _________________ during the period
January 1, 20__ to October 12, 20____, including any printed materials
distributed by Lorton Engineering describing its role, purpose, functions,
activities, expertise and the benefits thereof to clients.
2. Any literature published by Lorton Engineering, 20__-20__, concerning its
role, purpose, functions, activities, insofar as facility inspections, and
observations, review, approval and commenting on plans and specifications.
DATED: August 11, 20___.
________________________________
Tom P. Thompson
Thompson & Thompson
558 17th Street, Suite 2900
303-296-8234
ATTORNEYS FOR DEFENDANT
________________________ By:___________________________
Clerk/Deputy
RETURN OF SERVICE
State of _________________
County of _______________
I declare under oath that I served this subpoena or subpoena to produce on

__________________ in _____________ County ________________ on ________________ at
___________, at the following location:
I am over the age of 18 years and am not interested in nor a party to this
case.
Signed under oath before me on _________________.

_____________________
Notary Public
For subpoenaing a corporation versus specific employees of the company, see 28 Fed. Proc., L.Ed. 65:183.
Practice Tip: Notice Must Precede Subpoena Duces Tecum

Note that Fed. R. Civ. P. 45(b)(1) requires that [p]rior notice of any commanded production of
documents and things or inspection of premises before trial shall be served on each party in the manner
prescribed by Rule 5(b). (Emphasis added). The Advisory Committee Notes state, the purpose of such
notice is to afford other parties an opportunity to object to the production or inspection, or to serve a
demand for additional documents or things. Under Rule 5(b), the timing requirement would be satisfied
by placing the notice to all parties in the mailbox before serving the subpoena. Where courts believe that
a partys failure to provide prior notice was intended to circumvent another partys ability to oppose the
subpoena seeking documents or inspection, courts have not hesitated to impose sanctions. See, e.g.,
Allender v. Raytheon Aircraft Co., 220 F.R.D. 661, 665 (D. Kan. 2004); Murphy v. Board of Educ. of
Rochester City School Dist., 196 F.R.D. 220 (W.D.N.Y. 2000). In Cootes Drive LLC v. Internet Law
Library, Inc., having found a pattern of violations of Rule 45(b)(1), the court not only quashed the
subpoenas, but prohibited the offending party from issuing any new subpoenas without first getting leave
of court. No. 01 CIV 0877 (RLC), 2002 WL 424647 (S.D.N.Y. 2002).

Under Rule 45(b)(1), the subpoena may be served by any person who is not a party and is not less than 18 years of
age. Obviously, in most situations, that includes the United States Marshal and his deputies; however, in many
districts, the Marshal is not willing to serve subpoenas in civil proceedings.
Most attorneys use a private process server to effect service of a subpoena. There is limited case law as to who is a
party for purposes of Rule 45(b)(1). However, judgment and discretion suggests that it should not be a relative or
employee of the party, or the attorney for the party or his employees.
Under the federal rules, service must be made by delivering a copy of the subpoena to the witness himself; it is not
sufficient to leave the subpoena with someone at the witnesss residence or with an agent of the witness. Rule
45(B)(1). (In contrast, Rule 4(d) allows service of process upon a person by leaving the complaint at the persons
usual place of abode, etc.) At the time of service, the witness must also be given fees for one days attendance and
mileage allowed by law. In federal courts, witness fees are governed by 28 U.S.C. 1821, which requires that the
witness be paid an attendance fee of $40 per day for each days attendance. The statute also requires that mileage
fees be paid in accordance with that prescribed by the Administrator of General Services or that the witness be
compensated for travel by common carrier. 28 U.S.C. 1821(c)(1) & (2). Currently, the mileage fees are 40.5 cents
per mile round trip. You are also required to reimburse the witness for toll charges, taxi fares, parking fees, etc. If
the witness is required to stay overnight, you must also pay a subsistence allowance in accordance with that
prescribed by the Administrator of General Services. 28 U.S.C. 1821(c) & (d). The amount of the witness fees
which must be advanced in a given jurisdiction can be confirmed through a call to the clerk of the district court
where the deposition is pending.
In practice, the amount you pay for a witness fee and required expenses does not always fully compensate a witness
for the time spent in giving his deposition. While you have no obligation to do so, you may consider offering to
compensate the witness at a fairer rate for actual expenses or lost wages or earnings. There is no ethical prohibition
against further compensating the witness if the compensation is reasonably tied to his actual expenses for travel,
lodging or meals, or compensation for lost earnings at a witnesss normal hourly rate. See Model Code of
Professional Responsibility DR 7-109(C), E.C. 7-28; Model Rules Of Professional Conduct 3.4(B). See discussion
in 243.
The Rules do not state how long in advance of the deposition the subpoena must be served, although local rules
often set minimum guidelines. As a practical matter, it is best to attempt to clear the date with the witness and advise
him that a subpoena will be served. Surprises often result in unnecessarily hostile witnesses.
Once a subpoena is properly served, even if the deposition is thereafter postponed, the original subpoena probably
continues in effect for the new date, provided that the notice of the postponement is timely and properly given to the
witness. Similarly, if the deposition continues into a second day, the subpoena also continues. See Shulton, Inc. v.
Optel Gorp., 126 F.R.D. 80 (S.D. Fla. 1989). However, additional witness fees and mileage are due.
As an alternative to formal service, consider asking the witness to accept service. An acceptance of service,
executed by the witness, takes the place of a formal subpoena and will require the witnesss attendance. A form of
acceptance follows.
Practice Tip: Contacting Witnesses Before Deposition

Where time permits and the witness is not likely to evade service, it is a good practice to write to the
witness prior to service of a deposition subpoena, inform the witness in general terms what it conveys,
ask for available dates or preferred locations, and whether he or she will accept service. This can reduce
costs and engender a more friendly response from individuals not otherwise accustomed to service of a
subpoena.
[CAPTION]
_______________________________________________________________
ACCEPTANCE OF SERVICE
_______________________________________________________________
I, Genevieve L. Newton, accept service and acknowledge receipt of the attached
subpoena duces tecum, which requires that I appear for deposition on October 27,
2001, at 9:00 a.m. at the offices of [insert counsel name and address]. I waive
all requirements under Rule 46 of the Federal Rules of Civil Procedure for service
of the subpoena duces tecum.
Dated:_______________________________
________________________________
Genevieve L. Newton
A nonparty witness may only be required to appear for deposition at a place within 100 miles from the place where
he resides, is employed or transacts business in person, or is served, unless the court orders some other convenient
place. Rule 45(d)(2). (See Chapter 1 for a discussion of place of deposition for parties.) Compare this federal rule
with state court rules, which sometimes restrict the venue of a deposition to the county where the deponent resides
or does business. Of course, a state court subpoena must be served within the geographic boundaries of the state.
When the nonparty witness is abroad, you may have problems in arranging service. Keep in mind that the various
special statutes pertaining to discovery and process in foreign countries may be applicable. See 930, infra. Indeed,
you might be authorized to serve a subpoena on the nonparty witness by mail. Cf., Philip v. Monarch Knitting
Machinery Corp., 565 N.Y.S. 2d 21 (N.Y.A.D. 1991)

If you notice the deposition of a nonparty but fail to secure the witnesss attendance by service of a subpoena, you
may be required to pay the other partys costs and attorneys fees incurred in attending the deposition. Rule
30(g)(2). For example, in West v. West, 126 F.R.D. 82 (N.D. Ga. 1989), plaintiff sought and recovered attorneys
fees and expenses for traveling to Nassau for depositions noticed by defendant which were not held. See also
National Acceptance Co. v. Doede, 78 F.R.D. 333, 337 (W.D. Wis. 1978); Delozier v. First Natl. Bank of
Gatlinburg, 109 F.R.D. 161, 165 (E.D. Tenn. 1986). As a result, you should be wary of accepting a witnesss
assurance that he will appear voluntarily for deposition. Where a friendly witness appears willing to attend without
need of a subpoena, avoid offending him through formal service by asking him to execute an acceptance of service
of the subpoena instead. This can be done by mail or you can have the acceptance and the subpoena hand-delivered.
If the opposing counsel has agreed to produce a nonparty witness for deposition, you may want to state that fact in
the notice or confirm it by letter. This should avoid future confusion as to who has the responsibility of producing
the witness.

Rule 30(b)(6) permits you to require a nonparty public or private corporation, partnership, or association, or
governmental agency to designate a person to testify on designated topics. If you are seeking to depose a nonparty
entity, the procedure is the same as deposing a party entity with two exceptions: first, as with all nonparties, a
subpoena must be served. It must state the topics on which the designated deponents must testify. Second, the
subpoena must advise a nonparty organization of its duty to make such a designation. The language that must be
added to the subpoena (in addition to the designated topics) can read as follows:
You are hereby advised pursuant to Federal Rule of Civil Procedure 30(b)(6), that you have a duty to designate one
or more officers, directors, managing agents or other persons who consent to testify in your behalf on each of the
foregoing topics. The persons so designated shall testify as to matters known or reasonably known or reasonably
available to your organization.

The amended Rules now permit the taking of a deposition of an expert witness without a prior court order. See Rule
26(b)(4). However, the deposition of an expert may be delayed, if an expert report is required, until the party who
designated that expert has provided opposing counsel with the mandatory disclosure reports required under Rule
26(a)(2)(B).
Even though the Rules allow for the discovery and deposition of expert witnesses, not all experts are subject to the
deposition process. Clearly experts designated by a party to testify at trial and independent experts (persons
whose information was not acquired in preparation of trial) can be deposed before trial. However, a consultant
expert (informally consulted for trial but not retained) is not. Ager v. Jane C. Stormont Hosp. & Training Sch. for
Nurses, 622 F.2d 496 (10th Cir. 1980). Accordingly, you will want to oppose any attempts to discover the identity
or depositions of your consultants.
An expert retained or specially employed in preparation for trial, but not expected to be used at trial, is generally
immune from discovery, including depositions, except as provided in Rule 26(b)(4)(B). That Rule provides that
except for an examining physician under Rule 35 (physical or mental examinations), the facts and opinions of
consultant experts are discoverable only on a showing of exceptional circumstances. There is a split of authority,
however, on the applicable standard to be utilized to permit the depositions of this category of experts. See
Durflinger v. Artiles, 727 F.2d 888 (10th Cir. 1984) (exceptional circumstances); Peterson v. Willie, 81 F.3d 1033
(11th Cir. 1996) (balancing or discretionary standards); Crowe v. Nivison, 145 F.R.D. 657 (D. Md. 1993)
(entitlement standard); Herman v. Marine Midland Bank, 207 F.R.D. 26, 31 (W.D.N.Y. 2002) (where non-
testifying consultant contributed more than half of the total hours required for preparation of expert report, he
substantially collaborated on the report, and the defendant was entitled to discovery of what non-testifying expert
did). Regardless of what may constitute exceptional circumstances, you will probably want to resist any attempt
by opposing counsel to depose or call to trial this type of consultant nontestifying expert witness. This may
require the filing of a motion for a protective order under Rule 26(c).
Practice Tip: Experts Who Can Be Deposed

The Rules provide that depositions can be taken of:
Designated trial experts;
Independent experts, i.e., experts, including regular employees, whose information is not acquired
in preparation of trial; and,
Consultant experts of party dismissed from action but subsequently retained by another party.
However,
Nonretained non-testifying consultants are immune from discovery; but,
Retained, but non-testifying experts are not subject to discovery except on showing of exceptional
circumstances or if an examining physician is under Rule 35.
Finally, there is the category of expert that initially consulted with a dismissed party, but was subsequently retained
as a consultant by another party, presumably to suppress an unfavorable opinion at trial. It would appear that these
experts are subject to depositions as to information, including facts and opinions, acquired by the expert prior to the
experts later retention by another party. See, House v. Combined Ins. Co. of America, 168 F.R.D. 236 (N.D. Iowa
1996); Rocky Mountain Natural Gas v. Cooper Industries, 166 F.R.D. 481, 483 (D.Colo. 1996) (refusing to allow a
party to buy the right to suppress otherwise discoverable information.)
Anker v. G.D. Searle & Co., 126 F.R.D. 515 (M.D.N.C. 1989) contains an excellent discussion of the right of a
party to subpoena and depose an expert, who has not been hired by either party, in an area relevant to the civil
action. See also Annotation, Right of Independent Expert to Refuse to Testify as to Expert Opinion, 50 A.L.R. 4th
680 (1986).

Clear date with opposing counsel and witness (if possible).
Arrange reporter.
Arrange location.
Serve notice of deposition:
with description of documents to be produced;
30(b)(6) designation.
Obtain issuance of subpoena:
with list of documents to be produced if duces tecum;
with 30(b)(6) designations and instructions.
Serve subpoena:
upon the witness personally;
with one days witness and mileage fees.

Once a deposition has concluded, a witness may not be redeposed in the same case without leave of court. See
Federal Rule of Civil Procedure 30(a)(2)(A)(ii). The case of Paige v. Consumer Programs, Inc., 248 F.R.D. 272
(C.D. Cal. 2008) had a twist on the rule. The witness showed up for his deposition, but was arrested, and the
deposition did not take place. The deposition was re-noticed for a different date, but this time the witness did not
appear. In a motion for sanctions, the court held that since the deposition on the originally noticed date did not
occur, the noticing party was not required to seek leave of court under Rule 30(a)(2)(A)(ii) and hence the witnesss
failure to appear was sanctionable.

Audio and videotaped depositions pursuant to Rule 30(b)(4) are discussed in Chapter 1. The procedural steps for
setting these types of depositions follow:
1. Determine the applicability of the 1993 Amendments to the Rules.
If your jurisdiction follows the current version of the Rules, a videotaped or audiotaped deposition does not require
a stipulation or motion. See 140.
If your jurisdictional rules require a motion or stipulation for non-stenographic methods of recording a deposition,
your order or stipulation must designate the person before whom the deposition is to be taken, the manner of
recording, as well as the preservation and filing of the deposition. In addition, it may also include other provisions
to ensure that the recorded testimony will be accurate and trustworthy, as well as provisions pertaining to the
procedures that are to be followed. If you anticipate conflict at the time of the deposition, setting forth sufficient
detail in the stipulation or order may not only be desirable, but necessary.
2. State in the notice of deposition, and subpoena if necessary, that the deposition will be audio/videotaped.
Under Rule 30(b)(2), you are required to state in the notice of deposition that you intend to record the deposition by
either videotape or audiotape, in addition to a stenographic record. If you fail to give such notice, you run the risk
that the opposing party or the deponent will refuse to sit for the deposition at that time. Moreover, even if you are
not the noticing party, Rule 30(b)(3) allows you, with prior notice to the deponent and to all other parties, the right
to have the deposition recorded by audiotape or videotape in addition to the method originally designated by the
noticing party.
If you are required to obtain a stipulation or order of the court to record the deposition by audio or videotape, and
the deponent is a nonparty witness, it is recommended that you attach the stipulation or order to the notice of
deposition and deposition subpoena.
You should also be aware that all state and federal courts have rules or statutes governing non-stenographic
recording of depositions. They require that the deposition notice state whether audio or visual non-stenographic
means will be utilized, and these rules often require that the notice state how the deposition will be videotaped, and
how it will be used at a later time. It is therefore imperative that your notice comply with the rules applicable to the
jurisdiction in which the action is venued.
3. Arrange for services of an audio/visual technician to operate the recording equipment.
Consult with your audio/visual technician prior to the deposition concerning the physical setting for the deposition,
lighting, dress, etc. Arrange for a reporter, if the stipulation or order requires it, or if you desire a transcript.
See Annotation, Permissibility and Standards for Use of Audio Recording to Take Deposition in State Civil Case,
13 A.L.R. 4th 775 (1982).
In United States v. Hargro, 104 F.R.D. 451 (N.D. Ga. 1984), the court entered the following order for use of audio
recording instead of a stenographic record:
Accordingly, it is hereby ORDERED that the defendant may take depositions and record the same as follows:
1) Plaintiffs counsel will be responsible for administering the oath to the deponents.
2) Defendants counsel will record the depositions with three (3) separate recording devices; plaintiffs counsel may
make separate recordings.
3) Defendants counsel shall provide the necessary equipment, including blank tapes and log or index forms, at
defendants expense.
4) The recording devices shall be of adequate quality for voice reproduction.
5) The defendant shall place one tape in an appropriately labeled, sealed envelope and file this tape with the clerk of
the court; another tape shall be made available to plaintiffs counsel, and a third tape shall be retained by the
defendant.
6) Defendants counsel shall make a log index of the proceedings and an exhibit list.
7) Defendants counsel shall certify the correctness and completeness of the recordings submitted to plaintiffs
counsel and the court.
8) Should the equipment fail so that portions of the tape are of such poor quality as to render the use of the tape
unfair to the interest of any party, then no part of the tape shall be utilized by either.
9) Defendants counsel shall have one tape transcribed. This tape shall be submitted to counsel for the plaintiff. If
counsel for plaintiff believes the transcription to be substantially inaccurate, counsel for plaintiff shall so advise
counsel for defendant by letter which contains a written transcription of the language in dispute and a transcription
of that which counsel for the plaintiff contends is accurate. Both parties may submit a tape and a transcription to the
court for review, if necessary. The deposition will not be submitted to the witnesses for corrections and signatures
until the parties have agreed to a transcript, or the court has resolved the dispute. If there is no dispute between
counsel after such dispute is resolved, the transcript shall be submitted to the deponent for good faith corrections
and signatures.
10) If the deponent fails to make corrections and/or sign the transcript within thirty (30) days of submission, the
transcript may be presumed to be accurate and trustworthy.
11) If a dispute arises as to any questions made by the deponent, upon motion by either party, the court shall review
the tape placed with the court and resolve the conflicts.
12) The original transcript may be used in the same manner as any transcript of a deposition taken by stenographic
means may be used pursuant to the Federal Rules of Civil Procedure.
This type of order in most instances eliminates any benefits to an audiotaped deposition.
[CASE CAPTION] CASE NO:
NOTICE OF INTENT TO
RECORD DEPOSITION
BY [VIDEOTAPE]
[AUDIOTAPE]
(Fed. R. Civ. P. 30(b)(3))
Date: ___________
Time: ___________
Place: ___________
TO (name of deponent), THE PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that pursuant to the provisions of Fed. R. Civ. P. 30(b)(3),
(name) will record the deposition of (name of deponent) by [videotape] [or]
[audiotape] in addition to the stenographic record designated in previously served
notice of deposition.

[CAPTION]
STIPULATION FOR VIDEOTAPED
DEPOSITION OF LUCY LARSEN
Joseph E. Good, attorney for plaintiff, and Thomas E. Lawrence, attorney for
defendant, stipulate and agree as follows:
1. Plaintiff shall take the deposition of Dr. Thomas on oral examination before
(notary public or camera operator), at (address), in the City and County of
Denver, State of Colorado, on March 16, 20_____, at 9:30 a.m., as noticed by
plaintiff.
2. The plaintiffs deposition shall be recorded by videotape pursuant to the
following conditions:
a. The deposition will begin with a statement on camera of the date, time,
and place at which the recording is being made, the title of the case, the
identification of counsel at the deposition, and the name and business
address of the video operator.
b. The person being deposed shall be sworn as a witness on camera either by
the video operator or the reporter. Such oath shall be effective without
regard to whether the officer is otherwise authorized to administer oaths.
c. The video operator shall not stop the video recorder after the deposition
commences until it concludes, except, however, that any party may request
such cessation, which request will be honored unless another party objects,
and the deposition officer may change the tape at pre-scheduled intervals.
Each time the tape is stopped or started, the deposition officer shall
announce the time on the record.
d. If the deposition requires the use of more than one tape, the end of each
tape and the beginning of the next shall be announced orally on the video
record by the deposition officer.
3. After the conclusion of the deposition, counsel for defendant will safeguard
the master tapes by retaining them in his possession and control and will
provide counsel for the plaintiff with certified copies of the master tapes
at the expense of the plaintiff.
Dated July 26, 20__.
________________________________________
[Attorney for Plaintiff]
________________________________________
[Attorney for Defendant]
[CAPTION]
ORDER FOR RECORDING DEPOSITION
ON ORAL EXAMINATION BY VIDEOTAPE
This matter coming on for hearing upon Plaintiffs motion pursuant to Fed. R. Civ.
P. 30(b)(4), for an order directing the taking of an oral deposition of defendant
Lucy Larsen by means of videotape and good cause for the issuance of the order
having been shown; therefore,
IT IS ORDERED that plaintiff shall take the deposition of defendant Lucy Larsen by
videotape at 557 Seventeenth Street, Denver, Colorado, where the accident
described by plaintiff in his complaint occurred. Such deposition is to be for the
purpose of showing the manner in which defendant Larsen operated the machine
immediately prior to and at the time of the alleged accident. The taking of such
deposition shall be subject to the following qualifications:
a. Defendant shall not be requested to actually touch or operate the machine in
question.
b. Defendant shall be furnished with a suitable pointer to show the manner in
which she operated the machine on the date of the accident or can use any
other means agreed to by counsel.
c. The camera operator and the person making the sound recording, if other than
the camera operator, shall take an oath to accurately and in a trustworthy
manner photograph and record the proceeding.
d. The camera operator shall photograph and record in sound all of the
proceedings requested by either counsel and shall certify the correctness
and completeness of the videotape and sound recording in the manner a
stenographic reporter certifies the typed record of a deposition.
e. The original videotaped deposition shall be immediately filed with the Clerk
of this Court to be preserved as exhibits are preserved by the Clerk. [Or:
The original videotaped deposition shall be held by camera operator and that
operator shall permit the parties to the action to hear or to view the tape
and will furnish a copy of the videotape recording to any party making a
request upon the receipt of payment of the reasonable cost of making that
copy of the tape.]
f. The deposition shall be taken at a time agreed on by counsel, but in any
event not later than [30] days from the filing of this order.
DATED: August 10, 20__.
BY THE COURT:
________________________________________
Higgam P. Higgins
United States District Court
231.1 Opposing Videotape Deposition

Unless the court otherwise orders, Rule 30(b)(2) provides that a party does have the right to conduct a deposition by
way of videotape. Even if the noticing party does not initially seek a videotape deposition, any other party, with
prior notice, may elect to have the deposition recorded by videotape. Consequently, subject matters involving very
sensitive topics, such as sexual abuse or harassment, may be extremely emotional and difficult, particularly in the
inherently intimidating context of a deposition. These pressures may be amplified by the very presence of a video
camera and videographer. Under such circumstances, you will be required to informally seek the withdrawal of the
recordation of the deposition by videotape and, if necessary, you may need to file a motion for protective order
under Rule 26(c).
In the event your jurisdiction has not adopted the current version of Rule 30(b)(2), you may have the opportunity to
successfully oppose any required motion for a video deposition. For example, over the opposition of a party, the
party seeking to take the deposition by videotape may well need to show that the witnesss presence at trial is
uncertain. See Continental Savings and Loan Assn v. Delta Corp., 71 F.R.D. 697 (W.D. Okl. 1976). Where the
videotaping of a deposition presents the potential for abuse or harassment, the trial court should exercise its
discretion to deny a motion for a videotaped deposition. Westmoreland v. CBS, Inc., 584 F. Supp. 1206, 1213
(D.D.C. 1984); UAW v. National Caucus of Labor Committees, 525 F.2d 323, 324 (2d Cir. 1975).
[CAPTION]
__________________________________________________________
PLAINTIFFS OPPOSITION TO DEFENDANTS MOTION FOR ORDER PERMITTING VIDEOTAPED

DEPOSITIONS
___________________________________________________________
Plaintiffs, through their attorneys, Eurich & Goldman, state their opposition to
defendants Motion for Order Permitting Recording of Deposition Testimony on
Videotape as follows:
1. Plaintiffs vigorously oppose this patent attempt by defendants to use the
discovery rules to harass and intimidate them in this emotionally difficult
sexual harassment case.
2. None of the usual reasons for videotaping a deposition are present here.
There might be some basis for videotaping the deposition of a witness who is
not a party and whose presence at trial is uncertain. See, e.g., Continental
Federal Savings and Loan Assn v. Delta Corp. of America, 71 F.R.D. 697,
701-03 (W.D. Okla. 1976). No such reason exists here. Plaintiff will
certainly be present at trial, as will the other plaintiffs. Indeed, it
would be impossible to make a case against defendants if plaintiffs were
absent. Nor is there any evidence that there will be any cost savings as a
result of the videotaped depositions. In fact, by proposing that either
party may have ... transcripts made from the original tapes, (proposed
order), defendants are attempting to shift the cost of transcribing
plaintiffs depositions from defendants to the plaintiffs.
3. When there is no probative reason connected with the litigation for
videotaping a deposition and where the potential for abuse or harassment
exists, the trial court should exercise its discretion to deny the motion
for videotaped depositions. Westmoreland, 584 F. Supp. at 1213; UAW, 525
F.2d at 324.
4. In this action, plaintiffs are seeking relief for the injury they suffered
as a result of the intimidating and hostile work environment created by
defendants sexual harassment. Relating the very coarse and aggravated
nature of that harassment will be an emotionally difficult experience,
particularly in the inherently intimidating context of a deposition.
Defendants should not be permitted to continue the intimidation and
harassment which this lawsuit challenges nor exacerbate the difficulty of
relating those events in a deposition context by forcing plaintiffs to sit
for days in front of a video camera, increasing the anxiety which inevitably
attends the prosecution of such a matter.
WHEREFORE, plaintiffs request that the court deny defendants motion for
permission to videotape plaintiffs depositions.
Dated this _____ day of ___________, 20___.

The procedures for taking a telephone deposition pursuant to Rule 30(b)(7) are relatively simple:
Arrange a location for the witness to appear.
Arrange for a reporter to be at the location of the witness. Provide the reporter with any exhibits you may
use in the deposition.
Arrange to have a speaker phone available, or at least separate phones for the witness, the reporter and any
attorneys.
Serve the notice of deposition, stating that the deposition will be by telephone, and that opposing counsel
can attend at the location of the witness, at the place from which you will be telephoning and questioning, or
be tied in by conference call.
Serve a subpoena on the witness, if necessary.
Under Rule 29, the parties may vary the procedure by stipulation, for example, regarding the location of the
reporter. You may want to obtain a stipulation that opposing counsel will not appear at the location of the witness if
you have any concern about opposing counsel exercising undue influence if present.
Documents may be handed to a witness in a telephone deposition by fax. However, one court held that it would
not allow the videotaping of the witness in a telephone deposition over the objection of counsel, since the jury, not
counsel, would see facial expressions of the witness that might otherwise lead to follow-up questions. Bywaters v.
Bywaters, 123 F.R.D. 175 (E.D. Pa. 1988).
The Texas Court of Appeals has held that in a telephone deposition the reporter or administrator of the oath need
not be at the same location as the deponent, but rather can be located with the examiner. Thus, the requirement that
a deposition be taken before a person has been authorized to administer oath does not require that the deponent be
in the presence of such a person; and the requirement that the deposition be taken before a person has been
authorized to take oath was satisfied by the court reporter being in the vocal and aural presence of the deponent
through the use of the telephone, at least where there was no showing of any harm resulting from the court
reporters failure to be in the physical presence of the deponent. However, in part the court relied upon the fact the
deponent thereafter signs the deposition. See Clone Component Distributors of America, Inc. State of Texas, 819 S.
W.2d 593 (Tex. App. 1991). See 142, supra.

The procedures for setting up foreign depositions outside the foreign district or foreign country are discussed in
Chapter 9.

Using an interpreter in a deposition is discussed in 544. If you will be needing the services of an interpreter, make
arrangements with a qualified person. It is preferable to state in the notice of deposition that an interpreter will be
used. Consider attaching the qualifications of the interpreter so that if the opposing party does not object to the
qualifications until the time of deposition, any objection may be deemed waived.
THIS MATTER coming on for hearing upon the motion of plaintiff to appoint Jaret
Ricker as interpreter for the deposition of Frederick Van Stein. The court finding
that Mr. Ricker is fully qualified to interpret the English language into German
and vice versa, the Court hereby appoints Jaret Ricker as interpreter for the
deposition of Mr. Van Stein. Prior to undertaking such interpreter services, Mr.
Ricker shall take an oath to correctly and accurately translate in the course of
the deposition, in the form attached hereto.
DATED _______________, 20__.
BY THE COURT:
________________________________
United States District Judge

Who is responsible for deposition costs is a two part question: (1) Who pays along the way? And (2) are such
expenditures taxable as costs after trial?
(1) In general, each party pays its own deposition expenses as they are incurred. If the witness has been subpoenaed,
the party issuing the subpoena pays costs associated with issuing and serving the subpoena. Each party pays its own
travel costs. Each party separately pays for any transcript ordered from the stenographer or video from the
videographer. Keep in mind that selling transcripts or videotapes is how court reporters and videographers earn their
living. Parties should not copy transcripts or videotapes for each other as a way to avoid paying the court reporter or
videographer. If a party wishes to record a deposition in a manner other than the one designated by the person
conducting the deposition, the party must do so at its own expense. Fed.R.Civ.P. 30(b)(3).
Of course, courts have the discretion to award costs incurred as a sanction against discovery abuses or in the
interests of fairness or equity. For example, in American Hangar, Inc. v. Basic Line, Inc., the court, under
Fed.R.Civ.P. 37(a)(4), the court awarded the plaintiff expenses incurred in obtaining a motion to compel after the
defendant refused to answer deposition questions. 105 F.R.D. 173 (D.C.Mass. 1985). The expenses awarded
however, did not include the costs of the deposition in which the defendant refused to answer. Id. at 175. The court
reasoned that Rule 37 requires a two-step procedure in awarding expenses in such a situation: first, expenses are
limited to the expenses incurred in obtaining the order (which does not include the deposition in which the
offense occurred), second, if the party disobeys the order, then that party will also have to pay the expenses of the
deposition at which the party refused to obey the order. Id. at 176.
Decisions made concerning expenses during the deposition process can impact how costs are taxed after a
judgment. For example, in DiCecci v. Dillard House, Inc., the court did not award the full expenses of a video
deposition to the prevailing party because the parties had agreed to split the cost of the video-recording prior to the
deposition. 149 F.R.D. 239, 241 (N.D. Ga. 1993).
(2) Post judgment, some costs associated with depositions may be taxable. The Federal Rules give the court
discretion in awarding deposition costs to the prevailing party. Fed.R.Civ.P. 54(d)(1). Many jurisdictions permit the
recovery of costs incurred in connection with depositions that were reasonable and necessary for trial, rather than
used solely for discovery purposes. Federal courts follow 28 U.S.C. 1920 which provides that, A judge or clerk of
any court of the United States may tax as costs the following: (2) Fees of the court reporter for all or any part of
the stenographic transcript necessarily obtained for use in the case. 28 U.S.C. 1821(b) provides for the payment
of $40 per day plus travel expenses to witnesses called to a deposition by subpoena. In Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437, 445 (1987), the Supreme Court ruled that 1821(b) and 1920(2) limit the deposition
related costs taxable under Fed.R.Civ.P. 54(d)(1). As a result, the Court found that the district courts do not have the
discretion to award as taxable costs fees paid to expert witnesses for their time being deposed. State courts, not
bound by 1821(b) and 1920(2), have permitted wider recovery of deposition related costs post judgment. See,
e.g., Yates v. Elmer, 948 So. 2d 1092 (La. Ct. App. 2006) (Expert witness fees for time spent in preparation for that
testimony are also recoverable.).
Federal courts have exercised some degree of discretion in interpreting what types of deposition-related costs fit
under 1821(b) and 1920(2). For example, in BDT Products, Inc. v. Lexmark International, Inc., 405 F.3d 415 (6th
Cir. 2005), the Sixth Circuit affirmed a district courts award as taxable costs charges beyond just the transcripts of
the video depositions, including charges for video services, rough disks, interactive realtime, videotapes, and the
synchronization of the video and deposition transcripts, finding that 1920(2) was not so limited to just the
preparation of a written deposition transcript. The Tenth Circuit provided further reasoning in awarding costs
associated with videotaping depositions: [W]e recognize that section 1920(2) does not explicitly provide for the
taxation of costs associated with video depositions. Federal Rule of Civil Procedure 30(b)(2)-(3), however,
authorizes videotape depositions as an alternative to traditional stenographic depositions. Interpreting section
1920(2) in conjunction with Rule 30(b)(2)-(3), we hold section 1920(2) implicitly permits taxation of the costs of
video depositions. Tilton v. Capital Cities/ABC, Inc. 115 F.3d 1471, 1477 (10th Cir. 1997). See also, e.g.,
Morrison v. Reichhold Chemical, Inc., 97 F.3d 460, 464-65 (11th Cir. 1996); Barber v. Ruth, 7 F.3d 636, 645 (7th
Cir. 1993).
Perhaps the biggest area of contention when it comes to taxing deposition costs post-judgment is determining which
depositions were necessary for trial under 1920(2). The analysis comes down to the facts of each case; whether
the transcript was actually used at trial is not the determining factor. See Mansmith v. Hameeduddin, 860 N.E.2d
395, 437-38 (Ill.App.1.Dist. 2006) (The mere use of an evidence deposition at trial does not mean that the
deposition was necessary or indispensable to trial. Further, the unavailability of a witness does not, by itself, rise
to the level of being indispensable.) In Mansmith, a party took a de bene esse deposition of an ill witness in order
to preserve the witnesss testimony for trial should the witness become unavailable at trial. The witness ended up
being available for trial. The court found that the deposition had not been necessary for trial and hence costs
associated with the deposition were not taxable. See also, e.g., Hill v. Lamulle, 506 So. 2d 690, 699 (La. Ct. App.
5th Cir. 1987) (cost associated with deposition whose transcript used only for impeachment at trial not taxable);
Fisher v. State Farm Ins. Companies, 934 P.2d 163, 164 (1997) (cost associated with deposition whose transcript
used only for impeachment at trial may be taxable).
Where a party seeking an award of costs has made a compelling case, a court may, in its discretion, tax costs of
depositions that were not used at trial. Green Construction Co. v. The Kansas Power & Light Co., 153 F.R.D. 670,
677 (D. Kan. 1994) (court has discretion to tax costs of depositions if deposition was necessarily obtained for use
in the case, even if not actually used in the trial itself); Smith v. Tenet Healthsystem SL, Inc., 436 F.3d 879, 889
(8th Cir. 2006) (affirming award of costs associated with deposition that was not used at trial). Generally, courts that
have awarded costs for depositions not used at trial have looked to determine whether the taking of the deposition
seemed reasonably necessary for trial at the time it was taken, even if later the party decided not to use the
deposition. See, e.g., Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 762 (8th Cir. 2006) (referencing the District
of Nebraskas Bill of Costs Handbook that looks to the time of the taking of the deposition to determine whether it
was reasonably necessary for trial). In Aerotech Resources, Inc. v. Dodson Aviation, Inc., the court determined
that the depositions of two witnesses who did not testify were still reasonably necessary to the plaintiff because
the defendants listed the witnesses in their Fed.R.Civ.P. 26(a) disclosures. 237 F.R.D. 659, 664 (D. Kan. 2005). By
contrast, in Sunrich Food Group, Inc. v. Pacific Food of Oregon, Nos. 05-35152, 05-36171, 2006 WL 2927408, *5
(9th Cir. Oct. 12, 2006), the Ninth Circuit affirmed the district courts decision to sustain the non-prevailing partys
objection to the taxation of costs associated with the taking of depositions not used at trial. See also Washington
State Department of Transportation v. Washington Natural Gas Company, Pacificorp, 59 F.3d 793, 806 (9th Cir.
1995) (affirming district courts disallowance for expenses of depositions not used at trial).
Even if the court accepts that the taking of a deposition had been necessary for trial, it may not tax all of the costs
associated with that deposition. For example, in Nilssen v. Osram Sylvania, Inc., No. 01 C 3585, 2007 WL 25771
(N.D. Ill. Jan. 23, 2007), the court awarded the costs of the deposition transcripts, but not the costs associated with
videotaping the depositions, on the ground that the prevailing party had not demonstrated that videotaping the
depositions had been necessary for the trial. Similarly, absent a showing of necessity for trial by the prevailing
party, a court will not tax costs associated with such expenses as expediting transcripts, Summit Technology, Inc. v.
Nidek Co., LTD, 435 F.3d 1371, 1380 (Fed. Cir., 2006); or postage and handling, Cleveland v. North America Van
Lines, Inc., 154 F.R.D. 37, 38 (N.D.N.Y. 1994).
Practice Tip: Submitting a Bill of Costs

As a prevailing party post-judgment, in order to actually recover costs associated with depositions, you
have to submit a Bill of Costs. The Bill of Costs should be supported with invoices for the costs you seek
to recover. For example, in Summit Technology, Inc. v. Nidek Co., LTD, 435 F.3d 1371, 1380-81 (Fed.
Cir., 2006), the Federal Circuit held that the district court should not have awarded costs associated with
depositions that were not supported by detailed invoices from the court reporter.

If you depose an adverse partys expert, the court can require you to pay a fair portion of the fees and expenses of
the expert incurred by the opposing party in obtaining facts and opinions from the expert. Rule 26(b)(4)(C).
Typically you will be required to pay the opposing experts fee for attending the deposition. If at all possible, these
fees should be discussed and agreed upon in advance. Sometimes a party seeks to have the opposing party pay for
the experts time in preparing for his deposition. Most courts that have looked at this issue have ruled that time
spent by experts preparing for depositions is compensable. See, e.g., Magee v. Paul Revere Life Ins. Co., 172 F.R.D.
627, 647 (E.D.N.Y. 1997); McNerney v. Archer Daniels Midland Co., 164 F.R.D. 584, 587 (W.D.N.Y. 1995);
McHale v. Westcott, 893 F. Supp. 143, 151 (N.D.N.Y. 1995). That being the case, the amount an expert can charge
to an opposing party is subject to a reasonableness standard. See, Hose v. Chicago and North Western Transp. Co.,
154 F.R.D. 222, 228 (S.D. Iowa 1994) (Court will look to facts and circumstances to determine reasonableness of
expert fees). But see, S.A. Healy Co. v. Milwaukee Metro Sewerage Dist., 154 F.R.D. 212 (E.D. Wisc. 1994) (Rule
that party designating expert is responsible for experts fee in preparing for deposition is not applicable where
deposition occurred four months after the preparation of the report).
An adverse expert should be treated as a nonparty witness, and hence subpoenaed, unless opposing counsel agrees
to produce him.
In Rhee v. Witco Chemical Corp., 126 F.R.D. 45 (N.D. Ill. 1989), the court ruled that the deposing party need not
pay for the adverse experts time in preparing for the deposition, absent compelling circumstances. However, the
court recognized that under Rule 26(b)(4)(C), it had discretion to order the examining party to pay a fair portion of
the fees and expenses incurred by the adversary in obtaining information from the expert. Exercise of this
discretion is dependent upon whether the seeking party is learning about the other partys case, for purposes such as
developing an effective expert cross-examination, or going beyond this to develop his own case. The court noted
that examination within the scope of Rule 26(b)(4)(A)(i) would not require compensation to be paid to the opposing
expert. See also, Goldwater v. Postmaster General of U.S., 136 F.R.D. 337 (D. Conn. 1991) (Expert witness was
entitled to reimbursement for all time spent under oath at deposition, not just time spent testifying), Rosenblum v.
Warner & Sons, Inc., 148 F.R.D. 237 (N.D. Ind. 1993) (Experts travel time between office and deposition site not -
compensable).
These rules were applied in Baird v. Larson, 59 Wash. App. 715, 801 P.2d 247 (1990). In contemplation of plaintiff
Baird selling his orthodontist practice to defendant Larson, both parties hired Reddington to appraise the practice,
which he did. Thereafter, the sale was made, but defendant Larson defaulted. Upon plaintiffs suit, Larsons defense
was that Reddington overvalued the goodwill, and since both parties relied on Reddingtons valuation, there was a
mutual mistake. Larson tendered Reddington $25 in witness fees; Reddington demanded $576.00, his regular hourly
rate. The examination, as relevant, of Reddington was solely with respect to his prior work in appraisal of the
practice. The Court found Reddington was not entitled to expert witness fees:
An expert person is not necessarily an expert witness as defined in 26(b)(4). Professionals who have acquired or
developed facts and opinions not in anticipation of litigation but from involvement as an actor in a transaction are
not entitled to expert witness fees. 4 J. Moore, J. Lucas & G. Grotheer, FEDERAL PRACTICE 26.66[2] (2d ed. 1989);
31A Am.Jur.2d EXPERT AND OPINION EVIDENCE 19, at 33 (1989);

Normally a party cannot recover attorneys fees and travel costs incurred in taking or defending a deposition. (Of
course, the party ultimately prevailing may recover all its reasonable attorneys fees and costs if provided by statute
or contract.) However, there are exceptions to this general rule.
First, if a plaintiff is unable or unwilling to appear in the forum to be deposed, instead of ordering the plaintiff to
appear, the court may award the defendant attorneys fees and travel costs for taking the deposition elsewhere. See
135, supra.
Second, if one party has caused the other party to suffer annoyance, oppression or undue burden or expense in
deposing a party or witness from outside the forum, courts have awarded the suffering party its costs and expenses
in taking the deposition (including that of a consulting expert), such as attorneys fees for travel time. E.g., Galjour
v. General American Tank Car Corp., Civ. Action No. 87-5003, D.C. La. (Jan. 23, 1990); West v. West, 126 F.R.D.
82 (N.D. Ga. 1989); Bieganek v. Wilson, 1986 W.L. 292 (N.D. Ill. July 7, 1986); see also 135A.1.
Third, when the opposing party takes a deposition that is shown to be totally unnecessary, the other party may have
a basis for recovery of attorneys fees.
Fourth, when a party deponent amends the transcript so as to justify a retaking of the deposition, the deponent may
be responsible for these attorneys fees and expenses.

As discussed in 222, 28 U.S.C. 1821 provides that witnesses subpoenaed to testify at a deposition in a case
pending in federal court must be paid $40 per day plus reimbursed for certain out-of-pocket expenses (e.g., airfare,
rental car, tolls, parking, accommodations, meals). Each state has similar rules.
For many nonparty witnesses, however, the $40 plus expenses payment falls far short of adequately compensating
them for lost wages or a used vacation day. Not infrequently, witnesses will ask for additional compensation for
their time spent traveling to, preparing for, and participating in depositions. This raises both ethical and legal, as
well as practical considerations.
It is well established that an attorney may not make a payment to a fact witness contingent on the substance of the
testimony. See ABA Model Rules of Professional Conduct Rule 3.4(b) (2001); Model Code of Professional
Responsibility DR 7-109(C). The ethical rules of most jurisdictions, however, neither expressly permit nor prohibit
providing reasonable compensation to fact witnesses for their time. Note, however, that some jurisdictions such as
Florida and New Jersey do prohibit such payments, so make sure to check local practice and procedure.
The amount of any such payment must be reasonable. See Prasad v. MML Investors Servs., Inc., No. 04 Civ. 380
(RWS), 2004 WL 1151735 (S.D.N.Y. 2004). There are no bright line rules as to what is reasonable. Certainly,
calculating compensation based on lost wages or the equivalent if vacation time was used would be considered
reasonable for a witness who was missing work in order to travel to, prepare for, and attend a deposition. In United
States v. Davis, 261 F.3d 1, 39 (1st Cir. 2001), the court found that a payment of $30 per hour for a witnesss time
was not outrageously high even though the witness was elderly, ill, and unemployed; the court observed,
everybodys time is worth something.
As a practical matter, making payments to a witness who you expect to give testimony favorable to your client
provides fodder to your opponent on cross-examination come trial and creates the risk that a jury could consider
testimony to have been bought. See United States v. Davis, 261 F.3d 1 (1st Cir. 2001) ([W]e prefer the rule that
would leave the entire matter to the jury to consider in weighing the credibility of the witness-informant.). It
therefore may be prudent that if you paid a favorable witness for, say, the time spent preparing for a deposition
taken by your opponent, that you bring this out on direct examination at trial so that the jury does not think you
have anything to hide, and so you can establish that the payments were reasonable and meant to compensate the
witness for his or her time and not for the substance of his or her testimony.

Things can get a little trickier if the payment to the fact witness is meant as an inducement to get the witness to
cooperate (or to not cooperate with the other side). This is clearly a subtle distinction from the already cooperative
witness who gets reimbursed for time spent. ABA Model Rules of Professional Conduct Rule 3.4(b) (2001) states,
A lawyer shall not offer an inducement to a witness that is prohibited by law. This language is not entirely
helpful. First, there is not a lot of guidance as to what constitutes an inducement. Second, it is unclear when an
inducement would be prohibited by law, other than by bribery statutes. For example, 18 U.S.C. 201(c)(2)
provides that whoever directly or indirectly gives, offers, or promises anything of value to any person, for or
because of the testimony under oath or affirmation given or to be given by such person as a witness upon a trial,
hearing, or other proceeding, before any court or because of such persons absence therefrom shall be fined
under this title or imprisoned for not more than two years, or both. Courts have held that the payment to a witness
as reimbursement for time spent in connection with a deposition is not an inducement that runs afoul of the
federal bribery statute. For example, the United States District Court for the District of Kansas, in Centennial Mgmt.
Servs. v. Axa Re Vie, 193 F.R.D. 671, 682 (D. Kan. 2000) wrote:
[T]he movants have directed the court to no authority supporting their argument that a person violates the anti-
gratuity statute [18 U.S.C. 201(c)(2)] by paying a fact witness reasonable compensation for time spent in
connection with legitimate, non-testifying activities such as reviewing documents in preparation for the deposition
and meeting with lawyers in preparation for the deposition. In fact, the only authority the court has uncovered on
this issue suggests that such compensation is lawful.
But, the subtle distinction between reimbursing a witness for time spent versus inducing a witness to give testimony
was highlighted in Golden Door Jewelry Creations v. Lloyds Underwriters Non-Marine Assn, 865 F. Supp. 1516
(S.D. Fla. 1994). There, the court found that payments of $95,000 and $25,000 to two different witnesses to testify
at depositions were prohibited inducements. The court may have been swayed by the size of the payments and the
fact that the witnesses apparently were unwilling to testify absent the payments. Two points of note. First, the court
found that implicit in 18 U.S.C. 201(c)(2), the inducement must be for false testimony, and hence since there was
no allegation that the two witnesses had not testified truthfully, there was no violation of the anti-bribery statute.
Yet, the court still found the payments prohibited by law because of their coercive nature. Second, the court did
state, payments made to fact witnesses as actual expenses as permitted by law will not be disturbed or set aside.
The Courts opinion today pertains only to payments made to fact witnesses for the purpose of obtaining their
testimony in a case. Id. at 1526, n.11.
An interesting case is Addamax Corp. v. Open Software Foundation, Inc., 151 F.R.D. 504 (D. Mass. 1993). A non-
party witness signed an affidavit. Counsel for one of the parties then served a subpoena duces tecum that the witness
viewed to be overbroad and harassing. Id. at 510. Counsel followed up the subpoena by calling the witness and
offering to withdraw the subpoena if the witness would sign a second affidavit recanting the sworn statements in the
first affidavit. The court did not look favorably on the lawyers conduct:
[The attorneys] conduct is troubling and, at a minimum, gives the appearance of heavy-handedness in a quid pro
quo deal with a non-party witness in the case. At its worst, the conduct evidences a specific intent to pressure a
witness to change testimony given under oath by offering to withdraw a subpoena duces tecum which the witness at
least viewed as extremely burdensome and costly.
Id. The court found that under the old Model Code of Professional Responsibility DR 7-109(C), the offer to
withdraw the subpoena was not strictly compensation offered contingent on testimony, and hence the rule of
ethics was not applicable. It would have been interesting if the court had been applying the ABA Model Rules of
Professional Conduct Rule 3.4(b)s prohibition on inducements that are prohibited by law. Nevertheless, the court
referred the attorney to the local Board of Bar Overseers for investigation.
One can imagine other hypothetical scenarios where inducements are offered in connection with cooperation (or,
again, lack of cooperation with the other side). Here is a hypothetical: Party A sues Party B and Party C. Counsel
for Party A and Party B get together and work out a settlement agreement under which Party A agrees to release
Party B from all claims in exchange for testimony against Party C. Improper inducement? What if the lawsuit
against Parties B and C had not yet been filed, but Party A approaches Party B and offers a release from potential
claims in exchange for testimony against Party C? With little guidance from the courts in these circumstances, the
authors counsel caution if you are considering making such an arrangement in order to secure testimony.

A deposition may be taken before an officer authorized to administer oaths by the laws of the United States or of the
state where the examination is held (for example, a notary) or before a person appointed by the court in which the
action is taken. Rule 28(a). A person appointed by the court has the power to administer oaths and to take testimony.
Rule 28(b) defines the qualifications of a reporter for depositions taken in a foreign country. See Chapter 9.
A reporter may be disqualified if he has a financial interest in the action, is employed by or related to any of the
parties, is counsel to any of the parties, or is employed by or related to an attorney for one of the parties. Rule 28(c).
Choosing a court reporter is an important part of the deposition process. At a minimum you will want a reporter
who is fully qualified to record the deposition accurately and who will prepare the transcript without unnecessary
delay. Moreover, if your case involves a substantial number of technical or difficult terms, you may want a reporter
who has experience in the particular field or generally has more years in the profession. Often it is wise to use the
same reporter for all of your depositions in a particular case. At a minimum, this will allow the reporter to become
familiar with the parties and issues and terms involved. You may also find that your Umms disappear and your
bad grammar is mysteriously corrected.
It is also advisable to get to know your court reporter and to treat him or her well. During the deposition, ask the
court reporter periodically if he or she needs a break. Never agree to extend a deposition past 5:00 p.m. without first
asking if the court reporter is agreeable. If you are bringing lunch into the deposition room mid-day, make sure to
invite the court reporter to partake. Once you have established a rapport with a court reporter, the court reporter can
be a tremendous resource. It does not matter how many depositions you have taken or defended, an experienced
court reporter has seen more. Court reporters do form impressions of witnesses, and they will tell you their thoughts
if you ask them discreetly. It can also be very educational for the young attorney to ask the court reporter after the
deposition for a frank evaluation of his or her technique. Court reporters will often be able to provide valuable tips.
Practice Tip: Audio Recording of Depositions

Many attorneys have war stories about a great question and answer inexplicably failing to be
stenographically recorded correctly. The best way to address such omissions or errors is with reference
to an audio tape recording of the deposition. Not all court reporters, however, automatically audio tape
depositions, or save the audio tapes after the transcription is ready. Before the deposition begins, or
indeed before selecting a court reporter, you may want to speak with the court reporter about his or her
practice for audio taping depositions in addition to stenographically recording the proceedings.

It is now standard practice for court reporters to use computer-driven stenography machines, which catalog
testimony in real time, and, absent final editing, the testimony is ready for review immediately following the
conclusion of the deposition. A computer disk, containing the transcribed deposition can be obtained from the court
reporter, along with the paper version, for a relatively small fee. With the aid of litigation software, or even a
modern word processor, lawyers can review and annotate deposition testimony, right on their own computers.
One of the great strengths of these programs is that they enable you to access portions of the deposition transcript
immediately without need of an extensive summary. For example, if you need to find testimony relating to a specific
subject matter or need to reference pages in a transcript where a witness was instructed not to answer, you can
search through the transcript in a matter of seconds by using key words. For example, a search for all references to
Exhibit 5 might disclose the following:
Page
Can you identify EXHIBIT 5? 10

When did you first receive EXHIBIT 5? 11
Can you prepare a response to EXHIBIT 5? 12
Once you begin using such a system, you will find yourself using certain word patterns during your examination in
order to make those portions of the deposition easily retrievable by computer search. For example, use the proper
names of persons, instead of referring to he or him.
Even if you dont use a personal computer in your practice, your court reporter can prepare a key word reference if
he uses a computer during the transcription process. Often, the reporter will ask you what words you would like
indexed and provide the list at the beginning of the transcript. Key words include names, references to exhibits,
objections and other words which relate to the specifics of your case. While they are not as valuable as being able to
search for the references on your own computer, they are useful if there is no other alternative.

Under Rule 29:
Unless the court orders otherwise, the parties may by written stipulation (1) provide that the depositions may be
taken before any person at any time or place, upon any notice, and in any manner and when so taken be used like
other depositions .
This provision allows the parties to design their own deposition procedures. Rather than immediately filing a motion
when a dispute arises, consider trying to negotiate a stipulation with opposing counsel to establish mutually
agreeable deposition procedures.
[CAPTION]
STIPULATION PURSUANT TO RULE 29
IT IS STIPULATED AND AGREED to by and between the attorneys for each of the
parties hereto, pursuant to Fed. R. Civ. P. 29, that the oral deposition of
Lawrence Larson, whose address is 649 Meadow Lane, Aspen, Colorado, will be taken
at 10:00 oclock a.m. on February 28, 20__ at 1167 Blake Street, Denver, Colorado,
before Thomas P. Parlington.
IT IS FURTHER STIPULATED AND AGREED to by and between the attorneys for the
parties hereto, that the deposition will be upon oral examination, that it will
continue from day to day until completed, and that a written transcript will be
produced after the deposition [and that, in addition, a tape recording of the
deposition will be made by (name of tape recording firm).
DATED:_____________________, 20________.
_______________________________________
Robert F. Good
GOOD & BAD, P.C.
1167 Blake Street
Telephone: (303)111-2222
ATTORNEY FOR PLAINTIFF
DATED: ______________, 20______.
_______________________________________
Elton J. Jones
1430 Teton Road
Telephone: (303) 983-1111
ATTORNEY FOR DEFENDANT
The discovery conference was intended to provide a litigant with an avenue for redress, other than by specifically
defined motions, for threatened discovery abuses. The concept behind discovery conferences is that they would
force the parties to attempt to create a mutually agreeable discovery plan, subject to judicial review, and by which
schedules and limitations upon discovery would be made.
Unless expressly provided otherwise, under Rule 26(d) discovery is stayed until the mandatory conference between
all parties under Rule 26(f) has been completed. This conference entails a discussion of the applicable claims and
defenses in the matter and the possibility of settlement, and it further requires a discussion of what discovery will be
contemplated, when the discovery should be completed, and what limitations there should be to discovery, if any.
Rule 26(f) requires that all parties meet as soon as practicable and under no circumstances later than 14 days before
a Rule 16(b) scheduling conference. The exact timing of this meeting will depend upon your own local rules, but in
general should be scheduled to precede the scheduling conference, which in turn is to be scheduled to occur within
certain time limits from the date of service of the complaint or the filing of an answer. See 131.
Practice Tip: Are You Exempted From the Mandatory Conference?

You should determine whether your jurisdiction has, by local rule or special order, exempted itself from
the mandatory requirements of Rule 26(f). Like the mandatory disclosure requirements of Rule 26, a
number of jurisdictions have opted out of the requirements set forth in Rule 26. Nevertheless, your own
local rules may require a similar meeting.
Your own jurisdiction may not adopt the mandatory discovery planning conference set forth in Rule 26(f).
Moreover, many courts, by local rules, have adopted similar early meetings of counsel where the litigants are
required to present a joint statement to the court setting forth a proposed plan for and schedule of discovery, along
with any limitations on discovery that the parties believe are necessary.
It is important to note that the requirements set forth in Rule 26(f) are much more in-depth than was needed in the
discovery conference under former Rule 26(f). A new Federal Form 35 is designed to assist the parties in their
mandatory joint report to the court.
[CAPTION]
DISCOVERY ORDER
THIS MATTER coming on for hearing upon the motion of the defendant pursuant to
Fed. R. Civ. P. 26(f) for a discovery conference, the conference having been held
and the Court having considered the issues herein, the parties respective
proposed plans and schedule of discovery as well as their proposed limitations on
discovery, and the Court being fully advised,
ORDERED, that the parties shall serve their interrogatories and requests for
production, if any:
1. First set, by April 23, 20____.
2. Second set, by July 27, 20____.
The first set of interrogatories and request for production of documents shall
consist of not more than 60 interrogatories (each subpart counting as one), and
the second set shall consist of not more than 20 interrogatories.
ORDERED, that each party is limited to the following depositions:
A. Plaintiff.
1. Tom Smith 6 hours in the forum city or in Los Angeles, California.
Defendant may choose the location and shall make the deponent available at
his cost, subject to possible taxation of costs at the conclusion hereof.
2. Larry Loper 4 hours in the forum city or in Phoenix, Arizona.
3. Jason Jumper 4 hours in the forum city.
B. Defendant.
1.
2.
3.
The time limits are exclusive of recesses. Defending counsels statements on the
record shall be limited to objections, with a short statement of the grounds
therefor, instruction of witness not to answer a question if the objection is
based upon privi1ege; announcing recesses in order to apply to this Court for
orders, and similar such statements. Counsel are specifically directed that the
course of a deposition is not the appropriate time for mutual discourse.
DATED: _____________, 20__.
BY THE COURT:
_______________________________________
United States District Judge
[CAPTION AND NAMES OF PARTIES]

1. Pursuant to Fed. R. Civ. P. 26(f), a meeting was held on [date], at [place],
and was attended by:
[name], attorney for [name, party]
2. Pre-Discovery Disclosures. The parties will exchange by [date] the
information required by Fed. R. Civ. P. 26(a)(1) [and local rule ___].
3. Discovery Plan. The parties jointly propose to the court the following
discovery plan:
Discovery will be needed on the following subjects: [list].
All discovery commenced in time to be completed by [date].
Discovery on [issue for early discovery] to be completed by [date].
Maximum of ___ interrogatories by each party to any other party.
Responses due ___ days after service.
Maximum of ___ requests for admission by each party to any other party.
Responses due ___ days after service.
Maximum of ___ depositions by plaintiff(s).
Maximum of ___ depositions by defendant(s).
Each deposition limited to maximum of ____ hours, unless extended by
agreement of parties.
Reports from retained experts under Rule 26(a)(2) due:
From plaintiff(s) by [date].
From defendant(s) by [date].
Supplementations under Rule 26(e) due [dates or intervals].
[Use separate paragraphs or subparagraphs as necessary if parties disagree on
specific items.]
The parties [ ]request [ ] do not request a conference with the court before entry
of the scheduling order.
The parties [ ] request a [ ] pretrial conference in [month, year].
Plaintiff(s) should be allowed until [date] to join additional parties and until
[date] to amend the pleadings.
Defendant(s) should be allowed until [date] to join additional parties and until
[date] to amend the pleadings.
All potentially dispositive motions should be filed by [date]. Settlement:
[ ] is likely.
[ ] is unlikely.
[ ] cannot be evaluated prior to [date].
[ ] may be enhanced by use of the following alternative dispute resolution
procedure: ______________.
Final lists of witnesses and exhibits under Rule 26(a)(3) should be due:
From plaintiff(s) by [date].
From defendant(s) by [date].
Parties should have _______________ days after service of final lists of witnesses
and exhibits to list objections under Rule 26(a)(3).
The case should be ready for trial by [date], and at this time is expected to take
approximately ___ days.
[Other matters.]
Date:______

Uniform Audio-Visual Deposition [Act] [Rule], 12 U.L.A. 19 (Supp. 1990)
Beam, Preparing Notices of Deposition and Subpoenas, 12 No. 5 Va. Law. 14 (December, 1998)
Annotation, Sanctions When Party Giving Notice Fails to Attend or to Serve Subpoena, 23 Am. Jur. 2d
Depositions and Discovery 150
Cheifetz, Deposition Strategies: Minding Your Qs & As, 21 Fam. Advoc. 12 (Fall, 1998)
Chapter 3
Who Can and Should Attend a Deposition



After you have decided whom to depose and have properly noticed the depositions, consider who should be present
at the proceedings. For your part, you may want to have your client, a consulting expert, or a key fact witness join
you. Conversely, you must be prepared for the possibility that your opposition will invite people to the deposition
who may hinder or prejudice your ability to conduct an effective examination. Likewise, if the case is a matter of
public interest, you must consider whether the press or other members of the public are likely to seek admission and
whether having outsiders present furthers or hinders your effectiveness.

Depositions have traditionally been considered private affairs, not normally attended by anyone other than the
parties, counsel and the witness being deposed. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 (1984) (under
common law, deposition is traditionally not open to the public); Gannett Co. v. DePasquale, 443 U.S. 368, 387, 396
(1979). Toward that end, the local rules of some districts provide that depositions are closed to outside persons
unless the court orders otherwise. See, e.g., E.D.N.Y. Standing Orders of the Court on Effective Discovery in Civil
Cases, Rule 9 (A person who is a party, witness or potential witness in the action may attend the deposition of a
party or witness.); Local Rule 13 (D. Conn.) (Depositions are deemed private proceedings which the public is not
entitled to attend.) Several state courts have come to the same conclusion. See, e.g., Herald Association, Inc. v.
Judicial Conduct Board, 544 A.2d 596 (Vt. 1988); Lewis R. Pyle Memorial Hosp. v. Superior Court of Arizona In
and For Gila County, 149 Ariz. 193, 197, 717 P.2d 872, 876 (Ariz. 1986) (depositions are not ordinarily public
information until introduced into evidence or filed with the clerk of the court); Palm Beach Newspapers, Inc. v.
Burk, 504 So.2d 378, 382 (Fla. 1987) (deposition proceedings are not public components of a trial unless made so
by the parties).
Under the Federal Rules, however, depositions are generally considered to be open to the public. See American Tel.
and Tel. Co. v. Grady, 594 F.2d 594, 596 (7th Cir. 1978), cert. denied, 440 U.S. 971 (1979) (As a general
proposition, pretrial discovery must take place in the public unless compelling reasons exist for denying the public
access to the proceedings); Sharjah Investment Co. v. P.C. Telemart, Inc., 107 F.R.D. 81, 82 (S.D.N.Y. 1985).
Nothing in the Rules prohibits the press or anyone else from attending. But see, Northern States Power Co. v.
Westinghouse Elec. Corp., 156 F.R.D. 168 (D. Minn. 1994) (intervenor is not entitled to attend depositions, but no
decision as to whether he may have access to depositions). To the contrary, Rule 26(c) requires that if you wish to
exclude persons from the proceedings, you must obtain an exclusionary order. Note that in jurisdictions in which
depositions are considered public, there is generally, in the absence of a local rule to the contrary, no obligation to
provide notice to the other side of observers you intend to invite to the deposition. See, e.g., Ledden v. Kuzma, 858
N.E.2d 186, 192 n. 4 (Ind. Ct. App. 2006) (finding that trial court erred in finding that partys failure to provide
notice of the intent to have an expert attend a fact deposition was a basis for issuing a protective order against such
attendance).
A separate though related question to whether the public may attend a deposition is whether the public may gain
access to a deposition transcript. This issue often arises where one of the parties is a governmental agency. Courts
have generally analyzed the question based on whether the deposition transcript can be construed as falling within
the category of agency records subject to disclosure under an applicable open records statute. See, e.g., Memphis
Publishing Company v. City of Memphis, 871 S.W.2d 681 (Tenn. 1994). Courts have granted greater protections to
deposition transcripts taken under a protective order meant to limit disclosures of confidential information. See, e.g.,
SEC v. TheStreet.com, 273 F.3d 222 (2d Cir. 2001).
The issue also comes up where it is anticipated that a witness may reveal confidential or proprietary information. In
such a circumstance, the parties may want to consider seeking a protective order from the court prohibiting the
dissemination of all or part of the transcript to third parties. While such protective orders are routinely granted,
some courts do require the parties to articulate a good cause supporting issuance. See, e.g., Procter & Gamble Co.
v. Bankers Trust Co., 78 F.3d 219, 227 (6th Cir. 1996).

There are no limits on the number of attorneys representing a party or a witness who may attend a deposition. If you
have colleagues, such as an associate you are training or a partner who may be supervising you, who you would like
to be present at the deposition, by all means, have them come. As a matter of courtesy, of course, you may want to
give the other side a heads up, particularly if the extra attorneys risk creating a space crunch in the location
designated for the deposition.
A different issue is how many attorneys for a single party or witness may ask questions or object to questions asked
by a different party. In general, absent agreement or court order, only one lawyer per side may actively participate in
a deposition (although passing notes and helping handle exhibits is acceptable). Courts have expressed the concern
that a contrary rule, permitting tag-team examinations, would be oppressive and time-consuming. See In re Cumins,
144 B.R. 426, 428 (Bankr. W.D. Ark. 1992) (directing that only one attorney for each party may question the
witness during the deposition because examinations by multiple attorneys representing one party may be
oppressive); Lake Superior Paper Indus. v. County of St. Louis, No. CX-96-600516-R, 1999 Minn. Tax LEXIS 23,
at *3 (Minn. Tax Ct. May 13, 1999) (stating having two attorneys doing a tag team simultaneously during a
deposition would be unfair, burdensome and oppressive); but see Rockwell Intl, Inc. v. Pos-A-Traction Indus.,
Inc., 712 F.2d 1324, 1325 (9th Cir. 1983) (stating two attorneys may question a deponent on behalf of one party);
Cal. Civil Discovery 6.32 (California statutes governing depositions do not prohibit questioning by multiple
attorneys.).
A different situation arises where a deposition carries over to a second day creating a conflict with the examining or
defending attorneys schedule. In such a circumstance, courts have found that the risk of oppression is not present
and that an accommodation should be made, such as permitting a different examining attorney for the continuation
of the deposition. See, e.g., Lake Superior Paper Indus., 1999 Minn. Tax LEXIS 23, at *3 (commenting that, we
see this [switching counsel due to circumstances arising from the continuation of a deposition] as significantly
different than the tag team situation).

Rule 26(c) governs motions to exclude persons from a deposition and places the burden to justify exclusion on the
persons or parties seeking it. It provides:
A party or any person from whom discovery is sought may move for a protective order in the court where the action
is pendingor as an alternative on matters relating to a deposition, in the court for the district where the deposition
will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to
confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good
cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or
expense, including one or more of the following: (E) designating the persons who may be present while the
discovery is conducted.
Several points should be noted. First, a motion for protective order can be made either by a party or by a nonparty
who is the target of the discovery. It should be keyed to specific grounds such as to protect against annoyance,
embarrassment, oppression, or undue burden or expense, or to protect trade secrets or other confidential
information.
Second, the motion for a protective order should be made in advance of the deposition. Once the deposition has
started, your only alternative is to move to terminate or limit examination pursuant to Rule 30(d) pending the filing
of and ruling upon a motion for a protective order. Such a motion is appropriate if you had no reason to anticipate
that objectionable persons would try to attend the deposition. See Lewis R. Pyle Memorial Hospital v. Superior
Court, 717 P.2d 872 (Ariz. 1986). Where you know in advance that objectionable persons will be present, the better
procedure is to move for the protective order before the deposition convenes.
Rule 26(c)(E) requires a showing of good cause and places the burden of establishing good cause on the moving
party. Dunlap v. Reading Co., 30 F.R.D. 129 (E.D. Pa. 1962); Frideres v. Schlitz, 150 F.R.D. 153, 156 (S.D. Iowa
1993) (child abuse case allowing sister to be sequestered during siblings testimony. Hardship must be proven to
grant sequestration); Wright v. Patrolmens Benev. Assn, 72 F.R.D. 161, 164 (S.D.N.Y. 1976) (protective order
barring deposition will not be granted on the grounds that information might be available from other sources).
Although the circumstances in each case will vary, good cause should include the following:
To prevent the testimony of subsequent witnesses from being tainted by what they have heard from earlier
witnessesto prevent the conscious or unconscious shaping of testimony by one witness to match that of
another witness. See United States v. Leggett, 326 F.2d 613 (4th Cir. 1964), cert. denied, 377 U.S. 955
(1964); Dunlap v. Reading Co., 30 F.R.D. 129 (E.D. Pa. 1962).
To protect the parties justifiable needs for privacy.
To protect confidential information from being disclosed. See Rule 26(c)(7); Marshwood Co. v. Jamie Mills,
10 F.R.D. 386 (D. Ohio 1950).
To prevent a witness from becoming harassed, or unnecessarily distracted or nervous.
See also Skidmore v. Northwest Engineering Co., 90 F.R.D. 75, 76 (S.D. Fla. 1981) (experts are generally exempt
from exclusion at depositions where their presence is essential to the presentation of the partys case); Avirgan v.
Hull, 118 F.R.D. 252, 256 (D.D.C. 1987); Kerschbaumer v. Bell, 112 F.R.D. 426 (D.D.C. 1986).
A few courts have granted protective orders simply to ensure that deponents testify only to matters within their
independent recollections and without any influence from statements made by other witnesses. See, e.g., Beacon v.
R.M. Jones Apartment Rentals, 79 F.R.D. 141, 142 (N.D. Ohio 1978); In re Levine, 101 B.R. 260, 262
(Bankr.D.Colo. 1989).
Keep in mind, however, that in bringing a motion for a protective order to limit attendance at a deposition, the
burden is upon the movant to show the necessity of its issuance, which contemplates a particular and specific
demonstration of fact as distinguished from stereotyped and conclusory statements. In re Terra Intl, 134 F.3d 302,
306 (5th Cir. 1998) (emphasis added), quoting United States v. Garrett, 571 F.2d 1323, 1326 n.3 (5th Cir. 1978).
The petitioner corporation in Terra asked for a writ of mandamus invalidating a magistrates protective order that
prohibited its employees from attending depositions collectively in a products liability suit. In overturning the
district court and vacating the magistrates order, the 5th Circuit held that where a motion for a protective order is
not supported by affidavits or other evidence demonstrating exceptional circumstances, but rather it is merely
alleged that employees might feel a sense of camaraderie or feel pressure from [the employer] that might taint their
testimony, the movant did not meet its burden. Id. at 305-306.
If you move to exclude persons from a deposition, you may also want to include a request that the deponent and/or
other persons attending the deposition not discuss the testimony given in the deposition with persons excluded, and
that the transcript be kept confidential. If witnesses or counsel are free to pass on your questions to future
deponents, or to share the transcript, there would be little purpose in excluding them in the first place. See Miller v.
Universal City Studios, Inc., 650 F.2d 1365, 1373 (5th Cir. 1981); United States v. Johnson, 578 F.2d 1352, 1355
(10th Cir. 1978), cert. denied, 439 U.S. 931 (1978). Where the excluded person is a party, however, the courts have
disagreed as to whether counsel can be prohibited from talking about the earlier deposition with his client. Cf.
Potashnick v. Port City Const. Co., 609 F.2d 1101, 1119 (5th Cir. 1980); Stocker Hinge Mfg. Co. v. Darnel
Industries, Inc., 377 N.E.2d 1125, 1133-1134 (Ill. App. 1978), with, Thompson v. Atlantic Building Corp., 107 A.2d
784, 785 (D.C. Mun Ct. 1954). See generally Annotation, Prejudiced Effect of Courts Direction or Caution to
Party-Witness Not to Discuss Case with Anyone, Including his Counsel, During Recess or the Like, 46 A.L.R.2d
517 (1956).

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION FOR A PROTECTIVE ORDER TO

EXCLUDE SPECTATORS FROM DEPOSITION
Pursuant to Fed. R. Civ. P. 26(c), Plaintiff, John D. Harmed, moves the Court for
a protective order prohibiting John S. Gregarious from attending the deposition of
Samuel P. Bigshot.
Mr. Gregarious is the Store Manager of the Metropolis, MA, Big Business, Inc.,
retail store. Mr. Bigshot is the Chief Executive Officer of Big Business, Inc.
Plaintiff intends to depose Mr. Gregarious at a future time and date. Mr.
Bigshot's answers to deposition questions may influence and taint the fair
deposition of Mr. Gregarious at such future time. Courts have previously held that
such circumstances demonstrate good cause for the exclusion of spectators from
depositions.
Therefore, Mr. Harmed prays that the Court grant a protective order excluding Mr.
Gregarious from the deposition of Samuel P. Bigshot and precluding Mr. Gregarious
from reviewing Mr. Bigshot's deposition testimony until after his own deposition
has been completed.
This motion is supported by the Memorandum of Law served and filed herewith, and
the Declaration of (name of declarant) and on all oral and documentary evidence
that may be presented at the time of any hearing related to such motion.
JOHN D. HARMED,
By his attorney,
_______________________
Timothy P. Attorney
5 Main Street
Dated: _______________
DECLARATIONS
Your motion should include a declaration(s) setting forth dispute on attendance by nonparties, reasons for
exclusion, and good faith efforts to resolve the issue before filing a motion.
MEMORANDUM OF LAW
Include a memorandum of points and authorities in support of requested relief.
Rule 615 of the Federal Rules of Evidence provides parallel authority for the exclusion of nonparty witnesses from
a deposition. It provides:
At the request of a party the court shall order witnesses excluded so they cannot hear the testimony of other
witnesses .... This rule does not authorize exclusion of (1) a party who is a natural person, or (2) an officer or
employee of a party which is not a natural person designated as its representative by its attorney, or (3) a person
whose presence is shown by a party to be essential to the presentation of his cause.
See Annotation, Exclusion of Witnesses Under Rule 615 of Federal Rules of Evidence, 48 A.L.R. Fed. 484 (1980); 6
WIGMORE ON EVIDENCE, Chap. 63, 1837-1842 (Chadbaum Rev. 1976). By its terms, Fed. R. Evid. 615 does not
apply to depositions. However, some courts have looked to Rule 30(c), which requires that Examination and cross-
examination of witnesses [in depositions] may proceed as permitted at the trial under the provisions of the Federal
Rules of Evidence. They have reasoned that the purposes underlying Fed. R. Evid. 615, i.e., to discourage and
expose fabrication, inaccuracy and collusion, apply equally to depositions. See, e.g., Skidmore v. Northwest
Engineering Co., 90 F.R.D. 75, 76 (S.D. Fla. 1981); Naismith v. Professional Golfers Assoc., 85 F.R.D. 552, 567
(N.D. Ga. 1979); Lumpkin v. Bi-Lo, Inc. 117 F.R.D. 451, 453 (M.D. Ga. 1987). But see, BCI Communication
Systems, Inc. v. Bell Atlanticom Systems, Inc., 112 F.R.D. 154, 158 (N.D. Ala. 1986); see also Notes of Advisory
Committee on Proposed Rule 615.
It is unclear whether under Rule 615 precluding the exclusion of an officer or employee of a party which is not a
natural person designated as its representative by its attorney requires that the same officer or employee be
designated for all depositions or throughout the hearing. In other words, can a party change its designated officer or
employee? Logically, there would seem no reason why the representative must be the same person throughout all
pretrial and trial proceedings. On the other hand, the Rule 615 designation should not be allowed to become a means
to effectively negate the intent and purpose of Rule 615. See In re Shell Oil Refinery, 136 F.R.D. 615 (E.D. La.
1991). See 335.

Rule 29 may also authorize the parties to stipulate to the exclusion of nonparty witnesses. It provides:
Unless the court orders otherwise, the parties may by written stipulation (1) provide that depositions may be taken
... in any manner ...
Arguably, the words taken ... in any manner empower the parties to agree among themselves to limit attendance at
deposition. Any persons seeking to attend the deposition could apply for a court order authorizing their admission.
On the other hand, because the structure of the Rule implies that all persons shall be admitted to depositions unless
excluded, and because of the public policy issues involved, perhaps the better view is that the Court can issue an
order superseding a stipulation of the parties precluding attendance of any persons, or indeed, allowing the
attendance of certain individuals (at the request of, e.g., a nonparty deponent). See Arthur R. Miller, Private Lives
or Public Access? 77 ABA Journal, Aug. 1991, at 65.

As a general rule, courts have been reluctant to exclude a party from attending a deposition. Under Fed. R. Evid.
615, a party may not be excluded from trial even though he has the opportunity to hear the testimony of other
witnesses before giving his own testimony. Arguably, the same logic should bar a court from excluding a party from
attending depositions.
In certain instances, however, courts have found good cause to exclude a party from a deposition. One is where the
parties are antagonistic and their attendance is likely to disrupt the deposition. For example, in Galella v. Onassis,
487 F.2d 986 (2d Cir. 1973), a trial court excluded the plaintiff from attending a deposition of the defendant to
protect her from embarrassment or ridicule. In that case, a photographer had brought suit against President
Kennedys widow, Mrs. Onassis, and three Secret Service agents for false arrest, malicious prosecution and
interference with trade. The photographer allegedly had a history of harassing Mrs. Onassis by photographing her at
all times and places. Significantly, he had already been charged with violating a temporary restraining order entered
to protect Mrs. Onassis. In affirming the trial courts exclusion order, the Second Circuit found that the potential for
misconduct during the deposition constituted good cause for exclusion.
In another case, which was not officially reported, a district court excluded an individual who was an officer of
plaintiff at the deposition of another officer of plaintiff. Techna-Quip, Inc. v. Perfection Gear, Inc. (Civ. Action No.
85-1532, Sept. 9, 1985, D. Colo.). There, a deposing party sought an exclusion order to prevent the possibility of
one of the company officers testimony from being influenced by the testimony of the other. In granting the motion,
the court explained:
Defendant is entitled to the independent recollection of the parties involved in the transactions which are the subject
of this lawsuit .... Furthermore, we are of the opinion that Fed. R. Evid. 615, which allows a representative of a
corporation to remain at a deposition, cannot be used to circumvent Rule 26(c), where Defendant has shown good
cause for sequestration .... There is a risk that the deponents testimony may be influenced, even unintentionally, if
they were allowed to attend the other witnesss deposition. We thus conclude that the interests of justice requires
that Defendant be given the opportunity to depose [each witness] separately.
See also Milsen Co. v. Southland Corp., 16 F.R.Serv.2d 110 (N.D. Ill. 1972); Swiers v. P & C Food Markets, Inc.,
464 N.Y.S.2d 39 (App. Div. 1983); Beacon v. R.M. Jones Apartment Rentals, 79 F.R.D. 141 (N.D. Ohio 1978)
(where the court entered a sequestration order excluding defendants from attending other depositions).
In Naatz v. Queensbury Cent. School Dist., 563 N.Y.S.2d 194 (N.Y.A.D. 3d Dept. 1990), the Court recognized that
parties and nonparties can be excluded from depositions in the interest of preserving [plaintiffs] right to the
spontaneous, uncolored testimony of each witness.
In summary, the Court should consider excluding even a party from a deposition, if:
(a) The Court finds that there is a substantial likelihood of the partys misconduct during the deposition
interfering therewith, including psychological intimidation of the deponent.
(b) The Court finds that the facts in issue which will be testified to by one person and thereafter by a party are
so important, and the line between what helps or harms each party is so fine, that there is a risk that the
subsequent party deponents testimony may be unintentionally influenced by the first deponent.

If members of the press or the public are likely to attend a deposition, and their presence is objectionable, consider
moving for a protective order under Rule 26(c). In some instances, courts have refused to grant such relief holding
that the press and other members of the public have a right to attend court sanctioned proceedings. See Avirgan v.
Hull, 118 F.R.D. 252 (D.D.C. 1987) (Traditional policy of open proceedings weighs in favor of allowing press and
other members of the public to attend a deposition). In others, courts have been willing to enter orders excluding the
press and public. Times Newspapers Ltd. (of Great Britain) v. McDonnell Douglas Corp., 387 F. Supp. 189 (C. D.
Cal. 1974) (Neither the press nor the public have a right to be present at the taking of depositions.) See also
Littlejohn v. Bic Corp., 851 F.2d 673 (3d Cir. 1988).
Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984), upheld the trial courts Rule 26(c) protective order prohibiting a
media defendant from using information learned in discovery for any purpose other than for trial preparation. By
implication, this ruling would uphold the power of a trial court under Rule 26(c) to deny any nonparty, including the
media, access to discovery.
An excellent analysis of the case law is found in Rothman, The Right of Media Access to Pretrial Civil
Proceedings: An Update, 7, No. 4 Communications Lawyer 3 (Fall 1989), which summarizes the law:
In summary, therefore, courts have a great deal of discretion in ruling on a motion for a protective order seeking to
restrict media access to depositions. However, the movant will have to meet a good cause standard.
Media counsel will have an advantage when they can demonstrate: (1) a high degree of public interest in the subject
matter of the litigation; (2) the absence of any likely harm because of substantial prior coverage in the press; or (3)
a proclivity on the part of the movant to seek or to participate in publicity. Of course, since the burden on any
motion will be on the party seeking to prohibit access, a particularized showing of harm based upon testimony
likely to be elicited at the deposition should be required in the first instance.
See also McCarthy v. Barnett Bank of Polk County, 876 F.2d 89 (11th Cir. 1989). For general considerations, see
Culinary Foods v. Raychem Corp., 151 F.R.D. 297 (N.D. Ill. 1993) (injury to reputation does not constitute good
cause); Aetna Casualty & Sur Co. v. Hyman Constr. Co., 155 F.R.D. 113, 115 (E.D. Pa. 1994) (good cause must
be shown for court to bar stipulation from release to public).

Where a deposition will necessarily involve discussion of trade secrets or other confidential information, courts will
readily grant a protective order and exclude the attendance of unnecessary individuals. Marshwood Co. v. Jamie
Mills, Inc., 10 F.R.D. 386 (1950) (secret recipe). Rule 26(c)(7) specifically authorizes a court to ensure that a trade
secret or other confidential research, development or commercial information not be disclosed, or be disclosed in a
designated way.
In Zenith Radio Corp. v. Matsushita Electric Industrial Co., 529 F. Supp. 866 (E.D. Pa. 1981), the court defined a
three-prong test for whether a protective order should be entered under Rule 26(c) (7).
1. Whether the matter sought to be protected is a trade secret or otherwise confidential;
2. Whether disclosure of such information would cause injury to the disclosing party;
3. Whether the party seeking protection has shown good cause for the requested protection.
A motion to exclude spectators from attending a deposition based upon a confidentiality or trade secret rationale
should state in detail the basis for your claim of confidentiality or the nature of the trade secrets which will be
discussed. If necessary, include affidavits and other supporting documentation.

Title 15 U.S.C. 30 specifically provides that in antitrust actions brought by the United States, depositions are open
to the public. The Publicity in Taking Evidence Act provides:
In the taking of depositions of witnesses for use in any suit in equity brought by the United States under Sections 1
to 7 of this title ... the proceedings shall be open to the public as freely as are trials in open court; and no order
excluding the public from attendance at any such proceeding shall be valid or enforceable.
Notwithstanding this language, courts have found certain circumstances justifying the issuance of a protective order
excluding witnesses. See United States v. International Business Machines Corp., 67 F.R.D. 40 (S.D.N.Y. 1975)
(confidentiality recognized as to trade secrets, to the same extent as evidence limited to in camera inspection);
United States v. United Fruit Co., 410 F.2d 553 (5th Cir. 1969), cert. denied, 396 U.S. 820 (confidential
information). The most recent case addressing this subject puts these exceptions in doubt. In U.S. v. Microsoft
Corp., No. Civ. A. 98-1233 (D.D.C., August 11, 1998), the District of Columbia held that the plain language of 15
U.S.C. 30 mandated the relief sought by interveners: The New York Times Company, ZDTV, ZDNET, and the
Seattle Times (to observe and attend the deposition of Microsoft CEO Bill Gates), despite credible claims by
Microsoft that trade secrets may be lost as a result.

As discussed supra, 321 and 322, Rule 26(c) and Federal Rule of Evidence 615 permit the Court to exclude
persons from depositions. However, Rule 615 continues that it does not apply to an officer or employee of a party
which is not a natural person and is designated as its representative by its attorneys. While Rule 615 directly applies
to trials and not to depositions, some courts have nevertheless held it applicable to depositions under Rule 30(c).
One court has held that a party may not avoid the other partys right to exclude witnesses from depositions by
designating fact witnesses as corporate representatives. In re Shell Oil Refinery, 136 F.R.D. 615 (E.D. La. 1991).
For each deposition of an employee plaintiff planned to take, defendant would designate a different representative
the deponents supervisor. Each of these supervisors was also a fact witness. The court held that, under Rule
26(c)(5), a representative of a party could be excluded for good cause shown, even if he could not be automatically
excluded under Rule 615.

Rule 26(c) requires a party seeking to exclude persons from a deposition to file a motion for a protective order. If
possible, move for the order before the date of the deposition is to take place. An advance call to opposing counsel
to inquire who is planning to attend the deposition may be necessary. You should also determine whether your local
rules provide that a motion for a protective order under Rule 26(c) immediately suspends the discovery which is the
subject of the protective order until the motion can be ruled on by the court. See also Rule 30(d).
In many cases, you will not know who is planning to attend the deposition until it begins, or you may not anticipate
that inappropriate persons will appear. As a result, your only option may be to seek to terminate the deposition until
a motion for protective order can be heard. Rule 30(d) allows a party to suspend a deposition upon a showing that it
is being conducted in bad faith or in such a manner as to unreasonably annoy or embarrass a deponent or party. The
deposition is automatically suspended for the time it takes to apply to the court for a protective order.
Rule 26(c) requires a good faith effort, as evidenced by counsels certification, to resolve the dispute before filing
any motion for protective order.
A sample motion for exclusion of witnesses from a deposition follows:

DISTRICT OF STATE
______________________________________
)
KELLY HURTZ, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
SPEEDY DELIVERY, INC., )
)
Defendant. )
______________________________________)
MOTION FOR A PROTECTIVE ORDER TO

EXCLUDE WITNESSES FROM DEPOSITION
Pursuant to Fed. R. Civ. P. 26(c)(E), Defendant hereby moves for a protective
order to exclude all witnesses not previously deposed from attending the
depositions of other witnesses or reviewing the deposition testimony of those
witnesses. This case involves an accident that occurred in front of numerous
witnesses who are being deposed by the parties. The circumstances leading up to
the accident are in dispute. To preserve the accuracy of the witnesses' testimony
and to exclude unnecessary influence upon such testimony, Defendant respectfully
requests that the Court grant this motion.
A Memorandum of Law and Declaration of (name of declarant) are submitted herewith.
SPEEDY DELIVERY, INC.,

By his attorney,
________________________
Liam N. Lawyer
11135 Main Street
DECLARATIONS
Include declaration(s) setting forth the dispute, the importance of unbiased/independent recollection, the danger
poised by attendance and the good faith efforts and discussions with opposing counsel before filing the motion.
MEMORANDUM OF LAW
Include a memorandum of points and authorities in support of the relief sought. See 331.

Once you have determined who can attend a deposition, consider as a tactical matter who should attend. In making
your decision, consider each of the following questions:
1. Do I need someone to provide input on the deponents answers so that I might better be able to examine
or cross-examine?
In many cases, you will need the assistance of your client or of another witness or consultant to better be able
to understand and follow up on the answers given by a deponent. One obvious example occurs when you are
deposing another partys expert. You may want your expert present to assist you in understanding highly
technical subject matter or to help you follow up when the opposing expert gives unexpected testimony. Under
such circumstances, your expert consultant should not be subject to exclusion from the deposition. Williams v.
Electronic Control Systems, Inc., 68 F.R.D. 703, 704 (E.D. Tenn. 1975).
In some cases, you will need assistance deposing nonexpert witnesses. Often your examination of a fact
witness will be more effective if your client or another knowledgeable witness is present at your side. If the
deponent misstates the facts or deviates from expected testimony, your fact consultant may help you with
follow-up questions or point out inconsistencies with other testimony or documents.
2. Will the presence of a particular person tend to cause the deponent to be more truthful?
If you suspect that your deponent is dishonest or will exaggerate regarding past events, consider having your
client or another witness present with you during the deposition. In many cases, this will help ensure that the
witnesss testimony is accurate and free from embellishment. For example, if the deponent will be testifying
regarding a series of meetings with your client, and his testimony regarding what was said at those meetings is
important, consider having your client attend. Often, this will force the deponent to be more careful in giving his
testimony; it is much more difficult to lie if the person to whom the lies are directed is sitting across the table.
Similarly, an expert witness may become more conservative and less assured in his testimony if he knows
that your expert is sitting across the table and listening carefully to everything that is said. Knowing that your
expert is immediately available to assist with follow-up questions may force the deponent to be more careful in
giving his testimony.
In some cases, you may choose not to have your expert or your client attend the deposition because you want
the deponent to embellish or fabricate his testimony. Your cross-examination at trial may be far more effective
because you can then point out the inconsistencies and fabrications. By not having your expert or client present,
you may create a false sense of security and lead the witness into believing that he can get away with false
testimony.
3. Will my witness become more familiar and comfortable with the deposition process?
If your client or a key witness has never attended a deposition, consider bringing him along to an earlier
scheduled deposition to familiarize him with the process. In many cases, a witness will be apprehensive at the
prospect of giving a deposition and his testimony may suffer as a result. While extensive preparation is helpful
and recommended, you may also ameliorate the situation by having your client or witness attend anothers
deposition so that he can become familiar with the surroundings, get to know opposing counsel, and generally
become more comfortable with the deposition process.
Where opposing counsel is extremely aggressive, cantankerous or hostile, you may decide not to have your
client attend in advance of his own deposition. If the deposition is likely to be a rough experience, you may only
worsen the situation by exposing your client to such a prospect in advance. Instead, advise your client that such
tactics will likely be used and counsel him regarding your methods for dealing with such tactics. These
techniques should include strict compliance with the basic rules to follow in being a deponent.
4. Does my client want to attend?
As an ethical matter, and as a matter of client relations, always make sure that your client has an opportunity
to attend every deposition. The more your client is involved with the case, the better prepared he will be to make
decisions concerning settlement and trial tactics. As a side benefit, if your client attends the deposition, it is
likely he will be more understanding and satisfied with your work on his behalf.

3 WEINSTEINS EVIDENCE & 615 (1988)
6 Sequestration of Witnesses, 1837-1842, WIGMORE ON EVIDENCE, Chap. 63, (Chadbourn Rev. 1976)
3 Hoff and Jurek, Exclusion of Witnesses, FEDERAL LITIGATION GUIDE, Chp. 31 (1988)
Annotation, Exclusion of Witnesses under Rule 615 of Federal Rules of Evidence, 48 A.L.R. Fed. 484 (1980)
Annotation, Prejudicial Effect of Courts Direction or Caution to Party-Witness Not to Discuss Case with
Anyone, Including his Counsel, During Recess or the Like, 46 A.L.R.2d 517 (1956)
Annotation, Construction and Effect of Rules 30(b), (d), 3I(d), of the Federal Rules of Civil Procedure, and
Similar State Statutes and Rules, Relating to Preventing, Limiting or Terminating the Taking of Depositions, 70
A.L.R.2d 685, 751 (1960)
Miller, Private Lives or Public Access? 77 ABA JOURNAL 65, Aug. 1991
Chapter 4
Preparing to Take or Defend a Liability or

Damages Deposition


416.1 Visit Site
437 Timing
473 Sample Outlines
473.1 Outline for Deposing the PlaintiffAutomobile Case
473.3 Outline for Deposing EyewitnessAutomobile Liability Case
473.6 Outline for Deposing Defendant Citys Superintendent of StreetsPremises Liability Case

The key to successful deposition is preparation. Rarely will helpful information be volunteered by the witness. More
often, it comes from asking the right questions, understanding a witnesss answers, reading the witnesss character,
and asking good follow-up questions.
Preparation is also the key to defending a deposition. If you are prepared to defend a deposition, your objections
will be both timely and appropriate, you will gain the maximum information possible concerning your opponents
theories and strategies, and you will be able to prepare your witness. Similarly, if your witness is prepared, his
answers will be accurate, and as helpful to your case as reasonably possible. Just as with any other phase of the
litigation process, the quality of your performance in a deposition will depend more upon preparation than almost
anything else.
This chapter will focus upon the steps you should consider in preparing to take or defend a deposition. Whether you
follow each of the suggested steps will depend upon the situation. If the case is complex and the stakes are high, you
will want to prepare thoroughly and leave little to chance. Conversely, once you have gained experience in taking
depositions or where the stakes are not as high, some steps may be omitted.

In many respects, preparing for a deposition is like preparing for trial. In order to be prepared to take an effective
deposition, you should know the legal elements of your case, the testimony expected from your own witnesses, and
the relevant documents which prove or disprove your case. It is this initial preparationthe importance of which
cannot be overstatedthat helps you to choose the witnesses to be deposed and the subject areas to be explored.
Rarely will you maximize your effectiveness by taking a deposition without preparation, merely on the hope that
you will learn something interesting. To the contrary, the most interesting information gained from a deposition
usually comes as a result of hard work.
Practice Tip: Create a Deposition Notebook

Especially for young lawyers, creating a deposition notebook that you bring with you to every
deposition you take or defend can be a great resource and reassurance. Because you will be carrying it
around with you, try to keep the notebook to one inch. Create an index for ease of use. Then insert tabs
with information to which you might want easy access during a deposition. Start with the Federal Rules of
Civil Procedure. Make photocopies of Rules 26, 27, 28, 29, 32 and 37. Then highlight those parts of the
rules to which you might most readily need to refer, such as Rules 30(b)(6) (deposing an organization),
30(d)(1) (objections must be stated concisely, list of when appropriate to instruct witness not to answer),
30(d)(4) (rule regarding terminating a deposition for purpose of seeking court intervention), 32(d)(3)(A)
and (B) (preservation of objections). You should also make photocopies of the Federal Rules of Civil
Procedure of the states in which you practice most often. Highlight those key areas, if any, where the
state rules differ from the federal rules. Make sure to check any local or court-specific rules as well.
Next, you should bring with you certain leading cases that you might want to show to opposing counsel
if appropriate. Regardless of where you practice, because it has been so widely cited throughout the
country, the case of Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993) deserves to be in any
deposition notebook. It includes the famous and oft-quoted admonition, The witness comes to the
deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the
witnesss words to mold a legally convenient record. After Hall, include in your notebook the leading case
on deposition practice from each of the jurisdictions in which you regularly practice. If you practice
regularly in California, consider copying and highlighting Stewart v. Colonial Western Agency, Inc., 87
Cal. App. 4th 1006 (2001); in Massachusetts, do not forget American Hangar, Inc. v. Basic Line, Inc., 105
F.R.D. 173 (D. Mass. 1985).
Finally, your deposition notebook may also include certain lists that you write out in advance that you
will want to periodically review as a quick refresher, such as a list of guidelines to use when preparing a
witness for a deposition and a list of common deposition objectives. Review the lists in this book for
adoption to your particular practice.

Early in the preparation process, spend some time defining and outlining the key areas for your deposition
examination. As preparation progresses, you may find that your initial ideas have gotten lost amid a clutter of facts,
legal theories and documentary evidence. Often, the time you spend in quiet contemplation, unburdened by
documents, research, fact outlines, etc. is the most effective part of your preparation. Take this time to think
creatively about the deposition and the questions that should be asked.
Sometimes the key areas not to cover in examination are as important as the key areas to cover in examination. This
is particularly true when the objective of the deposition is other than discovery. In all depositions, however, there is
always the potential that portions of your examination may be more helpful to your opponent than to you. Know
how far to go in your examination in order to learn the knowledge needed without leaving it organized for your
opponent to carry away.

One of the first steps in preparing to take a deposition is to review the pleadings and the law which applies to your
case. One of the most important reasons for taking a deposition is to develop evidence for trial. Unless you are fully
conversant with the factual and legal issues which will be tried, you cannot hope to accomplish this objective. If by
now you have not researched the law applicable to your case, make it a point to do so. This work must be done in
any event, and it is far easier to address an unexpected legal issue early in the case before discovery has been
completed than it is just prior to trial. Many experienced lawyers make it a point to prepare jury instructions early in
the litigation process just for this purpose. Until you know what issues will be decided by the jury, and how those
issues will be phrased, it is difficult to know what you should seek to establish through discovery. Never forget that
the law is your basic road map for depositions as well as for trial.
One useful approach to legal preparation is to list the legal theories and defenses which apply to your case and then
the factual elements which must be proven for each. Each factual element can then be broken down into points of
evidence which must be presented. Once completed, this list can guide you in your deposition questioning because
you will be able to tie each deposition question into a specific element of proof relating to your case. Too often, the
issues in a case become lost in the maze of facts and it becomes difficult to distinguish between that which is
relevant and that which is not. Your legal/fact outline will help you bring these matters into clearer focus and will
give you a leg up on your opposition. You should have an objective or reason for every question that you ask.
The more you know about the facts at issue in your case, the better your deposition questioning will be. As the
witness answers your questions, you will more readily understand how his testimony fits into the big picture, and
whether it is consistent or inconsistent with other information that you have. You will also be far more effective in
your follow-up questions.
By the time you start depositions, you should have completed as many interviews of your client, representatives of
your client, and other cooperative witnesses as possible. You should also have reviewed every relevant document at
your disposal. In essence, you must try to become as knowledgeable about the facts as the witness you intend to
depose. Often the witness will not have conducted the same thorough review and, as a result, will be at a significant
disadvantage. You should also review the transcripts of all the depositions that have been completed in the case so
far to learn what other witnesses have said about the witness for whose deposition you are preparing.
Often you will have a list or summary of all of the documents involved in the case, and perhaps all interrogatory
answers in your computer base. Particularly as to documents, it provides an easy way to pull up the documents
that you may want to review with the deponent. For example, a typical document base will include fields for date,
author, recipients, source and summary. Thus, you can quickly pull up the documents which your witness authored
or received, or which the author provided to you (source), or on other key points. See Chapter 11. This ability to
retrieve and analyze your information prior to depositions will be of tremendous help in the preparation for the
deposition. You can also utilize the computer, if your database is sufficient, to search for every document in which
the witnesss name appears. The Internet can also be an immensely useful resource while preparing to take a
deposition. If the witness works for an organization, look to see if the organization has its own website. Review
media sources available on the Internet that address the organization or the witness him or herself. If the witness is
quoted in a source that you have found on the Internet, print the source out, then plan to mark it as an exhibit during
the deposition and ask the witness to confirm the quote and his or her present agreement with it.
Once you have begun to understand the facts at issue in your case, prepare a chronology of key events as well as a
cast of characters. Your chronology will serve as an outline to organize facts and as a handy reference guide.
Similarly, a cast of characters can provide invaluable assistance when your case is complicated or involves a
number of different individuals. This cast of characters should list all persons involved with a brief summary of
their connection with the subject in dispute. Recognize that these documents will be revised and expanded
constantly as discovery progresses. By the time trial approaches, they will be of invaluable assistance to you.
Also consider establishing witness files early during your preparation. In each, include copies of documents relating
to that witness, any interview memoranda pertaining to that witness, discovery answers pertaining to the witness,
and a list of subject areas for possible examination. As both formal and informal discovery progress, you should add
to your witness files and each will become more and more complete. By the time you are ready to take depositions,
you will find these files invaluable for your preparation. The chronology of key events will be particularly helpful to
you in keeping the facts organized during the course of the deposition.
That chronology puts all of the key relevant facts into an organized form. It will force you to focus on the events on
which the deponent should be examined and will assist you in defining the interrelationship of events. In preparing
the chronology, particularly when it is based upon documents, consider including key language from the document,
as well as key statements from earlier depositions or statements of witnesses.
Take the time to speak with your client and other cooperative witnesses about upcoming depositions. They will
often offer insights about the deponents which will help guide your preparation. In addition, their knowledge of the
facts will help you to better understand your case. Where appropriate, take the time to explain your legal theories to
these individuals. It may help them in revealing relevant facts. At the least, it will further involve your client or your
witnesses in the preparation of the case and may make them feel more comfortable with the litigation. This can pay
dividends, both in terms of client relations and your effectiveness at trial.
One tip that can be useful in preparing to take a deposition is to ask your client, or other individuals familiar with
the witness for whose deposition you are preparing, to write a list of the five or ten questions that definitely should
be asked. If you are part of a team of lawyers working on a particular case, ask each member of the team for his or
her list of five or ten must-ask questions.

Also consider discussing the upcoming deposition with the opposing counsel, who might wittingly or unwittingly
provide you with valuable information. In some cases, you may need to determine who has relevant knowledge, and
opposing counsel may direct you to the appropriate witness. Moreover, during the discussion your opponent may
reveal information which could prove helpful to you. Opposing counsel will not know for sure what information
you have and what information you lack. Be careful, however, about relying too heavily upon opposing counsel,
either as to selection of witnesses or as to a particular witnesss knowledge.
416.1 Visit Site
In cases where a physical location is pertinent, it is important, if possible, for you to visit the site before beginning
factual depositions. Thus, before deposing a witness to an automobile accident, drive by the site of the accident at
the time of day when the accident occurred, then get out of your car and walk around, observing the flow of traffic,
the glare of sunlight, and the existence of any obstacles to sight lines. In another example, if you are planning to
depose a plaintiff property owner who has brought suit to halt a development, visit the site of the development.
Walk from the development to the plaintiffs residence. Observe shadow and wind conditions and whether the
development will block any views. What is the level of noise in the neighborhood? If you visit during the day,
consider coming back at night as well. This first hand experience will help you to articulate questions during the
deposition and to develop intelligent follow-up questions as well.

Once you have completed your preparation, you should begin to define, or redefine, your objectives for each
deposition you plan to take. There are many reasons for taking a deposition, including learning what a witness
knows about the case, eliciting specific information, obtaining helpful admissions, pinning down a witness, and
evaluating his demeanor. Once you have a strong idea of the legal issues in your case and know as much about the
facts as possible, you can relate these to your purpose for taking a particular deposition. As you begin to frame
questions, you can then decide to proceed chronologically, as you might in a deposition taken to preserve testimony
for trial, or in a disorganized fashion, in the hopes that you will gain favorable admissions.

As part of your predeposition planning, exhibits which will be used should be analyzed and organized. If you are
sure of the order in which you intend to introduce exhibits during a deposition, or if you think that time will be in
short supply and you do not care whether the exhibits are marked in the order in which they are presented, go ahead
and pre-mark the exhibits. You can get exhibit stickers from court reporters. Otherwise, plan to have the court
reporter mark the exhibits as they come up during the deposition.
Every experienced lawyer has developed a personal technique for organizing the exhibits to be brought to the
deposition. For example, some lawyers make binders of the exhibits in the order in which they are likely to come
up. Other lawyers make folders for exhibits, with working copies on top and clean copies behind. The folders can be
carried in a redwell or gusset, or, if voluminous, in boxes.
At a minimum, you should bring three copies of each exhibit to the deposition. A clean exhibit should be brought
that is either pre-marked or given to the court reporter during the deposition to mark. The marked exhibit will be
shown to the witness. You should bring a second clean copy of each exhibit to give to opposing counsel. If you do
not have an extra copy for opposing counsel, you are inviting opposing counsel to look over the witnesss shoulder,
making it easier for opposing counsel to subtly signal to the witness, for example, by pointing out provisions in the
exhibit to which the witness should pay attention. If there are more than two parties at the deposition, it is a courtesy
to bring an extra copy of each exhibit for each counsel of other parties present at the deposition.
You also want to bring your personal working copies of each exhibit. You should highlight provisions in the exhibit
about which you want to ask the witness, and make marginal notes of follow-up questions. However, make sure to
clearly label your working copies of exhibits as such so that you do not accidentally mark them as exhibits, thereby
revealing to the witness or opposing counsel your mental impressions. You would be surprised how easy it can be in
the middle of a deposition to confuse your working copy with the clean copies you intend to give to the witness and
opposing counsel, particularly if the highlights and marginal notes on your working copy appear after the first page.
Thus, you should write Working Copy clearly on the first page of your personal copy of each deposition exhibit.
If an exhibit was previously marked in a prior deposition, you should refer to the previous designation rather than
remarking the exhibit. This will eliminate duplication and confusion as to exhibits. Prepare an index of the
deposition exhibits in both numerical (or alphabetical) order and chronological order. For example:
Lorton v. Samuelson
Numerical Deposition List
Exh. # Date Description
1 Nov. 20, 89 Letter, Smith to Thompson re re-quest for adequate assurances
2 Nov. 28, 89 Memo, telephone conference

with Smith and Lorton
regarding rescinding agreement
3 Nov. 8, 89 Agreement, Smith/Thompson

re purchase of widgets
Lorton v. Samuelson
Chronological Deposition Exhibit List
Date Exh. # Description
Nov. 3, 89 5 Letter, Smith to Thompson re
proposed purchase
Nov. 8, 89 3 Agreement, Smith and Thomp-

son, re purchase of widgets
Nov. 20, 89 1 Letter, Smith to Thompson re

request for adequate assurances

When you prepare to take a deposition, be sure to consider the opposing counsel. Recall your own prior experiences
with him. Ask your partners, associates and friends about their experiences with him. What is his conduct during
deposition? Does he object frequently? Does he attempt to use narrative objections? Does he object to non-
objectionable questions? Does he try to coach the witness? Is he a publicity seeker? Does he typically cross-
examine? By knowing opposing counsel, it will give you a better idea of whether you should seek any protective
orders prior to commencing the deposition. Similarly, it might influence the location at which you want to take the
deposition, or whether you need to know the availability of the judge on the day of the deposition to determine
problems on a forthwith basis. Lastly, it will give you an idea of what to expect during the course of the
deposition.
In some cases, however, consideration of opposing counsel should be eliminated or minimized; the deposition
process should be tailored to the witness, not his lawyer. Dont allow opposing counsel to dictate your deposition
strategy or tactics. Thus, consider opposing counsel, be prepared for his tactics and methods, but you define your
deposition.
Once you have done your due diligence on the facts as already available to you and the law, including identifying
the legal elements of each cause of action and affirmative defense, and you have organized your exhibits, you can
sit down to start putting ideas to paper in the form of an outline. As a general rule, it is best not to write out every
question. Doing so will tie you too closely to your outline, making it harder for you to truly listen to the witness and
to act nimbly if the witnesss answers invite new, unanticipated lines of inquiry. Rather, write out word for word
only those questions where there is some importance to exact phraseology, such as where you are to establish the
absence or existence of evidence on a particular element of a cause of action in anticipation of a motion for
summary judgment.
A good practice is to start the outline with certain lists to which you can continually refer to during the deposition or
during breaks to make sure you are on track. Thus, you may want to write out your goals for the deposition. For
example, if you are deposing a percipient witness, goals may include establishing bias, locking in testimony,
exploring barriers to perception, such as vision problems, and uncovering prior inconsistent statements. You may
also want to write out a list of the general topics to be covered, to be used as a checklist at the end of the deposition
to make sure that you have covered what you need to have covered.
You should also be cognizant in preparing your outline of certain strategic considerations. Thus, in federal court
where depositions are limited to seven hours, make sure that essential topics are covered early enough in the
deposition so that they are not at risk of getting cut off.
Practice Tip: Working in a TeamWriting a Deposition Outline for Another

If you are a young lawyer who is part of a team, you may be asked to write out a deposition outline for
another member of the team to use. Because every lawyers style is different, ask the assigning attorney,
or other attorneys who have worked for the assigning attorney, how he or she likes the outline organized.
Some experienced lawyers prefer simply a short checklist of topics to be covered and a stack of exhibits
to be used; others will want more detail.

Just as the taking of a deposition has definable objectives and purposes, so too does the defense of a deposition.
These purposes and objectives include:
To ensure that the witnesss testimony is a truthful and accurate answer to the questions asked.
To protect the witness from improper activities of the examiner, including improper questions, harassment,
etc.
To protect the record by making appropriate objections where not reserved.
To prevent disclosure of privileged information.
To present testimony information in a manner most helpful to your clients cause, insuring the testimony is
truthful and accurate.
To cross-examine the witness to bring out additional facts, under certain circumstances.

The defending lawyers activities are triggered by a notice of deposition, a subpoena served on your nonparty client
or your agreement to produce a witness for deposition. In the first two cases, first consider whether the deposition
was properly noticed before moving on to substantive issues:
Has discovery been stayed, i.e., lack of a discovery planning conference under Rule 26(f)?
If a discovery order has been entered, is the notice in compliance?
Is the location of the deposition objectionable?
Was the notice served sufficiently in advance of the deposition? Check local rules.
If documents are requested, was sufficient notice given?
Do you need to meet and confer with opposing counsel in preparation of a motion for protective order? Is a
protective order required? Has proper notice been afforded under rules applicable to your jurisdiction?
If it is a Rule 30(b)(6) notice of deposition, are the subjects defined with reasonable particularity?
If a video or audio deposition is indicated in the notice of deposition, are you permitted to object? Is a
stipulation or court order required with the taking of a video or audio deposition?
Do you want to designate an additional method of recording a deposition, i.e., stenographically, video- or
audiotaped?
In addition, if a subpoena was served:
Was the subpoena issued by the proper court?
Can the witness be compelled to appear at the designated location?
If a subpoena duces tecum was served, should any objections be filed pursuant to Rule 45?
Procedural matters should be resolved immediatelybefore the deposition, if possible. Start by trying to resolve the
matter with opposing counsel. File a motion with the court only as a last resort. As a general practice, you should
hesitate to assert technical objections that do not prejudice you, your case or your client.
Once you have determined that the notice is procedurally valid, begin preparing to defend the deposition. In many
ways preparing to defend a deposition is more time-consuming than preparing to take one. When you take a
deposition, you have control over the topics which will be covered. When you defend, you can only anticipate the
subject areas of the testimony, opposing counsel is in the drivers seat. Moreover, you must also prepare your
witness to be deposed. Both steps are critical if your defense is to be successful.
You should also consider the tactics of the examiner. For example, some examiners always want an opportunity to
review the transcript of a deposition, and then re-examine the witness as to certain areasin essence, depose the
witness twice, which generally is not allowed. How do they do this? By scheduling a deposition for less than the
anticipated time. For example, if the deposition is anticipated to be somewhat more than a day, they schedule the
deposition for one day, and at the end of the day, recess until a mutually convenient day thereafter. For some
examiners, there never is a convenient day thereafter.
To foil that approach, as defending counsel ask the examiner how much time he anticipates needing, and insist that
50% more time be reserved just in case. At the end of the reserved time, or the anticipated time if thats all the
examiner would agree to, consider recessing and moving for a protective order. Judges are becoming more worldly
about improper deposition tactics.
Of course, the length of depositions can also be handled in a scheduling conference. Additionally, in federal court
where depositions are limited to one day and seven hours by Federal Rule of Civil Procedure 30(d)(2), the risk of an
improper suspension is eliminated.

Your preparation to defend a deposition involves many of the same steps as your preparation to take one. Viewed
from the perspective of a defending lawyer, the steps include:
1. Try to determine why the deposition is being taken. What subject areas will your opponent cover and what is
he trying to accomplish? Will this deposition be used for trial or is it merely for general discovery?
2. Review the pleadings and the law to determine not only what you must prove but what your opponent will
be trying to prove through the deposition.
3. Review prior discovery and reacquaint yourself with the facts of the case.
4. Review all documents relating to the case and assemble those which relate to your witness and which may
be used as exhibits.
5. Outline the key areas of anticipated examination and consider whether objections are applicable. Conduct
research regarding objections which may be raised during the deposition.
6. Consider the strengths and weaknesses of your deponent. Work out a plan for preparing your deponent for
his deposition.
The greater your preparation, the more effective you will be in defending the deposition. Knowing your case, your
opponents case, and the witness is the only means to this end.
Practice Tip: Prior Statements
Do not overlook the fact that your witness may have given a prior statement concerning the subject of
the litigation. You should satisfy yourself that the other party does not possess a statement by your
witness.
Rule 26(b)(3) allows for a party to demand the production of a partys prior statement. Similarly, a
nonparty may make a similar request. If the request is refused, a motion under Rule 37(2)(4) is
authorized.

A potential, crucial area of your preparation to defend a deposition is your consideration of what areas of the
potential examination may invade privileged knowledge. If you do not timely and consistently assert the privilege,
you may be deemed to have waived the privilege. Similarly, failure to instruct the witness not to answer means the
examiner may have the full benefit of the testimony (except using it at trial), even if you objected to each question.
The privileges applicable to depositions are discussed at 760 and subsections thereafter.
Consider, as a checklist, whether any privilege might be applicable to any areas of potential examination of your
deponent:
Have you had any discussions with the deponent?
Did the deponent during the time of the events in issue have any discussions with an attorney?
Is the deponent potentially subject to any criminal proceedings?
Has the deponent had any involvement with or knowledge of work product of you, your client, or other
persons acting in behalf of your client?
Has the deponent had any discussions concerning the events in issue with his spouse, clergy, physician,
accountant, psychologist (in their professional capacity)?

A serious mistake made by beginning practitioners is to lead a witness into a deposition without thoroughly
preparing him for the experience. Not only will the witness be apprehensive and uneasy about the process, he may
forget many of the relevant facts and have little or no understanding about the legal theories which make those facts
relevant. In short, a sure way to lose your case is to neglect this important part of the preparation process.
Your goals in preparing your witness include the following:
to familiarize your witness with the dispute;
to familiarize your witness with the deposition process;
to familiarize your witness with the legal theories at issue in the case;
to review the relevant facts and documentary evidence with your witness so that he will be prepared to relay
his knowledge accurately;
to help the witness in dealing with opposing counsels method of questioning;
to prepare your witness to be effective in giving testimony.
The following sections will focus on techniques for preparing your witness. In reviewing them, keep in mind that
their purpose is not to assist the witness in fabricating his testimony. Rather it is to enable your witness to tell the
truth as effectively as possible. If the witness is nervous or doesnt understand what is being asked, his testimony
may be mistaken and justice will not have been served. Although your witness preparation may not be discoverable,
conduct it in such a fashion that if it were, it would not cause you any discomfort or embarrassment.
Practice Tip: Preparing the Witness for Questions that Seek to Establish a Foundation
for Discovering Witness Preparation Materials Through Federal Rule of Evidence 612
Courts have interpreted Federal Rule of Evidence 612 as requiring the production of any document
that was used during deposition preparation to refresh a deponents recollection. Further, while courts
have recognized that the selection of which documents to show a witness during deposition preparation
reflects the attorneys mental impressions and hence is protected by the work product doctrine, that
protection may be trumped when the documents are used to refresh recollection. For a good discussion
of the intersection between Federal Rule of Evidence 612 and the work product doctrine, see Nutramax
Labs., Inc. v. Twin Laboratories Inc., 183 F.R.D. 458 (D. Md. 1998) (finding that the policy of protecting
attorney mental impressions that may be evident from the selection of documents to use in witness
preparation is trumped by Rule 612).
The obligation to produce documents used to refresh a witnesss recollection creates a conundrum for
the attorney preparing a witness for a deposition. What if there are a few documents that worry youyou
want your witness prepared to answer questions about them, but you do not want to flag them for your
opponent as being important? In short, the challenge is to figure out how to comply with the obligations of
Rule 612 without revealing your mental impressions.
Since it is incumbent on the attorney taking the deposition to lay a foundation through the deposition
examination for discovering which documents were used to refresh recollection, the challenge of Rule
612 for the attorney defending the deposition is met through witness preparation. There are a few rules of
thumb and tricks of the trade.
First, while some courts have found that Rule 612 does not require the production of core work
product, as a matter of caution, avoid showing the witness documents that you created for use in the
deposition process, such as case chronologies and mock questions and answers. You should not feel
inhibited to use such work product documents as a basis for your witness preparation, as long as the
witness is your client, since your conversations with the witness will be protected by the attorney-client
privilege, but just do not show the witness the documents from which you are working. See, generally, In
re Atlantic Financial Management Securities Litigation, 121 F.R.D. 141 (D. Mass. 1988) (noting that core
work product deserves the strongest protection, but that factual work product, e.g., summaries of facts,
benefits from a lower level of protection from disclosure under Rule 612).
Second, if the entire universe of documents is relatively modest, show the witness all of them and then
prepare the witness to answer, if asked, that the witness cannot distinguish which out of all the
documents reviewed did or did not refresh recollection. As a result of this answer, you may be required to
produce the entire set of documents shown to the witness, but the examining attorney will have gained no
insight into your mental processes since the documents used to refresh recollection is coextensive with all
the documents in the case. See, e.g., International Insurance Co. v. Montrose Chemical Corp. of
California, 231 Cal. App.3d 1367 (1991) ([The witness] used the documents to refresh his memory with
regard to his testimony and [the party] therefore became obligated to produce them. No further
foundation was required and, in this context, there was no need (and there was no way) to establish
which of several documents actually refreshed [the witnesss] memory on a particular point.); but see,
e.g., Jos. Schlitz Brewing, Co. v. Muller & Phipps (Hawaii), Ltd., 85 F.R.D. 118 (W.D. Mo. 1980) (where
witness testified that he had looked at large correspondence file in preparation for his deposition, but
had provided no further specificity, Rule 612 did not require production of the whole file). This approach
obviously does not work in high document volume cases where it is simply impractical to show the
witness every document in the case.
Third, in voluminous document cases where you are worried about a few documents, you will need to
establish the witnesss independent memory before showing the document to the witness. Talk through
the issues that the documents in question raise and only after you have established that the witness has
a recollection independent from the document should you show the document to the witness. Then you
need to prepare the witness not to identify the document in question as one used to refresh recollection.

Most of us will never experience being deposed, or fully understand the anxiety of being called upon to give sworn
testimony through potentially rigorous questioning by a stranger with an obvious motive to trip up, trick or discredit
you. Most witnesses will have little or no exposure to civil litigation, and, in particular, the discovery process. Most
of their perceptions of the litigation system will have been shaped by what they have seen on television or in the
movies. Clearly, no one wants to be the target of Perry Masons blistering cross-examination, or to be made out to
be a fool. For that reason, the first step in preparing your witness is to help the witness to understand and to be
comfortable with the deposition process.
There are as many ways of approaching this problem as there are practicing attorneys. Some give their witnesses
written handouts which explain about the deposition process. Others show them videotapes which explain the
procedures, illustrate common mistakes and show a mock deposition. You should consider either of these
approaches as a supplement rather than a substitute for the time you spend with your witness making him feel
comfortable with the process.
During your preparation you should cover the following points with your witness:
What is the dispute all about?
If the witness is your client, he should already know the basic nature of the dispute. However, other witnesses
may not know anything about it. They will need to have a basic understanding of the dispute to be at ease, to
understand the context of questions, to effectively respond to questions, and to understand their role as -
witnesses.
Why am I being deposed?
Without a doubt, this is the first question that your witness has asked himself, and it is often the one which
causes the most trepidation. By addressing it in a straightforward fashion, you will both gain the witnesss
confidence and help to place the deposition in better perspective. While you will go into greater detail later
regarding the questions which will likely be asked, documents which will be used, etc., a few minutes spent on
the big picture and how this witness fits into it is well worth the effort involved.
Why is a deposition being taken?
Very few nonlawyers really understand the reason for a deposition. If this is a discovery deposition, you will
want to explain that it has a two-fold purpose: obtaining information about the case and pinning your witness
down to specific testimony. What your witness says and how he says it is important because it may impact
settlement or may be used against him later at trial.
What are the mechanics of a deposition?
Many witnesses think that a deposition will be held in a court, with the judge and jury present for the event.
Take the time to explain to your witness just how and where a deposition is conducted. Explain where the
deposition will be held and who will be likely to attend. Using your own conference room, show the witness
how people will be seated and where the court reporter will be. Explain the court reporters function. Tell the
witness he is free to take breaks and to use the restroom whenever necessary and that coffee or other
refreshments will be available upon request. All of this appears basic and mundane to you, but it will not be to
your witness. Help the witness get a mental picture of what he will have to face and he will be far more effective
in giving his testimony.
How will questions be asked?
Many witnesses view depositions as a free-for-all, with questions coming from all sides. Explain to the
witness how the question and answer format works and how it differs from everyday conversation. Inform the
witness of how attorneys take turns in asking questions and your role in defending the deposition. You might
want to show the deponent a deposition transcript taken earlier in the case or from another case. Again, if your
witness is comfortable with the process and feels like he or she understands his or her rights, the deponent will
be much more at ease in giving testimony.
What happens if an objection is made?
As a result of television, witnesses know that lawyers make objections and often engage in heated arguments.
Explain how the objection process works and how the witness fits into the process. Let your witness know that
some objections are made for the record and should not otherwise impede his testimony. Also explain that in
some cases, the objections are not merely for the record and may be followed by advice or instruction not to
answer the question. Let your witness know that he should feel free to rely upon your advice no matter how loud
or threatening opposing counsel may get. If your witness knows he can rely upon you and does not have to
defend himself from attacks by opposing counsel, he will be much more at ease should such disputes arise.
Explain to the witness that certain objections, while made for the record, may be clues to the witness that the
question may have hidden meanings. As a result, the witness should carefully listen to your objection, before
answering, so that he or she completely understands what is being asked.
What if I dont understand the question?
Your witness will also be worried about his performance during the deposition. Emphasize that his only duty
is to appear and answer questions truthfully to the best of his knowledge. Explain that if he doesnt understand
the question, he should ask that the question be repeated or rephrased. Since a witness is not required to respond
to a question that he or she does not understand, explain to the witness that deponents have a certain measure of
power over the examining party. A response that the question is not clear cannot only be used to clarify a
potentially ambiguous question, but also can be used to deflect questions that the witness may well desire to
avoid answering, thereafter shifting the burden upon the examining party to ask different questions to extract the
information. Similarly, the witness should understand what is meant by off the record and how he or she
should act during those periods.
What if I make a mistake in giving testimony?
Most of us fear giving the wrong answer or making a mistake and it is only natural to do so. You should
explain that mistakes are inevitable even though one has prepared fully. Let him know that he is free to correct
his testimony at a later time during the deposition if he realizes that an error has been made. Also explain that he
will have an opportunity to review his transcript and make corrections.

Once you have covered the basics about the deposition process with your witness, turn to a discussion about
techniques for answering questions. While your goal is simply to have the witness tell the truth, there are techniques
which will help in reaching this goal. Truth well told is much more preferable to truth cloaked with confusing and
potentially conflicting responses. A deposition is an unusual event for most people and its procedures may hinder
rather than help your witness give truthful and accurate testimony. Spend time with your witness helping him or her
to understand the techniques for telling the truth.
The following admonitions are designed to accomplish that result. Discuss them with your client.
1. LISTEN TO THE QUESTION!
No one can accurately and honestly answer a question if he has not heard it. Most of us are fair listeners, but
to give accurate answersnot simply accurate statements, but accurate answers to the specific questions
askedyou must hear the question. If you have not heard it, you may ask that the question be repeated. Often
when an objection is made, with or without subsequent colloquy of counsel, the witness may well have forgotten
the wording of the pending question, or perhaps as modified by the statements of counsel into the ending
question. If there is any question about what was asked, request that it be repeated before answering.
2. UNDERSTAND THE QUESTION!
Your answer to a question will not be accurate if you do not understand the question. Thus, do not answer the
question until you fully understand it. You should not hesitate to state that you do not understand the question,
or that you do not know the meaning of a particular word used in the question. Ask the examiner to rephrase the
question or explain it. In many cases, the reason why you dont understand the question is because the examiner
did not properly word it.
3. THINK ABOUT THE QUESTION!
Once you have heard the question and understand it, think about it before giving your answer. Dont try to
see how fast you can answer the question and dont shoot from the hip. The goal is to give accurate, honest
answers, and you should take all the time necessary to think about each question before giving your answer.
While long pauses between questions and answers may be undesirable at trial, a deposition transcript rarely
indicates a pause. By taking time to think, you will give a better answer and your lawyer will have a chance to
make an objection if necessary.
4. PAY ATTENTION TO OBJECTIONS!
Listen to any objections to the question that your attorney makes. Some objections, such as vagueness and
ambiguity, may be a subtle hint that the words that the deposing attorney is using are susceptible to several
meanings. Inform the examiner that his or her question is not clear. Request the deposing attorney to rephrase or
explain the question. Often, the reason why you did not understand the question is because the examiner did not
properly word it or define the term utilized in the question. Your attorneys objections all have purpose and
meaning; careful consideration may save you from stating damaging testimony. In particular, you should go
over with the witness the importance of listening very carefully to the predicate assertions, if any, to each
question. These predicates tend not to be in the form of a question and if the witness answers only the question
at the end, the answer will be taken as assuming the truth of the predicate. Thus, if the question says: At the
June 12 meeting, what did you say? and if the witness answers, I said then it will be assumed that the
witness agrees that there was a meeting on June 12. Thus, it is important for the witness to listen carefully to the
whole question and if the witness does not agree with the predicate to say so.
5. ANSWER ONLY THE QUESTION!
Our legal system is an adversary system, and your objective is to accurately answer each of the questions
asked, not to provide all of the information you think the examiner might want to know. Hence, a cardinal rule is
to answer only the question asked, and not to volunteer comments or information. A defending attorneys
nightmare often begins when the deponent continues, after answering a question, and you may be interested to
know ....
In certain circumstances, you may want the witness to violate this rule. If you have a particularly effective
witness, you may want him to volunteer regarding favorable facts. For example:
Q. Isnt it true that on July 28, 1989, you concluded that Mr. Jones should be fired?
A. Yes, but only if the Employment Committee, after reviewing the reports, concurred.
Beware that it is always dangerous to advise a witness to give more than the shortest accurate answer. When in
doubt, the witness should not volunteer information.
6. DO NOT BE AFRAID OF SILENCES!
You should advise every witness you prepare for a deposition not to be afraid of silences. Silence during
depositions can be a deadly trap! This is true because in normal conversation, people feel uncomfortable with
silence and feel obliged to say something to fill in the gaps in the conversation. This is when the undisciplined
witness will volunteer information not in response to any pending question. You need to educate the witness
during preparation that depositions are not conversations and silences are part of the process. Once the witness
has truthfully and fully answered the pending question, the witness should stop talking. If it then takes the
examiner a few moments to think up the next question, the witness should sit silently.
7. ANSWER TRUTHFULLY AND ACCURATELY!
The most important rule in the deposition process is to answer truthfully and accurately. This may seem like
belaboring the obvious, but even an honest person may run afoul of this warning if he is not careful. For
example, if you think you know the answer but are not sure, say so or you will not be giving accurate testimony.
An answer cannot be truthful if it is not properly qualified to show the source and certainty of the information
given. If you are relatively confident of your answer, feel free to say so. If you do not know the answer, say so.
The goal is to have the record reflect the true state of your knowledge with respect to the questions asked,
nothing more and nothing less.
You can anticipate problems if your witness, particularly if he is a party, looks to you to do all of his preparation for
the deposition. You cannot prepare a witness for deposition; at most you can assist the witness in his own
preparation for his deposition. Indeed, in many circumstances you should assign the witness homework in
preparation for his deposition.
The work that you might assign to a witness in preparation for his deposition (assuming the witness is friendly)
might include:
A review of all answers to interrogatories that the witness has signed. Obviously, answers to interrogatories
provide a fertile ground for questioning. Reaffirm that there is in fact a basis for the answers given. Should
any supplement be prepared?
Review of all facts, statements or affidavits given. The need to be familiar with past statements, and to be
alert as to whether any correction should be made prior to the deposition, should be a matter the witness in
the first instance can handle. Note, howeverdoes opposing counsel have these documents or are you
willing to produce them?
A review of all documents upon which the witness might be questioned.
A review of the complaint and answer.
Keep in mind, however, that all documents reviewed by the witness in preparation for his deposition may be subject
to discovery.
Even if the witness has followed most of the rules for being deposed, he can nevertheless give misleading or
inaccurate answers unintentionally. Of course, in the first instance, he should answer each question yes or no, if he
is responding to a yes or no question. A yes or no question is a prime area where witnesses tend to volunteer. If the
question calls for a yes or no, and the answer is more than that, the witness is volunteering.
Similarly, to a question that does not call for a yes or no answer, the witness should be careful to think precisely
what information the question calls for, and in his answer provide only that information.
Witnesses sometimes get into habits of using phrases. For example, when asked whether he did something, the
witness may say, I am sure that I did. Does that mean that he recalls doing it, that he assumes that he did it, that he
guesses that he did it, or that he followed some logical path to deduce that he did it? Again, it is important that the
witness accurately convey the answer, and if it is anything other than personal direct knowledge, to communicate
the basis for the answer.

Some lawyers prefer to go through an extensive checklist of points for discussion with their witness. One benefit of
using this approach is that it provides some assurance that you will not leave out an important point. One of the
problems with this approach, and with any approach, is that your witness is only likely to recall and put into use a
very few points. Whatever approach you choose, make sure that your emphasis is on your most important points
because the others may fall by the wayside.
Consider discussing the following admonitions with your witness:
1. Listen to the question. If you didnt hear it, ask that it be repeated.
2. Understand exactly what the question is. If you dont understand, ask that the question be rephrased.
3. Think about the question. Pause before you answer.
4. Answer only the question and answer conciselydont volunteer. Your role is to answer only the question
asked, not to volunteer what you think the examiner wants to know.
5. Dont guess or speculate. If you do not know the answer, the only truthful answer is I do not know.
6. Answer only as to facts of which you have personal knowledge, unless asked for information given to you
by other persons.
7. If necessary, qualify your answer (I am not totally certain.).
8. Ask for documents, if it would make testimony more accurate.
9. Read carefully all documents given to you. Take your time.
10. Do not get angry. Some lawyers try to cause you to lose your temper in the hope that you will not think
clearly and will make incorrect statements.
11. Do not feel you need to memorize any facts.
12. Do not take any notes or documents to the deposition. Anything you take may be subject to discovery.
13. Set your own pacedont let the speed of the examiners questions dictate the speed of your answers.
14. Listen to objectionsthey may tell you why the question is tricky.
15. Make each question and answer stand alone. If read out of context at trial, it should convey accurately your
intended testimony.
16. Do not testify as to what you assume occurredonly what you know occurred.
17. Do not be reluctant to admit that you have discussed your deposition with a lawyerthere is nothing
improper about that.
18. Dont try to hide embarrassing facts. If asked if you were fired, and you were, answer yes.
19. A document says what it saysnot what the examiner says that it says.
20. Do not discuss the facts of your anticipated testimony with anyone else; it may create confusion as to what
you know and what you have been told, and the discussions may be discoverable.
21. Answer audibly, and not with nods or shakes of your head.
22. Straighten out confusion.
23. Give accurate estimates (time, speed, distance).
24. Clarify multiple meanings. Beware of a question that assumes a fact. Watch out for alternative questions.
25. Dont chew gum.
26. Dont be defensive.
27. Dont lose your temper.
28. Be courteous.
29. Avoid wisecracking and joking.
30. Dont be reluctant to admit to discussions with your lawyer.
31. Dont answer questions about managing the lawsuit.
31. Beware of the have you told me everything question.
32. Tell the truth.
If this long list of rules is to have any meaningful impact on the witness, most of them need to be illustrated, and
then practiced by the witness under sample questioning. Remember, however, most witnesses cannot and many
should not attempt to remember more than a few key rules.

After focusing on the mechanics of depositions and upon techniques for answering questions, review with the
witness his substantive knowledge of the case. Many attorneys conduct their own interview of the witness and
handle it much like a deposition, but without the formality of one. There are two advantages to this approach: it
further educates you about your case and it stirs up the witnesss memory just prior to the time he must give
testimony. A witness who is about to be deposed will normally give you his full attention and be willing to sit down
to discuss his knowledge in detail and to review relevant documents.
Consider covering the following during the course of your preparation:
Outline the subject areas the examination will cover.
Outline the subject areas your cross-examination will cover.
Review documents which you anticipate the examination will cover.
Interview the witness concerning his knowledge of the subject areas on which he may be examined and
cross-examined.
Discuss how to answer the tough questions accurately and effectively.
Ascertain from the witness what knowledge he has that he believes is adverse.
During the course of your preparation, make sure that you do not show your witness anything which you do not
want the opposition to see and which thereby might become discoverable. See Federal Rule of Evidence 612.

It may be helpful during the course of your preparation to spend time doing a practice examination. This may
amount to interposing a few typical deposition questions and discussing your deponents responses as you proceed
through your preparation. In the alternative, you may conduct a formal practice deposition and ask another lawyer to
play the role of opposing counsel. You may even want to consider videotaping your practice examination in order to
visually demonstrate to your witness those areas of his or her testimony or overall demeanor that need further
refinement. Your level of formality may depend upon the significance of the deposition and the stakes involved.
However, even informal practice may be helpful to your witness.
In most cases, there are some critical areas of testimony where every word counts, e.g., the milliseconds before
impact, the precise words constituting acceptance, the words constituting verbal harassment, the location and
frequency of pain, the certainty with which economic projections of loss are made, the description of a partys
decision-making process, etc. It is good practice to ask these questions to the client well before a deposition and
listen carefully to the response, which can sometimes be surprising.
Does your client dramatically overstate damages or understate them out of existence? Is the client overly precise to
the point of absurdity (qualifying and explaining everything)? Or is your client hopelessly general and reluctant to
give direct answers? Only by practicing can you learn the clients style and make appropriate suggestions. See,
Schulman, Coaching Witness Credibility, The Practical Litigator, January 1993.

During his deposition, the witness may be asked if he is represented by counsel. If the witness is your client, or an
officer, director or employee of the client, the answer is usually yes and you should instruct your witness to that
effect. If, however, the witness is not your client, or affiliated with your client, take the time to discuss with him
whether he will appear with separate counsel, without counsel, or with you acting as counsel for the purpose of the
deposition. You may represent a witness for the purpose of a deposition even though your client and not the witness
pays your fees. The advantage of appearing as counsel are several-fold and include the fact that it may clothe your
preparation session with the attorney-client privilege. It also enables you to make objections on behalf of the
witness or advise the witness not to answer a question. Alternatively, it may create unrecognized conflicts down the
road should that witnesss interest become adverse to your client. In some cases, it is better for the witness to
acknowledge that he is not represented by counsel even though you have assisted him in preparing for deposition.
Problems may occur when corporate counsel produces corporate employees at the deposition who were witnesses to
the important acts comprising the case, particularly employees outside the control group. See 335, supra. Often,
representation of the employees at the deposition is based upon the assumption that no conflict exists between the
employees interests and those of the employer.
Counsel often attempt to finesse the issue by stating that they represent the employee only for purposes of
deposition. Does counsel producing these witnesses really represent them in the sense that he or she represents the
principals of the corporation? If the attorney commits to full representation, then the attorney-client privilege
adheres.
Practice Tip: Corporate Employees and Attorney-Client Privilege

When taking the deposition of a corporate employee, try to get his or her counsels statement on the
record whether the attorney is representing the employee. If counsel is unwilling to commit to this, the
attorney-client privilege as to the pre-deposition meeting should not apply.
Employees will usually feel pressured to give testimony favorable to the employer at the time of the deposition. But
such loyalties may fade quickly if the employee leaves the company. It is imperative that counsel use the greatest
degree of circumspection when preparing such witnesses for the deposition.
Practice Tip: Corporate Employees Who Turn Against Their Employers

If you are representing the employee, it is important to protect yourself against an employee who may
change loyalties and turn against the company. Protect yourself by taking good notes at all meetings with
the employee.
437 Timing
Where possible, consider conducting your preparation over several sessions. Trying to cram all of the preparation
into a single session may be counterproductivethe witness will either stop listening or fall victim to information
overload and lose much of the benefit of your counsel. Conducting the preparation over two or more sessions gives
the witness time to digest the information which you have given to him.
The first session may come just after the deposition has been noticed. You might want to discuss the nature of the
deposition process and the basic rules of procedure. You might also want to use that session as an opportunity to go
over the facts and to make sure that all of the relevant documents have been identified. By the end of the session,
you may have achieved two objectives: your witness may be sufficiently comfortable with the process that he does
not fear it, and you will have increased your knowledge of the case.
In a follow-up session, you may want to spend more time talking about substantive issues and also focus upon
techniques for answering questions. This may be the occasion to conduct a practice examination, possibly using a
videotape. You should also spend time reemphasizing the most important points from the first preparation session.
Just before the deposition, consider meeting with your witness a third time. This is the time to emphasize the key
points or to raise any additional thoughts you might have. If necessary, use it as an occasion to build your witnesss
confidence. A nervous witness will usually be less effective then one who is self-assured.

During the course of your career, you will no doubt on multiple occasions have a problem witness you must defend
in a depositiona witness that may deviate from the truth, a witness who, notwithstanding all of the preparation
described in the preceding sections, persists in violating the fundamental rules of being deposed. What do you do?
Regrettably, there is no easy answerthe only answer being to keep trying every technique to get him under
control.
If you anticipate that the witness will not follow the basic rules, use practice examinations, preferably video- or
audiotaped. When shown his specific errors in responding to specific questions, most witnesses learn quickly.
Whether or not you harshly emphasize the rules of deposition depends upon your feel for the response of the
witness.
It is amazing how much nonpersonal knowledge becomes admissible evidence. Witnesses, particularly when
somewhat intimidated by examining counsel, too often accept the questions of the examiner as statements of fact, or
accept their own logic as to what is likely or probable as being in fact what occurred. For example, how often does
the witness say, I assume , It probably , Im sure that , I believe that . The witness should be
reminded that he has no obligation to answer all questionshe has an obligation to answer only those questions to
which he knows the answer.
Introductory phrases like I assume that , It probably , Im sure that , and I believe that pose a
further danger for the witness: it can undermine what the witness actually knows to be true. Each of these
introductory phrases equate to the witness not actually having personal knowledge. When preparing your witness
for his or her deposition, make sure that if the witness knows something to be true, the witness does not undermine
the testimony with weak introductory phrases such as these.
Another phrase that witnesses frequently use as a crutch is I would have [done/said ]. Try to get your witness to
banish this phrase from his or her deposition vocabulary. If the witness said or did something, the witness should
testify: I did or I said Similarly, phrases such as To be perfectly frank , To be candid , and To
tell the truth , risk sending the impression that the witness has not been truthful up to that point.
All this reinforces the basic deposition preparation rule that the witness should answer the question truthfully but
conciselyto say no more than is necessary to provide a truthful answer.
From time to time in a deposition, you may be defending a witness whom you do not trust to tell the truth. The
ethics codes of your jurisdiction define your obligations if you know or believe your witness has testified falsely.
However, what do you do if you anticipate that your witness may testify falsely?
There are several approaches, the best being dependent upon how you evaluate the witness. For example, you can
provide the witness with a copy of the perjury statute, 18 U.S.C. 1621, which will reinforce the benefits of giving
truthful testimony. To some, this approach may seem a little extreme and possibly strain an attorneys relationship
with the client. In most situations, the best approach is to explain to the client, as part of your general preparation,
that even innocent misstatements can have catastrophic results, that discovered false testimonywhether intentional
or unintentionalcan destroy an otherwise meritorious case, and can have excruciating personal consequences, no
matter who the client is. See, e.g., Jones v. Clinton, 36 F. Supp. 2d 1118 (E.D.Ark. 12, 1999) (President of the
United States held in contempt for violating discovery order in sexual harassment suit by testifying falsely about
past extra-marital relationship at deposition; President ordered to pay court and plaintiffs cost. Because the
President was a member of the Arkansas State Bar, the matter was referred to the Arkansas Supreme Courts
Committee on Professional Conduct for review). See Hecht, Deposition Perjury by Your Own Witness: How to
Prevent It, Deal with It, And Survive It, 11 No. 5 Inside Litig. 7 (May 1997) for a review of the procedures
available to an attorney faced with a client who has given perjured deposition testimony.

If your witness deposition is to be videotaped, additional preparation is generally in order. Unlike the standard
stenographic record, a videotaped deposition captures the witnesss appearance, demeanor and testimony.
Consequently, you may want to experiment with makeup, hair and clothing, in preparation for the deposition. You
may also want to conduct a mock video deposition of your witness to not only familiarize your witness with the
nature of the proceeding, but to graphically demonstrate what areas need correcting before the actual deposition.
Often the witnesss review of his or her own performance is a much better aid in that witnesss preparation than all
of your carefully drafted verbal admonitions.
Specific points should be reviewed with the witness about his demeanor and answering, analogous to testimony in
the courtroom. With a deposition that is being only stenographically recorded, the visual aspects of the testimony, as
contrasted to testimony at trial, need not be considered. However, with a videotape, the visual aspects of testifying
become important. Consider the following checklist:
1. Sit comfortably, but reasonably straight, both feet on the floor, hands on the table in front of you.
2. Sit still. Everyone has their version of the meaning of a witness squirming, which might simply be
occasional movement.
3. Sit straight. Often, the more tired you become, the poorer your physical posture becomes and poor physical
posture usually creates a poor impression. Having your feet flat on the floor helps to maintain good posture.
(Make sure that you have a comfortable chair that is not unduly relaxing.)
4. Look at the examiner when he or she is asking a question. However, if the camera is considered to be the
jury, testimony directed to the jury is preferable. Juries are generally more receptive to answers given to
them as opposed to a mere dialogue between the questioner and the witness. Depending upon the location of
the camera, it may be advisable that the witness look at the camera when responding to the question. Remind
the witness that you will insure that the camera angles will not unreasonably distort his or her physical -
appearance.
5. Speak in your normal voice, but try to invoke reasonable gestures, inflections.
6. Reading documents. Of course, you must take the time to read any document that is handed to you if you are
going to be asked questions about it. However, try not to be unreasonably bent over the document. Instead,
hold the document somewhat up. When you are not reading the document, switch your eyes back to the
examiner. If the document has any length, ask if you can go off the record and read the document without
the camera and lights on. Even if the request is denied, it may be of effect.
7. Remind the witness to follow the same rules for a stenographically recorded deposition. However, long
pauses between the question and answer, although generally not discernible in a stenographically recorded
deposition, can, in a video deposition, give the appearance that the deponent is somewhat less than forthright
in his or her testimony. While the witness should carefully consider each question before answering, the
witness nonetheless should be cognizant that long delays can be misinterpreted by the trier of fact.
Be cognizant of a witnesss understandable anxiety of facing the skillful or tricky examiner in unfamiliar
surroundings. While simply relating the truth is the witnesss best weapon, that may not be enough if the opposing
attorney extracts unintended and often inaccurate admissions. As part of your preparation with the witness, consider
discussing some of the techniques used by examining attorneys. A few of these are:
The Use of Leading Questions
A leading question suggests the desired answer and is often responded to by a yes or no answer. An effective
cross-examiner will use leading questions to pin down a witnesss testimony since it forces the witness to
adopt the examiners question into the answer itself. Leading questions can often be used to extract
unintended admissions. The use of a leading question is generally an appropriate form of examination and you
should inform the witness to answer the question as yes or no. However, if the question is loaded, inform
your witness that you will object. Unless there is a sufficient basis for instructing the witness not to answer the
question, he or she will have to respond in some manner.
While preparing the witness on how to handle leading questions, inform him or her that merely because the
question is phrased isnt it true or thats correct does not mean that it is true or correct. The witness must
carefully listen to the question, as well as to any of your objections, to analyze the question objectively. If the
question contains a statement that is not completely true, the witness can safely deny it. The witness should also
demand an explanation of any terminology contained within the question itself which the witness does not
understand. If you have a very competent and intelligent witness, you can utilize narrative responses beyond
the simple yes or no format. This will not only serve to disrupt the pace of the examination, but may also
dissuade the examiner from utilizing that approach.
In the event that the examiner attempts to force a yes or no answer, the witness should respond either that he
or she does not feel capable of doing so, or provide a narrative response which has the same effect.
Summarizing Testimony
Examining attorneys often want to confirm their understanding of previous testimony or documents by
summarizing and asking the deponent to confirm the accuracy of the summary. Sometimes this technique is
appropriate and fair. Other times it is not because the examiner has subtly changed the witnesss earlier
testimony. If the witness believes that the summary accurately reflects his earlier testimony, he should affirm it.
(Often he would be better off responding that the summary appears to be generally accurate, but that his earlier
testimony is more accurate.) If, however, he feels the summary is inaccurate in any way he should reject it
without saying more. The examiner can choose whether to ask why or to correct the summary.
Questions Calling for Approximations
Sometimes the examiner will ask whether a statement is substantially true. In most cases, you should object
and your witness should be advised to carefully consider whether he is able to respond. Note that the witness is
not required to speculate; he is only required to recount his own knowledge. If the witness feels compelled to
agree, he should consider restating the summary in terms of his own.
Using Compound Questions
The examiner may ask a compound question, sometimes by mistake and sometimes by design. Advise your
witness that you will object and that he need not feel compelled to answer such improper questions. If the
examiner attempts to force the witness to answer the question, the witness is certainly entitled to ask the
examiner which question the examiner wishes to be answered and then answer only that portion of the
compound question.
Questions Containing an Assumption of Fact
The examiner may ask the witness to assume facts which cannot be verified by the witness being deposed.
Such questions are generally improper and unnecessary in the context of a deposition. Object for the record and
advise your witness that he does not have to endorse any fact beyond the scope of his knowledge.
Questions Using the Words Never and Always
A witness should always be careful about questions involving the terms never or always, or any other
absolutes of that kind. Witnesses can easily be tricked by questions involving absolutes. Although there may be
exceptions, few of us could say with total confidence that we have never done something or that we have always
done something. If the examiner follows up on such an absolute statement, the odds are good that he is aware of
at least one example where the witness has done something. The never question is merely a way to set the
witness up for impeachment.
For example:
Q. Have you ever failed to wear your seat belt when driving your car?
A. Never.
Q. Are you sure about that?
A. Absolutely.
If the point is important, you should be fearful that your witness is being set up. The examiner may have
another credible witness who will swear that there were occasions when your witness did not wear his seat belt.
A properly counseled witness would have couched his response in the conditional: I cant recall any such -
occasions.
A conditional response to a question calling for an absolute can be more truthful than an absolute response.
Unless the witness is absolutely sure of his answer, he should be advised to treat absolute questions with
extreme caution. Few of us are 100 percent sure about anything. A witness can be impeached for mistakenly
saying never but he cannot be impeached for saying that he does not recall ever doing something.
The witness should also be cautioned about questions such as is that all you know about [the subject].
Unless the prior testimony has truly been exhaustive, the witness should be advised to qualify his answer, either
by adding additional information if he recalls it or by saying that this is all he can recall at the moment.
Depositions can go on for hours and your witness can easily forget what has been covered during the interim.
Moreover, a review of documents at a later time may elicit additional knowledge.
Questions Which Call for Speculation
Another type of tricky or self-serving question is one which calls for speculation. Examiners will often try to
elicit helpful testimony by asking a witness Isnt it possible that .... This type of question is often misleading
and it is arguably improper. Almost anything is possible in this world but possibilities are rarely relevant as
factual testimony. Unless your witness is being deposed as an expert, he does not have to respond to this self-
serving type of question. Advise him that you will object. Often the correct answer is, I dont know.
Another version of this technique is to ask the witness Do you always or If it were important to you,
would you . These questions are designed to set up future impeachment or to lead the fact finder to draw a
conclusion based upon circumstantial evidence. If the witness is sure that his conduct never varies, which would
be unusual, he could answer the question yes. If not, the proper response is a qualified answer or to reply that he
does not know.
Questions Which Call for Precise Recall
The witness should be cautioned about questions which ask for recall of precise words used or exact recall of
details. Rarely will a witness be able to recall precise details and he should be advised that no one expects or
requires it. The witness should respond by giving his best recollection and should feel compelled to do no more
than that.
The Badgering Examiner
An examiner who is hostile or otherwise badgers a witness may succeed in eliciting helpful, albeit inaccurate,
testimony. You should reassure your witness that you will not allow such tactics to go on in a deposition and
that you will stop it if it occurs. You must also caution your witness not to get angry at the questions posed or to
do anything else which might cause your witness to lose his focus.
The Rule which you may invoke if an examiner is acting unreasonably in badgering a witness is Rule 30(d).
The Rule permits any party or the deponent to demand that the deposition be suspended for the time necessary
to file a Rule 30(d) motion to seek the courts order terminating the deposition or limiting the scope or manner
in which the deposition is being taken.
Such a motion requires a showing that the examiner was acting in bad faith or in some other unreasonable or
oppressive manner. The basis for such a motion will typically be the transcript of the deposition. Therefore,
remember that if the witness is being badgered, harassed, or yelled at, you should make a record of the
examiners voice tone, gestures, threats, laughter, etc. You should also invoke the Rule and state that it appears
the deposition is being taken in an improper way or for an improper purpose and that you are suspending the
deposition to make the appropriate motion.
The Rule does not require that the harassed witness be your client. Any time any witness is being improperly
examined, the Rule permits that witness or any objecting party to suspend the deposition.
Withholding Documents
Often, an examiner will ask a witness questions concerning a transaction, meeting, or letter when the answer
to the question can be found in documents which have previously been produced and reviewed by the examiner.
They may or may not be documents with which the witness is familiar. These questions sometimes amount to
nothing more than a memory test. If neither you nor your witness is familiar with the documents, the examiner
can trick the witness into misstatements of fact by withholding the documents at the time he asks the questions.
This is another reason for you to be familiar with all of the documents before the deposition occurs so that you
can ask the witness whether he wishes to review the letter, meeting minutes, contract. etc., before answering.
A variation on this type of tricky examination is only allowing the witness to partially review a document
before answering the question or only providing part of a multi-page document for the witness to review.
Sometimes the witness will be shown drafts of documents or minutes, or documents where handwritten
notations or changes are omitted. Again, you must know the documents in order to make the proper objection.
First, you are permitted to instruct the witness that documents do exist which may aid in his recollection and
that he has the right to review any document which will help with his recollection prior to answering. Second,
insist that the witness be allowed access to the document and ample time to review it prior to answering. Third,
you should make certain that any documents which the witness does review are described on the record by
number, date, or other description, along with, obviously, any omissions or deletions. If the examiner persists in
requiring an answer without revealing the documents or permitting sufficient opportunity for review, you should
so note on the record. Thereafter, the witness is likely to give an answer which will be noncommittal and
unlikely to be given undue weight at trial.
Inaccurate Instructions
Sometimes opposing counsel will give instructions to the witness which you believe are incorrect or which
are contrary to instructions that you gave at the time you prepared the witness for deposition. At the time of the
deposition, the opposing attorney might state: you are required to sign the deposition, or you can change your
answers without penalty after you read the deposition, or if you answer a question, we can all assume that you
understood it. Such instructions or statements must be corrected on the record by either disputing the
accuracy of the statement or reinstructing the witness in the proper fashion.
It may be necessary for you to adjourn the deposition briefly for purposes of holding a short conference with
your witness or client to clear up any confusion he may have as to which instructions to follow. You do not want
your client or witness to give more credence to the perhaps more official-sounding instructions given during the
actual deposition than to your instructions given earlier in less formal surroundings.
Improper Use Of Legal Work Product
Sometimes an examiner will display pleadings or statements contained in non-verified discovery responses
and ask the witness about them. Why did you plead waiver as an affirmative defense? The problems with such
questions are obvious. They invade work product and ask the witness to bind himself to something he never
wrote (and maybe never saw). In addition, the witness (unless he is an attorney) is unfamiliar with the
terminology, and correct definitions would have to be a part of proper foundation for the question. The examiner
can ask about the facts surrounding the alleged waiver, but you should not permit him to refer to a legal
document or pleading and then ask an overly broad question containing legal conclusions or to probe possible
work product or privileged information.

Of course, there is no limit to the types and kinds of objectionable questions. However, the following are examples:
Q. What did Joe think about Toms proposal?
Objection: calls for speculation. The witness cannot know what went on in Joes mind. (Question can be
asked: What did Joe say or indicate about Toms proposal?)
Q. After Tom called Bill, what did he say to you?
Objection: assumes fact not in evidence, (i.e., that Tom called Bill).
Q. Would it be fair to summarize your testimony as saying ...
Objection: Question contains inaccurate summary. Or
Objection: Witness cannot be required to opine on the degree of accuracy of the examiners summary.
Note: Depending on the circumstances, the question may be proper .
Q. Did Mr. Klington drink the bourbon and strike Mr. Bingingham?
Objection: compound question.
Objection: question contains inaccurate summary. Or
Objection: witness cannot be required to opine on the degree of accuracy of examiners summary.
Q. Have you told me everything about X, Y, Z?
Objection: the question is too broad (but properly should be answered, yes, as far as I recall and I believe I
have answered them to the best of the knowledge that I can recall).
450 Preparing Specific Witnesses for their Depositions

Your preparation of a witness will vary according to the person: Is he intelligent? Is he verbal? What knowledge
does he have? Is he easily confused? Has he been deposed before? It will also vary according to the type of case and
the type of examiner you face. The following sections will cover your preparation of a particular witness.

Preparing your client to be deposed is both the easiest and the most difficult. Your client has the greatest interest in
the litigation and you should be able to count on his undivided attention. However, your client is also emotional
about the case. He will be more likely to get upset during his deposition and may be quicker to forget the
admonitions you gave him during your preparation. He may want to tell his story or show opposing counsel why he
should win, despite the fact that it may not be strategic to do so. Keeping a client witness under control is often
difficult.
There are several points to emphasize to such a client:
Your story should be told under friendly examination, i.e. by you, so that it cannot be misconstrued and
misshaped.
Persuading opposing counsel serves little purpose except for settlement. No judge or jury will be at the
deposition, and probably will never read or hear the transcript. If settlement is the objective, effective
presentation of facts is rarely accomplished through examination by opposing counsel.
Volunteering might be helpful, but make a conscious decision as to what to volunteer.

In most instances, the attorney-client privilege does not apply to your communications with a person other than your
client. (Certain employees and former employees of a client may fall within the scope of the attorney-client
privilege.) Hence, in preparing a nonparty to be deposed, assume that all of your communications will be
discoverable or that the person may voluntarily reveal to the opposing attorney your communications.
Even though discoverable, your procedure in preparing a nonparty witness should essentially be the same as it is
with a party deponent. Even in preparing a client, you should not say or do anything which would be unethical or
for which you would be embarrassed if it came to light. The only exception is that you may not reveal strategy
decisions or other matters which you would rather be kept from opposing counsel.

Preparing a corporate officer for deposition may be a difficult task, both because of conflicting demands upon his
time and because he may have limited first-hand knowledge. One problem is that he may feel that he is supposed to
know everything that goes on in the company. This can play into the hands of a savvy examiner who will try to coax
the officer witness into giving testimony which may conflict with other witnesses who have first-hand knowledge.
During the course of your preparation, emphasize the importance of sticking to testimony based upon personal
knowledge, unless asked for information received from others. You must also emphasize that a deposition is not a
test or a measure of management performance. Rather, it is merely an opportunity to determine what each witness
knows based on first-hand knowledge, or, in some instances, what the witness has been told by others. In giving his
answer, the corporate officer must always be careful to distinguish between that which he has perceived or knows of
his own knowledge and that which has been reported to him.

If your client is a nonindividual (e.g., a corporation), and you are served with a Rule 30(b)(6) notice of deposition,
both the client and counsel face several strategic stages in the preparation for the deposition. Since the burden is on
the corporation to produce a witness capable of responding to questions on behalf of the organization, there first
must be a clear understanding as to what areas of examination the opposing party seeks. If you believe that there is
some ambiguity in a requested area of examination or that an area is ripe with the potential for abuse, have you
attempted to meet and confer with opposing counsel to resolve potential areas of dispute? Remember that if you or
your client fail to produce a knowledgeable witness, your client may be sanctioned for a nonappearance or be
required immediately to produce a knowledgeable witness. Bank of New York v. Meridien Biao Bank Tanzania, 171
F.R.D. 135, 151 (S.D.N.Y. 1997).
Assuming that the areas for examination are reasonably clear, the selection of an appropriate witness should be of
paramount importance. Neither the Rules nor the case law require a corporate party to designate the most
knowledgeable witness. However, you and your client are obligated to designate and produce one or more witnesses
capable of giving responses binding on the organization to questions regarding the subjects listed in the Rule
30(b)(6) deposition notice. The selection of a witness will depend upon a number of factors including:
The scope of information sought by the various categories. Do the topics for examination seek specific
information from the corporate entity concerning issues in dispute, like scientific tests and other analytical
data or testimony pertaining to the corporations alleged acts or omissions? Does the examination seek
testimony that is of a general nature, such as corporate practices, policies or positions? It is difficult to
conceive of one witness being knowledgeable on both types of topics. More importantly, is it even desirable
to attempt to utilize a single witness to bind the corporate entity?
The nature and extent of prior discovery from the corporate entity. You should analyze what information the
corporation has already responded to through requests for production of documents, contention
interrogatories, and mandatory disclosures. Have corporate officers or managing agents already been
deposed and, if so, on what areas?
The availability of information to respond to the designated areas. Does the deposition seek information
about matters which the corporate entity currently has knowledgeable employees or documents?
The ease in which you can prepare a candidate(s). Will the prospective designee make a good witness on
behalf of the corporation regardless of his or her overall knowledge or qualifications? If you will have
trouble preparing the witness or you determine that the witness will be a poor communicator, a different
designee should be selected.
Even though a witness may be qualified and knowledgeable, there may be practical reasons why he or she should
not be designated to be the corporate spokesman. For example, in a sexual harassment case, you will probably not
want the alleged harasser to be the corporate spokesman on the entitys practices and policies to combat this
conduct. Nor will you want to sacrifice the corporate president to testify about issues raised in litigation.
After the designation of the corporations witness or witnesses has been made, you will still have the duty to
properly prepare the individual to testify. The nature of the designees preparation frequently becomes the focus of
inquiry when the designee ultimately is proven to be less than knowledgeable. U.S. v. Taylor, 166 F.R.D. 356, 361
(M.D.N.C. 1996). Accordingly, the designee will not only have to give testimony concerning his or her own
personal involvement or knowledge, but also to all matters that the corporation has readily available to it.
Since a Rule 30(b)(6) witness is binding upon the entity, proper presentation and preparation cannot be overly
emphasized.
Practice Tip: Can You Designate a Witness Who Is Not Affiliated With the Organization?
What if there are no good candidates from within the organization to designate to answer questions
that will be binding on the organization? Perhaps all the witnesses with personal knowledge have left the
organization or perhaps the witnesses with some personal knowledge are either inarticulate or, worse,
like to talk way too much and appear largely unpreparable? There is no prohibition against designating a
witness who is not, or is no longer, affiliated with the organization. Thus, if you think that a former
employee with particular knowledge of the noticed topics would make a good witness, by all means, you
can ask that individual if he or she would be agreeable to appearing on behalf of the organization (of
course, you may first want to confirm that the former employee left on good terms). Even if the individual
outside the organization has no direct knowledge of the noticed topics, if you think the individual would
make a good spokesperson for the organization, you can designate the person. But there are a couple of
caveats. First, regardless of who the individual is, the individuals answers will be binding on the
organization, so make sure to properly prepare the witness. Second, designating an unaffiliated person to
testify on behalf of the organization raises privilege issues, namely would your communications with the
individual be privileged? The authors are not aware of any case law on point, but the individuals
acceptance of the role of Rule 30(b)(6) designee probably would imbue in the individual status as the
client organization for purposes of cloaking witness preparation in the protections of the attorney-client
privilege.

As noted, there is no obligation under Rule 30(b)(6) for the noticed organization to designate the one or more
individuals with the most knowledge on the identified topics, indeed, the organization is permitted to put forward
individuals with no personal knowledge of the noticed Rule 30(b)(6) topics, as long as the witnesses are capable of
giving the organizations positions on the topics. For many reasons, the organization may have to put forward
witnesses as its designees who lack complete or perhaps even any personal knowledge of the noticed deposition
topics. For example, as discussed, with the passage of time between the events in question and the deposition,
witnesses with personal knowledge of the events in question may have left the domain of the organization. Or,
perhaps the organization makes the judgment that those witnesses who do have personal knowledge would not do
well facing hostile questioning.
Thus, the organization may be faced with the task of educating one or more witnesses who lack full personal
knowledge of the topics listed in the Rule 30(b)(6) deposition notice. In such a circumstance, it is typically the
organizations lawyer who has the best command of the facts at issue, having reviewed pertinent documents and
talked to a variety of individuals, each of whom may possess partial knowledge of the topics in the notice. During
deposition preparation sessions, the lawyer essentially teaches the facts to the selected witnesses so that they will be
prepared to give the organizations positions on the noticed topics.
This raises an interesting dilemma during the deposition when inevitably the examining attorney asks the Rule
30(b)(6) designated witness to state the basis for a particular answer to a question. If the witness has no personal
knowledge, but is merely (and permissibly under the Rule) stating the position of the organization as explained by
the organizations counsel, he or she may be able to reply with no more than, I was told that by counsel. Next
question will surely be, What did counsel tell you? Should you, as the defending attorney, instruct your witness
not to answer the question on the ground of attorney-client privilege? If you do so, will it undermine your ability
later at trial to present your case on the issue addressed by the question?
The principles of the attorney-client privilege do not change merely because the issue arises in the context of a Rule
30(b)(6) deposition. There is no waiver from the context alone. See, e.g., In re Linerboard Antitrust Litigation, 237
F.R.D. 373 (E.D. Pa. 2006) (Rule 30(b)(6) witness not required to testify about information known to organizations
counsel that would be protected from disclosure by the work product doctrine). Any legal advice of counsel would
be protected, even if the witness is there to testify about the underlying facts as presented to the witness by counsel.
In other words, the witness must answer questions that call for purely factual information within the corporate
knowledge, even if the organizations designee learned the information from counsel, but should not answer
questions that would disclose legal advice of counsel which is privileged. Sony Electronics, Inc. v. Soundview
Technologies, Inc., 217 F.R.D. 104, 109 (D. Conn. 2002). As that court stated, Questions posed which elicit purely
factual information that is now in the possession of corporate officials and do not ask for the substance of
communications between counsel and client are to be answered as the answers to these questions will not be
disclosing legal advice of counsel. Id. at 110. See also Sprint Communication Co. v. TheGlobe.Com, Inc., 236
F.R.D. 524, 529 (D. Kan. 2006) ([A Rule 30(b)(6) witness] cannot refuse to disclose facts which their attorneys
conveyed to them and which the attorneys obtained from independent sources.) The distinction between purely
factual information and legal advice may not be entirely clear when it comes to what the attorney tells the Rule
30(b)(6) designee during deposition preparation about the attorneys investigation. On the one hand, the attorneys
choice of which documents to review, what to highlight from those documents, which witnesses to interview, and
what questions to ask those witnesses is surely infused with the mental processes of that attorney. On the other
hand, one can easily imagine a court compelling the witness to describe what the attorney told the witness about the
attorneys own investigation. The authors are not aware of case law guidance on this issue. Perhaps a creative
attorney would argue that such an instruction not to answer would be improper under the principles of Federal Rule
of Evidence 612, that the deposition preparation process was used to refresh the organizations witnesss memory,
and that not permitting inquiry into the area would subvert the discovery process.
Either way, whether you as the attorney at the deposition instruct your Rule 30(b)(6) designee witness not to answer
a question about deposition preparation, or you let the witness answer and describe your efforts to investigate the
topics identified in deposition notice, the response will not be particularly helpful to you for trial. There is a safer
approach, but it requires more planning and preparation. The organizations counsel, instead of serving as a conduit
of information to the designee who lacks personal knowledge, instead should play the role of shepherd. Rather than
telling the designated witnesses what documents say, the attorney should show the relevant passages to them; rather
than telling the designated witnesses what others within the organization with personal knowledge know, the
attorney should arrange for the designees to interview those with knowledge.
Now play out how the deposition would proceed. After the Rule 30(b)(6) designated witness states the
organizations position on the noticed topics, the witness would respond to questions about the basis for the
positions by identifying documents and other individuals with knowledge. This of course is an invitation for the
deposing party to then notice the depositions of the non-present witnesses with the actual personal knowledge.
However, this is how discovery works, and furthermore, importantly to the organization, those witnesses would be
giving their testimony as individuals, rather than as the organizations designees giving testimony binding on the
organization.
Note that some organizations will designate the attorney him or herself as its Rule 30(b)(6) designee. There is
nothing impermissible about this approach. See, e.g., Inverness Medical Switzerland GMBH v. Acon Labs., Inc., No.
03-11323, 02-12303-PBS, 2005 WL 1491233 (D. Mass. June 23, 2005). In that case, one of the parties outside
lawyers gave Rule 30(b)(6) testimony. In its discussion of conflict of interest issues, the court noted:
In his affidavit, [the attorney] stated that he had no prior personal knowledge of the issues about which he was
asked to testify as a 30(b)(6) deponent, and that he therefore prepared to give testimony by gathering historical
information. He also states that any information I had about [the clients] allegations regarding the disclosure of a
decision of the European Patent office revoking a European counterpart of [a different] patent was not from my
own personal knowledge, but was information I had gathered as part of my investigation.
Id. at *3. Of course, when the organization designates its own counsel as its Rule 30(b)(6) designee, the need to
parse between underlying facts and attorney-client privileged communications (and the work product doctrine,
which would protect the witnesss mental impressions) becomes all the more important and challenging.

Many of the witnesses being deposed may be hostile or at least uncooperative with you. You may not have the
opportunity to discuss the case with the witness, or to prepare him to be deposed. Nevertheless, your responsibilities
in defending the deposition remain the same. Like at trial, you must be prepared to examine the witness, minimize
adverse testimony, and take advantage of helpful testimony.
In such a situation, your preparation must be the same as with a friendly witness, except that you may not have the
opportunity to discuss the deposition with the witness prior to his deposition. Indeed, if you do not have the
opportunity to talk to the witness, special emphasis needs to be placed on discussing the witness and his possible
knowledge with your client and cooperative witnesses. Try to ascertain as much information about the deponent as
possible, so as to be prepared for the questioning at the deposition and avoid surprises. It is much easier to make
appropriate objections to questions if you know in advance what knowledge the witness has.

Your expert witness may not only be an expert in his professional field but he may be an expert at testifying, having
testified tens or even hundreds of times. If so, if his technique is not perfect, there probably is little you can do to
improve it. However, even with these experts, you should refresh them as to the basic elements of being deposed.
On the other hand, your expert may be distinguished in his field but totally inexperienced about the deposition
process or his role in the civil trial proceedings. Your preparation of such an expert should begin with introducing
him to the deposition process, 451, supra, and to techniques to answering questions, 452-453, supra.
Next, explain to your expert that he probably will be examined concerning various background areas, such as:
Education;
Prior experience;
Prior employment as expert witnesses, and on which side;
Articles, etc., he has written;
Other depositions given (and availability of transcripts);
Treatises he considers authoritative;
Persons he considers authoritative;
All information and documents he has received concerning the case;
All notes and reports he has made or rendered;
Knowledge of opposing partys expert;
Next, discuss that the examiner will cover the conclusions and opinions reached by the expert for this case, and the
grounds for each. Lastly, prepare your expert for hypothetical questions, based upon changes in the underlying
facts. Also explain that the examiner will attempt to:
Commit to specific testimony so that testimony at trial must be consistent. This eliminates surprises and
allows the opposing party to define what they want to attack;
Ascertain precisely what you know and do not knowperhaps to be able to later show how additional facts
would change your opinions, and to prepare his or her own witness to attack your conclusions and
reasoning.

Flynn, Guide for Deponent Preparation: Rules of the Game, 14 Am. J. Trial Advoc. 97 (1990)
Proller, Half a Dozen Deposition Tips, 27, No. 2 Trial, Feb. 1991, at 57
Bartimus and Dymer, Deposition Preparation: Facing the Medical Negligence, Defendant and Experts, 15
Trial Diplomacy Journal 113 (1992)
Warshafsky, Successful Cross-Examination of Technical Experts, 15 Trial Diplomacy Journal 89 (1992)
Gass, Preparing Your Witness for a Videotape Deposition, 34, No. 9 For the Defense 29 (1992)
Smith & Kavanagh, Preparing a Witness to Testify in a Commercial Case, 18, No. 4 Litigation 36 (Summer,
1992)
Davis, ABCs of Preparing Clients for Deposition and Trial, 28, No. 2 Trial 42 (Feb., 1992)
Sumpter, Preparing the Expert for Deposition or Trial, Practical Lawyer 298 (Sept., 1992)
Schulman, Coaching Witness Credibility, The Practical Litigator, January 1993
Welch, Just Say No to Deposition Coaching, 10-AUG S.C. Law. 20 (July/August 1998)

To this point, your preparation has included a review of the pleadings and applicable law, a review of prior
discovery, both formal and informal, and discussions with your client and cooperative witnesses. You are now in a
position to prepare your inquiry.
There is no single approach to preparing an examination. Depending upon your nature, style and experience, your
approach will vary. Some lawyers carefully write out many of their questions and others write little or nothing at all.
Most will at least outline subject areas to cover in the examination. Experience shows that notes are crucial for the
beginning examiner, if not for every examiner.
Here are a few generalizations about your preparation of notes for a deposition: first, your notes should help you
organize your thoughts and provide a checklist for your questions. Do not write out your questions unless the
deposition or the wording of a particular question is critical. Second, do not become tied to your notes. Too often,
an inexperienced examiner fails to hear what the witness has said and fails to ask follow-up questions. Third, use
your notes to provide you with additional security, so that you will feel free to take detours as new possibilities arise
during your examination. Knowing that you have a checklist of points which must be covered frees you to focus
your attention on the witness and to take advantage of unexpected testimony. You can return to your notes when
you exhaust a particular avenue of questioning.

Generally, the deposition process occurs as follows:
Notice of deposition is provided to the reporter so that he will have the caption of the case for the transcript,
and the identity of the lawyers for the parties.
Exhibits are given to the reporter for marking, if exhibits are going to be marked in advance rather than as
used.
The reporter swears in the witness.
If the deposition is taken pursuant to a court order, the order may be marked as an exhibit and made part of
the record. Similarly, some lawyers like the notice of deposition or subpoena marked and made a part of the
record.
Any stipulations concerning the deposition that have been agreed upon by the parties are stated for the
record. Discussion of proposed stipulations normally should be off the record. At last, the examination can
begin.
A deposition, in most instances, is not a rigidly defined procedureand you should not allow it to become rigid. As
earlier discussed, notes are not a road map, but rather a checklist. Nevertheless, you should have a pre-defined
organization for the deposition, subject to being continuously redefined and reorganized throughout the deposition.
The most common organization of questions for a deposition are:
Chronologicalexamination of the witness in chronological order of events and occurrences.
Subject matterexamination of the witness as to each relevant subject matter. Within each subject matter,
the organization is usually chronological.
Allegations of the complaintsome examiners representing defendants like to approach depositions in terms
of the complaintexhaust the knowledge of the witness concerning each allegation, in order thereof.
DocumentsSome depositions can be effectively organized by the documents. Documents in turn can be
organized chronologically; by plaintiff, defendant or witness file, or by subject matter.
PersonsSome depositions lend themselves to organization by personquestion the witness as to relevant
knowledge or activities of each person involved in the subject matter.
Of course, some examiners prefer a disorganized approach, with the hope that the witness will not be able to
anticipate where the questions are going or what his prior answers were.
Again, the primary importance of organization is: (1) to create a clear deposition, in case you need to use it at trial;
and (2) to cover everything that you desire to cover.
473 Sample Outlines
For substantive areas of the examination, your outline will have to fit the facts of your case. The level of specificity
or detail required will depend upon many factors including your own experience, personal preferences and the
complexity of the case. Sample outlines for examinations on a few very select topics follow.
Obviously, these examples are not meant to be exhaustive either in detail or in subject area. They do, however,
illustrate the type of organization and comprehensiveness with which you should approach all depositions. You will
have to break down the major subject areas above even further, depending upon the facts of a given case. For
example, in a breach of contract action, one meeting may be of critical importance. That one meeting may warrant a
detailed examination and, therefore, a detailed checklist in your outline, such as:
A. Where held
B. When
1) Exact location
C. Who present
1) Meetings conducted the entire time
2) Meeting conducted by phone
3) Positions of each person
D. Who called the meeting
E. Purpose of meeting
1) Why each person present was in attendance
F. Chronologically, what each person said and did
G. Who took notes
H. What documents did you and others have
I. Conclusions of the meeting
Often, you will be involved in cases in which your outline or checklist must include elements of the case. Certain
cases, such as trade secret appropriation, RICO, defamation, or interference with contract, have distinct and
technical legal requirements which must be proven or disproven and must, therefore, be covered in the depositions.
If you do not fully explore the legal requirements for such cases in the salient depositions, you will neither be able
to withstand nor support any dispositive pretrial motions. In those cases, you must weave into your outline not only
the facts and documents, but also the legal issues.
For example, in a case involving inducement of breach of contract, you will not only want to fully explore all of the
facts and documents giving rise to the dispute, but you will want to cover the following legal points in your
deposition:
The admission or proof of the preexistence of a valid contract;
Defendants knowledge of or assumption of the existence of a valid contract;
Defendants intention to induce a breach of contract;
Defendants knowledge of contract breach;
Defendants causal connection with contracts breach.
473.1 Outline for Deposing the Plaintiff Automobile Case
A. Liability
I. Scene of the Occurrence
Description of roads involved
direction, i.e. east, west
number of lanes
curbs, driveways
pavement markings, i.e. centerlines, turn arrows
composition, i.e. asphalt, concrete
artificial lighting
Signage
posted speed limit signs
posted traffic control signs, i.e. stop, yield,
traffic control devices, i.e. stop lights, flashing red light
Post-occurrence changes to scene
new lights, signs or pavement, etc.
II. Road Conditions
Weather
temperature
raining, snowing, sunny
Road surface
wet, damp, dry
Visibility
clear
foggy, snowy, rainy
Distractions
construction activities
detours
Traffic volume
light, heavy
congested
III. Vehicles Involved
Description of vehicles
make, model
color
Mechanical condition
recent maintenance or repair
brakes functioning
headlights
turn signals
tires, i.e. old, new
Ownership
registration
owned by plaintiff
if non-owned, identify owner
insurance
IV. Description of Occurrence
Pre-impact conduct of plaintiff
road traveling
direction traveling
general speed
traffic conditions
First observation of defendants vehicle
distance away of defendant vehicle
direction of travel of defendant vehicle
estimate of speed of defendant vehicle
traffic control light color
Point of impact
portion of defendant vehicle which struck plaintiffs vehicle
portion of plaintiff vehicle which was struck
location of impact on the pavement, i.e. lane
V. Post Occurrence Physical Evidence
Resting points
location of defendant vehicle
location of plaintiff vehicle
location of debris
Damage to vehicles
location and type of damage
skid marks
Subsequent plaintiff vehicle repairs
location
cost
VI. Witnesses
Occurrence
passengers of vehicles involved
third party vehicle operators or passengers
third party bystanders
Post-occurrence
police officers
paramedics
third party vehicle operators or pedestrians
VII. Conversations
Between plaintiff and defendant
statements made by each person
who present
where said
By defendant to others
statement made
to whom
who present
where said
A. Liability
I. Background
Experience as driver
age
date of licensure
suspensions or revocations
restrictions to license, i.e. eyeglasses
general health
physical impairments to mechanical operation of vehicle
II. Scene of the Occurrence
Description of roads involved
direction, i.e. east, west
number of lanes
curbs, driveways
pavement markings, i.e. centerlines, turn arrows
composition, i.e. asphalt, concrete
artificial lighting
Signage
posted speed limit signs
posted traffic control signs, i.e. stop, yield,
traffic control devices, i.e. stop lights, flashing red light
Post-occurrence changes to scene
new lights, signs or pavement, etc.
III. Road Conditions
Weather
temperature
raining, snowing, sunny
Road surface
wet, damp, dry
Visibility
clear
foggy, snowy, rainy
Distractions
construction activities
detours
Traffic volume
light, heavy
congested
IV. Vehicles Involved
Description of vehicle
make, model
color
Mechanical condition
recent maintenance or repair
brakes functioning
headlights
turn signals
tires, i.e. old, new
Ownership
registration
owned by defendant
if non-owned, identify owner
insurance
V. Description of Occurrence
Pre-impact conduct of defendant
road traveling
direction traveling
general speed
traffic conditions
Visibility
no obstructions to view of traffic, windshield clear
Intention
direction of vehicle planned, i.e. left turn
First observation of plaintiffs vehicle
distance away of plaintiff vehicle
direction of travel of plaintiff vehicle
estimate of speed of plaintiff vehicle
traffic control light color
Point of impact
portion of defendant vehicle which struck plaintiffs vehicle
portion of plaintiff vehicle which was struck
location of impact on the pavement, i.e. lane
Braking
when first applied before impact
distance when applied from plaintiffs vehicle or other object, i.e. intersection, stop light
Speed
before brakes applied
when brakes applied
immediately before impact
at impact
VI. Post Occurrence Physical Evidence
Resting points
location of defendant vehicle
location of plaintiff vehicle
location of debris
Damage to vehicles
location and type of damage
skid marks
Subsequent defendant vehicle repairs
location
cost
VII. Witnesses
Occurrence
passengers of vehicles involved
third-party vehicle operators or passengers
third-party bystanders
Post-occurrence
police officers
paramedics
third-party vehicle operators or pedestrians
VIII. Citations
Citations issued under applicable motor vehicle code
type of violation
Disposition
plea of guilty
IX. Conversations
Between plaintiff and defendant
statements made by each person
who present
where said
By defendant to others
statement made
to whom
who present
where said
By plaintiff to others
statement made
who present
where said
473.3 Outline for Deposing EyewitnessAutomotive Liability Case
I. Background
Have drivers license?
Prior criminal convictions?
Prior crimes involving dishonesty?
Relationship to parties involved?
friend
co-employee or superior
Physical impairments?
eyesight
corrective eyewear
hearing
hearing aid devices
II. Witness Statements
Did you make a formal statement?
to whom, i.e. investigator, insurance adjustor, attorney, etc.
where made?
who present?
photographs or documents shown before statement
What did interviewer tell you before statement taken?
was a particular version of accident described?
were any of your observations corrected or disputed?
were you given anything of value, i.e. bought lunch, paid for time off work?
were you threatened with a subpoena if you did not cooperate?
Was statement oral or written?
have you ever reviewed it?
is it in your handwriting?
did you sign statement?
Do you wish to make any changes or corrections to statement?
ask witness to read
if so, what changes?
make witness write changes directly on statement document and initial
III. Conversations with a Party or Attorney for Party
Have you spoken to one of parties involved or his attorney?
when?
what were you told?
did interviewer takes any notes?
was a particular version of accident described?
were any of your observations corrected or disputed?
were you given anything of value? (bought lunch, paid for time off work, etc.)
were you threatened with a subpoena if you did not cooperate?
Were you told not to speak to anyone about occurrence?
when?
by whom?
IV. Police Reports
Are you listed on police report for incident?
if yes, then what did you describe?
did officer write down any information you gave?
if no, did you leave scene or avoid speaking to officer?
why not listed on police report as witness?
V. Familiarity with Scene
General description of scene
streets involved
pavement type, i.e. asphalt, concrete
street markings, i.e. lane dividers, crosswalks, etc.
lane widths
distances
traffic controls
posted speed limits
Prior and subsequent visits to scene
how often were you at scene before occurrence?
proximity of scene to your work or residence?
how often were you at scene after occurrence?
did party or his agent visit scene with you?
if yes, did you measure any distances?
did you inspect any pavement locations?
VI. Occurrence Observed
Your location during occurrence? (i.e. pedestrian, in other vehicle)
distance from each vehicle when first observed?
distance from occurrence at impact?
Speed of vehicle(s)?
estimate speed of each vehicle when first observed
Position of vehicle(s) (or injured pedestrian)?
exact location on pavement when first observed each vehicle
relation to landmarks, i.e. driveway, traffic sign
direction of travel
lane of travel
Position of impact?
exact location of each vehicle (or pedestrian) at impact
direction of travel
lane of travel
Were evasive maneuvers attempted?
swerving or turning?
brake lights activated before impact?
horns sounded?
Vehicle speed at impact?
estimate of speed of each vehicle
(speed of pedestrian, i.e. walking, running)
Impact points of each vehicle?
position on each vehicle of first contact?
secondary contacts?
Post impact observations?
distance each vehicle traveled after impact?
direction each vehicle traveled after impact?
rest point location of each vehicle?
movement of vehicles after coming to rest?
Physical evidence of occurrence observed
skid marks, including distance and direction
impact debris from vehicles, including location
motor oils, grease, etc. found on pavement
impact points on pavement
VII. Post-Occurrence Events
Admissions made by a party
to whom said?
who present?
what said?
Injuries observed
who?
what physical signs of injury were observed?
I. Background
II. Prior Familiarity with Premises
Where did fall occur?
Generally describe location
Had you been to location before?
How often in that area?
What brings you to area?
Do you always follow same route or path?
Were there other routes or paths available to you?
Had you experienced difficulty walking in area before day of fall?
describe difficulties
describe condition of premises
Did you know or observe a dangerous condition on prior occasions?
describe condition, i.e. shape, depth or size of hole in walkway
III. Conditions Caused by Plaintiff
Clothing worn at time of fall?
Describe shoes fully
solesnew, old, composition of soles such as leather, plastic, rubber
healslow, high, flats
where are shoes today?
Eyewearprescription lens, sunglasses
Long scarves
Heavy or bulky purses
Impairments
Any medications ingested that day or within 24 hoursdescribe medications
Any alcohol consumed that day or within last 8 hoursdescribe type, amount, etc.
Any physical limitations to walkinglimp, use a cane, etc.
IV. Slip, Trip or Fall Event
Condition of walking surface immediately before injury
Weather, i.e. rain, snow or ice
composition of walking surface, i.e. gravel, asphalt, concrete, wood, linoleum, stone tile, etc.
foreign substances, i.e. oil, grease, mop water, food, garbage, etc.
Mechanism of fall
What were you doing at time of fall, i.e. running, walking
Where were you looking at time of fall?
Did you see condition that caused your fall before it happened?
If yes, did you have time to avoid condition?
If no, why were you not able to see?
Describe fall
Which foot slipped or tripped
What part of foot involved, i.e. heeled slipped, toe snagged, etc.
Describe how body landed
part of body that contacted surface first, i.e. knees, palms, head, etc.
resting position of body post occurrence, i.e. direction pointing, body facing up or down
V. Defective Condition
Describe defective or hazardous condition
Was it a foreign substance? If yes, describe substanceoil, grease, garbage, food
Was walking surface damaged or in disrepair? If yes, describe, i.e. hole, crack, loose stair.
Measurements, i.e. depth, size etc.
Was there any natural accumulation of snow, ice or water overlying defective condition?
Describe location of condition
distance from fixed objects such as doors, sidewalks, streets, etc.
VI. Witnesses
Eyewitnesses
name, address
what did they see
conversations with witnesses about what they saw
Post-occurrence witnesses
police officers
paramedics
others
VII. Post-Occurrence
Did you return to scene? If yes,
describe condition of premises
describe whether alleged defect was same or changed, i.e. repaired or removed
describe any investigation conducted by you, i.e. photographs, measurements
Did you make any reports or complaints? If yes,
when, where, to whom, nature of report or complaint
conversations with others about incident
VIII. Medical Care and Treatment
IX. Lost Income
X. Nature and Extent of Disability and Disfigurement
I. Ownership of Premises
deeds and purchase contracts for premises
have witness acknowledge legal ownership or title to premises
II. Possession or Control of Premises
Leases
identify written lease for premises
identify landlord and tenant
have owner or occupier (i.e., tenant or contractor) acknowledge lease and signature to lease
review lease provisions regarding who is responsible for maintenance or repairs of premises
identify all names and addresses of all persons who perform maintenance and repairs, i.e. janitors,
handymen
determine any independent third party who may be responsible for maintenance or repairs, i.e. rental
agent, janitorial service, etc.
Common areas
if defect involves common area such as hallway, stairway, etc., then
have witness identify common way involved
establish that landlord or tenant has responsibility for area under lease or custom and practice
Post-occurrence repairs or changes
If defendants possession or control is disputed, determine
did defendant repair area he claims not to be under his control?
did defendant direct or request others to repair area he claims not to be under his control?
did defendant pay for repair (request receipts)?
III. Notice of Defective Condition
Before questioning witness regarding notice, establish location and defect in question. Specifically,
pinpoint exact location of defect
establish that location of defect is area under defendants possession and control
generally describe defect
have witness acknowledge that he understands nature of defect complained of
identify and mark photographs depicting exhibits
have witness acknowledge that he sees alleged defect as shown in photographs
Actual knowledge of defect
Were you aware that alleged defect existed before plaintiffs injury?
If yes,
how did you became aware of alleged defect?
how long were you aware of it?
were any steps taken to remedy it?
did you receive any oral or written complaints about it?
have you had any prior claims or law suits concerning it?
have you received any building ordinance citations concerning it?
Constructive knowledge of defect
If witness denies actual knowledge of defect, then try to establish that witness should have known about
defect as follows:
Use of premises
walks or works in area of premises involved and could observe defect involved
Maintenance of premises
cleans area involved, i.e. vacuum, sweep, shovel snow and has opportunity to observe defect
Repairs to premises
performed repairs in vicinity of defect and should have observed defect
Inspections
checked condition of building, i.e. rain gutters, roof, stairs, etc. and should have observed defect
IV. Defect
Does witness agree that alleged defect could be a hazard and should be remedied?
If witness denies that alleged defect constituted a hazard, then identify every reason that not a hazard
473.6 Outline for Deposing Defendant Citys Superintendent of StreetsPremises Liability
Case
I. Background
Job title
years employed
Duties
maintenance of City streets and sidewalks
repair of City streets and sidewalks
inspection of City streets and sidewalks
sanitation disposal
traffic control operation systems
Prior experience
job titles, including years held
duties
II. Actual Notice of Alleged Defect
Schedule of inspections
inspection routines, e.g. 30 days, 6 months
names of inspectors
inspection criteria
types of reports made
retention of reports
Prior inspections of subject location
if subject defect not noted, why missed?
Citizen complaints
Record of complaints
type of reports documenting complaints
where maintained?
how indexed?, e.g. by street address
requirements for making report
City self-reporting of hazards
Departmental cross reporting of complaints
Dept. of Police
Dept. of Sanitation
Dept. of Traffic Control Maintenance
procedure for routing of reports
City policies for employees reporting observed defects
when last inspected before occurrence
report made
defects noted (missing manhole cover, pothole, etc)
was subject defect noted?
III. Constructive Notice of Alleged Defect (City Employee Presence of Subject Street)
Prior maintenance of street
type, e.g. street sweeping, repainting of pavement markings, etc.
when last performed in proximity to date of occurrence
names of City personnel involved
requirement that City personnel report defects observed
explanation for why not reported
Prior services performed adjacent to street
type, e.g. trash removal, fire hydrant flushing
how often performed?
names of City personnel involved
proximity to defect involved
opinion: is defect observable while performing this service?
IV. Subject Defect
Identify
pinpoint exact location of defect
establish that location of defect falls is area under possession and control of City
generally describe defect
have witness acknowledge that he understands nature of defect complained of
identify and mark photographs depicting exhibits
have witness acknowledge that he sees alleged defect as shown in photographs
Hazardous nature
Does witness agree that alleged defect could be a hazard and should be remedied?
Is this type of defect, i.e. pothole in street, that he would order repaired if knew existed?
If witness denies that alleged defect constituted a hazard, then identify every reason that not a hazard
V. Post-Occurrence Repair of Subject Defect
Was defect repaired?
why or why not?
type of repair performed
Process for repair
notice of this occurrence?
independent repair?
time necessary to repair
If repaired earlier, then agree that occurrence, e.g. trip and fall in sidewalk hole, would not have occurred?
I. Qualifications
Medical school attended
years attended
Residencies performed in a particular specialty
where
what years
Fellowships
what specialty
Board certifications
area of specialty
number of times took board examinations
if taken more than one time, why failed
Special expertise, training, experience or interest in area of medicine at issue
make and describe special qualifications
Written or published any literature applicable to the medical issues involved
why written
research used
peer reviewed
Given any lectures, presentations or seminars applicable to the area of medicine involved
state subject matter
research performed
medical literature and texts consulted or relied upon for
Teaching and academic appointments
taught the diagnosis, care or treatment of the medical condition involved in the present case
Private practice
how long
define patient population, e.g. adult cardiac patients
number of patients treated for the same or similar condition as present case
any prior patients with the same outcome
Hospital staff privileges
any disciplinary proceedings, suspensions or temporary revocations
Medical publications which regularly reads or subscribes
II. Agency/Employment
a. Actual agency or employment
name of private employer, i.e. corporation or practice group
name of managed care organizationstaff employee or independent physician
number of years employed
full time or part time
b. Apparent agency or employment
physician who works in managed care clinic or hospital setting
who pays salary
who dictates hours of practice,
who selects patients referred to you
who receives patient payment for services
any disclosure that actually independent contractor physician, e.g. consent forms or uniform
III. Medical Literature Reviewed by Defendant for the Deposition
Identify each article, textbook or other writing reviewed
agree or disagree with literature reviewed
familiar with same literature before saw plaintiff in this case
actually read literature identified before care and treatment to the plaintiff
statements contained in literature which defendant relied upon for course of care and treatment
literature authoritative.
IV. Medical Records Created by the Defendant
Identify all medical records made or written by the defendant for the care and treatment at issue
explain abbreviations or shorthand terms
if physicians note illegible, make read verbatim
Any custom or practice to not chart findings that are negative?
which findings
explain when in course of visit physician made such absent findings
Does record refresh physicians memory of any conversation with plaintiff that is not recorded as history or
complaint?
how does physician now recall
at time of visit was it the physicians practice to accurately record history taken and physical examination
made
Does the physician rely on the written record to conclude that the plaintiff failed to tell him a sign or
symptom or accurate history?
V. Medical Records Reviewed by the Defendant
Identify all medical records reviewed such as nursing notes, admission histories, laboratory tests, x-ray
reports, etc.
Does the physician rely upon any of these records to support his diagnosis, care or treatment at issue?
identify each such record
state the significance of the findings or history in the record
Was the physician aware of the records at the time of his diagnosis, care or treatment, e.g. comparison of
annual mammogram films?
were they available to consult
why not consulted
does any history or findings in records change the course of his care and treatment
Formed any opinions about the plaintiffs outcome based on records?
state each opinion
specific information contained in record as the basis of the opinion
VI. Independent Recollection of the Plaintiff
Conversations
Recollection of any statements made by the plaintiff that are not contained in record
rule out that plaintiff told physician information that caused him to act differently
Where, when and why conversation occurred
state verbatim what the plaintiff said
state verbatim what the physician said in reply
Conversations with a third person
did the plaintiff tell another health care provider information which he heard or later learned
if yes, did the information change your course of care and treatment?
Any information about the plaintiff which is not contained in the medical records upon which you rely in
support of your diagnosis, care or treatment?
VII. Independent Recollection of Conversations with Others
Did the physician consult with other health care providers about the plaintiffs diagnosis, care or treatment?
to whom spoke
the reason for consulting
what information was told to physician by other
Did physician rely on any information to form his diagnosis or select treatment?
if yes, what information
why is information relevant
VIII. The Plaintiffs Condition Before the Defendants Care and Treatment
Did the plaintiff have any pre-existing or underlying conditions that explain a bad result or the ultimate
injury?
describe the condition
Did physician know about the condition at time of treatment?
if yes, any techniques or precautions to avoid a poor outcome?
IX. The Plaintiffs Signs and Symptoms When Presented
Describe every sign supporting your diagnosis
detail how each sign was determined, e.g. heard rales on stethoscopic examination of the lungs
can signs be basis for different diagnosis
if so, list different diagnosis
Describe every symptom supporting your diagnosis
detail how each symptom was determined
can symptoms be basis for different diagnosis
X. Physical Examination Performed
State physical examination performed
portions of anatomy selected for examination
Technique for examination performed, e.g. if plaintiff had complaint of breast lump, how did physician
examine breast, including positioning of plaintiff, pattern of palpation, etc.
What were the physical findings?
XI. Tests Ordered or Obtained
Identify each test the plaintiff received
Describe your purpose in ordering the test
Is the test used when a particular condition is suspected?
Was the test used to rule out any conditions, e.g. white blood count to rule infection?
Describe every test available at time to diagnose condition at issue
why was particular test not ordered
Were any test results relied upon to form your diagnosis
if yes, identify each result
explain significance
Were any tests results relied upon to rule out a differential diagnosis
if yes, identify each result
explain basis to rule out
Were any tests ordered not available to you when diagnosed or treated plaintiff
if yes, identify test
if yes, would test result now change your diagnosis or treatment
Were the test results accurately reported to you
XII. Diagnosis of Condition
State the diagnosis of the plaintiffs condition that you made
identify each sign or symptom supporting your diagnosis
significant history relied upon in support of diagnosis
test results obtained that support diagnosis
Did the physician consider any other possible diagnosis?
if yes, what diagnosis and the basis
if not, why not considered
XIII. Treatment Plan
Based on the diagnosis made, what treatment plan was made?
procedures scheduled
medications prescribed
XIV. Standard of Care Applicable
Make physician define the term standard of care (Does it fit the legal definition?)
What is standard of care where the patient presents with the following: e.g. signs and symptoms?
Didnt the standard of care require that you do the following: e.g. order a mammogram based on the
plaintiffs complaint of a breast lump, despite your inability to feel a lump on examination?
What did the standard of care require a reasonably prudent physician to do under the circumstances?
What is the basis for your opinion regarding the standard of care applicable?
Do you know if any reasonably well qualified physicians would differ with your opinion of the standard of
care applicable?
XV. Policies and Procedures
Any published policies or procedures applicable to physicians diagnosis, care or treatment?
Hospital policies or procedures in effect at institutions where physician on staff
Organizations of which physician is a member that publish written policies or procedures applicable to issue,
e.g. American College of Obstetricians and Gynecologists Technical Bulletins regarding labor and delivery
Was the physician aware of any written policies or procedures which agreed or disagreed with his diagnosis,
care or treatment?
Does the physician agree with written policy or procedure applicable to issue involved?
XVI. Literature
Confront physician with any medical literature applicable that disagrees with his opinion of the diagnosis or
the standard of care
XVII. Causation
What caused the plaintiffs injury or death?
Can the physician state that any particular circumstances more likely than not caused the injury or death?
if yes, the basis for opinion on causation
physician should be asked to state every fact upon which he relies for causation opinion
physician should be asked to state with specificity each medical article, textbook or other writing
physician relies upon to support his opinion
Does the physician have any opinion whether earlier diagnosis/intervention would have avoided or lessened
the injury?
XVIII. Conduct of the Plaintiff
Any fault for result or outcome attributed to conduct of the plaintiff
if yes, what did the plaintiff do or not do to cause poor outcome?
Did the plaintiff comply with physicians instructions?
Assuming the plaintiff complied with your instructions, do you agree that plaintiff is not responsible for the
result obtained
I. Background
Education
engineering degrees held
advanced degrees or study
specialized training in product design
Employment history
positions held, title
responsibility in position
length of time
Prior products design experience
identify products
scope of experience
engineering of product
marketing of product
customer complaints
drafting of instructions or manuals
testing of prototypes
quality assurance
accident investigation
safety review
Industry participation
memberships to industry organizations, i.e. ASAE
committee positions
promulgation of standards
participation in safety standards drafting
industry accident analysis
II. Corporate Structure
Engineering Department
Chief of Department
Chain of command
drafting engineers
testing engineers
safety engineers
Manufacturing Department
Chief of Department
Chain of command
Plant manager
Production facility locations
Quality assurance engineers
Marketing Department
persons involved with instructions, i.e. manuals
persons involved with labeling
Customer Service Department
persons involved with warranty returns
persons involved with customer complaints
persons involved with parts replacement
Distribution Chain
company sales manager
wholesalers
retailers
III. Prior Similar Products
Prior generation products history
first version or model of product introduced
subsequent versions or models of product
lead design engineer for each version
date each product designed
date each product version produced
date each product version sold
number of units of each product sold
manufacturing cost
Safety features of original product
design changes for safety
labeling changes
manual changes
Prior accident frequency rate
increases or decreases
IV. Subject Product
History of product
date designed
date released for manufacture
date manufactured
date released for retail sale
number of units sold
Product engineering
engineering team persons and respective roles
typical engineering documents
Product development
drawing board designs
competitor products studied or compared
design alternatives considered
prototypes produced and results
prototype testing and results
prior designs discontinued
state of the art
Safety hazards to product
admit or deny hazard alleged
hazard analysis performed
failure modes and effects analysis
Accident hazard experience
reporting system
risk management personnel
complaints
warranty claims
claims made
lawsuits filed
Industry accident hazard experience
safety committee reports
accident studies
government statistics, i.e. Consumer Products Safety Commission
Safety features
safety features existing on product, i.e. devices, labels, etc.
safety considerations discussed, i.e. labels, guards, deadman switches
all persons involved in safety decisions
alternative safety designs considered
safety features rejected and why
safety features discontinued
competitor product safety features which are different
safety features relative to markets, i.e. Europe vs. United States
testing of safety features added, rejected or changed
Compliance with safety
standards applicable, i.e. ANSI, CPSC, NTSB
governmental codes applicable
industry recommended practices
subject product compliance with standards, codes, and practices
product differences with standards, codes or practices and why
V. Design Alternative Alleged
Feasibility of design
knowledge of alternative design
technical requirements
economics of design alternative
State of the art
what is it?
product capability to meet
VI. Opinions on Subject Product Accident
Conduct of user
reasonably anticipated
compliance with instructions and labels
Hazard causing injury
hazard present
mechanism for injury
why hazard arose
Design available to prevent or minimize hazard
devices
labels
Cause of injury
VII. Post Accident Design Changes
Design change implemented
date adopted
cost of change per unit
retrofits to released products
I. Deposition Objectives
Try to establish mold not caused by landlords negligence/mold was caused by plaintiffs actions
Try to establish type of mold not toxic
Try to establish plaintiffs alleged injuries not caused by mold exposure
Is there a statute of limitations defense?
II. Status Quo at Time of Move-In to Establish Base-Line
Describe the apartment when you first saw it.
Describe any inspection you did of the apartment before moving in.
Did you identify any maintenance issues before moving in?
Did you have any discussions with the landlord about the state of the apartment before you moved in?
Describe your general health at the time of the move in.
III. Mold
When did you first notice mold in your apartment?
Where was it? Was it in the bathroom/kitchen?
What was its color?
What did it look like?
What did it smell like?
Do you know what caused it?
Have you experienced any water leaks, condensation, or water damage?
Did you report such water to the landlord?
Did you report the mold to the landlord?
What steps did you take to clean or remove the mold?
Did you hire any professional cleaners?
What steps did you take to prevent future mold growth? Fans? Dehumidifiers?
Did you have any professionals or experts examine the mold? Did they tell you what they thought it
was? What they thought caused it? What kinds of risks it posed to humans?
Was anyone else exposed to the alleged mold? Any one else experience symptoms you believe were
caused by the mold exposure?
IV. Actions by the Landlord
What is your basis for believing that actions by the landlord caused the mold to grow in your apartment?
What did the landlord do when you notified it of the mold in your apartment?
Did the landlord offer to move you to a different apartment?
What conversations did you have with your landlord about the mold in your apartment?
What do you think the landlord should have done differently?
V. Medical Condition
[Go through medical records if you have them, including conditions described in the records occurring
before and after the alleged exposure.]
Describe the medical symptoms that you experienced that you attribute to mold exposure.
When was the first time you experienced any of these syptoms?
How long did they last?
Did you experience any of these symptoms before you moved into the apartment? Before you first came
into contact with the mold in the apartment?
Did you consult with a doctor about your symptoms? Who? When? Where?
Describe discussion.
Did the doctor make any diagnoses? Based on what? Any records?
Did the doctor draw any conclusions as to causes of the diagnoses?
Did the doctor refer you to any specialists? Who? When? Where? What were their conclusions?
What was the treatment regimen?
Did you follow it? Is it concluded? Was it successful? Have any symptoms recurred?
Have you ever suffered from allergies before? Asthma? Chronic bronchial inflammation?
Have you ever been tested for allergies? Dust mites? Hay fever or seasonal allergies? Air pollutants?
How were these allergies determined?
Describe how your symptoms or medical protocols have changed since vacating the residence.
Have you been diagnosed with any additional chronic health problems or allergies since vacating the
residence?
What made you believe that the symptoms of which you complain are attributable to mold exposure?
[Medical evaluation of others tenant claims were exposed to the same mold.]
VI. Causation/Statute of Limitations
[Go through other possible causes of symptoms.] Has any doctor eliminated these potential causes of
your symptoms?
Have you done any reading about mold exposure? Talked to others? Do you have an understanding as to
the state of science on any possible link between mold exposure and sustained, long-term medical
symptoms?
When did you decide to bring your lawsuit? When did you first consult with a lawyer about your
exposure to mold?

Note: This outline may be used to depose a plaintiff in many types of personal injury cases such as automobile
negligence, premises liability, medical negligence, products liability, etc.
I. General Background
Age and date of birth
Height and weight
Highest level of education and training
Marital status
Children
Military service
II. Prior Medical History
Have you been involved in any injuries or accidents before this occurrence?
describe each injury or accident
medical treatment received
any physical limitations or disability caused by injury or accident
What physicians have treated you in past 5 years?
identify each physician who has examined or treated you
describe nature of treatment, i.e. surgery, physical therapy, etc.
Hospitalizations in past 5 years?
identify each hospital visited
reason for visit
diagnosis made
treatment received
Do you suffer from any major illnesses?
diabetes, heart disease, cancer, etc.
Did any of your prior injuries or accidents involve same or similar body part?
describe complaints
did complaints exist immediately before injuries complained of now?
III. Employment History
Are you currently employed? If yes:
when did you start?
describe your duties
job title
hours of work
rate of pay
name of supervisor
physical activities involved in work duties
Where were you last employed before sustaining your alleged injuries?
when did you work for this employer?
describe your duties
job title
hours of work
rate of pay
promotions
supervisor
member of any unions
physical activities involved in work duties
Miscellaneous
specialized training in a particular employment field
part-time jobs
IV. Activities and Hobbies Before Alleged Injury
Did you play any sports before sustaining your alleged injuries?
describe sports, i.e. golf, basketball, etc.
frequency of play
when last played?
Did you engage in regular physical exercise before sustaining your alleged injuries?
bicycling, jogging, aerobics, weight lifting, etc.
frequency
were you a member of any health clubs? Where and for how long?
Did you enjoy any particular hobbies before sustaining your alleged injuries?
describe, i.e. furniture refinishing, auto mechanics, etc.
describe accomplishments with hobbies, i.e. restored antique automobile
Miscellaneous activities before sustaining injuries?
attended church
traveled
volunteered for community functions
household chores, i.e. cleaning windows, washing floors, laundry, shopping, cooking, etc.
V. Injury
Describe injuries that you experienced as a result of occurrence
fractures, lacerations, bruises, etc.
head trauma
Describe present condition of each of your injuries
VI. Medical Care and Treatment
Physicians you saw
what were your complaints when you saw physician?
when did you see physician?
what tests were performed? (i.e. x-rays, ct-scans, etc.)
what was diagnosis? (i.e. fractured ankle)
what treatment was prescribed? (i.e. medication, casting, physical therapy)
did physician give you a prognosis for your injury?
has any future medical treatment been recommended? (i.e. any scheduled visits)
amount of medical bills?
have these bills been paid?
Hospitalizations
when
what were your complaints?
tests performed
results of tests
physicians you saw in hospital
amount of hospital bills and if paid
VII. Lost Income
Were you unable to work as a result of your injuries?
dates off work
rate of pay while off work
benefits received while off work, i.e. sick pay, vacation time, etc.
Have you returned to work since your injury?
describe limitations to performing job duties
identify physicians who have restricted work activities
Future plans to return to work
when
type of work planned
describe decreased capacity to perform former job duties
reduced rates of pay or salary
types of work able to perform in other fields
VIII. Disability
Are there activities or hobbies that you enjoyed before occurrence which you are unable to do now?
list activities or hobbies affected
describe why unable to do them
any attempts to do them
Are there activities of daily living that you are unable to do as a result of occurrence?
list household chores, bathing, dressing, etc.
who performs activities of daily living for you?
cost of help
bills paid
IX. Disfigurement
Do you have any scars or physical deformities as a result of injuries?
describe scar or deformity
identify size, color and location
does color change with suntan or hot water?
Any desire to have it surgically corrected?
physicians visited
treatment proposed
cost
X. Pain and Suffering
Did you have any physical pain as a result of occurrence?
describe pain, i.e. dull or sharp ache, numbness, headache
frequency, i.e. daily, weekly, chronically
medications taken to relief
Did you experience any mental suffering as a result of occurrence?
describe mental suffering, i.e. nightmares, fear of driving, depression, etc.
frequency
medication prescribed to treat
therapy received, i.e. counseling
Other Expenses
transportation costs, i.e. taxi cabs, ambulance fees
appliances and aids, i.e. canes, wheelchairs, etc.
cost and if paid
XI. Post-Accident Injuries or Illnesses
Have you sustained any other injuries since date of occurrence?
describe injuries
do your new injuries cause physical limitations
do your new injuries cause you to miss work
have your new injuries interfered with your hobbies or activities
Have you suffered from an illness since date of occurrence?
describe illness
does illness require continued medical care?
does illness cause disability?
loss of income due to illness

I. Qualifications
years attended
where
what years
Fellowships
what specialty
Medical Licensure
year
State
Board Certifications
area of specialty
make and describe special qualifications
why written
research used
peer reviewed
Lectures, presentations or seminars applicable to the area of medicine involved
research performed
Teaching and Academic Appointments
subject matter, classroom or clinical
Private practice
how long
define patient population, e.g. adult orthopedic patients
Staff privileges
hospitals
specialty
II. Physical Examination of Plaintiff
First contact with the Plaintiff
date
how referred, i.e. other physician or attorney
chief complaint
Medical history obtained
onset of complaints in relation to date of occurrence
pre-existing conditions related to complaints
emergency room care
History of occurrence described by plaintiff
did plaintiff describe traffic events
did plaintiff describe body mechanics on impact
information regarding safety restraints, i.e. seat belts
Physical examination
describe examination performed
purpose of examination
objective findings elicited, i.e. limitation of motion, pain on palpation
subjective findings, i.e. pain
Radiographic studies obtained ordered
results
significance to complaints
Diagnosis made
define condition
history and findings on examination which support
other basis for diagnosis, i.e. literature, consults
other medical records of patient reviewed or supporting diagnosis
common causes condition diagnosed
Treatment
physical therapy
pain medications
anti-inflammatory medications
medical devices prescribed
surgical procedures recommended
Non-compliance of plaintiff with treatment recommendations
Prognosis
permanent v. non-permanent condition
Future treatment
treatment required
likelihood of improvement
Cost
reasonable and necessary medical bills
III. Legal Causation Opinions
Opinion that occurrence is the likely cause of plaintiffs condition (injury)
basis for the opinion
other potential causes
Opinion that injury is competent cause of pain and suffering
other causes
Opinion that injury is cause of disability
types of limitation that injury causes, i.e. standing, running, etc.
Opinion that injury is cause of disfigurement
describe disfigurement
remedies available
Opinion that injury caused inability to work productively
types of physical limitations injury produced
alternative activities available
projected return to work date
Other opinions physician holds
490 Outline for Deposing Plaintiff in a Land Use Case to Establish Lack of
Standing
(1) Establish distance and obstructions between plaintiffs residence and site of potential development.
(2) Determine whether there are any impediments to plaintiff proceeding, such as zoning deficiencies in
plaintiffs property.
(3) Establish plaintiff had opportunity to participate in administrative process.
(4) Determine whether plaintiff even understands substance of administrative decision being challenged.
(5) Identify and pin down alleged grievances.
II. Background and Location
(6) Name, brief educational background, brief work history
(7) Where do you live? Please locate on Zoning Map, mark with an H for home, and initial.
a. Do you own or rent your residence? Do you live with anyone else?
b. How long have you lived there?
c. Describe the neighborhood that you are in. What is directly across the street from you? Scale, use?
(8) In which zoning district do you live?
(9) Are you located within the same zoning district as the proposed development?
(10) Do you know if residential uses are permitted in the zoning district in which you live?
(11) Do you know if your home complies with all applicable zoning regulations?
(12) Have you ever measured the distance you live from the proposed development? Estimate? How long does it
take you to walk there from your home?
(13) Are you an abutter to the proposed development? Are you an abutter to an abutter to the proposed
development?
(14) Do you own any other property in the municipality? Where is it?
(15) Do you own an automobile? Do you drive in the municipality? How often? What purposes? Do you drive
to the area of the proposed development? How often?
(16) Have you ever driven directly from your home to the proposed development? If so, how long did it take you
to drive? If not, how long would you estimate it would take you with no traffic? With normal rush hour
traffic?
(17) Can you see the site of the proposed development from your home? What kinds of structures are between
your home and the site of proposed development?
(18) Are you on the same plain as the site of the proposed development, or is there some elevation difference?
(19) Have you ever been able to see from your home any lights from any of the buildings immediately adjacent
to the site of the proposed development?
(20) Have you ever been able to hear from your home any noises from any of the buildings immediately adjacent
to the site of the proposed development?
(21) Has any building immediately adjacent to the site of the proposed development ever cast a shadow that fell
across your property?
(22) How many times in the past year have you been at the site of the proposed development?
(23) Where do you currently work? Please describe on the Zoning Map.
(24) Please describe the path you take on your commute to work. What is your mode of transportation?
(25) How is it that you came to be a plaintiff in this lawsuit? What was your motivation for joining the lawsuit?
(26) What is the relief that you would like to achieve from your lawsuit?
(27) Have you agreed to pay for any of the expenses for this lawsuit?
(28) Identify other lawsuits in which you have been a plaintiff?
(29) Identify other administrative decisions that you have appealed/challenged?
(30) Have you ever been deposed before? In what context? By whom?
(31) Have you ever written any articles or letters to the editor that have been published about any development
issues in the municipality?
(32) Describe how you participated in drafting the complaint.
(33) Walk through the allegations in the complaint.
III. Ability to Participate in the Political Process
(34) I want to ask you about your involvement in development and housing issues in the community. What
organizations do you belong to whose mission relates at all to development, housing, or traffic issues in the
community?
(35) How many members? Mission? Your position? Who does it purport to represent? Decision-making
process? Has it taken a position on the proposed development?
(36) What public bodies have you appeared before relating to development, housing, or traffic issues in the
municipality? Have you appeared before local planning boards?
(37) What letters have you written to any public official in the past year on development/permitting issues?
(38) Describe how you participate in the appointment of the members of the local Planning Board. Campaign for
any of them?
(39) Do you know any members of the Planning Board personally? Do you consider any of them to be your
friends?
IV. Communications
(40) Identify all communications with the other named plaintiffs regarding this lawsuit, or any development or
permitting at the locus.
a. Do you personally know the other plaintiffs?
b. Are you a member of any organizations with any of the other plaintiffs?
c. Do you know how the other named plaintiffs joined?
d. What conversations have you had with the other named plaintiffs about the proposed project?
e. Do you know what impacts each of them claim?
f. Have you talked to any of the other plaintiffs about their depositions?
(41) Identify all communications with anyone from the municipality, including the Planning Board, regarding
development or permitting at the locus.
(42) Identify all communications with anyone from the developer regarding development or permitting at the
locus.
(43) Identify all communications with the media, including any letters to the editor, regarding development or
permitting at the locus.
(44) Identify all communications with any organization regarding development or permitting at the locus.
V. Due Diligence
(45) What is your understanding as to what is allowed by the zoning decision you are appealing? What did you
do to make that investigation?
(46) In what ways did you participate in the process leading up to the Planning Board decision that you are
challenging? Attend any of the hearings?
(47) What do you understand the developer wants to build at the locus? Basis? How did you investigate?
(48) Putting the Planning Board Decision aside, do you know what could be developed at the locus as of right
now, in other words, without permission from the Planning Board under the applicable zoning laws?
(49) Have you studied the proposed design?
(50) Do you know how many stories are in the building that the developer would like to build? Do you know its
zoning height? Do you know the front or side setback? Do you know the lot size, size of footprint, or the
floor area ratio?
(51) Have you performed any studies of the potential impact from any proposals for the location? Have you
studied or hired a consultant to study the impact from traffic, noise, wind, shadows?
(52) Have you investigated what the potential impacts would be from different build scenarios without special
permits for the site?
VI. Grievances from Building that the Developer would like to Build
(53) Please list all your grievances from the Decision of the Planning Board. Have I exhausted your list?
(54) Please list all your grievances from the building the developer would like to build at the locus. Have I
exhausted your list?
(55) Lets go through them one by one. Please articulate facts in support of each grievance. In what way is each
grievance special and different for you as opposed to the neighborhood as a whole?
(56) [Consider]:
a. Traffic
b. Noise
c. Shadows
d. Wind
e. Architecture
f. Aesthetics
g. Character of the neighborhood
h. Safety
(57) Please compare each of these impacts to the structures and uses permitted within the district under current
zoning.
(58) Is there anything about the proposed development that you think would be beneficial? Anything that you
see as an improvement over what is there now?
495 Outline for Deposing Defendant-Judgment Debtor on Income and

Assets Under Fed. R. Civ. P. 69(a)
(1) Identify assets available for attachment or trustee process.
(2) Identify sources of income for garnishment.
(3) Identify possible insurance.
(4) Identify defendants other debts and a list of other creditors and the possibility of a bankruptcy filing.
(5) Identify any possible fraudulent transfers.
(6) Identify any gaps in production of documents in response to a request for documents related to income and
assets.
II. Defendants Assets
(1) Please identify by address all real property that you have owned over the past three years.
a. Where do you live?
b. Do you have any vacation homes?
c. Do you own any investment properties?
d. Does anyone pay rent to you?
(2) Please identify all real property for which you have held an option to purchase or right of first refusal for
the past three years.
(3) Please identify all real property held in trust for which you have been the trustee or beneficiary for the past
three years.
(4) For each such property identified, identify any mortgages, liens, or other encumbrances thereon.
(5) Have you filed a declaration of homestead or similar filing with the registry of deeds for any of those
properties?
(6) Please identify all boats, automobiles, motorcycles, or other passenger vehicle you have owned over the
past three years.
(7) For each such boat or vehicle, how much did you pay? Where is it currently located? What is its condition?
(8) Please identify all items of personal property that you own with a value in excess of $1,000, including any
jewelry, antiques and furniture.
(9) What sales or transfers of real or personal property have you made in the past three years? To whom were
the items transferred? What value was received?
III. Investments and Sources of Income
(1) Identify all jobs you have held the past three years? Who were your employers?
(2) How much did you make each year?
(3) Have you made any payments into any retirement accounts, such as a 401(K) plan? Did you ever have an
employer who matched any such contribution to a retirement plan?
(4) What were your job titles and responsibilities?
(5) Identify any other sources of income.
(6) Do you own a stake in any business, including partnerships or joint ventures? What is the stake? Do you
receive any income from the business?
(7) Identify your investments, including stocks, mutual funds, bonds, bond funds, options, or other securities or
negotiable instruments you own. Current value? Where held?
(8) If you have sold any investments in the past three years, what did you sell, how much did you realize, and
what did you do with the proceeds?
(9) In the past three years, have you worked with any investment advisors, money or asset managers, or stock
or investment brokers?
(10) If so, who? With whom are they affiliated? Where are they located? What are their fees?
(11) Do you have any savings, checking, money market, certificates of deposit, or other accounts with any
financial institutions? If so, where? How much?
a. Any off-shore or foreign held accounts?
(12) What withdrawals have you made the past three years? How much? What did you do with the funds you
withdrew?
(13) Are you the beneficiary of any trusts?
(14) How much have you paid in taxes the past three years? Income? Capital gains? Property? Excise? Federal
vs. state vs. municipal?
(15) Have you been audited the past three years?
(16) Do you work with an accountant? Has any accountant the past three years helped you with a personal
balance sheet?
IV. Insurance Policies
(1) What insurance policies do you have? What types?
a. Home-owners?
b. Auto?
c. Liability?
d. Malpractice?
e. Directors and officers? Key-man insurance?
f. Excess or umbrella insurance?
g. Supplemental insurance?
(2) With whom? In what amounts?
(3) Who are the beneficiaries?
(4) What claims have you made on any insurance policies the past three years? Have you made a claim on any
insurance policy in connection with this case?
(5) Did you provide notice to any insurance carriers in connection with this case?
(6) Did you send a copy of the Complaint to any insurance carrier?
(7) What correspondence have you received from any insurance carrier in connection with this case?
V. Transfers
(1) When did you first learn that you might be sued?
(2) Since then, have you transferred anything of value to your spouse?
(3) Have you transferred anything of value to any other family members or to friends?
(4) Have you set up any trusts?
(5) Have you set up any corporate entities to hold any of your assets?
(6) Have you transferred any real or personal property for which you received consideration less than the fair
market value?
(7) Have you transferred any money or assets outside of the United States?
VI. Other Creditors
(1) Do you owe any debts? To whom? How much?
(2) Have you taken out any bank loans the past three years? Status?
(3) What home mortgages do you have?
(4) Car loans?
(5) Any other liens or encumbrances on your real or personal property?
(6) Have you ever filed for bankruptcy?
(7) Have you consulted with a lawyer about filing for bankruptcy in the past three years? After you came to
believe that you would be sued in connection with this case?
(8) Have you or anyone on your behalf prepared any papers for a bankruptcy filing?
(9) Have you identified any creditors in connection with a potential bankruptcy filing?
Chapter 5
Procedures for Taking and Defending a

Deposition


515 Using Exhibits
516.1 Procedures for Audio Visual Depositions Under the Uniform Audio Visual Deposition Act
521 The Oath
542 Recesses
561.4 Reopening a Deposition for Examination With Respect to Corrections/Amendments to the
Deposition Transcript
563 Indexing

This chapter will focus on the procedural steps which must be taken in commencing and carrying out a deposition.
The day and time of the deposition has arrived. You have served the notice and subpoena, if necessary, arranged for
a reporter, and completed all necessary preparation. The reporter, witness and defending attorney are present. It is
time to take the deposition.

The deposition begins the moment the witness and opposing attorney arrive. From that point until the moment the
witness leaves your sight, you are on stage and your demeanor becomes part of your overall deposition strategy. Do
you want the witness to be relaxed and comfortable, or do you want him suspicious and on guard? How you
conduct yourself when you first meet the witness can make a difference. A friendly open greeting in the reception
area and informal small talk as you walk to the conference room can relax the witness and allay his suspicions
concerning the ordeal you are about to put him through. A tense formal approach without the customary niceties
will cause the opposite result.
Whichever tactic you choose, remember that you are the person who controls the show. It is the obligation of
counsel to advise the client who is to be deposed on their clients right to assistance of counsel at a deposition. The
party noticing the deposition has a corresponding right to expect the witness will cooperate in the deposition
regardless of whether counsel elects to be present.

Do you object to the presence of any persons the defending attorney has brought or allowed into the deposition? If
so, try to resolve the matter immediately. If you cant, and the presence is a serious matter to you, consider
adjourning the deposition to file a motion for a protective order. If you have reason to believe in advance of the
deposition that objectionable persons might attend, try to find out who opposing counsel intends to bring along. You
can then seek a protective order prior to the deposition. See Chapter 3.

Most nonparty deponents will not be represented by counsel. On occasion, parties will also appear pro se. In these
cases, it is your obligation to advise the deponent on their right to assistance of counsel at a deposition. Just the
same, the party noticing the deposition has a corresponding right to expect the witness will cooperate in the
deposition, regardless of whether the deponent elects to have counsel present.
But what if the deponentparticularly a partyhas counsel of record? Imagine this scenario: You, as counsel for
defendant, notice the deposition of the plaintiff, who has counsel of record. On the day appointed for the deposition,
the plaintiff appears as scheduled ... but without her attorney. Can the deposition continue? Generally, yes. In the
case of Fisher v. Goord, 184 F.R.D. 45 (W.D.N.D. 1999), the plaintiff in a federal civil rights action, appeared for
her deposition without her attorney, and the deposing attorney proceeded with the deposition. Upon review, the
District Court held that the applicable state ethics rule (DR 7 - 107) generally prohibits a lawyer from
communicating with a represented party unless the communication is authorized by law, or where the attorney for
the represented party consents to the communication. See DR 7 - 104 A. 1. N.Y. Jud. L. Appendix (McKinney 1992).
As such, the court held:
A duly noticed deposition, pursuant to the Federal Rules of Civil Procedure, is a form of communication authorized
by law. There is, moreover, nothing in Fed. R. Civ. P. 30, governing the conduct of oral depositions, to suggest that
the deposition of a represented party cannot go forward in the absence of such partys attorney where such counsel
have been duly noticed and affirmatively state they will not appear. Where, however, as here, a partys attorney
voluntarily relinquishes his right to appear at a properly noticed deposition, and raises no objection to the conduct
of the scheduled deposition by motion or otherwise, these salutary purposes should not be applied to defeat the
orderly progress of discovery pursuant to the applicable rule. Fisher v. Goord at 47.
Most attorneys would not dream of letting their client attend a deposition without counsel. However, an attorney
who is in the process of withdrawing from a clients case (for whatever reason) may be under the mistaken
impression that a deposition cannot be held without counsel of record present. The holding in Fisher shows this is
not the case. As such, counsel in the process of withdrawing from the representation of a deponent should take
affirmative steps to either reschedule the deposition or obtain a protective order.

The reporter will usually arrive a few minutes before the scheduled time for the deposition to set up his equipment.
Most reporters prefer to sit at the end of the table, between the examiner and the witness, who are across from each
other. Many reporters prefer a chair without arms. The reporter should be provided with several items:
The notice of deposition or other pleading from which to take the caption of the case.
The names of opposing counsel, the witness, and other persons who will be present. (If numerous, a seating
chart is helpful to the reporter.)
A list of any names or words that may come up during the deposition that have difficult or unusual spellings.
In addition, if you have not pre-marked the exhibits that you have used, you may want to request the reporter to
mark them prior to commencing the depositionit will allow the deposition to proceed more quickly and without
interruptions for marking exhibits. However, once a document is marked as an exhibit, opposing counsel may have
a right to see it; if you have surprise documents or those you do not want opposing counsel to see before the
deposition, you may not want them to be marked in advance.
515 Using Exhibits

Attorneys in different jurisdictions have different procedures for marking deposition exhibits. In some, plaintiffs use
numbers and defendants use letters. In others, numbers are used by both sides but they apply only to the deposition
being taken. This can easily cause confusion as you begin to prepare for trial and try to determine which exhibit
number 27 or letter H was used in what deposition. The problem is compounded as you begin to create your list of
trial exhibits which again will have separate numbers or letters.
If there are going to be a large number of depositions, consider seeking an agreement that counsel for both sides will
mark exhibits sequentially and use them throughout the depositions, without the need to remark them in successive
depositions. This avoids the same document having a different exhibit number or letter in each deposition, and each
party having the same document marked as a different exhibit. It will also eliminate confusion when you are trying
to determine which exhibit the deponent was referring to in a given deposition.
If you use a sequential numbering system, you will find it helpful to maintain two lists of the exhibits that have been
marked: one in numerical or alphabetical order with exhibit number or letter, the date of the exhibit and a brief
description; the second in chronological order, with the date, exhibit number or letter, and a brief description. These
lists make it easy to retrieve a particular exhibit because you will likely know its approximate date even if you cant
recall its number.
You should bring three copies of any new exhibits to the deposition: one for the witness, one for opposing counsel
and one for yourself. The reporter will usually mark the witnesss copy with a stamp or some other insignia and that
copy will be filed with the deposition.

If you are audiotaping the deposition, be sure to have quality equipment and test the location of the microphones.
Lapel microphones for each person are preferable to table microphones. If you do not have a separate operator, be
sure that you are fully familiar with the operation of the recorder. If there is no stenographer, use a backup recorder.
Video depositions are used today with increasing frequency. If you have decided to take a video deposition (see
141) you must be prepared to act at the deposition not only as the questioner, but also as the stage manager. Taking
a video deposition can be relatively simple, but it can also be as complex as a television production. The simplest
video deposition consists of one camera and one operator who maintains focus upon the witness throughout the
deposition. For every video deposition, however, you must do the following before the deposition starts:
1. Make sure your notice of deposition complies with your local rule for taking a video deposition. See 231.
2. Make sure that the camera operator has the right equipment and sufficient experience. Before the deposition
begins, ask the operator whether he has adequate lighting; an indexing camera; adequate microphones (not
merely camera-mounted); sufficient video tapes for the anticipated length of the deposition; capability to
mark or highlight portions of testimony; capability to scan, zoom, or switch focus from attorney to
witness.
Also inquire about the operators experience. In your hometown or state, you know who the good operators
are. In foreign states, however, you may be unpleasantly surprised to learn at the deposition that you have
hired a utility videographer with no deposition experience. Do not panic, but remember that inexperienced
operators can ruin your deposition either by disrupting the deposition with unnecessary interruptions and
breakdowns or by giving you a blurry, dark, incomplete, or poorly framed recording. If the operator appears
inexperienced, take the time to explain what you expect and answer his questions.
3. Have a clear understanding with all other attorneys concerning procedures. What you understood at the time
the deposition was scheduled may have changed. Even though there is a stipulation or order governing
procedures (see 231), review with the attorneys any special filming or recording techniques you wish to
employ. Make sure the camera operator and court reporter are present for this discussion. Consider covering
the following points:
a. Should the camera show only the witness, should it switch back and forth between the questioner and the
witness, or should it use a wide enough angle to show both the questioner and the witness
simultaneously?
b. Should the camera be permitted to zoom in on exhibits, or should it separately film exhibits at the time
they are marked or commented upon by the witness?
c. May the camera employ close-ups on the witness during answers or should it be restricted to a head-and-
shoulders shot throughout the examination?
d. Should the camera shift to an objecting attorney during the objection? Often this is impractical because
objections are registered with one or two words. If, however, the objection contains a long explanation
or if colloquy develops, should the attorneys be on camera?
e. What part of the witness or attorney may the camera showface only, upper torso, or a sufficiently wide
shot as to capture gestures, posture, etc.?
f. May the witness demonstrate during the deposition? Similarly, may the witness move to or use a pointer
with blow-ups, charts, or photographs?
g. May the camera pan or focus on anything else during the deposition, such as the court reporter, other
attorneys, or surroundings?
h. Where, precisely, should the camera be located during the deposition?
i. May the location of the camera change during the deposition so as to capture different attorneys during
cross-examination, to add interest, etc.?
If you are taking a video deposition pursuant to the amended Federal Rules of Civil Procedure, remember that those
rules now require you to insure that there is no improper recording on the videotape. Amended Federal Rule
30(b)(4) states that the appearance or demeanor of opponents or attorneys shall not be distorted through camera or
sound recording techniques. Any camera techniques which improperly highlight witnesss or attorneys voice
inflection, nervousness, posture, or demeanor would seem to be prohibited. If you have a clear understanding with
opposing counsel concerning exactly what the camera can or cannot do during the video deposition, you will likely
avoid any claims later by your opponent that the camera techniques have violated amended Rule 30(b)(4). If you are
defending a video deposition, you should also be aware of this provision in the event that your opponent feels he
can videotape the deposition in any manner he wishes.
Obviously, if you are to make all of these arrangements, both you and the video operator must set up well before the
deposition starts. Put the camera in several different locations and test run some questions. You then have your
choice of seats and backdrop. You can also orchestrate, to some extent, where everyone else sits. Take the time to
review yourself on film and imagine the deposition being played at trial. Do everything possible to avoid monotony.
Try to obtain some flexibility from the court or counsel to allow frequent camera movement and alternating camera
shots. Never try to both take the deposition and run the camera.
If you wish, you may consider more advanced and complicated techniques for video depositions. One method is to
use multiple camerasusually three: one on the witness, one for the questioning attorney(s), and one for the
exhibits. These three recordings can later be edited together, including split-screen images, for the maximum effect
at trial.
Also investigate laser disks or use of so-called video multi-disk recorders. These can greatly enhance both the image
and access to the image. By using laser disks to store video depositions, the attorney can instantly access testimony
or exhibits by using a bar-code scanner. This eliminates the time and distraction involved in rewinding or advancing
videotape during trial presentation. Also, the image is much cleaner and can be indefinitely displayed.
It is important to remember that a videotape deposition is still governed by the Federal Rules of Civil Procedure.
Remember that Fed. R. Civ. P. 32(d)(3)(B) requires that any error or irregularity in the manner in which the
deposition is taken is waived in the absence of a timely objection made at the time the deposition is taken. Similarly,
Fed. R. Civ. P. 32(d)(4) establishes waiver of objections to the manner in which the deposition is prepared, signed
... or otherwise dealt with by the officer under Rules 30 and 31 .... Therefore, any objections which you may have
to the staging of the deposition must be stated on the record to avoid any potential waiver. Hopefully, either
through court order or stipulation, the staging and production aspects of the video deposition are of no surprise at
the time the deposition occurs.
Remember, however, that both Rule 32(d)(3)(B) and Rule 32(d)(4) set up the waiver on the basis of errors, or
irregularities which were ascertainable or which might have been obviated at the time of the deposition. You
should therefore consider requesting, in addition to the camera and recording equipment, a monitor so that all
counsel can view the deposition as it is progressing. Should there be objections to close-ups, on-camera
demonstrations, etc., you can voice the objections in conformity with the rules and avoid a claim of waiver.
Conversely, if you are taking the deposition and opposing counsel later objects to any recording techniques,
consider raising the above rules as a response since, in most cases, opposing counsel could himself have requested a
monitor so as to ensure that no offending techniques were used.
If you are videotaping the deposition, have the camera operator set up well in advance of the deposition. Make sure
you are satisfied with the location of the camera, the lighting, and the microphones. If you are not experienced with
video depositions, you may want to have a few practice questions recorded, so that you can review yourself on film.
You should have a separate operator for the camera; do not attempt to operate the camera yourself.
At this point, you should instruct the camera operator about camera techniques, i.e. whether the camera should focus
on the witness, switch back and forth between you and the witness, whether the camera should be turned off during
colloquy of counsel, etc. If these issues are not covered by an order of the court, work out an agreed set of
procedures with opposing counsel.
At the beginning of the deposition, you or the stenographer or operator should make a brief statement regarding the
proceedings similar to that which the stenographer inserts in the record of a written transcript. For example:
This is the deposition of __________ being taken in civil action no. _____, __________ v. __________, in the
United States District Court of ________. The witness is being deposed as an officer of defendant __________.
The deposition is taken pursuant to notice (stipulation) (order of court) at the offices of __________. The date is
__________, and the time is __________.
The deposition is taken by myself, __________, as attorney for the plaintiff. Will each person present please
identify themselves and state their relationship to this civil action or the parties.
The video camera operator is ______________. The stenographer is __________.
This is also the time to state all stipulations or court orders applicable to the recording of the deposition by audio or
videotape.
If your video deposition is governed by the amended Federal Rules of Civil Procedure, you should note the new
provision under Rule 30(b)(4), which prescribes a mandatory statement by the officer (reporter) recording the
deposition. The statement must include the officers name and address, the depositions date, time, and place, the
name of the deponent, the administration of oath, and the identification of persons present. In addition, for non-
stenographic depositions, all identifying items must be repeated at the beginning of each new recording unit or use
of new recording medium. Finally, the officer must make a statement at the conclusion of the deposition that the
deposition is complete. All matters and stipulations must be made part of the record concerning custody of the
transcript or recording. When such a statement is made, be sure to take into account the amended provisions of Rule
30(f)(1) and (2).
As you proceed with your examination, keep in mind that a video deposition will record your demeanor as well as
your words. Make sure that your pace, mannerisms and tone follow your courtroom techniques, and not your more
informal deposition manner. The defending attorney must likewise be careful about his appearance and conduct and
that of his witness.
If you plan to use the videotape at trial, consider having your witness review potential exhibits before the deposition
or during recesses. You should also have your exhibits organized and premarked. You do not want long silent
stretches of deposition video as you fumble for exhibits or the witness reviews unfamiliar documents. As at trial, try
to present the witness in a manner which will keep the trier of fact attentive.
Objections during a video deposition present special considerations. If the objecting attorney follows his normal
habit of objecting after the question but before the answer, editing of a videotape and preparation of the deposition
testimony for trial becomes more difficult. Here, more than ever, the objecting attorney should not speak over the
witness. If this happens, everythingquestion, answer, and objectionshould be repeated.
All attorneys should consider anew that all objections are preserved except as to form. Unnecessary, interrupting
objections should be avoided. Also, since in most cases the videotape will be edited according to the courts pretrial
rulings on objections (see 1055), it is a good idea to restate any important question after the objection. Then,
depending upon the ruling, only the objection need be edited.
While a primary reason for taking a video deposition is the increased impact of the witnesss testimony at trial, keep
in mind that if that impact is overdone, the video may not be admitted. For example, Marsee v. United States
Tobacco Co., 866 F.2d. 319, 321 (10th Cir. 1989), involved a claim against a manufacturer of chewing tobacco
brought by the mother of an oral cancer victim. The trial court refused to admit the plaintiffs videotaped testimony
of another severely disfigured, post-surgical oral cancer patient. Applying FED R. EVID 403, the trial court held that
the videotapes probative value on the issue of causation of the decedents oral cancer was low, whereas the
prejudicial effect of the video deposition on the jury might be great.
When you conclude your examination, you should state who the next examiner is, particularly if the camera stays on
the witness.
516.1 Procedures for Audio Visual Depositions Under the Uniform Audio Visual Deposition
Act
While the Uniform Audio Visual Deposition Act has been adopted only by a few states, its provisions provide
guidance in jurisdictions, including the federal courts, as to the procedures to be followed:
1. Notice
The notice for taking an audio-visual deposition and the subpoena for attendance at that deposition must state
that the deposition will be recorded by audio-visual means.
2. Procedure
The following procedure must be observed in recording an audiovisual deposition:
(1) (Opening of Deposition.) The deposition must begin with an oral or written statement on camera which
includes:
i) The operators name and business address;
ii) The name and business address of the operators employer;
iii) The date, time, and place of the deposition;
iv) The caption of the case;
v) The name of the witness;
vi) The party on whose behalf the deposition is being taken; and
vii) Any stipulations by the parties.
(2) (Counsel.) Counsel shall identify themselves on camera.
(3) (Oath.) The oath must be administered to the witness on camera.
(4) (Multiple Units.) If the length of a deposition requires the use of more than one recording unit, the end of
each unit and the beginning of each succeeding unit must be announced on camera.
(5) (Closing of Deposition.) At the conclusion of a deposition, a statement must be made on camera that the
deposition is concluded. A statement may be made on camera setting forth any stipulation made by counsel
concerning the custody of the audio-visual recording and exhibits or other pertinent matters.
(6) (Index.) Depositions must be indexed by a time generator or other method specified pursuant to Section 6.
(7) (Objections.) An objection must be made as in the case of stenographic depositions.
(8) (Editing.) If the court issues an editing order, the original audio-visual recording must not be altered.
(9) (Filing.) Unless otherwise stipulated by the parties, the original audio-visual recording of a deposition, any
copy edited pursuant to an order of the court, and exhibits must be filed forthwith with the clerk of the court.

Telephone depositions are expressly authorized by Rule 30(b)(7), which was adopted, in part, to promote efficiency
and cost savings in pretrial discovery. If you have decided that there are no compelling tactical disadvantages to a
telephone deposition (see 142), you may set the deposition following relatively simple procedures (see 142 and
232). The taking of a telephone deposition, however, presents special problems which, if not properly handled, may
outweigh any cost savings. Consider the following points:
You need to ensure before the deposition begins that all persons involved (witness, attorneys, and court
reporter) can hear each other at all times. This sounds simple, but phone systems with different conferencing
features can create great confusion, particularly where two people speak at once. Often the best arrangement
is simply to have every participant with his own phone. The court reporter, obviously, will need a speaker
phone. Regardless of the system employed, be sure to make a record at the beginning of the deposition that
the sound is good and that all participants are able to hear each other. In a telephone deposition, the great
risk is that a witness will change helpful testimony by claiming that he misunderstood the question due to the
telephone connection. There is little you can do unless you have established at the beginning of the
deposition and periodically throughout the deposition that the communication system is working.
You must be sure that the oath is properly administered. If the court reporter is present with the witness, the
oath can be administered in a normal fashion. If not, the court reporter cannot verify the voice, raising of the
right hand, etc. If the court reporter is not with the witness, you will want to have someone authorized to
administer the oath present at the beginning of the deposition (but see Rule 30(c), which may require the
court reporters presence). This is a matter concerning which you will want to have a clear stipulation on the
record or a court order dealing with the administration of the oath. On balance, it is better to have the court
reporter with the witness so he can administer the oath, handle documents, and see and hear the witness.
You will want to identify on the record everyone on the line or present with the witness. A telephone
deposition presents a unique opportunity for unfair participation by non-witnesses. An opposing attorney,
friend, or co-employee can more easily pass notes, coach, or whisper answers during the deposition. Be alert
to this during your questioning. If you suspect a witness is receiving outside help, you must inquire as to
the source of the witnesss information. You can also ask the court reporter before the deposition to note
conferences and the persons conferring in the same manner in which he would note recesses. Inform all
participants that you have given the court reporter special instructions in this regard. Finally, consider the
possibility of having some local representative of your party present in the room during the deposition.
Make sure to emphasize at the beginning and throughout the deposition that the record must be kept clear.
Pay special attention to avoiding nods, simultaneous speaking and unclear words. For this reason, plan to
outline your questions more precisely and speak more slowly than in a face-to-face deposition.
Make arrangements for your documents with extra care. You will not have the comfort of seeing your exhibit
marked, pointing to parts of the exhibit you wish the witness to examine, or asking the witness to mark on the
exhibit. Therefore, do the following in advance of the deposition:
1. Decide which exhibits you definitely need;
2. Mark those exhibits with your own numbers, using your stipulated numbering system (make sure the court
reporter is not required to use any special numbers or stamps);
3. Send copies of all marked exhibits to the court reporter and all attorneys. You may also send them to the
non-party witness;
4. Consider highlighting special portions of the exhibit you will be discussing during the deposition;
5. Make sure during the deposition that both you and the witness refer to exhibits by number, page, paragraph,
etc.;
6. Arrange for the court reporter to retain all copies and original exhibits used during the deposition, and to
return them to you as a part of the deposition transcript.
Be sure that all arrangements for filing, signing, handling of exhibits, and changes are put on the record.
Also note all stipulations and orders relating to the manner in which the deposition is taken. Typically this is
done at the conclusion of the deposition. Your intent is to ensure that any errors or irregularities in the taking
of the deposition are waived by opposing counsel. See 142 and 232, supra.

The Rules do not recognize any distinction between a deposition which is taken simply to discover information (but
might later be offered at trial), and a deposition which is specifically taken with the intent of offering it into
evidence at trial. Nevertheless, there are certain distinctions. For example, often courts will allow a deposition for
the express purpose of introducing it at trial to be taken after the discovery cutoff date, at least if the witnesss
unavailability could not be reasonably anticipated.
Another instance in which a distinction is noted between a discovery deposition and a testimonial deposition is
when a party seeks to take two consecutive depositions of the deponent: the first deposition is discovery of the
witnesss knowledge; the second deposition, which immediately follows, is the testimonial deposition in which the
examiner asks only those questions, based upon the first deposition, that he will want to offer into evidence. The
second deposition is taken in a manner so as to maximize the effectiveness of the testimony.
In essence, this two-deposition approach is simply an editing procedure. While perhaps it is objectionable, asking
questions two times in depositions is no more than would occur in a deposition plus trial; on the other hand, given
the editing now used in a videotaped deposition, the need for the two-deposition approach has diminished.

When the preliminaries are complete, the deposition is set to commence. Either by custom or local rule, one attorney
for each party is normally entitled to examine each witness. See, e.g., Local Rule 11, B (W.D. Mo.). Your first step
is to ask that the reporter swear in the witness. After that, you can proceed with your examination unless you or
anyone else needs to make a statement for the record.
521 The Oath

The deposition formally commences when you ask the reporter to administer the oath to the witness. If the witness
refuses to take the standard oath, the reporter should ask him to simply affirm that he will tell the truth. Under Fed.
R. Evid. 603, a witness need only declare that he will testify truthfully by oath or affirmation in a form calculated
to awaken the witnesss conscience and impress the witnesss mind with the duty to do so. Some examiners
interrogate as to the meaning to the witness of taking the oath, but usually it is unproductive, even as to subsequent
impeachment. Of course, such examination may be objectionable if it inquires into religious beliefs. See Fed. R.
Evid. 610.
The oath must be given by a proper officer and the testimony must be recorded by the officer or someone under his
direction. See Rules 28(a) and 30(c). Remember that under the amended Federal Rules of Civil Procedure,
whenever the deposition is taken by nonstenographic means, the deposition will not be proper or admissible unless
the administration of the oath is on the videotape or audiotape in accordance with Rule 30. For further discussion,
see 515.

For those inexperienced in taking or defending depositions, one of the most stressful moments of the deposition is
right in the beginning when opposing counsel turns directly to you and asks, What stipulations do we want to have
for this deposition? The right of the parties to stipulate to certain deposition rules is provided in Federal Rule of
Civil Procedure 29. What Rule 29 and the ancillary state court rules mean is that the parties may, by agreement,
vary the rules regarding deposition procedures otherwise provided in the applicable federal or state rules of civil
procedure. But before agreeing to change, by stipulation, any of the rules governing deposition procedure, it is
essential that you are familiar with those rules. Parties most frequently stipulate to change rules regarding the timing
of objections and requirements for reading and signing depositions.
Stipulations regarding timing of objections.
The timing of objections is governed by Federal Rules of Civil Procedure 32(d)(3) (A) and (B) which provide:
(A) Objections to the competency of a witness or to the competency, relevancy, or materiality of testimony are not
waived by failure to make them before or during the taking of the deposition, unless the ground of the objection is
one which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of
the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of any kind which
might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection thereto is
made at the taking of the deposition.
(Emphasis added). Put another way, if you are taking the deposition and ask a question that contains some defect
that, if the defect were pointed out by the defending attorney, you could fix, then the defending attorney has an
obligation to so notify you, or any objection to that defect is waived. What is surprising about the rules of civil
procedure when put this way is they are there for the benefit of the attorney taking the deposition. The rules also
reveal a lesson that every lawyer should keep in mind when taking a deposition: when the lawyer defending the
deposition does object to a question, take a moment to reflect on the objection to determine whether there is indeed
a defect that you should fix.
So what defects are we talking about? The rules tell us types of defects that cannot normally be cured at the time of
the deposition, such as competency, relevancy, or materiality. Hearsay is generally considered another example.
This makes sense. If you ask a question and the lawyer defending the deposition says, I object on relevancy
grounds, your response is going to be, I disagree, the question is relevant, please answer the question. In other
words, absent direction by the court, a relevancy defect cannot be fixed at the time of the deposition. It can,
however, be dealt with at the time of trial. If the deposition is being read into the record or otherwise used with a
witness, after the question is asked that may contain a relevancy defect, the attorney who defended the deposition
can state a relevancy objection. The judge can then rule at trial. If the objection is sustained, the answer is skipped;
if the objection is overruled, then the answer is there in the transcript to be read aloud.
The most common type of defect that can be cured at the time of a deposition is a question with an improper form.
For example, if a non-adverse witness is being deposed and the question is leading, then there may be a defect in the
question since leading questions are not normally allowed with non-adverse witnesses. Here, if the attorney
defending the deposition points out this problem, then the attorney taking the deposition has the opportunity to fix
the defect by asking the same question but in a non-leading manner.
Another type of defect that typically can be cured at the time of a deposition is a question with an improper
foundation. For example, if the question is Tell me what happened at the June 12 meeting? and no foundation has
been laid that there was a meeting on June 12, then the question lacks foundation. An objection at the time of the
deposition would permit the attorney taking the deposition to lay a proper foundation: Was there a meeting? What
was its date? Who attended?
Only when you feel that you fully understand how the rules of civil procedure work should you consider changing
them via stipulation.
Parties often stipulate to reserving all objections except those as to the form of the question until the time of trial.
Since under the rules, form objections already must be made during the deposition or waived, how does this
stipulation vary the rules of civil procedure? It does so by reserving until trial those objections that (1) are not form
objections, but (2) otherwise address defects that could have been cured at the time of the deposition. The primary
objections that fit within this category are objections that go to a questions foundation. In other words, when you
stipulate that all objections except those as to the form of a question are reserved until the time of trial, what you are
really doing is varying the rules of civil procedure by deferring foundation objections until trial.
Is that a good idea? Before agreeing to this stipulation, both the lawyer taking the deposition and the lawyer
defending the deposition should ponder whether it is to his or her benefit to reserve foundation objections until the
time of trial. There is no bright line rule here; the answer depends on the dynamics of each deposition. If you are
taking the deposition, generally it is to your advantage to have the lawyer defending the deposition point out
questions that lack foundation because you have the opportunity to fix the question. If the objection is reserved until
the time of trial, you risk asking a question without proper foundation, getting an excellent answer, and then having
the objection made and sustained at the time of trial, resulting in the answer being excluded. On the other hand, if
you believe that you are reasonably cognizant of foundation to begin with and you want to minimize opportunities
for the attorney defending the deposition to disrupt the flow of the deposition, then you might want to consider
agreeing to reserve foundation objections until the time of trial. If you are defending the deposition, it is generally to
your benefit to reserve objections until the time of trial since you will have the transcript before trial and can take as
much time as you need plotting which questions you will object to at trial. On the other hand, if you have a witness
about whom you are concerned will too easily adopt predicates to questions that have not been established, then you
may want to be able to use your foundation objections to discipline your witness.
Of course, if the parties cannot agree to stipulations, then the rules govern. Note that you should always consult the
local rules before considering any stipulations. Some local rules place limits on parties ability to vary the rules of
civil procedure through stipulations. See, e.g., Local Rule 14(a) (D. R.I.). Compare Los Angeles Trust Deed &
Mortgage Exchange v. Securities and Exchange Comm., 264 F.2d 199, 212-13 (9th Cir. 1959).
Stipulations regarding reading and signing depositions.
Under Rule 30(e), the witness and the parties may waive the examination and reading of the transcript by the
witness, and the parties may waive the signing of the transcript by the witness. If you anticipate that you might use
the deposition to impeach the witness at trial, it is more effective to be able to show that after testifying, the witness
reviewed the transcript and reaffirmed his testimony by signing it. On the other hand, if the witness reviews the
transcript, he may make changes to testimony that was very favorable to you. Sometimes circumstances make it
difficult for the witness to be available to review the transcript. However, there is rarely benefit to formally waiving
the signature; if the witness is unavailable to review and sign the deposition, the transcript will be filed by the
reporter without signature. In any event, often it is better to defer consideration of such a stipulation until after the
deposition is concludedafter you know the testimony.
A note about the usual stipulations.
All too frequently, one attorney at a deposition will ask the other to agree to the usual stipulations. The problem is
there are no usual stipulations. See, e.g., United States v. Liquid Sugars, Inc., 158 F.R.D. 466, 473 n.8 (E.D. Cal.
1994) (Moreover, the allusion to standard tests is reminiscent of the usual stipulations given in civil deposition
discovery. Everyone purports to know without asking the content of the usual stipulations until a dispute arises;
the ephemeral nature of the parties understanding is then quite apparent).
Certainly, in some jurisdictions, there are frequently-used stipulations, but you should never assume that if opposing
counsel asks if you will agree to the usual stipulations that opposing counsel has in mind the same stipulations
that you may consider usual. Further, if the transcript records only that the parties have agreed to the usual
stipulations, there is no guarantee that the court will understand that phrase in the same way as the attorneys. See,
e.g., Garcia v. Co-Con, Inc., 629 P.2d 1235 (N.M. Ct. App. 1980) (If the representative did not understand the
phrase, the usual stipulations to be equivalent to it is stipulated and agreed that the doctor waives his signature,
then what did he understand the phrase to mean? He certainly acquiesced to that statement thus, he is bound by that
acquiescence.) (Andrews, J., dissenting).
When confronted with a request to agree to the usual stipulations, politely ask opposing counsel to spell them out
and then consider each part of the proposed stipulations on its merits one by one. Once there is a clear meeting of
the minds between counsel, then the actual agreement should be recited for the record.
Other stipulations that you may want to consider.
Because Rule 29 is so broad, the parties can stipulate as to procedures to handle just about any kind of contingency
the parties expect may arise during a deposition. For example, where there are multiple attorneys, a helpful
stipulation is that an objection made by one party will be deemed to have been made by all, unless otherwise
indicated. This stipulation streamlines the deposition by avoiding multiple attorneys enunciating the same objection.
Timing of recesses and length of deposition day (if problems are anticipated); see 541 and 542.
Handling of deposition exhibits (reporter attaching to original transcript or holding until all depositions are
concluded).
Manner of making objections.
Correction and signing procedure; see 561.
In cases where you anticipate a substantial number or objections or misunderstandings, you may consider offering a
comprehensive list of stipulations. Such a list would minimize argument and speed the proceedings. Here is a
sample list, which can be converted into a written stipulation and entered into the record, or read at the beginning of
the deposition and agreed to orally by counsel:
1. At the beginning of the deposition, deposing counsel shall instruct the witness to ask deposing counsel,
rather than the witnesss own counsel, for clarifications, definitions, or explanations of any words, questions,
or documents presented during the course of the deposition. The witness shall abide by these instructions.
2. All objections, except those which would be waived if not made at the deposition under Federal Rules of
Civil Procedure 32(d)(3)(B), and those necessary to assert a privilege, to enforce a limitation on evidence
directed by the court, or to present a motion pursuant to Federal Rules of Civil Procedure 30(d), shall be
preserved. Therefore, those objections need not and shall not be made during the course of depositions.
3. Counsel shall not direct or request that a witness not answer a question, unless that counsel has objected to
the question on the ground that the answer is protected by a privilege or a limitation on evidence directed by
the court.
4. Counsel shall not make objections or statements that might suggest an answer to a witness. Counsels
statements when making objections should be succinct and verbally economical, stating the basis of the
objection and nothing more.
5. Counsel and their witness-clients shall not engage in private, off-the-record conferences during depositions
or during breaks or recesses, except for the purpose of deciding whether to assert a privilege.
6. Any conferences which occur pursuant to, or in violation of, guideline (5) are a proper subject for inquiry by
deposing counsel to ascertain whether there has been any witness-coaching and, if so, what was said.
7. Any conferences which occur pursuant to, or in violation of, guideline (5) shall be noted on the record by the
counsel who participated in the conference. The purpose and outcome of the conference shall also be noted
on the record.
8. Deposing counsel shall provide to the witnesss counsel a copy of all documents shown to the witness during
the deposition. The copies shall be provided either before the deposition begins or contemporaneously with
the showing of each document to the witness. The witness and the witnesss counsel do not have the right to
discuss documents privately before the witness answers questions about them.
By stipulating to guidelines such as these before the deposition takes place, deposing counsel accomplishes several
things. First, by establishing what is expected of the witness, these stipulations encourage the witness to be
cooperative. Second, it provides for an orderly process for objections, but relieves deponents counsel from the
obligation to interrupt the proceedings every time there is an inartfully asked question. Finally, since the stipulations
have been memorialized, they provide an effective weapon against disruptive deponents and deponents counsel
should a Rule 37 request become necessary.

Most attorneys begin their examination by asking certain introductory questions and providing certain explanations.
A typical checklist for the introductory examination might include:
Name
Home address
Business address
Explanation of the deposition process
Inquiry as to witnesss questions concerning the procedure
Maintaining a clear record
Education (extent of detail dependent upon whether relevant to the issues)
Employment history
Appearing pursuant to notice, stipulation or subpoena
Any impediments to being deposed
If documents are produced by witness, mark and request a brief identification, and confirm that the
documents produced are all that he has within the scope of the request.
Questions on these topics are often asked for the purpose of settling in and allowing the witness to become
comfortable with the deposition process. Be aware, however, that these questions also serve other purposes: they
provide background information and they may be useful for impeachment at trial. Skip them only if you are sure
you wont need this information or you dont want to give the witness time to become comfortable. In such a case,
you may want to lead with your most important questions or jump around from subject to subject. You can always
ask about educational background at the end of the deposition.
Keep in mind that, absent leave of court or stipulation by the parties, under Federal Rule of Civil Procedure 30(d)(2)
depositions are limited to one day of seven hours (note that reasonable breaks are not counted toward the seven
hours). This militates against spending too much time on introductory matters if you have any concern about
finishing the entire deposition in the permitted time. You may strategically decide to save questions on matters such
as educational background and work history until the end of the deposition, time permitting.

In most instances, the witness is represented by an attorney, and by the time of his deposition, he has become
familiar with the deposition process. Regardless, however, it is usually desirable to make introductory comments to
the witness. For example, some of the following introductory statements might be helpful:
Q. Mr. Jones, my name is _______________. I am the lawyer for _______________. This deposition is
being taken in a case where _______________ has sued _______________, pending in the
_______________ court. Are you aware of that civil action?
Q. You have been administered an oath to tell the truth and that is the same oath that you would be given if
you were testifying in a court of law. Even though we are in a somewhat informal setting, the oath that
you have taken and your testimony has the same effect as if you were testifying before a judge and jury.
Do you understand that?
Q. All of my questions, your answers and everything that is said will be taken down by the reporter. Later
the reporter will prepare a transcript of this proceeding and you will have the opportunity to review it
and make any changes you feel are necessary to your answers. However, if you make any changes to
your answers, I will have an opportunity at some point in time to inquire about and comment upon those
changes. It is for that reason that you should give your best, accurate and honest answers in the
deposition.
Q. If you do not understand one of my questions, do not answer it. Ask me to repeat it, rephrase it or do
whatever is necessary so that you understand my question. Will you do that?
Q. If you answer one of my questions, I will assume that you understood my question and meant your
answer to be responsive to that question.
Q. I have the right to ask you certain questions, subject to a few exceptions which your attorney will handle.
You have an obligation to answer those questions.
Q. Your attorney may from time to time make objections to some of my questions. If your attorney objects
to one of my questions, you should nevertheless answer the question unless your attorney specifically
instructs you not to answer.
Q. We are entitled to your best recollection of this matter, even though those events happened some time
ago. You may take all the time you need to think about the question before you answer.
Q. We do not want you to guess or speculate about any answer to my questions. We only want your best
recollection. If you do not know the answer to one of my questions, please say so. Will you do that?
Q. From time to time, I may ask you to provide your best estimate or approximation as to things, for
example, like the time when something occurred. We are entitled to your best estimate. However, we do
not want you to guess. Do you understand the difference between a guess and an estimate?
Q. If you need to take a recess because you are tired or for any other reason, please tell me. I only request
that you ask for a recess after an answer and not after a question and before your answer. Will you do
so?
Q. So that we have a clear record, do not begin your answer until I have completed my question. I will try to
extend that same courtesy to you. It is important to remember that the reporter can only take down one of
us at a time.
Q. You must answer my questions verbally and not with gestures, such as a nod of the head. If you gesture,
I may ask if that is a yes or a no. Do not be offendedI am simply trying to get a clean record.
Q. If you feel that a review of a document would help you to answer a question, please say so. Depending
on the circumstances, I may or may not provide you with the document.
Q. Do you have any questions about the deposition or the rules that I have just given?
Q. Is there any reason that you can think of as to why you could not give your best testimony today?
This rather lengthy introduction (you probably will want to use only portions) serves several purposes. First, if the
witness is unfamiliar with the deposition process, it will inform him. Second, if at trial he contradicts his deposition
testimony, as a part of the impeachment he is in a difficult position to assert that he did not understand the question,
was tired and needed a recess, etc. Third, it may establish in the mind of the witness that you are fair and reasonable,
and overcome hostility that may be detrimental to your examination. Fourth, if you introduce the transcript at trial, it
will show the jury you were fair and reasonableif the rest of the transcript does not contradict this conclusion.
If the deposition is lengthy, and particularly if the witness appears at any time not to follow the instructions, repeat
those instructions applicable to the circumstance.
You should note that counsel defending the deposition may seek to minimize the effect of these instructions through
objections. For example, though frequently given, the instruction that the examiner will assume that [the witness]
has understood the question absent an inquiry may be objectionable. The instruction is not entirely fair in that a
witness may answer a question unaware that he or she understands the question in a manner different from how the
examiner intended the question. Despite the potentially objectionable nature of the instruction, it may still be worth
giving in the deposition because later at trial, if the witness seeks to avoid impeachment with a prior inconsistent
statement by explaining that he or she had not understood the deposition question, the examiner can use the
instruction to undermine the witnesss explanation for the change in testimony.

If you have requested that the witness bring documents to the deposition, ask him to identify those documents which
he has brought. If he has not brought all of the requested documents or there is any doubt on the issue, you should
also ask about his efforts to locate and produce the requested documents. Here are some sample questions to ask on
this topic:
Q. Mr. Jones, do you recall that the subpoena served on you requested that you bring certain documents to
the deposition with you?
Q. Did you bring those documents? (If so, you may want to call a recess and review or copy them.)
Q. (After recess) I would like to identify the documents you have produced for the record. I am handing you
what has been marked as Exhibit A. Can you identify that document for the record?
Q. Did you produce Exhibit A in response to my subpoena? (Ask other questions as may be necessary to
establish a chain of custody or the foundation for admission as a business record, etc.)
Q. (If requested documents were not produced.) Would you tell me what steps you took to locate the
requested documents?
Q. At any time in the past, did you ever discard or destroy any document which was requested in this
subpoena or are you aware of anyone doing so?
Q. Are you aware of anyone else who had or might have possession of any document requested in my
subpoena?
Q. Do you know of any place where any of the documents requested in my subpoena might be found?
If you have requested that documents be produced, conduct the deposition at a site where a copy machine is handy.
Feel free to call a recess to review and copy the documents brought by the witness before you begin your
questioning.

If you have any concerns or suspicions, ask the witness whether there are any impediments to his answering
questions (e.g., on any medications, uncomfortable, lack of sleep, hard of hearing, etc.). This examination might
include:
Q. Mr. Jones, is there any reason that you know of that might impair or prevent you from fully and honestly
answering my questions?
Q. Are you taking any drugs or other medications?
Q. Is there any reason why you cannot give your complete attention to this deposition?
Q. Do you have any hearing or other physical or mental problems that might hinder you in giving accurate
testimony in this deposition?

You have the right to question the witness on the preparation that he did for the deposition, although the scope of
such examination concerning discussions of a witness with his attorney is a subject of conflict. See Chapter 7. A
checklist for this examination might include:
Documents reviewed:
What documents reviewed (may be objectionable, if attorney provided)
Who with?
When?
Where?
How long?
Documents which refreshed recollection:
Of the documents you reviewed in preparation for your deposition, did any of them help you remember
anything that you had not recalled before?
Of the documents that you reviewed, can you distinguish which ones did help you remember anything
that you had not recalled before?
Can you identify those documents that refreshed your memory?
Can you describe how those documents refreshed your memory?
Persons with whom the deposition was discussed (not just attorney):
Who?
How long discussed with each?
When?
Details (if not privileged).
If the attorney-client privilege does not apply to the witnesss preparation, feel free to inquire in detail about it.
Whether one witnesss testimony was influenced by his discussions with another is relevant and goes to his
credibility.
You may want to also inquire about all discussions the witness has had with anyone at any time concerning the facts
of the lawsuit. Such discussions might reveal sources of contradictory statements made by the witness, the identity
of other witnesses, and influences on the witnesss testimony. See also 534 and 713.
Long depositions not only produce high transcription fees, but also cause additional legal fees to be incurred in their
taking, summarizing, integration with other evidence and review by costly hourly experts. A good way of limiting
depositions is to set goals before each one as to what you seek. Some common mistakes in scope include:
1. Too much detail in irrelevant areas. Remember that only a very small portion of the deposition is going to be
used at trial.
2. Too much confrontation/giving away your case. If your case is built upon documents that tend to undermine
the deponent, and are good impeachment, think twice before confronting the deponent with these items. Unless
you believe that settlement objectives can realistically be achieved by such confrontation, that capitulation and
admission are likely, or that to do so will obviate surprise, this technique all too often only provides your
opponent with the opportunity to think of a way out of impeachment at trial.
3. Not asking the tough questions about your opponents case. Lawyers sometimes exhibit reluctance to probe
into their opponents position, fearing that to do so would give comfort to the enemy by providing the deponent
with a stage. That impulse should ordinarily be resisted, because it is critical to know your opponents case, and
the deposition may offer the best method of learning it.
However, there is an important exception justifying a long deposition. Long depositions are sometimes warranted
when there is a risk that the deponent will be unavailable for trial, or if there is any other circumstance that would
allow the deposition to come into evidence at trial. See Chapter 10, infra. In such cases, eliciting hostile testimony
preserves it for trial, if the deponent is later unavailable. Notable situations in which the deponent may later
become unavailable include deponents who reside out of state, transient witnesses, and the elderly or seriously ill.

If you have served a Rule 36(b)(6) notice of deposition or subpoena requiring the adverse party or organization
subpoenaed to designate witnesses to testify concerning designated subject matters, you should include in your
introductory examination questions concerning that designation.
These questions might be designed to determine the following information:
If multiple witnesses are designated, to identify the subject areas for which each witness is the designee.
The efforts of the witness (and others) to determine all matters known or reasonably available to the
organization as a whole on the designated subjects.
That the witness is designated by the organization under Rule 30(b)(6), and that he agrees to be the designee.
Explanation that the witnesss answers to questions should not only relate to his personal knowledge, but
also to knowledge he has obtained (hearsay).

It is the court reporters job to record everything that is said during the course of a deposition. If the parties agree,
the reporter can be instructed to cease recording and the parties may engage in discussions which are off the
record. As a practical matter, any counsel or even the witness can ask to go off the record. Unless one party
objects, usually the reporter will stop recording.
On occasion the witness will ask if he can go off the record. Depending on the circumstances at the time, you may
either want to humor him and allow the request or demand that the witness continue on the record. Even if you go
off the record, you can always have the witness repeat anything that is significant on the record.
542 Recesses
There are no rules governing the length or frequency of recesses and the matter is generally determined by
agreement of counsel. Although practices vary, many attorneys call for a recess of 10 to 15 minutes every one and a
half to two hours. One person to consider on this issue is your court reporter. If the deposition is moving fast and
furiously, your court reporter will appreciate more frequent breaks. Another is the witness. Few attorneys will deny
a witnesss request to take a short break.
It is inappropriate for opposing counsel to request or take repeated recesses during your examination. Likewise, it is
generally improper to request a recess prior to an answer to a pending question or during a specific line of
questioning. Both scenarios tend to defeat a major goal of any depositionindependent fact finding. If such a
request is made, object and request that the answer be given prior to the recess or agree to take a recess upon the
completion of that segment of your examination. If opposing counsel persists in demanding a recess, you will
probably be left with no other alternative other than noting your objection. Nevertheless, abuse by opposing counsel
in demanding recesses, when coupled with private conferences to coach the witness, may well represent conduct
that is ultimately sanctionable under Rule 37. See Armstrong v. Hussmann Corp., 163 F.R.D. 299, 303 (E.D. Mo.
1995); Frazier v. S.E. PA. Transp. Authority, 161 F.R.D. 309 (E.D. Pa. 1995); Hall v. Clifton Precision, 150 F.R.D.
525, 528-529 (E.D. Pa. 1993) (conferences between witness and lawyer are prohibited during recesses). But see,
Odone v. Croda International Plc., 170 F.R.D. 66, (D.D.C. 1997) (deponents recess consultation with counsel after
completion of direct examination permissible). See also 637 and 833.
A few attorneys and witnesses have a practice of being slow to return from a recess. If there are limits on your time
for taking the deposition, consider objecting and noting the time that the recess commenced and ended on the
record. Better yet, ask the reporter to note the times. If there is a dispute later, you will be able to show that your
actual deposition time was limited by the prolonged recesses. This is particularly important when the deponents
attorney appears to be prolonging the deposition, perhaps with an objective of cutting it off before completed. Note
that the Advisory Committee Notes to Federal Rule of Civil Procedure 30(d)(2) state: Paragraph (2) imposes a
presumptive durational limitation of one day of seven hours for any deposition [taken in a case governed by the
Federal Rules]. This limitation contemplates that there will be reasonable breaks during the day for lunch and
other reasons, and that the only time to be counted is the time occupied by the actual deposition.
On occasion, a witness will ask to correct or change his testimony after returning from a recess. If he does, there is
little to be gained by refusing the request. If the change is material, you may want to inquire as to the reason for the
change. Arguably, the witnesss discussions with counsel are not privileged if they affect his testimony.
Similarly, after each recess, you may want to inquire of the witness as to whether there is anything that he wants to
add or change in his testimony. This involves a strategic decision: do you want to open the door to corrections at
this time (when possibly you can tie them to the witnesss conference with his attorney), or would you prefer to
have any corrections made during cross-examination by the defending attorney? You may want the examination to
read:
We have just concluded a ten-minute recess. During that recess did you have an opportunity to consult with
your lawyer?
Did you consult with your lawyer?
Do you at this time want to change any of your earlier testimony? [If he does, inquire into reasons and
sources of changes.]
Generally, as the examiner, you should avoid recesses in the middle of examination on a specific subject area
(unless you have extensive material to cover). You need a certain flow to your questions, and you should avoid any
midpoint repreparation of the witness. By taking a recess at the commencement of each new major subject matter,
you can avoid these interruptions. For example, do not start examination of a subject that you anticipate will take 30
minutes, 10 minutes before a normal break time. Call recesses yourself so as to avoid interferences at inopportune
times.
If you anticipate that the defending attorney will seek recesses at inopportune times, try to stipulate in advance as to
when recesses or the next recess will be taken, and be sure to schedule a sufficient number so emergency recesses
arent added.
Rule 30(d) provides that at any time during the taking of a deposition, any party or the deponent can move to
terminate or limit the examination upon a showing that the examination is being conducted in bad faith or in such a
manner as to unreasonably annoy, embarrass or oppress the deponent or party. The Rule further explicitly provides
that upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time
necessary to make the motion.
Procedurally, if you conclude that requisite grounds exist and you wish to seek to terminate or limit the
examination, you should simply state that the deposition is suspended pending your filing a motion. (In most
districts, it is desirable to have earlier, on the record, sought to persuade the offending party to cease his improper
conduct, as well as to have made a record of the offending conduct. Most districts require an effort by the parties to
resolve differences before seeking court assistance.) The deposition should thereupon be suspended. Note, this
remedy is available to all parties and the deponents. Note further that the motion can be filed in the court wherein
the action is pending or the court in the district where the deposition is being taken.
Of course, to obtain an order you must prove that the examination is being conducted in bad faith or in such manner
as to unreasonably annoy, embarrass, or oppress the deponent or party. In most instances, the record will be your
proofthe wrongful actions being verbal expressions (regrettably the record, if not a videotape, has no inflection).
However, if the improper conduct consists of gestures, tones, etc., try to describe them for the record as they occur;
consider having a witness present other than the reporter and deponent.
Once the court rules, the deposition continues or terminates in accordance with the ruling.
If you adjourn the deposition to file a Rule 30(d) motion, you must proceed expeditiously to file the motion. Some
judges (or magistrates to whom discovery disputes have been assigned) will hear such motions orally by phone or
by a forthwith hearing. E.g., Local Rule Standing Order 6(b)(J) (E.D.N.Y.).
Rule 37(a)(J) provides the remedies for the failure of a deponent to answer a question propounded in deposition.
(An evasive or incomplete answer is treated as a failure to answer.) Specifically, in the first instance, the remedy is
an order compelling an answer. In addition, the prevailing party on the motion may recover attorneys fees and costs
of making or opposing the motion, if the court finds the losing partys position was substantially unjustified. If the
order is then disobeyed, Rule 37(b) defines a spectrum of remedies the court may impose.

In federal court, under Rule 30(d)(2), depositions are limited to one day and seven hours (note that reasonable
breaks are not counted toward the seven hours) absent court order or agreement of the parties. State rules differ, but
in those jurisdictions without time limits, courts typically view the length of a trial day as a reasonable duration for a
deposition. In practice, the matter is usually agreed upon by counsel and will reflect their schedules and that of the
witness. In any case, if the witness asks to stop for the day and indicates fatigue, you should normally acquiesce. If
you do not, the witness will have an excuse for making later corrections to the transcript. It may also ruin your
ability to impeach at trial because the witness can claim he was tired when he gave that testimony.
If you have a choice between continuing the deposition into the evening (in the hope of completing it), or recessing
until the next day, consider taking the latter option. While the deponent may have an opportunity to speak with
counsel during the evening, you will similarly have time to review your notes, consider the testimony thus far, and
reorganize your remaining examination.

If the deponent does not understand or speak English, or does not understand or speak English sufficiently to be
questioned under oath, you must use an interpreter. However, if the deponent is fluent in English, his or her
deposition testimony must be in English. See, Tagupa v. Odo, 843 F. Supp. 630 (D. Hawaii 1994) (despite state
constitution naming Hawaiian as an official language, the trial court could require that an English-speaking
deponent give testimony in English). Under Fed. R. Evid. 604, the interpreter must be qualified as an expert. Prior
to the deposition, seek a stipulation by opposing counsel, or, if necessary, a ruling of court that the interpreter is
qualified. If you have not obtained a stipulation prior to the deposition, one option is to question the interpreter and
establish his qualifications as a translator. Like the witness, the interpreter must be sworn under Fed. R. Evid. 402 to
make a true translation. Even if the translators qualifications are not placed in the record, the Rules require
opposing counsel to make a timely objection to the translators qualifications or it should be deemed waived. See
People v. Avila, 797 P.2d 804 (Colo. App. June 7, 1990), cert. denied, Oct. 15, 1990.
You can locate interpreters from several sources. Pursuant to 28 U.S.C. 1827, the Director of the Administrative
Office of the United States Courts as well as each United States District Court maintains a list of certified
interpreters. This certification should eliminate objections regarding the qualifications of the interpreter. In
addition, language departments of colleges and yellow page advertisements can be good sources of well-qualified
interpreters.
Your procedure for examining a deponent through an interpreter is the same as without an interpreter, except that
the interpreter is in the middle between you and the witness. After you ask the question, the interpreter repeats the
question in the witnesss language, the witness answers in his language, and the interpreter repeats the answer in
English. The reporter records only the English, although the record obviously reflects the use of an interpreter, Of
course, the deposition will proceed much more slowly with an interpreter involved.

During the course of the examination, the examiner may have occasion to seek two different kinds of orders:
Motions under Rule 37 to require the witness to answer questions.
Motions under Rule 26(c) to prevent specified improper conduct of defending counsel, to exclude persons
from the deposition, etc. See also Rule 30(d).
Similarly, during the course of the examination, the defender may have occasion to move under Rule 26(c) for a
protective order, move to strike a particular question, or move to forbid certain conduct of the examiner. Regardless
of the grounds, the procedure is to recess the deposition, and make application to the court. Upon the court ruling,
the deposition is resumed.
In fact, however, the parties seek to avoid recessing a deposition until all nonproblem questions are asked.
Typically, an examiner will ask all questions, and then recess to obtain orders with respect to unanswered questions.
Similarly, if the defending attorney is going to seek a protective order, he will instruct the witness not to answer,
and, at the conclusion of the deposition, move the court for a protective order as to all such questions.
Perhaps most common, however, is that the party seeking to compel answers always has the burden of proceeding.
While contrary to the literal rules, it is an accepted procedure in many districts, and in many instances, the best
procedure.

Often, you should mark your exhibits or have the reporter mark the exhibits prior to commencement of the
deposition. See 514. However, if you want the reporter to mark an exhibit during the course of the deposition, a
typical reference might be:
Mr. Reporter, please mark as an Exhibit for identification a letter dated __________ from __________ to
__________ (consisting of __________ pages).
Once the exhibit is marked, a typical question to the witness might be:
Mr. Jones, I hand to you what has been marked for identification as Exhibit __________, a letter dated
__________, from __________ to __________ (consisting of __________ pages). Can you identify Exhibit
_________?
You and the witness should never refer to an exhibit as this document, as the record may become confused as to
which document is referred to. If the witness refers to this document, simply follow up with, Are you referring to
Exhibit ______?
Similarly, do not refer to documents in the deposition that are not exhibitsthe record is then incomplete, as it does
not include the document referred to. An objection should be made by the defending attorney, as it usually is a
curable objection.

Methods of dealing with the obnoxious defending lawyer are discussed at 640 and elsewhere. However, you
should be aware of the specific procedures provided by the rules to handle such situations.
Rule 26(c) provides for protective orders. See Chapters 1, 3, and 4. While generally thought of in terms of
protective orders for the deponent or defending party, the procedure is also available to the deposing party.
Specifically, you should consider:
That discovery be conducted with no one present except persons designated by the court; see Chapter 2.
That a sealed deposition be opened only by order of the court.
That a trade secret or other confidential research, development or commercial information not be disclosed
or be disclosed only in a designated way.

Both the examining attorney and the defending attorney should be alert to a possible unclear record. For example,
references to this document should be corrected to Exhibit ______; the witnesss nod of the head either yes or
no should be translated to a verbal response; estimates such as as big as this table should be translated into
dimensions. Of course, one party may prefer an unclear record.
Similarly, if it is not a video deposition, you may want to describe any visual occurrences on the record verbally.
For example, the examiner may wish to note that prior to answering the question the witness consulted with his
attorney, or reviewed a document, or reflected with his hands the size of an object:
Let the record reflect that prior to answering the last question, the witness had a confidential conference with his
lawyer lasting approximately one minute.
By far, the most common problem in having a clean transcript is multiple persons talking at the same time. Be sure
the examiner finishes his question before an objection is asserted or an answer is given. Be sure the objection is
made before, not during, the answer. Taking turns is contrary to our normal mode of conversation, but essential to
a clean record.

The grounds for a witness to refuse to answer a question are discussed in 740. If the defending attorney concludes
that a question should not be answered, he states:
I instruct (request) the witness not to answer the question on the ground that ...
You as the examiner may then ask the witness: Do you refuse to answer the question? This makes the record clear
that the witness in fact refused to answer. If such objections are frequent, it may be desirable to simply elicit once
from the witness that every time he is instructed or requested not to answer, he in fact will not answer the question.

Before you conclude your examination, take a recess and ask yourself: Is there anything I have forgotten to ask or
need to cover to finish this deposition? Review your notes, both the notes you prepared for the deposition and the
notes that you took during the deposition. Be aware that the deposition may be offered at trial by you or your
opponent. If there is any possibility that the witness will be unavailable, make sure that you have offered all exhibits
you wish to introduce at trial through this witness into evidence. If the defending attorney fails to object, and it is a
curable objection, for example foundation, it will be deemed to have been waived. Of course, if you are satisfied
that a proper foundation for admission has been laid and you are not concerned with objections, there is no
requirement that exhibits be offered into evidence.

Once you have concluded your examination, the defending attorney (and attorneys for other parties) have a right to
examine the deponent. If the scope of their examination goes beyond the area covered by your questions, you may
object to the improper use of leading questions and you may be able to assert that the defending attorney must be
responsible for the costs of the deposition regarding that portion beyond your scope.
Once cross-examination has been concluded, you have a right to have redirect examination, and the defending
lawyer may then conduct re-cross examination.
Before terminating the deposition, consider any closing stipulations which have not been discussed earlier including
those relating to the review and signing of the deposition and retention of exhibits.

Immediately after the deposition, dictate a memorandum of observations. This list includes:
1. Your evaluation of the deponent as a witness. Six months later your memory of the witness may be vague,
yet these observations are important for settlement evaluations as well as preparing your case for trial.
2. Any key testimony of the witnessnot a summary of all testimony, as you will have a transcript
3. Points that you should follow up on with your client and other friendly witnesses.
4. Points that you should pursue in future depositions.
5. Any further steps should be taken in light of the testimony.
6. A summary of what you learned from the defending attorneys objections and cross-examination.
7. Any motions that should be filed with the court.
In addition, consider whether any stipulations or orders should be sought concerning the confidentiality of any of
the testimony, e.g., on the grounds of trade secret information. The local rules of some courts provide that when
deposition transcripts are filed with the court, unless otherwise ordered, they are available for public inspection,
although not necessarily copying. See e.g., Local Rule II, A (W.D. Mo.): Local Rule 16(b) (0. Me.).

Normally, after the deposition is concluded, the reporter takes the exhibits and attaches them to the original of the
transcript when it is prepared. Copies are provided to counsel on request and upon payment of copying charges.
(Sometimes, at the close of a deposition, the parties simply copy the exhibits prior to turning them over to the
reporter.)
If there are going to be multiple depositions involving the same exhibits, the parties may stipulate that they are not
to be attached to the transcript, but rather held by the reporter for use in each successive deposition, and, upon
conclusion of discovery, filed with the court or delivered to the parties. Rarely does anyone insist that the document
originally marked be used, as distinguished from a photocopy.
If documents are produced pursuant to a subpoena duces tecum and are marked, normally the witness may not have
any right to the return of or copies of the produced documents. However, generally as a matter of courtesy, the
documents are copied and the originals returned to the witness.
As discussed in Chapter 5, some examiners intentionally do not conclude the depositionat least until they have
reviewed the transcript. A few attorneys will attempt to leave any deposition in which the testimony was
unfavorable openwith the hope that the deposition cannot then be used in trial. The theory, and perhaps the
practice, is that a deposition that is not yet concluded cannot be used in trial.
For example, a defender, after hearing adverse testimony, defers his cross-examination as it does not appear there
is sufficient time remaining to complete my examination. Or, the examiner, after having elicited everything
harmful and nothing helpful, adjourns the deposition subject to reconvening at a date mutually agreeable to counsel.
He never reconvenes. The opposing counsel should instead stipulate that the deposition is concluded, subject to
reopening by either attorney, at a time mutually satisfactory.
Of course, where an attorney had the right and opportunity to conduct the balance of his examination, the court
should not listen to a claim that an incomplete deposition should not be used. See, Daigle Maine Medical Center.
Inc., 14 F.3d 684 (1st Cir. 1994) (Deposition was complete and thus admissible in a medical malpractice case where
a witnesss examination had been suspended after a document production dispute, and opponents counsel declined
to resume the deposition after documents were turned over). Similarly. the court should not listen to an attorney who
made no attempt to conclude his examination. Nevertheless, try to avoid the problem.
Instead of recessing the deposition, conclude the deposition, subject to either party reopening upon
reasonable notice.
Insist that if the examiner refuses to continue his examination, the deposition is deemed closed, not recessed.
If the deposition is recessed and you want it reconvened, do so. If you dont, advise opposing counsel by
letter, stating that if he wants it reconvened, to do so with a defined number of days or you will assume he
agrees it is closed.
Seek a pretrial ruling that the deposition is deemed closed.

The completion of the examination of the witness does not complete the deposition process. In some instances,
neither party will want a transcript: the information anticipated was not obtained, or the testimony was such that
notes sufficed, and the transcript will not be needed for trial. As an economy measure, an attorney may defer
transcription until such time he is certain that the case will not be settled.
However, if one of the parties requests that the deposition be transcribed, Rule 30(c) provides it must be transcribed.
While the Rules do not expressly state who pays for the transcription, absent unusual circumstances, the courts
usually hold that the party taking the deposition must pay for the transcription, even if the defending party orders it.
See Caldwell v. Wheeler, 89 F.R.D. 145 (D. Utah 1981). Compare, Notes of Advisory Committee, 1970
Amendment, Rule 30(c). Unusual circumstances may include lack of any showing of need for it to be transcribed,
and lack of funds of party taking the deposition. See Melton v. McCormick, 94 F.R.D. 344 (W.D.N.Y. 1982). Under
Rule 30(f)(2), however, copies must be paid for by the party ordering, again subject to extraordinary circumstances.

Unlike the former Rules, Rule 30(e) now provides that, unless requested by the deponent or a party, the deponent is
not required to review the deposition before completion. This change reflects the difficulties frequently encountered
by the reporters in obtaining either the signatures, the return of the transcript, or both, from the deponent.
If review is requested, the deponent is allowed 30 days after notification to review the transcript and make any
changes, in form or substance, to the transcript. In the event changes are made, a statement setting forth the reasons
for the changes is required. The deponent, under Rule 30(e), is required to sign the deposition only if a review was
requested and the witness made changes. If no review is requested or changes made, the deposition may be used for
all purposes, regardless of whether it was signed. The deposition officer is required to indicate whether a review
was requested and, if so, to attach all changes made by the deponent.
Rule 30(e) specifically refers to any changes in form or substance that the deponent might make. There is no
dispute that this provision permits the deponent to make changes to a transcript where necessary to correct issues of
form, such as spelling mistakes or other transcription problems. Despite the reference to changes in substance
courts have differed, however, on whether Rule 30(e) permits a deponent to change the meaning of an answer. For
example, to use the most extreme example, to change a yes to a no. It appears that the majority rule is that the
deponent may make changes of any kind. See, e.g., DeLoach v. Philip Morris Companies, Inc., 206 F.R.D. 568, 573
(M.D.N.C. 2002); Elwell v. Conair, Inc., 145 F. Supp. 2d 79, 86 (D. Me. 2001) (denying defendants motion to
strike errata sheet because Rule 30(e) allows deponents to provide revised answers to deposition questions,
including answers contradictory to those provided at the deposition). Where a deponent does make substantive
changes, the deponent is at risk of a court permitting a re-opening of the deposition (probably limited to
examination on the changes). See, e.g., Tingley Systems, Inc. v. CSC Consulting, Inc., 152 F. Supp. 2d 95, 120
(D.Mass. 2001). Rule 30(e) has not been stretched, however, to permit a deponent to use an errata sheet to change
deposition testimony for the purpose of creating a dispute of material fact in order to defeat a motion for summary
judgment.
An apparent minority of jurisdictions do not permit deponents to change the substance of their testimony. The
leading case supporting this view is Greenway v. International Paper, 144 F.R.D. 322 (W.D. La. 1992) (The Rule
cannot be interpreted to allow one to alter what was said under oath. If that were the case, one could merely answer
the questions with no thought at all then return home and plan artful responses. Depositions differ from
interrogatories in that regard. A deposition is not a take home examination). Because of the split in authority, to be
safe, before providing an errata sheet to your client, you should confirm the authority for the relevant jurisdiction.
Of the jurisdictions that permit changes of any kind to be made, the original answer is not wiped away and may still
be used at trial in accordance with the rules. Thus, a deponent who uses the errata sheet to change the substance of a
deposition answer can fairly anticipate being cross-examined at trial with the original answer.
In addition, Rule 30(e) places restrictions upon which necessary changes are permissible. If requested by the
deponent or a party, the Rule allows the deponent only 30 days after the deposition officer provides notice that the
transcript is available for review, correction and signing. Untimely changes to a deposition can prevent an errata
sheet from being received as part of the deposition. See Blackthorne v. Posner, 883 F. Supp. 1443, 1454 (D. Or.
1995); Rios v. Bigler, 67 F.3d 1543 (10th Cir. 1995).
Under the prior version of Rule 30(e), some courts simply disallowed corrections which effectively destroyed
prior deposition testimony. Barlow v. Esseite Pendaflex Corp., 111 F.R.D. 404, 406 (M.D.N.C. 1986). Others have
permitted the adversary party to redepose the witness at the expense of the party causing the need for the deposition,
including attorneys fees. Wiley v. Brown, 164 F.R.D. 547 (D. Kan. 1996); Lugtig v. Thomas, 89 F.R.D. 639 (N.D.
Ill. 1981).
Rule 30(e) also provides that in the event of changes upon review, the deponent is required to sign a statement
reciting such changes and the reasons given by the deponent for making them. While there is no requirement that
the reasons given for the changes be convincing, there must be a reason given for every change. Hawthorne
Partners v. AT&T Technologies, Inc., 831 F. Supp. 1398, 1406 (N.D. Ill. 1993). If changes are made without an
explanation, the change is subject to a motion to strike. Duff v. Lobdell-Emery Mfg. Co., 926 F. Supp. 799, 804
(N.D. Ind. 1996).
Can the witnesss attorney assist the witness in making corrections? Generally, yes. Erstad v. Curtis Bay Towing
Co., 28 F.R.D. 583 (D. Md. 1961). However, there may be situations where such assistance should be precluded for
sound reasons. If so, the examining party should move for a protective order under Rule 26(c).
Because your communications to the witness concerning corrections to the deposition might not be privileged,
consider using the following statements:
Here are thoughts as to possible corrections for your consideration.
If you do not agree that a correction is necessary, do not make the correction.
Your corrections, as the deposition itself, are under oath and must be truthful to the best of your knowledge,
not mine.
Such written statements may be self-serving but must be (a) accurate and honest; and (b) reasonable to overcome
the oppositions inference before a jury that defense counsel is writing a script.
Corrections may not be used to belatedly raise a privilege. See, SEC v. Parkersberg Wireless Ltd. Liab. Co., 156
F.R.D. 529, 535-36 (D.D.C. 1994) (Fifth Amendment).
What are the reasons for correcting the testimony? Most are evident from the correction itself:
My answer was incorrect.
I misunderstood the question.
The reporter did not accurately record my answer.
To clarify what is otherwise a confusing answer.
To correct a typographical error.
While practice may vary from jurisdiction to jurisdiction, the safe procedure is to provide reasonably specific
reasons. For example, if the reason was to correct an incorrect answer, and the correction was based upon a
document, it might be desirable to reference that document.
A typical correction sheet looks like the following:
STATEMENT OF CHANGES
The witness, W. H. Jones, states that he wishes to make the following changes in
his testimony as originally given:
PAGE LINE SHOULD READ REASON
10 5 No Incorrect answer
given.
12 7-8 After I received To clarify

the letter, I called answer.
Mr. Jones first,
and then I called
Mr. Smith.
14 10-12 I met with Recollection

Mr. Jones refreshed after
on June 10. reviewing my
calendar.
_________________________
Signature of Witness
STATE OF COLORADO )
) ss.
COUNTY OF ARAPAHOE )
Acknowledged before me this 10th day of January, 20___, by Thomas P. Thompson.
My commission expires: ______________________
_________________________
Notary Public
Notary forms differ from state to state. The transcript is not actually changed: rather, the correction sheets are
attached by the reporter to the original of the transcript. The fact that changes are made may be used to impeach or
attack the credibility of the witness at trial.
Sometimes the lawyer for the witness or the examining lawyer may conclude that the reporter made an error in
transcription. If so, the lawyer should request the reporter to review his notes to check the accuracy of the
transcription. Corrections of the reporters errors by the reporter can be made in the transcription itself, or by a
separate sheet if the reporter concludes no error, but the attorney remains convinced that a motion to correct can be
filed with the court. All errors or irregularities in the manner in which the testimony is transcribed are waived unless
a motion to suppress is promptly made. Rule 32(d)(4).
If the deponent fails to review and sign the transcript upon request and during the time period allowed, the
deposition officer certifies the transcript under Rule 30(f)(1). The deposition officer then files it with the court or
sends it in the proscribed manner to the attorney arranging for the deposition and who is therefore responsible for its
safety. The transcript may then be used, if signed and corrected, subject to a motion to suppress under Rule
32(d)(4).
A Rule 30(b)(6) designee deponent must testify in response to questions as to matters known or reasonably
available to the organization. In reviewing the transcript for possible corrections, what is the obligation of the
deponent? Must he circulate the transcript among all persons within his organization who possibly have knowledge
of the subject matters?
Probably not. If the deponent made reasonable inquiry within the organization about the subject matter of the
designations, it seems unreasonable to require a multitude of people to review the transcript. On the other hand, if
there is information in response to a question that the deponent knows the organization had, but did not know it
himself, there may be an obligation on the part of the deponent to obtain input in making corrections. Perhaps the
key is reasonableness.
Sometimes the deposing attorney believes that the deposition transcript contains errorsi.e., it does not state what
was actually stated during the course of the deposition. These errors might range from an incorrect date, to a yes
instead of a no. The perceived error may be in the recording or transcription of a question, or may be in the
answer.
Of course, the deponent can correct any answer. In other words, if the deponent thought the question was ABCDE,
but in the transcript it comes out ABCDZ, the deponent can correct his answer to ABCDZ, and explain that he had
understood the question to be ABCDE. See Gaw v. State By and Through Dept. of Transp., 798 P.2d 1130 (Utah
App. 1990) cert. denied (1991).
But, can the questioner amend the deposition? There is no formal procedure, but the authors suggest the following:
If you perceive an error in the reporters transcription, ask the reporter to check the transcript against his original
recording. (Preferably, notice of this should be given to opposing counsel.) If the reporter finds an error, the reporter
should issue a corrected transcript, and the witnesss review and correction procedure starts a new.
If the reporter finds no error in the transcript, but the reporter in fact remembers the question/answer, and concludes
he incorrectly recorded the words, probably an amended transcript can be issued. Similarly, if counsel for both
parties (and the witness) agree to an error, the reporter should accept the stipulated correction.
561.4 Reopening a Deposition for Examination With Respect to Corrections/Amendments to
the Deposition Transcript
If the corrections made by the deponent to the deposition are either substantive in nature or substantial in quantity,
the examining party may want to examine the new answers as well as the reasons for the changes. Since Rule
30(a)(2)(A)(ii) requires a court order to redepose a witness, you cannot simply serve a new notice of deposition. In a
motion for another deposition, point out that the witness has made radical changes in his or her prior testimony after
you had concluded your right of cross-examination. If the changes were sufficiently egregious, request that the costs
of the second deposition, including attorney fees, be borne by the opposing side.

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION FOR ORDER TO RE-OPEN

DEPOSITION OF SAMUEL P. BIGSHOT
Pursuant to Fed. R. Civ. P. 30(a)(2)(B), Plaintiff, John D. Harmed, moves the
Court for an order to re-open the deposition of Samuel P. Bigshot.
Mr. Bigshot was first deposed on April 8, 2008. Following the deposition, Mr.
Bigshot reviewed the deposition transcript and made substantial changes to his
testimony. The amended transcript returned by Mr. Bigshot contained changes to
over 70% of the substantive testimony. Such changes ranged from minor amendments
to revisions to wholesale replacement of testimony. By way of example, the
following is from the original transcript record:
358. Q: How often is rock salt required to be used to ameliorate the icy
conditions at store entrances?
359. A: We require stores to salt their entrances once every 12 hours during
snowy conditions.
The following is what the amended transcript now states for the same question:
359. A: We have no set requirement.
Such changes after close of the deposition impose unnecessary cost and unjustly
frustrate the discovery process. Therefore, Plaintiff requests that the Court
allow it to re-open the deposition of Mr. Bigshot to depose him on the subject
matter and testimony affected by the revisions. Plaintiff further respectfully
requests the Court to award costs, including reasonable attorneys' fees, for
filing of this motion and the completion of the deposition.
JOHN D. HARMED,
By his attorney,
______________________
5 Main Street
Dated: _______________
DECLARATIONS
The motion should include an appropriate declaration identifying the witnesss prior testimony and the nature of the
changes. Include, too, a copy of the transcript and errata sheet and why a second deposition is required.
MEMORANDUM OF LAW
Include points and authorities in support of the motion. See 561.
A delay in signing depositions will not normally be a ground at trial for objecting to the deposition. Such an
objection is normal1y waived if a motion to suppress is not filed prior to trial. See Motel 6, Inc. v. Dowling, 595
So.2d 260 (Fla. App. 1992).

To complete the deposition, the reporter attaches a certification to the transcript that the witness was duly sworn and
that the transcript is a true record of the testimony given by the witness. Rule 30(f)(1). Unless otherwise ordered by
the court, the reporter seals the transcript together with correction sheets and exhibits in an envelope properly
labeled and files it with the court, in the same manner as pleadings. Rule 30(f)(1). (Most courts, by local rule,
change this procedure and direct that the sealed original transcript be delivered by the reporter to the attorney who
took the deposition to hold, pending trial.) Exhibits are attached to the deposition, unless the parties have stipulated
that the exhibits are to be retained by the reporter or one of the parties for use in subsequent depositions. While Rule
30(f)(2) requires the attorney taking the deposition to give notice of its filing (or delivery to the deposing attorney)
to all parties, normally this is done by the reporter. See 140.1 for discussion of the requirements for certification
and filing of non-stenographic depositions under the amended Federal Rules of Civil Procedure.
563 Indexing
Unless the deposition is short, it will be of little value unless you can quickly locate needed testimony. For that
reason, you should prepare or have prepared a deposition summary which will help direct you to relevant testimony.
There is no set practice regarding who should prepare the summary or what should be in it. Some lawyers, including
the authors, prepare their own summaries so they will be sure that they have focused in on the important points.
These summaries are often short because you can leave out information that is not important to you. Other attorneys
have legal assistants prepare the summaries. Often, these summaries are lengthy and attempt to catalog every point
made in the deposition. As such, they often provide a substitute for reading the actual transcript. You will have to
decide which style works best for you.
Here is a sample of a deposition summary using the shorter approach:
SUMMARY OF DEPOSITION
OF THOMAS P. THOMPSON
January 10, 20__
Page Subject Comments
11-13 Background Corporate division counsel of
corporation, education and
prior work experience. (Note:
Specialist in securities work.)
16-20 Reporting Reports to Anderson (along
relationship with five others)
who reports to Smith.
20-24 Involvement in First involved Jan. 1987 when
subject transac- requested by Anderson to review
tion drafts and advise Benson.
20-26 Responsibilities a. Identify key elements or
re transaction transaction
prior to 12/8/___ b. Discuss key elements with
staff group.
c. Document key elements and
staff input.
d. Obtain approval of documents
by management.
More and more court reporters are preparing their transcripts on personal computers. If yours does, consider getting
a copy of the transcript on a floppy disk. If you have the appropriate software, such as Discovery ZX, ZY Index,
Summation or AskSam, you can search the transcript to find relevant testimony at lightning speed, much like you
can find legal cases using Lexis or Westlaw. While this may not eliminate the need for a deposition summary, you
will find having a copy of the transcript on disk an invaluable help in finding testimony quickly. If you do not have
a computer, some court reporters will provide you with a key word index, which can be useful at times. In most
cases, you provide the reporter with the key words to index. For example, an index to all uses of the word exhibit
will help lead you to testimony regarding key documents.
Here is a sample of a key word index:
Word Page
Smith 7
15
22
May 2, 1987 7
12
14
Jones letter to Smith 27
33
Exhibit 29 62
Most such indexing also includes a certain number of words (for example, five) before and/or after the indexed
word. If computer word or phrase searches are going to be used, the examiner should be sure to use those words in
the examination, for example, Exhibit 29, not this letter.
Another form of summarizing depositions is as follows:
SUMMARY OF DEPOSITION
OF THOMAS R. LARKIN
Larkin v. Thorson
May 27, 20___
Page/Line Testimony
2/9 - 4/7 Thomas R. Larkin, 273 Lake Ridge Road, Littleton, Colorado.
Space engineer since August 20___; worked for Thorson September 20___-July 20___.
4/10 - 5/20 Education: BSE, 20___, University of Scholarship; seminars.
6/1 - 6/10 Prior employment; summer and part-time jobs.
6/11 - 6/22 Subsequently employed by T.W. Collins Company, Los Angeles, as

space engineer.
The deposition summary entries may also be regrouped in terms of issues, events, etc. Thus, it may be desirable to
have a summary chronologically consistent with the deposition transcript, but it may also be helpful to have it
reorganized in terms of information by topic, issue, etc. Particularly through the use of a computer, each entry can
be labeled by a particular entry or subject and reorganization and resort becomes a matter of mechanics. For
example:
Jones v. Smith, Civil Action No. 92CV483.
Issues/Subject Summary
Deposition of Jonathon Johns,
November 18, 20__
Facts of the Accident: Page

14. Location and surroundings 8
15. Persons involved 9
16. Witnesses 12
17. Color of Light for Jones and Cross Traffic 14
Facts of Medical Treatment

1. Emergency treatment 27
2. Initial hospital treatment 31
3. Hospital stay 40
4. Rehabilitation 43

Rule 26(e) imposes upon a party a duty to supplement disclosures or responses to discovery under the following
circumstances:
To supplement a partys disclosures under Rule 26(a), i.e., initial disclosures, when the party learns that in
some material respect the information disclosed is incomplete or incorrect. This duty is imposed whether the
client or the attorney learns the corrective information.
To amend a prior response to an interrogatory, request for production or request for admissions if the party
learns that the response is in some material respect incomplete or incorrect.
A duty of supplemental disclosure is imposed with respect to experts from whom a report is required under
subdivision (a)(2)(B), changes in the opinions expressed by the expert whether in the report or at a
subsequent deposition.
The duty to supplement disclosures and discovery responses is not unlimited. There is no obligation to provide
corrective information that has otherwise been made known to the parties in writing or during the discovery process,
e.g., when an expert, during a deposition, corrects information contained in an earlier report. See Advisory
Committee Notes, 1993 Amendment.

Lastly, the lawyer may want to consider seeking protective orders relating to the testimony given. For example, the
lawyer may seek an order directing that other witnesses not be allowed to read the deposition or be told of its
substance, or that certain testimony such as trade secrets not be revealed to nonparties. While not often granted, the
procedure for obtaining such an order is covered by Rule 26(c). The party seeking a protective order has the burden
of demonstrating the need for one. See Kinan v. City of Brocton Mass., 112 F.R.D. 206, 208 (D.Mass. 1986); C.P.C.
Partnership Bardot Plastics, Inc. v. P.T.R., Inc., 96 F.R.D. 184, 185 (E.D. Pa. 1982).

The court may require that you prepare an index of any video deposition that you have taken. Even if the Court does
not require it, you may find it helpful to your preparation to prepare an index.
For example, in Rices Toyota World, Inc. v. Southeast Toyota Distributors Inc., 114 F.R.D. 647, 652 (M.D.N.C.
1987), the court defined the procedure as follows:
1. The deposition shall be timed by means of additional clock (date-time generator), recording hours, minutes
and seconds. At all times during the taking of the deposition, the additional read-out shall appear at the
bottom or in an appropriate corner of the video screen.
2. The recording should run continuously throughout the deposition from beginning to end but may be
suspended during colloquy among counsel, breaks, etc., upon stipulation of all counsel present.
3. The party conducting the deposition shall cause to be prepared a log index which shall include at least the
following:
(a) Case name and number;
(b) Names of all counsel and deponents present;
(c) Time, date and location;
(d) Beginning location of direct, cross-, redirect, and recross-
examination of each witness;
(e) Beginning location of every objection;
(f) Beginning location of exhibit location;
(g) Start and end of each recording session, including recesses.
4. At the start of the deposition, the party taking the deposition shall make a statement on camera of the date,
time, and place at which the recording is being made, the title of the case, and the identification of counsel
present at the deposition.
5. The person being deposed shall be sworn as a witness on camera by an authorized person.
6. At the deposition the operator shall use the following recording techniques:
(a) The video deposition shall be recorded in color;
(b) One camera shall be used and fixed solely on the witness;
(c) There shall be no unusual lighting in the deposition room solely for the video camera;
(d) During the deposition proceedings the camera shall not be moved;
(e) There shall be no video monitor in the room except for that monitor used by the video operator;
(f) The operator shall use 1/2 inch VHS format video tape.
7. At the conclusion of the deposition, the party taking the deposition shall make a statement on camera that the
recording is completed.
8. The party noticing the video deposition shall bear the cost of the video taping which shall not be taxable as
costs of the action.
9. The deposition shall be concurrently recorded by a stenographer qualified pursuant to the Federal Rules of
Civil Procedure. The stenographic transcript shall be the official record of the deposition and certification of
this shall follow the procedures set forth in Rule 30, Fed. R. Civ. P. The use of the video tape record at trial
is left entirely in the discretion of the trial judge.
10. The person taking the video deposition shall use one recorder to produce one original video tape which shall
be maintained by such person. Any party is entitled to a reproduction of the original tape upon request and
payment of the blank tape price.
11. Documents or exhibits used during the deposition must be marked and identified, and shall remain in the
custody of the stenographic court reporter. Opposing counsel shall be furnished copies.
12. Notice and subpoena for taking a video deposition shall contain the additional statement that the deposition
shall be recorded by audio/visual means.
13. The Court hereby authorizes plaintiffs counsel of record to take the video depositions and directs such
persons to record such depositions accurately and in a trustworthy manner in order to truly take and record
the evidence presented, and all who record do so upon their oaths as attorneys and officers of this Court.
See also In Re Agent Orange Project Liability Litigation, 28 Fed. R. Serv. 2d (Callaghan) 993, 996 (E.D.N.Y.
1980); and Matter of Daniels, 69 FR.D. 579, 583 (N.D. Ga. 1975).
Smith v. Brown, Civil Action No. 80-CV-294,
Deposition of Jack A. Jackson,
March 31, 20__
Video Counter Page/Line Summary

27 3/7 Commencement of deposition: swearing of witness
30 6/12 Examination of Jack Jackson
32 7/4 Educational and work experience of witness

Berg, Refine your Record-Making Skills, 95 Case & Comment 9 (Jan.-Feb. 1990)
Pope and Trull, When Your [Deposition] Opponent is Difficult, The Brief, 31 Summer 1991
Joseph, Modern Visual Evidence (Law Journal Seminars-Press, 1992)
Fairbank, Lees, and Seltzer, The Electronic Law Office, California Lawyer (August 1991)
Lundquist, In Search Of Discovery Reform, 66 A.B.A.J. 1071 (1980)
Annotation, Testimony Given in Foreign Language; Use of Interpreters, 23 Am. Jur. 2d Depositions and
Discovery 152
Chapter 6
Techniques for Taking an Effective

Deposition


632 Dealing With Narrow Objections

This chapter deals with tactics of taking an effective deposition. In the beginning, however, let us emphasize that the
most important tactics are covered in Chapter 4, Preparing to Take or Defend a Deposition. If you are thoroughly
prepared to take a deposition, you will find that your preparation will help you be an effective questioner during the
deposition. This chapter merely helps you put that preparation into use by being more effective in your questioning.
Remember, your tactics for questioning the witness should be designed to accomplish the objectives in taking the
deposition. For example, if your objective is discoveryto learn as much as possible about the knowledge of the
witness relevant to the lawsuityou want him to talk openly and freely. What tactics will best accomplish those
objectivesa friendly, calming demeanor, or an aggressive, belligerent attitude? Should you, at least initially,
display a demeanor of accepting everything the witness says, or display an attitude of skepticism? Should you
impeach when each opportunity arises, or hold impeachment for the end? Do you want to phrase every question
narrowly, calling for very short responses, or propound broader questions calling for a narrative? What approaches
make the witness search his mind and open up in his responses? Perhaps the approach must change during the
course of the deposition.
However, if you have already exhaustively interviewed the witness, and now you want a deposition for use as
substantive evidence at trial, you should use the same techniques as in trial: if he is a hostile witness, use leading
questions or questions calling for narrow, short answers. If a friendly witness, use broader questions with just
enough follow-up questions to keep the witness on a clearly defined path with guideposts for the jury to follow the
testimony.
Suppose you are seeking discovery from an adverse witness. If you believe that the testimony will be adverse,
perhaps jump around in the subject matter so that the transcript is not a clear, coherent story, and yet you will still
obtain all the information that you need. Think of your objectives, then plan the tactics that can best accomplish
those objectives.
See also 611, infra.

Over the years, each of us has developed our personal style for asking questions. Much of our daily informal
communication revolves around questions and answers, just as in a deposition. Certainly, none of us would hesitate
to question a friend or colleague about an event of interest. The questions we use to obtain that information should
come out naturally without much thought. The same should be true for a deposition, but that is not always the case.
If your questions are phrased in plain English, they will be easy to follow and simple to answer. If instead they are
phrased in stilted English and meander from clause to clause, they will draw objections and little else. Model your
efforts after those of the best reporters or TV interviewers and you will be headed down the right path. If an
interviewer does not ask clear questions or pay careful attention to the answers, he will not last long in his
profession.
Depositions differ from other types of communication because of their purpose and your power to compel answers
to your questions. If your goal is to pin down the witness to a particular story, you must develop the questioning
techniques to do so. Conversely, if you seek wide-ranging information, you must develop the necessary skills to get
the witness talking. A deposition should be taken with one or more specific goals in mind and your questions must
be tailored to achieve those goals. Fortunately, there are a host of techniques to aid you in this quest.

There is no right or wrong approach to the organization of your examination. However, a few thoughts can be
provided.
Order of Examination
Should you begin with the important questions, or gradually lead into them after developing all of the background
information? No definitive answer can be given; it depends upon you, your objectives, and the circumstances. It is a
judgment call. Sometimes you may want to create a good relationship with the witness before getting into more
serious substantive material. You also may want to engage in a sufficient amount of questioning before inquiring
into key areas in the hopes that the witness will have relaxed and forgotten the cautionary instructions he was given
by the defending attorney.
On the other hand, you may want to capitalize on a witnesss initial nervousness by going to the heart of the
deposition before the witness becomes confident of his ability to handle the situation. Most witnesses tend to relax
more after the deposition has been underway for awhile. Depositions are seldom as intimidating as most witnesses
fear.
In many cases, it is easier for you and the witness to proceed in chronological order. If you proceed chronologically,
you will find it easier to keep track of what has and has not been covered. It is clearly easier for the witness to give
his testimony in a chronological manner. (Some lawyers believe that jumping around makes it more difficult for a
witness to follow a rehearsed script of his testimony.)
If the deposition will be used at trial, a chronological sequence will be easier for the jury to comprehend. In a few
cases, it is easier to proceed by subject matter. Even though each subject matter overlaps factually in time with
others, it is easier to keep each subject matter distinct, and tie them together later as appropriate.
However you approach the deposition, do not tie yourself to your notes or your original plan for the deposition.
Your notes should provide a checklist for your examination; they should not prevent you from following the
deposition through its natural progression. Follow up on answers and give the witness leeway in the direction the
deposition flows, so long as you ultimately come back to your outline to check that all important subject areas have
been covered. If you simply follow your outline, you will not follow up on the witnesss answers and will fail to
explore the by-ways and side roads given to you by the witness and which, if pursued, may reveal helpful
information.
Many inexperienced deposition-takers take extensive notes of the witnesss testimony during the deposition. This is
generally not a good idea because it often means that your eyes are on your notebook and not looking at the witness.
In general, when the witness is talking, you should be looking at the witness. First, it is easier to listen carefully to a
witness when you are looking at him or her. When you are distracted, by, for example, note taking, you are more
likely to miss part of an answer which might have opened an important line of inquiry. Second, by looking at the
witness while he or she is speaking, you will pick up on non-verbal expressions which themselves may be signals.
For example, witnesses who are not telling the truth often blush or fidget with their hands. When you pick up such
signals it usually is a good indication that further inquiry may be fruitful.
You can get away with not taking many notes during a deposition because the court reporter is right there taking
everything down stenographically. If you forget a witnesss testimony that you want to go over during the
deposition, during a break ask the court reporter to read back to you the testimony on which you want to follow-up.
There are two general exceptions where you do want to take careful notes. First, when a witness is giving a list, you
should jot down each item in the list so that you can then refer back to your notes while following up on each item
in the list. For example, if you ask for each date on which the witness met with your client, write down each date
that the witness tells you. Then ask for the details (e.g., who else was there, who called the meeting, was there an
agenda, who said what during the meeting, did anyone take notes, was anything agreed upon, etc.) for each of the
dates that you wrote down. Second, you may also want to get down the witnesss answer verbatim where the exact
words may in and of themselves carry some particular importance.
Type of Questions
Even with a hostile witness, you will want to elicit as much information as you can through broad nonleading
questions. If you want information, use nonleading questions calling for the witness to answer with a narrative. If
you want admissions, or confirmation of facts, use leading questions. Remember, however, that leading questions
seldom elicit new facts or unexpected testimony.
Leading questions are allowed under Rule 30(c) in the circumstances described in Fed. R. Evid. 611(c):
when the witness is hostile, an adverse party, or identified with an adverse party
in cross-examination
when necessary, in direct examination to develop the witnesss testimony.
In some cases, you may want to take the deposition of an adverse witness twice (in one sitting). The first time go
through the subjects of the deposition with minimal documents, broadly framed questions, and a nonadversarial
attitude. This places the witness in a confident frame of mind. The witness usually becomes freer in his responses,
more talkative, and generally relaxed. The second time around, you will be armed with the documents and the
earlier testimony of the witness. As the questions become more pointed, more leading and more adversarial, the
witness may dig in his heels as he assumes an adversarial posture but it will be too late because you have the
required information. Be careful in using this technique that you dont duplicate earlier questions because opposing
counsel may object to repetitive questions.
Hostile or Friendly Approach to the Witness
James McElhaney points out in Constructive Cross-examination 14, No. 2 Litigation 49 (Winter 1988) that a
destructive cross-examinationangry, verbally combative, hostileoften may be a mistake. Such an approach may
create sympathy for the witness and animosity toward the examining lawyer. More importantly, it may result in the
witnesss hostility, and testimony more hostile to your clients cause than it would have been with a reasonable
approach. The point is that you should carefully weigh the pros and cons of a hostile examination before embarking
upon it.
Usually, the primary purpose of a deposition is to obtain discovery of what the witness knows or opinions held. A
combative style toward a witness usually keeps the witness alert to all the precautions about which the defending
attorney warned. On the other hand, the friendly, professional approachboth before and during a depositionwill
often relax the witness and cause him to be less on guard. Indeed, this is usually true even if the defending lawyer
has warned him of this approach. Carry on a conversation, ask questions that call for short narratives, and be fair,
and most witnesses, regardless of how well prepared, will answer in a reasonably forthright manner.
Practice Tip: Focusing the Purpose of the Deposition

Before beginning the deposition, determine your goals. To commit a witness to a story? To avoid
surprise at trial? To actually obtain an admission? To explore the witnesss ability to hold up under cross?
Knowing your objectives helps reduce the length and adds focus.
Practice Tip: Avoid Meandering

Do not explore areas that you have no intention of using at trial, except where there is a solid strategic
reason for doing so. If you are familiar with the expert, and do not intend to challenge or make an issue of
his or her credentials at trial, do not spend time asking about the experts qualifications.

One of the primary reasons to take a deposition is to discover all of the information a witness may have relating to
your case. To accomplish this, you may want to start with broad, open-ended questions that literally require the
witness to come forward with any knowledge he has. Asking effective open-ended questions for the purpose of
obtaining discovery from a witness is harder for the inexperienced deposition-taker than it would seem. It is true
that open-ended questions start with the who, what, when, why, and how questions. If you are asking about a
meeting, ask: Who attended? What was the agenda? When was the meeting? How was the meeting called?
Keep the questions short. The goal, in part, is to start the witness talking. Then continue to ask open-ended
questions to keep the witness talking. What happened next? What did you observe? Who spoke next?
Once you have gotten a broad picture of the witnesss knowledge, you can then become more narrow and specific in
your questioning. For example, if the dispute centers on an alleged wrongful termination of a contract, you may
want to start by finding out about the witnesss general involvement:
Q. What were your job responsibilities at Cable Manufacturing?
Q. Did you have any supervisory responsibilities at Cable? What were they?
Q. Did you work with the plaintiff, Ms. Bartles, at Cable? What kind of work were you doing?
Q. Were you involved in the negotiation of Ms. Bartles employment agreement?
Q. Were you involved in any way in the decision to terminate Ms. Bartles?
Q. Describe how the decision to terminate the contract with Ms. Bartles was reached.
Broad questions such as these do not always elicit valuable information. However, they should help you determine
where to go with more specific questions. If you receive a negative answer, be wary of hyper-technical
interpretations of your questions. A witness may be technically truthful in answering that he did not participate in a
meeting, even though he may have attended the meeting and heard everything that was said. Or, even if he did not
attend the meeting, he may have been told about what happened or given minutes or a report of the meeting. Follow
up with additional broad questions until you feel sure you have covered all of the possible angles.
Once you have covered the topic in broad brush strokes, narrow your focus with more specific questions. For
example, questioning about a meeting can begin generally but should move to specifics:
Q. Did you attend any meetings concerning ?
Q. What were the dates of each meeting?
Q. Where did the July 20, 20___, meeting take place?
Q. Who was there?
Q. What was the purpose of the meeting?
Q. Please tell me everything you can recall about what each person said at the meeting.
Or:
Q. What was discussed at the meeting?
Q. Did anyone take notes at the meeting?
Q. How long was the meeting?
Q. Were any papers distributed or discussed?
Q. Were any telephone calls made or received?
Q. What conclusions, etc. were reached?
Q. Were any memos made summarizing the meeting?
Everything that was said at the meeting can be explored exhaustively if you proceed with your questioning step by
step.
These questions are not meant to provide a script for your questioning but rather to illustrate the types of questions
which you can employ. As the witness answers each question, follow up with additional specific questions, often
based upon the answer to the prior question, until you have exhausted the witnesss knowledge. Once you have,
make sure you establish that fact clearly on the record so the witness will have difficulty changing or supplementing
his testimony later at trial. This can be done simply by asking the witness whether he recalls anything else, or
whether there is anything, such as a document, that might refresh his memory.

Even the most damaging admissions by a witness are of little value if the witness has left himself room to evade or
modify them at trial. For that reason, you must always make sure to pin down the witnesss testimony. If you can
accomplish this, you will have narrowed or confined your opponents case. In turn, you will be better able to rebut it
at trial.
The art of pinning down a witness lies in a combination of both general and specific questions. Generally it is better
to start with open-ended questions. When the witness responds, follow up with a summary question or with one
designed to establish that the witness has no other information. For example:
Q. What did Mr. Jackson say about the accident?
A. Well, I heard him say he was in a great deal of pain and then this man walked up and asked him what
happened. I was looking at the bicycle but I heard Mr. Jackson say that it was his fault because he wasnt
watching for cars and didnt notice that the light had changed.
Q. Do you specifically recall that Mr. Jackson said that the accident was his fault?
A. Yes.
Q. What is your best recollection of Mr. Jacksons words to the effect that the accident was his fault?
A. Witness states his recollection of Mr. Jacksons statement.
Q. And he said that he was not watching out for cars?
A. Yes.
Q. And he said he didnt notice that the light had changed?
A. Yes.
Q. Do you recall him saying anything else about the accident?
A. No.
Q. Are you sure?
A. Yes.
Q. Can you think of any documents or anything else that might help you better remember?
A. No.
You may also want to review the timing of Mr. Jacksons statements, and his physical and mental condition at the
time.
In many cases, your witness will respond to a simple yes or no question with a narrative. If the narrative says
exactly what you want, go on. But if the narrative evades the question, or confuses the answer, follow up: Is your
answer to my question yes, or is there something in my question which does not permit you to answer yes or no?
As an alternative, summarize and confirm that the witness agrees with your summary.
If you are examining the contents of a letter, and the letter is important, ask the witness about each relevant
sentence. Follow up on each answer. If the answer takes you into relevant areas beyond the letter, either follow
them up, or make a note to pursue the inquiry later.
The key to pinning down a witness is dogged determination and follow up. Keep asking questions until the
witnesss memory is exhausted. Summarize the key points and seek agreement. Most importantly, do not be content
with general answers. Follow up with specific questions until every aspect of every subject matter has been covered.
Keep asking: What else was said? What else was done? What else did you do? What else did others do?
After exhausting the witness on each point, ask: Do you remember anything else? or, Is there anything which
would refresh your memory?

One of the best ways to pin down a witness who tends to respond with long narrative answers is to summarize the
important points as you go along. If you do not, you may be left with rambling testimony which makes helpful
points yet buries them in such a way as to make impeachment difficult or impossible. Take the testimony piece by
piece, and confirm it by very narrow, specific questions or summarize it for the witness. Tell the witness you want
to make sure you understand his testimony or that you want to make sure the record is clear. In fact, your purpose
also is to make sure you have ammunition for impeachment should you need it at trial. For example, after a long
narrative regarding events on June 4, 20__, summarize by asking the following:
Q. Mr. Davidson, let me make sure I have understood your testimony regarding your activities on June 4,
20__.
Q. Your first involvement was on June 4, 20__, when Mr. Jones called you, is that correct?
A. Yes.
Q. And in that conversation, Mr. Jones told you _____________, is that right?
A. Yes.
Q. That is the only thing he told you?
A. Yes.
Q. And you told him ?
A. Yes.
Q. Did you tell him anything else?
A. No.
Q. You then met with Mr. Smith approximately one hour later when he came to your office, is that right?
A. Yes.
Q. Isnt it true that in that meeting Mr. Smith told you that _____________?
A. Yes, that is essentially what he said.
Q. I want to make sure I have this right. What do you mean by essentially?
A. Well, that is about what he said.
Q. Can you think of anything else that he said?
A. No.
Q. Can you remember his words?
A. No.
Q. Can you state in your own words your best recollection of what Mr. Smith said.
A. Witness states his recollection.
Q. Then at least you recall that he said ________________, isnt that correct?
A. Yes.
Q. Is there anything that would refresh your recollection as to whether he said anything else?
A. No.
Not all examinations go as smoothly as this but the point of the illustration applies. You have the right to break
down narrative testimony piece by piece into its elements and demand confirmation of your understanding. If the
witness injects new elements in response, at least you have heard it now and not unexpectedly at trial. Using the
same techniques, draw out the witness with narrative questions and resume your process of summarizing that which
is relevant. If you continue with this process, you will have pinned down your witnessfor better or worse.
Knowing when to use summary questions will require judgment and experience on your part. It is not proper or
productive to use summary questions to simply repeat testimony. If you do, you will draw an objection that the
question has been asked and answered. Where the witness has testified in the form of a narrative, however, and the
answer is in any way confusing, then the technique is legitimate and all but mandatory. Should the defending
attorney object, ignore the objection and proceed with your interrogation. Should he instead instruct the witness not
to answer, consider filing a motion to compel an answer.
It should be emphasized that this technique should never be used as a vehicle to misstate the witnesss testimony in
the hopes of fooling him into helping your side. If you do, counsel will likely object on the grounds of
mischaracterization of prior testimony. Even if he does not object, your witness will likely disagree and return to the
narrative mode, thus defeating the purpose. Use the technique only to summarize fairly the testimony that has been
given; your object is to pin the witness down, not dupe him into changing his testimony.

Some witnesses will intentionally try to evade, or argue with you about, each important question. More than others,
these witnesses require your patience and persistence. When the witness gives an evasive answer to your question,
respond: I do not believe you answered my question. Mr. Reporter, would you please read back my last question.
If the deponent persists in his prior answer, respond: Let me try again. My question is ______________. Would
you please answer my question.
Make sure that your questions are narrow, simple and clear; if the witness has a legitimate basis to evade your
question, opposing counsel will object when you keep repeating it. If in doubt, pause and think of a way to rephrase
your question so that the witness is required to answer it fairly. To repeat, patience and persistence is the key to
success; narrow specific questions will help you reach that goal.
Some witnesses may unintentionally respond in a manner that is evasive or does not suit your purposes. For
example:
Q. Did you call Mr. Jones on July 29 to discuss the deal?
A. I was considering the best course of action to take and discussed it with Tom, Bill and Joe. After
considering we decided there were multiple steps. Later that day I placed calls to Mr. Thompson, Mr.
Jones and Mr. Smith.
In this case, the witness may be trying too hard to help you by giving you the whole story. In response, you may
choose to let the witness talk, in the hope of learning something useful. Ultimately, however, your need to control
the witness and may require a different approach. One way to regain control of the situation is to respond:
Q. Mr. Jones, my question was, On July 29 did you contact Mr. Jones to discuss the deal? Can you
answer that question yes or no?
If he says yes, ask him to do so. If he answers no, ask him why he cannot answer yes or no, and follow up.
Do not give up on this kind of witness. Continue to ask the same or a revised question calling for the same
information. Be sure that your questions are narrow and call for short and obvious answers. If the witness continues
to answer in a nonresponsive manner, move to strike the answer as being nonresponsive. Once the witness finally
realizes he cant get away with his evasions and that he is needlessly prolonging the deposition, he will usually
begin to respond properly. If he persists in being evasive or nonresponsive, your last option is to warn the witness
that he must answer your questions in accordance with the rules of court and advise him that if he persists, you will
have no choice but to ask the judge to order him to answer and assess costs. If the witness still refuses to answer
responsively, consider recessing the deposition and moving for an order compelling responses. Try to end your
examination on a particularly egregious evasion so that you can show it to the judge.
An argumentative witness will often try to anticipate where you are going with each question and defeat your
objective. He will quibble with small details and try to evade when he cannot quibble. He should be treated like the
evasive witness. Repeat your question or modify it to eliminate the objectionable detail. If he claims he doesnt
understand your terms, either define them or ask him to define them and then repeat the question. Eventually, he
will break down and answer. If necessary, use the pinning techniques to make sure you have answers that can be
used to impeach at trial.
Some argumentative witnesses will try to avoid answering yes to questions, even though they should be admitted.
One tactic is to phrase your questions so that the desired answer is no. By doing so, you may lead him into some
valuable admissions. For example, if you want to establish that the deponent contacted Mr. Smith before calling Mr.
Jones, you could ask the question in at least two ways:
Q. Isnt it true that you called Mr. Smith before you called Mr. Jones?
As an alternative, you could ask it in this way:
Q. Isnt it true that you called Mr. Jones before you called Mr. Smith?
In some cases, the conduct of an argumentative witness might extend beyond refusal to answer questions or
quibbling with their form, and enter into insulting and hostile behavior. For instance, in GMAC Bank v. HTFC
Corp., 248 F.R.D. 182 (E.D. Pa. 2008), the defendant CEO deponent used vulgar remarks, insults, and evasive
answers for almost 75% of the deposition. Upon a motion to compel deposition testimony and for the imposition of
sanctions, the court found this behavior reprehensible and awarded almost $30,000 in sanctions to the plaintiff. Of
further note, the deponents lawyer was jointly and severally sanctioned for not restraining the deponents actions.
The attorneys silence equated to a tacit endorsement and ratification of deponents behavior. As the court stated:
It is true that an attorney can be blindsided by a recalcitrant client who engages in unexpected sanctionable conduct
at a deposition. An attorney faced with such a client cannot, however, simply sit back, allow the deposition to
proceed, and then blame the client when the deposition process breaks down.
Id. at 195.
If you encounter such behavior, maintain your professionalism and continue to respectfully seek answers to your
questions. Use the above tactics of rephrasing and definition to ensure the deponent can understand and easily
answer the question. Finally, consider terminating the deposition if the deponent is obstructive, rude or profane and
move to compel answers and, where appropriate, for the imposition of sanctions.
From time to time you will encounter a witness who claims not to remember anything about important events,
details of conversations, or other matters at issue in the lawsuit. In some cases, the witness has a genuine lack of
memory, or is sufficiently nervous about the prospect of testifying that he has drawn a blank about matters which
normally would be remembered. In others, unfortunately, the witness simply chooses not to remember or has been
improperly coached to give this response.
A common reaction to the forgetful witness is to become upset or to truncate your examination because it appears to
be futile. Do not give in to these urges. In most cases, the forgetful witness presents an opportunity rather than a
liability. If the witness is nervous, you may or may not want to take steps to calm him and to help him recover his
memory. If he is dishonest, you will want to be sure that his lack of memory is clearly established on the record. In
either case, your tactics for dealing with a forgetful witness will vary greatly depending upon a combination of
factors, including your estimation of the integrity of the witness, your need for the witness to give testimony on the
subject, and your desire to prohibit the witness from later giving testimony on the subject based upon an alleged
recovery of memory.
If the witness who professes a lack of memory appears to be nervous with respect to the deposition process, you
may want to try to help him relax. If your goal is to help the witness recover his memory, which is not always the
case, start by trying to make the witness comfortable. Explain how the deposition process works and assure the
witness that you are only interested in learning the truth. Emphasize that depositions are not like tests and that he
must only tell what he knows and remembers. Begin with easy questions about the witnesss background or
employment until he becomes accustomed to answering questions. Use a friendly tone and avoid adversarial
questions until he is relaxed, comfortable, and responding to questions. Once the witness feels he is in control of the
situation or at least can respond to your questions, his nervousness may diminish.
If nervousness does not appear to be the problem, and you believe the witness has simply forgotten about past
events, consider refreshing his memory by showing him relevant documents. In the alternative, ask him whether he
knows of any documents or records which might help him recall. He may mention a document which you have not
yet seen or possibly one which you have and can place before him. You will sometimes learn of important evidence
through this type of question. It might also provide a basis for seeking discovery of written statements given to his
attorney or fact summaries prepared by his attorney. Ask specific questions, as they are more likely to jog his
memory, or at least will commit him to a no knowledge position.
Another option is to ask the witness to tell you who might know the answer if he doesnt. If a name is given, follow
up and find out why the witness believes that this individual might know. If the witness acknowledges that your
client or another friendly witness was in a position to know, establish that this witness could not presently contradict
your clients testimony, or that of another, whatever it might be. For example, where attendance at a meeting is in
issue:
Q. If my client were to testify that you were present at the meeting on Sunday, July 23, 20__, could you
dispute that testimony based upon your present recollection?
A. No.
If the witness equivocates, follow up:
A. I dont really remember. Maybe I could.
Q. Im asking for your best recollection at this moment. As we sit here today, can you recall whether you
were present at that meeting?
A. No.
Q. Then based on your present memory you could not contradict my client if he were to testify that you
were there, could you?
A. No.
One purpose of this line of questioning is to neutralize the witness and eliminate him, as much as possible, from
being a factor at trial. If it prompts him to suddenly remember, at least you have an opportunity to hear his
testimony in deposition rather than at trial.
If you believe that the witness is being dishonest, or is deliberately minimizing his memory, your only option may
be to neutralize him as a witness by showing that he had no recollection on any of the relevant points at the time his
deposition was taken. If you have a broad range of topics to cover, you will have to call upon all of the patience and
perseverance you can muster. Even though the witness repeatedly answers, I dont remember, continue asking
your questions until you have covered every aspect of the subject area. If you have asked a specific question on the
issue in deposition, it will be difficult for the witness to credibly regain his memory at trial. At the least, you will
have good material for impeachment.
When dealing with a forgetful witness, you may have to employ all of the techniques at your disposal, whether your
purpose is to jog the witnesss memory or pin him down for trial. The reason is that your impeachment at trial may
be more effective if you can show the jury that you made every effort to help the witness remember during his
deposition. For example, consider a scenario where the witness admits being at a meeting but claims he doesnt
recall what was said:
Q. (After establishing that the meeting took place and that the witness recalls that Ms. Davidson and Mr.
Reilly also attended.) Did Mr. Reilly say anything about pricing schedules at the meeting you attended
on July 23, 20__?
A. I dont remember.
Q. Do you remember Mr. Reilly saying anything about pricing schedules at the meeting?
A. No.
Q. Do you recall that the subject was discussed by anyone?
A. No, I dont recall.
Q. I would like you to take a minute and think. Can you recall anything that was discussed at that meeting?
And I mean the meeting of July 23, 20__.
A. No, not really.
Q. Are there any documents which you could look at to help refresh your memory?
A. Not that I can think of.
Q. Did you or anyone else, to your knowledge, take any notes during or after the meeting?
A. Not that I know of.
Q. If we were to stop for a minute, do you think you might be able to remember better?
A. No, not really.
Q. So you cant say one way or the other whether pricing schedules were discussed at the meeting.
A. No.
Q. If Ms. Davidson were to testify that pricing schedules were discussed, could you dispute her testimony?
A. No.
Q. And if Mr. Reilly were to testify that pricing schedules were discussed, could you dispute his testimony?
A. No.
Q. Isnt it true that the three of you compared prices for your paper products and discussed setting prices for
the coming year?
A. I dont recall doing that.
Q. Based on your present recollection, can you deny that such a discussion occurred?
This type of questioning can go on as long as it takes you to pin down the witnesss lack of recall. If the I dont
recall response is highly favorable to your case, you should consider whether further inquiry might jog the
witnesss memory and result in unfavorable testimony. If I dont recall is exactly the answer you want, consider
leaving it alone.
Many witnesses will give you too much information in response to your questions. Regardless of the nature of your
question, the witness responds with a long narrative. Unless you called the deposition for a very specific and narrow
purpose, consider the talkative witness a blessing. He is likely to provide you with much more information than you
otherwise might have gotten and will give opposing counsel fits. If he is an adverse witness, he is all the more likely
to contradict himself or to make helpful admissions.
Be aware that long narrative answers may hide evasions to your questions. You might also be left with a difficult
job of impeaching testimony at trial because it is buried in irrelevant testimony. The answer is to not lose sight of
your question and your overall objectives, and to use your techniques to summarize and pin down the witnesss
testimony into usable form. In most cases, you do not want to shut off the narrative until you are sure there is
nothing left to gain. Then follow up with specific, narrow questions.
If you determine that it is not in your best interests to allow the witness free reign, you should be able to bring him
under control through a combination of narrowing your questions, using leading questions, or simply instructing the
witness to answer your question and only your question. For example, a question of tell me everything you know
about the meeting which occurred on January 25, may result in a long narrative replete with irrelevant detail. Follow
up with specific questions to elicit the information you want in a usable form:
Q. Where did the January 12, 20__ meeting take place?
Q. Who set up the meeting?
Q. Who was present?
Q. When did the meeting begin?
Q. Did you see anyone taking notes?
Q. Who was the first to speak?
Q. What did Mr. Jones say?
Q. Who responded, what did they say (continue chronologically)?
Q. Were any documents distributed or referred to by anyone?
Q. Was there any mention of ________________?
Q. Were any tasks assigned to anyone?
Q. Were any decisions made or conclusions reached?
Q. When did the meeting conclude?
Q. Can you think of anything else that was said?
Using these type of questions, a one hour meeting can be dissected into a hundred questions, and most answers give
rise to follow-up questions. The more detailed and specific you are in your questions, the narrower the answer
should be. If the witness refuses to take your lead, stop him in mid-answer, move to strike the answer and demand
firmly that he focus on your question and answer it:
Q. (Interrupting) Excuse me. Perhaps you didnt hear the question. (To the reporter) Would you please read
back my question?
The question is read.
Q. Do you understand my question? Would you please answer it?
Q. (Interrupting again, if necessary) I am only asking this specific question which I will repeat. (Repeating
question) Will you please answer my question?
A second and equally effective way to reign in a talkative witness is to ask a series of leading questions or
intersperse them with your narrative questions. Keep in mind, however, that leading questions obtain confirmation
or denial of known facts, and seldom elicit new information. For that reason, leading questions are used sparingly
and normally only after you have exhausted your narrative questions.
If the witness has no ties to either side of the case, begin the deposition in an open and nonadversarial manner. You
will get far more useful information if the witness is comfortable and relaxed than if the witness feels he is engaged
in a pitched battle. If necessary, save your cross-examination and more adversarial lines of questioning until the end
of the deposition. Witnesses react negatively to perceived hostility and they will seldom try to help their adversary.
If a witness has difficulty with or is unable to understand or speak English, special considerations arise:
1. Does the witness need an interpreter? Counsel for a witness will usually ask for one before the deposition.
The cost is the responsibility of the party noticing the deposition.
A problem arises when the witness speaks and understands English only marginally. Does the noticing party
have an obligation to provide an interpreter? If the noticing party refuses, should the deponent show up to
the deposition and simply claim not to understand the questions? To avoid a hearing on a protective order,
speak to opposing counsel before the deposition.
2. Need for clarity on the record. Do not be lured into a false sense of security by the presence of an
interpreter. The need for absolute clarity in the choice of language is critical in a deposition of a non-English
speaking individual. Underlying the language differences often are cultural differences that further
complicate fact-finding.
Any attorney experienced in taking depositions of non-English speaking persons is painfully aware of how
difficult impeachment can be when faced with a witness who despite an interpreter seems not to understand.
Keep the questions simple. A deposition becomes of less value if a witness can claim at trial not to have
understood various questions.

Asking about documents is an important part of the deposition process, Because the judge or jury is not present
during the deposition, you must take care to identify the documents being used and to refer to them clearly
throughout the deposition. Here is a typical examination to identify a document:
Q. I hand you what has been marked by the reporter as Exhibit 1, which appears to be a letter dated July 12,
20___, from Eve Johnson to you. Can you identify Exhibit 1 as being a copy of a letter you received?
Q. Are you familiar with Ms. Johnsons signature?
Q. Is the signature on the bottom of page 2 of Exhibit 1 Ms. Johnsons signature?
Q. Did you receive Exhibit 1 on or shortly after the date of the letter, February 4, 20___?
In some cases, you may want to offer exhibits into evidence. One purpose for doing so is to elicit objections which
might be cured by the witness who may not be available at trial. For example:
Q. Ms. Boyden, I hand you what has been marked for identification as Exhibit 33. It appears to be a letter
dated September 24, 20___, from you to Ms. Sampson. Can you identify Exhibit 33 as a letter from you
to Ms. Sampson?
A. Yes, that is my letter.
Q. Do you recall sending it to Ms. Sampson at about that time?
A. Yes.
Q. We offer Exhibit 33 into evidence. Any objections, counsel?
Ms. Davis (opposing counsel): I object for lack of foundation. There is no evidence that the letter was sent
by certified mail. (Assuming in this case that certified mail was required.)
Q. Ms. Boyden, do you recall by what means the letter was sent?
A. Yes, it was sent by certified mall.
Q. Thank you. We re-offer this exhibit.
Ms. Davis: No objections.

Your demeanor, or the game face which you choose to show at the deposition, is largely a function of your
personality, your objectives, and the personality of the witness and that of the defending attorney. In some cases,
you may choose to adopt a hostile, adversarial demeanor in the hopes of making the witness uncomfortable. In
others, you may want to convince the witness that you are harmless or even ignorant about the facts of your case.
And in many, you will want to switch roles to fit the moment. Regardless of the approach, your demeanor is an
important part of your strategy for taking a deposition.
While there are no specific rules that define your conduct during a deposition, your conduct, as well as the conduct
of opposing counsel, should be governed by the general guideline that a deposition is to proceed in accordance with
the standards applicable to trial. See Rule 30(c). If your conduct would not be permissible in the courtroom, it will
not ordinarily be permissible at a deposition. Ethicon Endo-Surgery v. U.S. Surgical Corp., 160 F.R.D. 98 (S.D.
Ohio 1995). Accordingly, conduct such as shouting at the witness or other counsel, threatening or abusive conduct
directed at the witness, or repetitive, argumentative questions asked solely for harassment is not only impermissible,
but may well justify the suspension of the deposition in order to move for a protective order. Many courts have
adopted, by local rule, standards of civility and professional conduct that govern litigation generally and depositions
specifically. See United States District Court, Central District Of Californias Civility And Professional Guidelines,
Standards For Professional Conduct Within The Seventh Federal Judicial Circuit.
As a practical matter, there is plenty of room to maneuver within the boundaries of the Rules. During the course of
the deposition, you may choose to test the witness and see how he behaves when he is angry. Sharp questions which
intimate that the witness is lying or biased (if you so suspect) may achieve this result. You may also find it
necessary to spar with opposing counsel at times. Because your only weapons are your voice and your knowledge
of the Rules and substantive law, do not hesitate to stand up and point out to opposing counsel when you believe
that he or she has crossed over the line of acceptable behavior. If you draw an objection, you can always choose to
back off from your attack.
In all cases, take care not to inadvertently reveal the fact that information being disclosed is either helpful or
harmful to your case. Both the defending attorney and the hostile witness will be alert to signals from you that the
information being provided is important to your case. If opposing counsel perceives that you believe the information
is helpful, it might tip him off to your underlying theories or strategies. Similarly, if the witness begins to believe
that he is helping you through his testimony, he may become more reticent or he may seek to retract or rephrase his
answer. Conversely, dont let your opponent know that you feel that certain testimony is damaging; he may not be
aware of its implications.

This book will not attempt to cover the subject of body language. Nevertheless, every experienced trial lawyer
carefully watches the witness for telltale signs. For example, questions concerning which subjects cause the witness
to be nervous? (Watch body movement, change in tone of voice, playing with pencil or paper, twisting hands, etc.)
What types of questions does the witness answer quickly? Which ones does he answer slowly? Which questions
cause the witness to look to his lawyer?
Watch as well as listen, and you may learn more than what the witness says.

In general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence
of a judicial officer. Armstrong v. Hussmann Corp., 163 F.R.D. 299, 303 (E.D.Mo. 1995); Van Pilsum v. Iowa State
Univ. of Science and Technology, 152 F.R.D. 179, 180 (S.D.Ia. 1993). Since a deposition is to be conducted in the
same manner as a trial, the defending attorney has a limited role during the deposition. During the examination, the
defending attorneys role is limited to making short and concise objections, consulting with his or her witness to
determine the availability of a privilege and, if appropriate, advising or instructing the witness not to answer a
question. Apart from this, the only other occasion for counsel to speak is to request that a question be reread or
repeated because he or she did not hear it, or to request that an appropriate recess be taken.
Unfortunately, there has been a recent tendency for the defending attorney to thwart the fact finding process and
frustrate the examination by lengthy objections and colloquy, suggestive objections and statements designed to
coach the witness, repeated conferences with the client and other strategic conduct. While improper, these tactics
are often employed because they are taken outside the courts presence, and because it is the tendency of some
courts not to become involved in discovery disputes. This conduct was succinctly summarized in Hall v. Clifton
Precision, where the court stated:
In short, depositions are to be limited to what they were and are intended to be: question-and-answer sessions
between a lawyer and a witness aimed at uncovering the facts in a lawsuit. When a deposition becomes something
other than that because of the strategic interruptions, suggestions, statements, and arguments of counsel, it not only
becomes unnecessarily long, but it ceases to serve the purpose of the Federal Rules of Civil Procedure: to find and
fix the truth. [Citation omitted.] 150 F.R.D. at 531.
When you encounter an attorney who employs these tactics, a thorough knowledge of the Rules and any local
standing rules or orders for the conduct of depositions will be your best defense. If your examination is interrupted
by improper objections, statements or conduct, you should promptly advise counsel that his or her conduct is
governed by the Rules and request that he or she cease the disruptive conduct. You may request that counsel state
on the record whether he or she believes his or her conduct would be acceptable in court. If it clearly is not, counsel
will probably be hesitant to make such a statement for fear of subsequent court review.
Practice Tip: Confer Privately With Opposing Counsel

Lawyers hate to be embarrassed in front of their clients. If you confront a lawyer on the record who has
been inappropriately obstructionist, you may simply be inviting the lawyer to dig in his or her heels so as
not to appear weak in front of his or her client-witness. One way of dealing with this is to call or wait for a
recess. During the recess discreetly ask to speak to opposing counsel outside of the presence of the
witness. Very politely explain that his or her tactics are inappropriate under the rules and that you would
like to come to some understanding off the record as to how the depositions in the case going forward will
be conducted. By doing it this way, you signal that you are agreeable to abiding by the same set of
informal rules between counsel (meaning you will not be obstructionist when you are defending a
deposition in the case), without putting opposing counsel on the spot. When handled this way, most times
opposing counsel will tone down the inappropriate conduct. If opposing counsel does not do so, however,
then you probably do want to start building a record should you need to seek court intervention.
If you cannot convince opposing counsel to cease the improper conduct, consider suspending the deposition and
seeking an order from the court, including sanctions, under Rules 26, 30, and 37(a)(4). In seeking this order,
consider requesting that the order include a provision defining the appropriate conduct during the deposition. See,
e.g., Ethicon Endo-Surgery v. U.S. Surgical Corp., 160 F.R.D. 98 (S.D. Ohio 1995).
Another effective, although expensive, alternative is to request the court to appoint a special master or magistrate to
preside at the depositions. See Shapiro v. Freeman, 38 F.R.D. 308, 311-12 (S.D.N.Y. 1965); Shelton v. American
Motors Corp., 805 F.2d 1323, 1325 (8th Cir. 1986). Sometimes this becomes an economical means of controlling
your adversary, since it should effectively eliminate most objection pretexts and allow the deposition to be
concluded more quickly than without a judicial officer present. Examples of counsels conduct which would justify
the appointment of a master are found in Ralston Purina Co. v. McFarland, 550 F.2d 967, 972 (4th Cir. 1977);
United States v. National Medical Enterprises, Inc., 792 F.2d 906, 909-910 (9th Cir. 1986); Unique Concepts, Inc.
v. Brown, 115 F.R.D. 292, 294 (S.D.N.Y. 1987).
Sometimes you can indirectly enlist the aid of the witness in overcoming the improper interference of defending
counsel. For example, after a series of improper objections, commentaries, etc., you might say: I had fully
anticipated completing this deposition today. Now, because half of the time is being used for defending counsels
objections, commentary, etc., it appears the deposition will take two days. Sometimes that will cause the witness to
place some pressure on the defending attorney to moderate his conduct.

Under the Rules, most objections to deposition questions go to the form of the question. When a legitimate
objection is interposed, you must decide whether to rephrase the question, in an attempt to cure the objection, or to
stand on the question as asked. If you do not understand the basis for the objection, consider asking for a brief
explanation. If you conclude that the objection is valid and decide to rephrase your question, simply state: Let me
rephrase the question, and then state it in a different way which will overcome the objection.
In some cases you may choose not to rephrase your question, even if the objection might be technically correct. One
reason is because the question is not important, the answer would be inadmissible hearsay, or you do not expect to
use the witnesss testimony on that point at trial. Another is because you conclude that opposing counsel is trying to
interrupt your flow of questions and you do not want to encourage him to continue by appearing to give in. In either
case, your best approach is to remain unperturbed when the objection is being made and then direct the witness to
answer the question. If the witness asks that the question be repeated, you can either repeat it or ask the reporter to
read back the question.
One defense against form objections is to make sure that your questions are short, narrow, clear and
unobjectionable. If you do so and opposing counsel persists in interrupting the flow of your deposition, consider
stipulating pursuant to Rule 29 that all form objections be reserved until trial. While opposing counsel is not
required to accept the stipulation, he may and this may solve the problem. The alternative is to move for a court
order under Rule 26(b) for contempt or to reserve all objections until trial.
Ultimately, you may have no recourse other than to continue to plow forward. As you proceed, consider making a
record as to how the objections are inappropriate and are needlessly prolonging the deposition (to the possible
dissatisfaction of the witness). In some cases, the defending attorneys tactics may help you because it may cause
the witness to become distracted and lose his concentration. As a result, he may provide more helpful information or
admissions than he otherwise would have. In any event, do not allow defense tactics to deter you from taking a full
and complete deposition.
Generally, the reactive response to an objection is for you, the examiner, to argue the merits of the objection. If you
do, it is unlikely that your opponent will capitulate; he is not a judge ruling on the merits; he is an advocate pressing
his clients cause.
Hence, in most instances, and particularly where your opponent appears to be using objections as a means of
interrupting the flow of the deposition, do not respond. Simply indicate by words or a nod that the witness should
answer. On the other hand, you may want to state the response to the objection on the record while you have it in
mind.
632 Dealing With Narrative Objections

Rule 30(d)(1) provides that an objection shall be stated concisely and in a nonargumentative and nonsuggestive
manner. Nevertheless, some attorneys will routinely make narrative objections designed to comment upon your
question or to assist the witness. In response to straightforward questions, the attorney defending the deposition may
object (although the word objection is often not stated) and interject:
If you know .;
Do you want the deponent to tell you .;
I think you should give the witness a copy of ______;
If you remember .;
Answer only to your personal knowledge;
If you think you can answer, go ahead;
Do you need to have the question explained?;
Are you asking the witness whether .; or
The witness has already told you ______.
More often than not, these type of objections are made in order to interrupt your examination, to interpret your
question and to suggest or coach the witness as to how to respond to the question. These types of speaking
objections are patently impermissible during a deposition. Frazier v. S.E. PA. Transp. Authority, 161 F.R.D. 309,
314 (E.D. Pa. 1995); Van Pilsum v. Iowa State Univ. of Science and Technology, 15 F.R.D. 179, 180-181 (S.D.
Iowa 1993). If subjected to the kinds of inappropriate conduct illustrated by these cases, point out to opposing
counsel that these types of objections are improper, and request that counsel confine his or her objections to short
and concise statements. If the attorney persists in such conduct, you may elect to suspend the deposition in order to
seek an appropriate order curtailing the offending conduct and requesting the imposition of monetary sanctions.
The first time counsel makes a narrative objection such as If you know consider stating to the deponent:
As I instructed at the beginning of the deposition, you should not guess or speculate as to the answer to any
question. If you do not know the answer to a question, simply say so. Does that instruction pose any problem for
you?
By giving this kind of instruction, you may coerce opposing counsel into refraining from making narrative
objections. If he does not, you have made a better record to take before the court. Remember that some defending
attorneys will push you as far as they believe they can before you move for sanctions. Your only alternative is to
make it clear that you will not tolerate such improper behavior. Be prepared to go to court if necessary.

At some point during the deposition, opposing counsel may follow his objection with an instruction not to answer
the question. If the question attempts to delve into matter which is privileged, this instruction may be proper. Where
the objection is based on an argument that the information constitutes a trade secret or is otherwise confidential,
opposing counsel may be on less firm ground. The law of privilege and trade secrets will govern the substantive
validity of the objection.
If counsel gives such an instruction during the deposition, make sure you understand his basis for the objection. Ask
the defending attorney to state his grounds on the record. If the objection can be remedied by rephrasing the
question, do so. Otherwise, your choice is to either accept the objection and instruction or advise counsel that you
disagree and try to resolve the matter. If counsel persists in his objection and instruction, your only option is to take
the matter up with the court. Before doing so, make sure the record is clear that the witness has refused to answer
your question based upon advice or instruction from counsel. If there is any doubt ask the witness: Do you refuse
to answer my question based upon your attorneys advice?
If you are uncertain whether the privilege claim is valid, ask the appropriate questions to establish the foundation or
lack of foundation for privilege. If privilege is debatable and you seek specific information lying at the periphery of
the privilege, consider offering to stipulate that an answer to your question will not be deemed a waiver of any other
aspect of the privilege. If all else fails, reserve the matter to bring before the court.

Title 28 U.S.C. 1927 provides that,
any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof
who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy
personally the excess costs, expenses, and attorneys fees reasonably incurred because of such conduct.
This, added to the powerful weapon of Rule 37, should be enough to encourage counsel to maintain decorum and
respect for proceedings, both before the court, and in discovery. But are they enough?
In recent years it is not uncommon to be exposed to Rambo litigation where the opposing counsel constantly
interrupts the witness and you, interposes frivolous objections, takes repeated recesses with the witness, suggests
answers to the witness, cuts short the witnesss answers and instructs the witness, without basis, not to answer
certain questions. This conduct is often coupled with a lack of civility wherein your opponent launches into personal
attacks directed at you or perhaps the witness. Schultz v. Talley, 152 F.R.D. 181, 182 (W.D. Mo. 1993); Frazier v.
S.E. PA. Transp. Authority, 161 F.R.D. 309, 316 Note 8. (E.D. Pa. 1995). How you deal with these situations will
depend a great deal upon your jurisdictional rules, and also upon the circumstances of the deposition.
Before the deposition begins, you should have a thorough knowledge of all local rules, standing orders or decisions
applicable to your jurisdiction that set forth the guidelines for appropriate behavior during the deposition.
In addition, if your case has already been assigned to a judge, prior to the commencement of the deposition, you
should determine how the court prefers to handle discovery problems. Will the judge entertain requests for
immediate relief, i.e., telephonic intervention, or will the court expect that the deposition will be adjourned for the
purposes of bringing a timely motion?
If your adversary has a reputation for abusive and obstructive conduct, can you arrange to have the deposition
videotaped or, potentially, have the deposition taken in the courthouse, itself? It obviously requires the cooperation
of both the judge and the clerk of the court, and is probably unavailable to most practitioners. However, the mere
proximity of the court to the deposition room often curbs and eliminates obstreperous behavior.
In the event that your informal attempts to resolve these issues are unsuccessful, you will probably be left with no
recourse but to seek appropriate relief from the court, with a request for sanctions, to end this type of conduct.
Every successful motion requires the development of a clear record for the court. In order to develop a clear record,
you should:
(1) Call attention to the improprieties of opposing counsel as they occur. In doing so, make sure you follow
appropriate deposition behavior.
(2) Make sure that each question is not objectionable, and is clear, concise, and as specific as possible.
(3) Request that the attorney ceases to make speaking objections or other inappropriate objections.
(4) Request that the attorney limit his or her comments to the making of an objection with a short statement
thereof, an instruction not to answer with a short ground therefore, request for a recess or a request for a
clarification where appropriate.
(5) Do not respond to any personal attacks other than to note them for the record.
(6) Do not engage in the same or similar conduct as that being practiced by your opposing counsel. This will
enable the court to better understand who the culprit is.
When you have developed a sufficient record for a motion, it is suggested that you recess or adjourn the deposition
for the purposes of filing a motion with the court requesting, amongst other things, for an order directing the
attorney to desist with his or her improper behavior, having a master or special referee appointed to preside over the
depositions, a request for reimbursements for costs of the transcript as well as attorneys fees incurred as a result of
the bad faith tactics and conduct of the other side.
In recent years, the courts have recognized that such improper conduct can severely prejudice not only the other
side, but can poison the entire system. For example, in Hall v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993),
the court punished such tactics by noting:
A deposition is meant to be a question-and-answer between the deposing lawyer and the witness. There is no proper
need for the witnesss own lawyer to act as an intermediary, interrupting questions, deciding which questions the
witness should answer, and helping the witness formulate answers. The witness comes to the deposition to testify,
not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witnesss words to mold a
legally convenient record. It is the witnessnot the lawyerwho is the witness. 150 F.R.D. at 528.
Along these same lines, various courts have taken very strident advances in an effort to control such obnoxious,
intimidating or abusive conduct by attorneys at depositions. See Armstrong v. Hussmann Corp., 163 F.R.D. 299,
303 (E.D. Mo. 1995) (court held deponents attorneys jointly and severally liable for deposing counsels attorneys
fees due to their repeated inappropriate interruptions of the deposition); Ethicon Endo-Surgery v. U.S. Surgical
Corp., 160 F.R.D. 98, 100 (S.D. Ohio 1995) (deponent ordered to submit to second deposition due to attorneys
inappropriate conduct; no monetary sanctions awarded due to fact that attorneys for both parties behaved
improperly); Van Pilsum v. Iowa State Univ. of Science and Technology, 152 F.R.D. 179, 181 (S.D. Iowa 1993)
(redeposition of witness ordered before special master, with costs born personally by offending attorney whose
groundless objections and colloquy filled more than 20 percent of the first deposition transcript). Some courts have
resorted to more creative sanctions for inappropriate conduct by counsel in a deposition. See, e.g., R.E. Linder Steel
Erection Co., Inc. v. U.S. Fire Ins. Co., 102 F.R.D. 39, 40 (D. Md. 1983) (issued order that in light of counsel for
both sides inappropriate conduct to date, on a going forward basis, court would impose $5 fine on the offending
attorney for each line of deposition transcript containing inappropriate argument, ad hominen attack, or other
extraneous remarks.); Cholfin v. Gordon, Civ. Action No. 943623 (Mass. Super. Ct. Mar. 22, 1995) (after
reviewing deposition transcript, court ordered that offending attorney is prohibited from attending any further
depositions upon oral examination in this action unless she is accompanied by another member of the bar who,
alone, shall be permitted to make appropriate objections during the depositions course).
Not only have courts resorted to the issuance of large monetary sanctions to discourage such conduct, see, e.g.,
Fischer v. Alhadeff, 131 F.R.D. 188, 192 (W.D. Wash. 1990) (sanctions in excess of $30,000), courts have also
entered orders of dismissal as a result of such unconscionable conduct. See Castillo v. St. Paul Fire & Marine
Insurance Co., 938 F.2d 776, 779 (7th Cir. 1991); Digital Equipment Corp. v. Systems Industries, Inc., 108 F.R.D.
742, 744 (E. Mass. 1986) (protective order granted where counsel, referring to improper threat to depose plaintiffs
president, stated on the record of another corporate officers deposition, Well, youve just guaranteed that were
going to waste one of his afternoons, also).
Several states have determined that this conduct should be remedied through the disciplinary system, ranging from
censure to barring an attorney from appearing in the states court. See, e.g., Schiff v. Departmental Disciplinary
Committee, 599 N.Y.S. 2d 243 (A.D. 1 1993) (censure upheld where counsel made vulgar, obscene and sexist
remarks at deposition); Paramount Communications v. QVC Network, 637 A.2d 34, 56 (Del. 1993) (court issued an
order to show cause to nationally known nonresident attorney as to why he should not be prohibited from appearing
in states court for abusive, uncivil and obstructionist conduct at deposition).
A number of jurisdictions have adopted formalized codes of professional conduct with an eye towards eliminating
or curbing abusive discovery conduct. See, e.g., Proposed Standards for Professional Conduct in the Seventh
Federal Judicial Circuit, 143 F.R.D. 448 (1992); Standing Orders of the Court on Effective Discovery in Civil
Cases, 102 F.R.D. 339 (E.D.N.Y. 1984).
Moreover, some courts have, by standing order, specific rules concerning discovery and deposition practice. The
United States District Court for the Western District of Washington, Courts guidelines, provide, inter alia:
(b) Objections. The only objections that should be raised at the deposition are those involving a privilege against
disclosure, or some matter that may be remedied if presented at the time (such as the form of the question or the
responses of the answer), or that the question seeks information beyond the scope of discovery. Objections on other
grounds are unnecessary and should be avoided. All objections should be concise and must not suggest answers to,
or otherwise coach, the deponent. Argumentative interruptions will not be permitted.
(c) Directions Not to Answer. Directions to the deponent not to answer are improper. Advice not to answer may be
appropriate ....
(d) Responsiveness. Witnesses will be expected to answer all questions directly and without evasion, to the extent
to their testimonial knowledge, unless they choose to follow advice of counsel not to answer.
(e) Private Consultation. Private conferences between deponents and their attorneys during the actual taking of
deposition are improper, except for the purposes determining whether a privilege should be asserted. Unless
prohibited by the court for good cause shown, such conferences may, however, be held during normal recesses and
adjournments.
(f) Conduct of Examining Counsel. Examining counsel will refrain from asking questions he or she knows to be
beyond the legitimate scope of discovery, and from undue repetition.
(g) Courtroom Standard. All counsel and parties should conduct themselves in depositions with the same courtesy
and respect for the rules that are required in the courtroom during trial.
Practice Tip: Videotape the Obnoxious Opposing Counsel

If you anticipate that the attorney defending the deposition is going to be particularly obstructionist,
arrange to have the deposition videotaped. Obnoxious behavior has a way of going away when a video
camera is rolling; and even when the behavior continues, the videotape does a much better job of picking
up tone and sarcasm than does a written transcripthandy if you need to seek court intervention.

If the witness refuses to answer a question, your only remedy is under Rule 37. Rule 37 provides that if a witness
refuses to answer a question, you may apply to the court for an order directing the witness to answer. In addition,
the winning party on the motion can recover attorneys fees and costs, unless the court finds that the losing partys
position was substantially justified or that an award of expenses would be unjust. In some instances, parties may be
awarded the reasonable expense of obtaining a court order to compel a continued deposition. See In re The One
Bancorp Securities Litigation, 135 F.R.D. 15, 16-17 (D. Me. 1991) (Plaintiff directed to pay expenses where
counsels instruction to plaintiff not to answer on grounds of relevance was improper and where opposition to
motion was not substantially justified). Sanctions under Rule 37(a)(5)(A) are compensatory in nature and meant to
remunerate a movants costs for filing the motion to compel and potentially for the deposition costs. However, the
Rule provides that sanctions are not appropriate if the movant filed the motion without a good faith effort to obtain
the discovery without the use of the court, the opposing partys nondisclosure was substantially justified or there
were other circumstances which make an award of expenses unjust. Furthermore, the sanctions can be made against
the attorney if his or her conduct was such that it explicitly or implicitly condoned such evasive and unresponsive
tactics or improper refusal to answer. See, e.g., GMAC Bank v. HTFC Corp., 248 F.R.D. 182 (E.D. Pa. 2008).
Under Rules 30(d) and 37(a)(3)(C), you may adjourn the deposition in order to move the court for an order
compelling the witness to answer. (Alternatively, the defending party may recess to move for a protective order.)
However, a motion for continued depositions may be denied if the unanswered questions are rambling, repetitious
or have no substantial purpose other than to cause embarrassment or delay. See Six v. Henry, 796 F. Supp. 1448,
1450 (W.D. Okla. 1992). Generally, it is desirable to complete all questioning possible before recessing to move for
an order compelling answers. In this way, at least you obtain answers to all questions that the witness will answer,
and your motion can combine all of the witnesss refusals to answer.
The motion to compel can be filed in the district court for the district in which the deposition is being taken, or, as to
party deponents, in the district where the case is pending.

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION TO COMPEL ANSWERS AT DEPOSITION

Pursuant to Fed. R. Civ. P. 30(d) and 37(a)(3)(C), Plaintiff, John D. Harmed,
moves the Court for an order compelling Samuel P. Bigshot to provide answers to
deposition questions that were posed to him. During the deposition, Mr. Bigshot
refused to answer questions concerning the personnel working at the store on the
day in question. The questions are relevant to Plaintiff's ability to take
complete discovery in this matter and do not call for either privileged or
confidential information. Nevertheless, Defendant's counsel improperly instructed
Mr. Bigshot not to answer. This behavior prolonged the deposition and prohibited
Mr. Harmed's right to a fair deposition.
Plaintiff has attempted unsuccessfully to resolve this issue with Defendant.
Because Defendant can provide no substantial justification for its objection,
Plaintiff is entitled to recover his reasonable costs, including attorneys' fees,
in bringing this motion. Fed. R. Civ. P. 37(a)(5).
JOHN D. HARMED,
By his attorney,
________________________
5 Main Street
Dated: _______________
DECLARATIONS
Your motion should include a declaration(s) setting forth the precise dispute, why the questions merit an answer, the
improper conduct of the opposing counsel and your efforts to avoid the motion. Attach pertinent portions of the
transcript to illustrate the problem for the court.
MEMORANDUM OF LAW
Include an appropriate memorandum of law in support of the relief sought, including sanctions. See 644.

If the witness refuses to answer a question on the grounds of attorney-client privilege, do not abandon the area of
examination. Rather, focus on two objectives: (1) questions to determine whether in fact the question called for
privileged information (particularly if you anticipate filing a motion to compel); and (2) questions to elicit as much
information as possible about the subject that is not within the privilege. For example, questions concerning each
element of the privilege:
Whether witness is or wanted to become a client:
Q. When did you first contact Lawyer X?
Q. What was the purpose of contacting Lawyer X?
Q. Where were you and Lawyer X at the time of communication?
Whether Lawyer X is a member of the bar (you can question the client regarding perception, but ultimately
questions are for Lawyer).
Whether communication to or from lawyer was intended to be confidential:
Q. Did you tell anyone what Lawyer X advised you?
Q. From whom did you obtain the information that you told Lawyer X?
Q. To whom did you tell what you told Lawyer X?
Q. Did you discuss with anyone your discussions with Lawyer X?
Q. How long was your meeting with Lawyer X? Did you spend the full time discussing
________________?
Q. Were the communications related to obtaining legal advice?
Q. What did you want to obtain from Lawyer X?
Not all of these questions are necessarily properit depends upon the circumstances.
If the privilege is nevertheless asserted, try to maximize your recovery of related information to which the privilege
does not apply:
General nature of legal services performed by counsel. United States v. Mackey, 405 F. Supp. 854, 859
(E.D.N.Y. 1975).
Time period of the attorney-client relationship. United National Records, Inc. v. MCA, Inc., 106 F.R.D. 39,
40 (N.D. Ill. 1985).
Facts and dates of attorney-client communications. Humphrys, Hutcheson & Moseley v. Donovan, 755 F.2d
1211, 1219 (6th Cir. 1985).
Drafts of the letters and documents to be disclosed to third parties. North Carolina Electric Membership
Corp. v. Carolina Power & Light Co., 110 F.R.D. 511, 517 (M.D.N.C. 1986). But see, In re Air Crash
Disaster at Sioux City, 133 F.R.D. 515, 518 (N.D.Ill. 1990) (Most courts have held ... that simply because a
final product is disclosed to the public (or a third party), an underlying privilege attaching to the drafts of the
final product is not destroyed).
Communications with counsel in the presence of third parties. Burlington Industries v. Exxon Corp., 65
F.R.D. 26, 37 (D. Md. 1974). See also 761.2.
Identification of documents delivered to lawyer. United States v. Willis, 565 F. Supp. 1186, 1192 (S.D. Iowa
1983).
Facts client or counsel obtained from independent source and then communicated to each other. Sedco Intl,
S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir. 1982), cert. denied, 459 U.S. 1017 (1982); Hirschfield v.
Securities and Exchange Comm., 617 F. Supp. 262, 264 (D.D.C. 1985) (holding when an attorney conveys
to his client facts acquired from other persons or sources, those facts are not privileged).
Legal memoranda not specifically related to specific client. North Carolina Electric Membership Corp. v.
Carolina Power & Light Co., 110 F.R.D. 511, 517 (M.D.N.C. 1986).
Purpose for which attorney was engaged, and action attorney was to take. In re LTV Securities Litigation, 89
F.R.D. 595, 603 (N.D. Texas 1981); Humphrys, Hutcheson & Moseley v. Donovan, 755 F.2d 1211, 1219
(6th Cir. 1985).
The fact that the person was a client. United States v. Mackey, 405 F. Supp. 854, 859-860 (E.D.N.Y. 1975)
(holding that, ordinarily, concept of a confidential communication does not include the identity of an
attorneys client nor the fact that someone has become a client). But see Baird v. Koerner, 279 F.2d 623, 635
(9th Cir. 1960) (attorney cannot be compelled to state the names of clients who employed him to voluntarily
mail sums of money to the government in payment of undetermined income taxes, unsued on, and with no
government audit or investigation into that clients income tax liability pending).

As discussed in 542, in all but the very shortest depositions there will be recesses, for lunch or otherwise. Such
breaks typically last 10 to 15 minutes and occur every one to two hours. This section examines recesses from the
point of view of the attorney taking the deposition.
Recesses can benefit the examining attorney. It gives you the opportunity to quietly look over your notes, organize
exhibits, or ask the court reporter to read back some earlier testimony so that you may follow-up after the recess.
Furthermore, taking depositions takes tremendous concentration to be able to listen to the witnesss answers while
at the same time formulating in your head your follow-up question, all the while keeping your game plan in mind.
Periodic recesses can help you stay fresh. Since this is your deposition that you noticed and since you hired the
court reporter, whether and when to call for breaks is entirely up to you. Call for a break whenever you think you
(or the court reporter) would benefit from one.
The harder challenge is how to deal with opposing counsel or a witness who calls for a break. Technically, only
you, the examining attorney, may call for a recess. What this really means is that you control when the record is
on or off. Thus, if opposing counsel walks out of the room without your consent, you have the right to keep the
record on and to make any statements you wish for the record while opposing counsel is out of the room.
As a practical matter, once opposing counsel has left the room with his or her witness, there is not much you can
accomplish. Thus, the trick is how to control opposing counsel and the witness when they ask for a recess at a time
when you do not wish to break. The factors you may want to consider include: Does the question call for a response
that might reveal a privilege? Is there a question pending? Is there an on-going line of questioning? Has direct
examination ended?
Assertion of Privilege. Courts recognize that it is appropriate for a witness to confer with counsel in order to
determine whether there may be a basis for the assertion of a privilege and an instruction not to answer. Thus, if
opposing counsel or the witness asks for a brief recess for purposes of conferring to determine whether a pending
question may call for privileged information, you should grant the request for the recess.
Question Pending or in the Middle of a Line of Questioning. It is generally improper for a witness or his or her
counsel to request a recess when a question is pending. See, e.g., Calzaturficio S.C.A.R.P.A s.p.a. v. Fabiano Shoe
Co., 201 F.R.D. 33, 40 (D. Mass. 2001) ([Deponents counsel] also conferred with his witnesses during
questioning, left the room with a deponent while a question was pending, [and] conferred with deponents while
questions were pending . [Deponents counsel] was not entitled to engage in any of these behaviors). Even when
there is no question pending, most courts find it inappropriate for a witness or counsel to call for a break during a
line of questioning. See, e.g., In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998)
(If [breaks] are requested by the deponent or deponents counsel, and the interrogating attorney is in the middle of
a question, or is following a line of questions which should be completed, the break should be delayed until a
question is answered or a line of questions has been given a reasonable time to be pursued ).
Despite this rule, periodically a witness or his or her counsel will ask for a break while a question is pending or
during a line of questioning. In such a case, you should first ask the witness or counsel if the purpose of the break is
to determine whether the question calls for privileged information. If the answer is no but the witness or counsel
continue to insist on a break, politely state that a question is pending but you would gladly take a break in a few
minutes after you are finished with your line of questioning. In most instances, at this point, the witness and
opposing counsel will agree and permit you to proceed with the deposition. At times, however, witnesses either lead
or followed by counsel will walk out of the room with a question pending or during a line of questioning. In that
case, you should make a statement for the record as to what occurred. When the witness and counsel later return,
ask the witness what he or she discussed with counsel during the recess. You will likely get an instruction not to
answer on the ground of attorney-client privilege. But you are building your record in case you decide you later
want to seek court intervention and sanctions.
At the End of a Line of Questioning. In general, if a witness or opposing counsel asks for a recess at the end of a
line of questioning, you should grant it. While, as noted, you control the transcript, keep in mind that the failure to
extend common courtesies will likely be reciprocated.
At the End of Direct Examination. Counsel, defending a witness, has the right to ask cross-examination questions
at the end of the direct examination. Most courts permit witness and counsel to consult at this point.
For a discussion of rules pertaining to what counsel may say to his or her witness during recesses, see 833.

The defending lawyer may assert that various communications between him and the witness (particularly an expert
witness) are within the scope of the work product privilege, and instruct the witness not to answer. In that event,
your examination of the witness on that issue should include:
Full line of questions concerning specific facts of which he may have knowledge.
When and how the witness learned of specific facts and areas of facts.
Whether the information sought was prepared for or in anticipation of this litigation.
Whether the information sought is a part of the basis for his opinion.
See 763.
It may be helpful to carry the conclusion of a deposition over until another day. This gives you the opportunity to
fully review your notes to be sure that everything that should be covered has been covered. On the other hand,
another day means time for the witness to be refreshed, to be recoached, and to be in peak form for cross-
examination by his own attorney and for corrections of prior errors.
If there are any open matters, you should adjourn without closing the deposition. Open matters might include failure
of the witness to produce documents (and therefore no examination regarding the documents), refusal of the witness
to answer certain questions, and areas of reserved questions (e.g., claims with respect to which a motion for
summary judgment is pending). If you have any reasonable basis for not concluding the deposition, it generally is
easier to resume a deposition than to take a second deposition, even if the difference is solely semantics.

Lutz, Multi-Level Depositions, 16, No. 3 Litigation 9 (Spring 1990)
Lesser, Construction Litigation: Deposing the Expert Witness in Construction Litigation, 20, No. 1 The Brief
46 (Fall 1990)
Kennan, Deposing the Defendant Doctor, 26, No. 2 Trial 69 (Feb.1990)
McElhaney, Constructive Cross-Examination, 14, No. 2 Litigation 49 (Winter 1988)
Halligan, Cross-Examination of an Expert Witness, 32, No. 9 For the Defense 29 (Sept. 1990)
Greenwald, Deposing Medical Experts, 26, No. 5 Trial 54 (May 1990)
Kolczynski, How to Take Effective Videotape Depositions, 15 Brief 35 (Fall, 1985)
Annotation, Pretrial Discovery of Facts Known and Opinions Held by an Opponents Experts Under Rule
26(b)(4) of Federal Rules of Civil Procedure, 33 A.L.R. Fed. 403 (1977)
Pope and Trull, When Your Opponent is Difficult, The Brief 31, (Summer 1991)
Dunbar, Taking the Discovery Deposition of the Opposing Driver in a Motor Vehicle Accident Case, 21, No. 3
The Brief; 44 (Spring 1992)
Chapter 6A
Techniques for Deposing an Expert Witness

640A Form Deposition Outlines

639A Scope of Examination of Expert Witnesses
639.3A Putting it All Together Into a Deposition Outline
641A Outline for Deposing Expert EngineerProduct Liability Case
The deposition of an expert witness is the culmination of the opposing partys defense or prosecution theory of the
case. Before taking an experts deposition, the parties should have completed fact discoveryinterrogatories
answered, documents obtained, lay witnesses deposed. Presumably, your opponents expert witness has been
advising the opposing attorney about documents to be requested in the course of written discovery and about oral
discovery questions that should be asked of the lay witnesses, so that the fact evidence necessary to the experts
opinions has been established. The experts opinions are being offered by the opposing party as part of a plan to
defeat your case. Deposing your opponents expert witness is your opportunity to understand, limit and hopefully
stop defeat. The importance of being prepared to depose this expert witness cannot be overemphasized.
As the attorney who is preparing to depose an expert witness, you must be certain of your objectives for taking the
deposition. Your basic purpose for deposing the expert should be twofold: 1) to determine the experts opinions and
conclusions, and 2) to undermine or limit the impact of the experts opinions and conclusions. Beyond your basic
purpose, the goals of your oral deposition of the expert should include the following:
To determine whether the expert is qualified to render an opinion;
To determine whether the expert has knowledge and understanding of the case related factual evidence;
To determine whether the expert has made any alternative assumptions about the factual evidence which is
necessary to support his opinions;
To determine whether the expert admits any facts, assumptions or theories of your case;
To determine whether the expert has a reasonable basis for his opinions;
To determine whether the expert has relied upon accepted scientific methods and techniques for his opinions;
To determine whether the expert has reasonably relied upon any hearsay evidence to support his opinions;
To determine whether the expert has either authored or acknowledged any authoritative texts or documents
on the subject of his opinions or conclusions;
To lock in the experts testimony and assure that the expert does not later offer any undisclosed opinions;
To determine whether, if any of the facts as the expert understands them were changed, the expert would
change his or her opinions.
Do not take an opposing experts deposition until you have a firm outline and strategy for accomplishing your goals
with the expert witness; otherwise, you are not likely to have any success either undermining or limiting the impact
of the expert. For example, in a medical negligence case your deposition outline for the experts qualifications may
be designed to establish that, although he is a well-recognized surgeon, he has never written, lectured or performed
the surgical procedure at issue. Or, in an automobile negligence case, your strategy may be to establish the accident
reconstruction experts causation opinion is impossible or improbable by using photographs, eyewitness deposition
testimony or other materials. Lastly, your plan for the experts deposition may include hypothetical questions,
containing facts and assumptions which you can prove at trial, that will undermine the experts opinions and
ultimately win your case. The point is that you must have an outline and a strategy for your deposition of an expert.
If you have deposed an opposing expert based on a thoroughly prepared outline and strategy, then you should leave
the deposition knowing how you will deal with the expert at the time of trial.
Commonly used expert witnesses and the types of cases in which you will encounter such experts include the
following:
Accident Reconstruction: automobile cases, products liability cases;
Architects: construction site accidents, premises liability cases;
Engineers: products liability cases;
Medical experts: medical malpractice, all personal injury cases;
Economists and forensic accountants: damages in any personal injury or commercial case;
Appraisers: valuation of real or personal property.
In order to prepare an outline of an experts deposition, you must have completed some preliminary research and
written discovery.

In order to be prepared to depose an expert witness, you should know the legal elements of your case. Although you
may rely upon memory of the law for a simple auto case, you should not do so in more complicated cases, such as a
products liability case alleging an alternative design or a medical negligence case alleging delay in diagnosis of
cancer. For example, if you do not understand the intricacies of design analysis and how your jurisdiction applies the
existing law which is applicable to design defect cases, then your preparation from document requests to
authoritative literature may get off track. You may also not develop the appropriate line of questions for the
opposing expert regarding the prima facie elements of your case.
Your research should also include knowledge of the evidentiary issues that would apply to expert testimony. For
example, in a state jurisdiction: does the Frye or Daubert standard apply to expert opinions, or some hybrid of both?
Does the jurisdiction allow authoritative texts as substantive evidence?

Rule 26(a)(2) of the Federal Rules of Civil Procedure provides that the opposing party must disclose the identity of
any expert witness. The mandatory disclosure must include, among other things, the following:
1. A complete statement of all opinions and conclusions to be expressed by the expert witness;
2. The basis and reason for each opinion;
3. The data or other information considered by the expert in formulating the opinions;
4. The exhibits to be used as a summary in support of the opinions;
5. The qualifications of the witness;
6. A list of publications authored by the expert within the preceding 10 years;
7. A list of any cases, within the last four years, in which the expert has testified at trial or deposition; Smith v.
State Farm Fire & Casualty Co., 164 F.R.D. 49, 52-53 (S.D. W.Va. l995).
Keep in mind that under Fed. R. Civ. P. 37(c)(2), a party is not ordinarily permitted to elicit in direct examination
expert testimony not disclosed in accordance with Rule 26(a)(2)(B). Thus, if you are the party making the expert
disclosure, make sure that you have disclosed the full extent of the experts opinions.
If you are in a state jurisdiction which does not have mandatory disclosure requirements, you may still have the
opportunity to gather information about the expert through interrogatories.

INTERROGATORIES TO
_______________________
Pursuant to Fed. R. Civ. P. 33, (name of party) is requested to answer the

following interrogatories, under oath and within thirty days from service hereof.
[Number]. State the name and business address for each person who may be called as
an expert witness at trial. In addition, for each person identified, provide:
(a) A complete statement of all opinions to be expressed, including the basis
and reasons for the opinions;
(b) A description of all data and information the expert considered in
formulating the opinions set forth in subparagraph (a);
(c) A complete statement of the experts qualifications;
(d) A list of all publications authored by the expert within the preceding ten
years;
(e) The compensation to be paid to the expert for preparation and testimony;
(f) A list of all cases in which the expert has testified as an expert at trial
or deposition within the preceding ten years.

Attorneys for _____________
Practice Tip: Mandatory Disclosure and Treating Doctors

Although Rule 26(a)(2)(A) will require the disclosure of all persons expected to provide expert
testimony at trial, not all experts are required to provide the mandatory report under Rule 26(a)(2)(B).
This is especially true where the expert is the plaintiffs treating doctor.
If the treating physicians opinion is acquired directly through the treatment of plaintiff, the treating
physician cannot be forced to prepare and file the required report. See, e.g., Elgas v. Colorado Belle
Corp., 179 F.R.D. 296, 298 (D.Nev. 1998) (a treating physicians opinion on matters such as causation,
future treatment, extent of disability and the like, are part of the ordinary care of a patient, and she may
testify to such opinion without being subject to the extensive reporting requirements of Rule 26(a)(2)(B)).
See also Sullivan v. Glock, Inc., 175 F.R.D. 497, 501 (D.Md. 1997); Hall v. Sykes, 164 F.R.D. 46, 48
(E.D. Va. 1995); Patel v. Gayes, 984 F.2d 214, 218 (7th Cir. 1993).
However, when the doctors opinion extends beyond facts disclosed during the care and treatment and
is specifically retained to develop opinion testimony, the physician is then subject to the report provisions.
Brown v. Best Foods, A Division of CPC Intern., Inc., 169 F.R.D. 385, 387 (N.D. Ala. 1996); Salas v. U.S.,
165 F.R.D. 31, 33 (W.D.N.Y. 1995). However, a review of medical records of another in order to render
an opinion on the appropriateness of care and treatment will trigger the reporting requirements. Wreath v.
United States, 161 F.R.D. 448, 450 (D. Kan. 1995).
In most state jurisdictions, the disclosure rules are similar. See, e.g., Illinois Supreme Court Rule 213(g) requiring
that party disclose all opinion witnesses, including their qualifications, subject matter of testimony, opinions and the
bases thereof.

You should also review the local rules applicable to expert witness disclosure and the methods available to obtain a
complete document production of the experts file contents and materials which he has reviewed or relied upon to
formulate his opinions. Federal Rules of Civil Procedure 34 provides that a party may request documents from the
opposing party. This procedure is applicable to the expert who is an employee of a party, such as the in-house design
engineer for a defendant manufacturer. Rule 45(b) of the Federal Rules of Civil Procedure provides for the
production of documents from a person who is not an employee expert of a party by means of a subpoena duces
tecum which commands the production of the experts documents relating to the case. No matter what the status of
the testifying expert witness is, you must make a written document request for the experts file, which should
include:
1. Curriculum vitae or resume of the experts qualifications;
2. Notes and reports made by the expert;
3. Photographs, videotape or other visual media of the persons or objects involved;
4. Test data made or reviewed by the expert;
5. Transcripts of fact witness depositions taken in the case;
6. Witness statements obtained in the case;
7. Published literature or text books relied upon or consulted by the expert;
8. Correspondence between the expert and counsel for the opposing party; and,
9. Time and billing records of the expert for the case.
10. Drafts of any reports prepared by the expert, including any written comments provided thereon by any
counsel, party, or other individual who read any draft.
11. Transcripts of any testimony given by the expert in any prior deposition or court proceeding over the past
four years (as identified in the Fed. R. Civ. P. 26(a)(2)(B) disclosure).
12. Copies of publications from the past 10 years (as identified in the Fed. R. Civ. P. 26(a)(2)(B) disclosure).
The opposing partys written discovery disclosure of the experts opinions and the documents that he has relied upon
to formulate the opinions should give you a roadmap to begin preparing for the experts deposition. If you do not
obtain this information before the deposition, you will be driving blindly into the experts territory and will lose
control of the deposition.

The information acquired by an expert that was not obtained in anticipation of trial is subject to discovery. Fed. R. of
Civ. P. 26(b).
Many attorneys are unaware of the limited scope of privilege, if any, that applies to discussions with and documents
given to expert witnesses. See 762.2. Hence, inquiry into all documentspreexisting exhibits, letters and memos
from the attorney, as well as discussions between the expert and the attorneymay prove fruitful.
The grounds for such inquiry include that the expert may have been given information verbally or in documentary
form that affects his opinion, which has not been disclosed, or otherwise affects his credibility.
The scope of privilege that applies to statements made to or documents given to an expert witness is unsettled.
Generally, only the work product privilege is considered. At one extreme, it has been held in essence that all
communications from the attorney to the expert concerning the subject of the experts opinions are discoverable. See
Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384 (N.D. Cal. 1991).
On the other hand, some courts hold that only factual information may be discovered. An excellent article on the
subject is by Werder and Marquardt, Disclosure to Expert Witnesses and Work-Product Protection: The Erosion of
Bogosian, 7, No. 5 Trial Practice 3 (Sept./Oct. 1992.)
If your case is subject to the mandatory expert disclosures embodied in Rule 26(a)(2)(B), you may well be entitled
to the discovery of information provided to the expert that would otherwise be subject to privilege. Rule 26(a)(2)(B)
mandates that all of the data or other information considered by an expert witness in forming his or her opinions
must be disclosed. The 1993 Advisory Committee note states, given [the] obligation of disclosure, litigants should
no longer be able to argue the materials furnished to their experts to be used in forming their opinions are ...
protected from disclosure when such persons are testifying or being deposed.
As a result, under these mandatory disclosure requirements, the Rules imply that there is an automatic waiver on
counsel-supplied materials or information, with the limited exception of attorney-expert mental impression
communications protected under the attorney work product privilege. See Joseph, Expert Disclosure, 164 F.R.D. 97
(1995).
Even though the famous decision in Bogosian v. Gulf Oil Corp., 738 F.2d 587 (3rd Cir. 1984), provided for work
product protection from disclosure, many courts have ruled that documents provided to an expert are discoverable
whether or not they constitute work product. Opposing counsels work product contained in the experts file may be
discoverable. This can include notes, correspondence, abstracts of the case or theories, mental impressions or
strategies. In re Air Crash Disaster at Stapleton Intl Airport, 743 F. Supp. 1442 (D. Colo. 1988). You should insist
your opponent disclose if any work product privilege is being asserted over a part of the experts file documents.
Know whether there are documents that you have not been provided. At the time of the deposition of the expert you
should inquire about any materials that the opposing counsel provided to the expert, and you should remember to
inquire which documents, if any, have been removed from his file on the basis of privilege. This inquiry will tell you
whether the opposing party complied with your original request to produce the experts documents. Keep in mind, of
course, the old adage, applicable so often in the discovery context, that what is good for the goose is good for the
gander (also sometimes stated, what is sauce for the goose is sauce for the gander). In other words, before you insist
on the other side producing communications with testifying experts and draft expert reports, make sure that you will
be comfortable reciprocating. Because the extent of permitted expert discovery is so often an issue in cases, it is a
good subject for discussion and agreement between counsel very early in the case before conflicts arise.
Similar to work product provided by counsel to the expert are preliminary drafts of the report, including those with
written comments from counsel. The 1993 Advisory Committee note to Fed. R. Civ. P. 26(a)(2)(B) provides that the
Rule:
does not preclude counsel from providing assistance to experts in preparing the reports, and indeed, with experts
such as automobile mechanics, this assistance may be needed. Nevertheless, the report, which is intended to set
forth the substance of the direct examination, should be written in a manner that reflects the testimony to be given
by the witness and it must be signed by the witness.
While this note makes clear that counsel may assist in the preparation of an experts report, the Rule does not
prohibit discovery into the assistance provided by counsel to the expert in the preparation of the report. Securing a
draft expert report initially written by counsel or procuring deposition testimony that counsel was heavily involved
in the preparation of, while not a basis for striking the report, can be used to undermine the credibility of the
conclusions in the report before the trier of fact.
Thus, as part of your expert discovery game plan, you may want to request copies of preliminary drafts of the
experts report, particularly any with written comments by counsel, as well as asking the expert during his or her
deposition about counsels role in the preparation of the report. But, again, keep in mind that if you endeavor to seek
discovery of counsels involvement in the preparation of your opponents expert reports, you will likely see similar
discovery requests in return. It may be safest before either sides experts begin their analysis to talk with opposing
counsel about ground rules for drafts and work product.
Sometimes, the best, or at least most appropriate, expert to testify on a particular trial issue happens to be an
employee of your client. Whether to work with a client-expert is a strategic decision involving balancing the benefits
of a particular individuals expertise versus the risk of losing the veneer of impartiality that the trier of fact may
perceive from a non-party expert witness.
The retention of an in-house expert does, however, create tensions between the attorney-client privilege and Rule
26(b) disclosure obligations discussed in the preceding section. This tension was not fully explored in Clark v. Gen.
Motors Corp., 1975 U.S. Dist. LEXIS 12095 (D. Mass. 1975), a case that permitted liberal discovery from a
testifying in-house expert. In that case, defense counsel instructed the witness-expert not to answer questions falling
within the area of the witnesss expertise. Plaintiff moved to compel. The court granted the motion, stating that, we
hold that where the expert is also an employee, whether he is to be called as a witness or not, he is subject to being
deposed on any and all relevant matters. Id. at *18. Because defense counsel had cut off all examination, the court
in Clark was not presented with some of the nuances of this issue. What are some of the permutations? If the in-
house expert communicates early drafts of his or her opinion to counsel, that is probably discoverable. If the in-
house expert communicates underlying facts of which the individual has personal knowledge to counsel, those
underlying facts would be discoverable, although any commentary about those facts provided to counsel likely
would be privileged. Facts communicated by counsel to the in-house expert for the purpose of permitting the
individual to form an expert opinion would probably be discoverable. Legal advice communicated by counsel to the
in-house expert related to the litigation, but not necessarily to permit the individual to form an expert opinion, likely
would be privileged.
A slightly different wrinkle is where the employee of the client is consulted without an intention of calling the
individual to testify on the subject of the consultation and then the other side notices the deposition of the employee
and asks questions about that consultation. In general, these employees are afforded the protections of Rule
26(b)(4)(B) and the attorney-client privilege. See In re Shell Oil Refinery, 132 F.R.D. 437, 441-42 (E.D. La. 1990);
Eli Lilly & Co. v. Commissioner of Revenue, No. 6702-08, 1997 Minn. Tax LEXIS 26 (Minn. Tax Ct. Apr. 24,
1997); see also James R. Pielemeier, Discovery of Non-Testifying In-House Experts Under Federal Rule of Civil
Procedure 26, 58 IND. L. J. 597 (Fall, 1983).
Interestingly, Fed. R. Civ. P. 26(a)(2)(B) draws a distinction between a witness who is retained or specially
employed to provide expert testimony in the case or whose duties as an employee of the party regularly involve
giving expert testimony and a party employee-witness who may be designated to give expert testimony but whose
regular employment does not involve giving such testimony. Under the rule, a written report is required of the
former, but not of the latter.
A somewhat different issue is how to deal with questions to a lay fact witness asking for what amounts to expert
opinion. The majority rule appears to be that the defending attorney should object to the questions, but permit the
witness to answer. See, e.g., Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 1998 WL 2829 (S.D.N.Y. Jan.
6, 1998) (Insofar as [defending] counsel instructed [the witness] not to answer certain questions because the
questions called for expert opinion, these instructions were in error). If the deposing party then tries to introduce
the answers into evidence at trial, the defending party should then move to exclude the testimony or to strike those
portions of the deposition transcript that contain the improper expert opinion testimony. See, e.g., Freedom Wireless,
Inc. v. Boston Communications Group, Inc., No. 00-12234-EFH, 2005 U.S. Dist. LEXIS 8190 (D. Mass. May 2,
2005) (striking lay opinion testimony from deposition transcript offered to the jury).
Some courts have blessed instructions not to answer questions that call for lay opinion testimony under a broad
reading of Fed. R. Civ. P. 30(d)(4) or its equivalent, but admonished counsel who did not then follow the rule and
immediately suspend the deposition for purposes of seeking court intervention. See, e.g., Dean Foods Co. v.
Pappathanasi, No. 01-2595 BLS (Mass. Super. Ct. June 8, 2004).

The courts favor the preservation of evidence so that the parties have an equal opportunity to inspect and rely upon
the evidence in support of their case. Nonetheless, an expert witness who is unfamiliar with the litigation process
will sometimes perform destructive testing to a product or lose evidence, such as original x-rays. Depriving a litigant
of the opportunity to inspect tangible evidence has dire consequences. Even though the destruction or loss of
evidence may have been innocent, the courts will impose a sanction which bars the experts testimony or even enter
a judgment in favor of the opposing party. See, e.g., Marroco v. General Motors Corp., 966 F.2d 220 (7th Cir.
1992). For purposes of preparing for the experts deposition, your written discovery should inquire whether the
expert has performed any testing which destroyed all or part of the evidence provided to him by the opposing party
and the type of testing performed. You should further inquire about the chain of custody of the evidence he received
to establish that it has not been altered and that none of it has been lost by the expert.
After you have obtained the complete written expert opinion disclosures, the experts documents, test data and
inspections, and resolved any privilege assertions, you can effectively begin to outline the oral deposition
examination of an expert witness.
Under the modern rules governing expert witness testimony, the expert witness at trial may literally jump from his
qualifications to his opinion. He need not explain the basis or rationale for his opinion. However, in a deposition of
an expert, you should not make this jump with him. Instead, your outline should start with the experts
qualifications. Next, you should move through the history of the experts involvement with the case in a
chronological manner, including his review of documents and depositions provided, tests and inspections performed,
authoritative texts and documents considered, understanding of the facts and circumstances of the case, scientific
methods and techniques utilized, the basis for his opinions and lastly, his opinions. Remember that there are four
major parts to any experts deposition:
1. The experts qualifications;
2. The facts upon which the expert based his opinion;
3. The analysis and assumptions the expert made; and
4. The experts opinion.

Under Federal Rule of Evidence 702, the party offering the testimony of an expert witness must show that that the
expert is qualified to render an opinion or conclusion relevant to the case. State jurisdictions require a similar
showing of qualification before the expert witness will be allowed to testify. The opposing partys witness is not an
expert simply because he claims to be. In Re Paoli RR PCB Litigation, 916 F.2d 829, 855 (3rd Cir. 1994). The
proponent of the experts testimony has the burden to show that the witness has sufficient specialized knowledge
which will assist the jurors in deciding the particular issues in the case. Smelser v. Northfolk Southern RR Co., 105
F.3d 299, 303 (6th Cir. 1997). Under Rule 702, an expert witness must be qualified by knowledge, skill, experience,
training or education; otherwise, his testimony will be barred due to lack of qualifications. For example, in Berry v.
Crown Equipment Corp.,108 F.Supp. 743 (E.D. Mich. 2000), the plaintiffs expert was barred from testifying about
defects in a forklift design, because his qualifications were not within the scope of the product engineering and
testing at issue. The expert had not designed a forklift, had not tested the forklift in question, and did not hold an
engineering degree making him capable of designing a forklift. Similarly, in Moore v. Ashland Chemical, 151 F.2d
269 (5th Cir. 1998), the court affirmed the trial judges exclusion of a well credentialed pulmonologists causation
opinion because he did not have any prior experience diagnosing or treating a patient with the type of lung injury
that was allegedly caused by exposure to the defendants chemical Toluene. The Moore court also noted that the
expert had not conducted any research on the effects of Toluene exposure and lung damage or obtained knowledge
or experience to qualify him to render an expert opinion. The rulings by the courts in Berry and Moore, and cases
like them, are important for the concept of nexusthat there must be a connection between the proffered expert
credentials and the specific subject on which the expert hopes to opine. Just because the other side has disclosed an
expert with a ten page curriculum vitae does not mean that the expert is immune from attack on the experts
qualifications to offer the opinion on the subject pertinent in this case. You should pay particular attention to the
nexus between the disclosed experts qualifications and the specific subjects of the opinions when the other side tries
to use a single expert to opine on multiple topics. For example, if a plaintiff has retained a forensic accountant to
opine on the measure of damages, the accountant may be qualified to do the math on the damages, but not to opine
as to how a particular business works. These are all avenues for deposition inquiry.
Rule 702 and related cases on expert qualifications cases are instructive for the type of focus that you should
maintain when preparing to interrogate the expert concerning his qualifications at his deposition. Your job is to test
the experts qualifications to testify on the subject matter at issue. You want to compare the experts knowledge and
experience to the narrow subject matter of the opinions that the opposing party has disclosed. For example, applying
Rule 702 to an experts qualifications in a medical negligence case that alleges improper surgical technique for
cardiac bypass surgery, your inquiry concerning the experts qualifications should be organized as follows:
Education
Did the expert witness receive the same or similar formal education as the defendant, regarding the surgical
procedure performed?
Has the expert witness ever attended any lectures or seminars in which the surgical procedure was discussed
or demonstrated?
Training
Did the expert witness undergo a surgical residency in which the surgical technique involved was taught?
Has the expert witness assisted any surgeons who performed the surgical technique involved?
Who taught the expert witness how to perform the surgical procedure in question?
Experience
Has the expert witness ever performed the surgical procedure involved?
If so, how many times has he performed the surgical procedure?
Has the expert witness encountered the similar adverse complications when performing the same surgical
procedure?
Skill
Does the expert profess to have a particular skill in the surgical procedure by virtue of his knowledge,
education, training or experience?
Knowledge
Has the expert performed research regarding the surgical technique involved?
Has the expert ever lectured or written about the surgical procedure involved?
Has the expert ever taught the surgical procedure in question?
Has the expert reviewed the surgical procedure as performed by many other similar surgeons?
By focusing your deposition questions narrowly upon the subject matter of the surgical procedure at issue, you will
establish that the expert is either: 1) qualified to render the opinion, or 2) subject to exclusion from testifying based
on lack of qualifications (your questions in this area may at least establish lack of weight or credibility to his
opinions). Too many attorneys waste time in a deposition asking numerous questions about the experts general
background or unrelated medical activities and not enough questions about the experts specific qualifications on the
subject matter involved. Stay focused. If you have narrowly but adequately explored the experts qualifications on
the subject matter involved, then you will know whether the substance and validity of the opposing experts
opinions and conclusions are a concern to your case.

After your questioning has tested the experts foundational qualifications to render an opinion, you should also be
prepared to ask questions which lay the foundation to attack the experts qualifications on other grounds. Your goal
is to establish bias, self-promoted financial interest, disciplinary problems, lack of veracity, etc. This preparation
should include the following areas of inquiry:
Whether he has testified before (especially on the subject at issue). If so, obtain courts, dates, and
jurisdictions, as well as depositions for any such prior testimony (the expert may have previously testified in
a contrary manner).
Whether any court has ever refused to certify him as an expert at trial.
Whether he has been recognized in any journals or periodicals in his field and whether he has published in
any.
Whether there are recognized professional associations in his field and whether he is a member, officer, or
instructor for any.
Whether his expertise is taught anywhere or is a part of any recognized curriculum.
Whether he feels that the facts of the case are beyond the ken of ordinary jurors such that a person of special
knowledge, skill, or education must explain them.
Licensing or professional accreditation
any suspensions or revocations
board certifications, repeats of board examinations
whether he has ever been sued or undergone disciplinary proceedings with respect to professional
activities
Publications and research
Whether the expert has submitted any articles for publication that have been rejected.
Professional organizations
Prior experience as an expert
titles of lawsuits and courts
percentage of time spent as an expert witness
percentage of income derived from such activity
whether he testifies on plaintiffs or defendants side
Prior engagements working with opposing counsel
Who assisted him in reaching his opinions
As noted, there is no prohibition in counsel or others assisting the expert in preparation of the experts report and
Rule 26(a)(2)(B) disclosures. Nevertheless, a jury may be less apt to afford considerable weight to the conclusions
of an expert crafted in part by others. Therefore, it is often worth inquiring into the experts process for preparing his
or her report; you may want to add to your deposition examination outline questions along the following lines:
What was your process for preparing your expert report?
Did your process for preparing your report in this case differ from your process in preparing any written
expert reports you have done in other cases? If so, how?
What documents did you review?
Who did you talk to and what was said?
Who did the actual writing of the report?
Who else helped with the preparation of the report?
How much total time did you spend preparing the report?
How many drafts were there?
Is your final written report shorter or longer than previous drafts? By how much?
Did you receive written comments from anyone?
Have you saved any of those drafts or written comments?
What changes did you make in response to any comments from others?
Did you reach any conclusions in connection with your retention as an expert that did not make it into your
final written report? What are they?
Were you asked your opinion on any topics not addressed in your final written report?
[Showing the written report to the expert] Can you point out any language in the written report that are not
your words/were written by someone else?
You may also want to inquire into the experts preparation for the deposition, keeping in mind yet again that any
question you ask along these lines will likely be asked of your expert in return.
What did you do to prepare for your deposition?
How did your preparation differ from times you have been deposed in the past?
Who did you talk to?
What did you read?
Were you prepared by counsel for your deposition?
How many sessions were there?
How long did they each last?
Who else was present?
Were you shown any documents by counsel during your preparation? Which ones?
What did counsel tell you during these sessions?
What questions did you ask?
Did you discuss what questions you might expect during the deposition?
Did you discuss how to answer any particular questions?
Did you discuss how to answer questions about your qualifications? About your prior experience as an
expert? About your process for preparing your expert report? About what documents you reviewed or to
which individuals you talked? About what facts you were relying on and what facts you thought were not
pertinent to your report? About your methodology? About your conclusions?

After fully exploring an experts relevant qualifications, you should explore the experts understanding of the facts
and circumstances of the case at issue. This understanding should come from his review of the documents provided
to him, including medical records, witness statements, incident reports, deposition transcripts, photographs,
drawings, or the like. Your examination of the expert should pin down what materials he has received, what material
he has reviewed, which documents he found significant, and how he is using the documents to form an
understanding of the facts of the case or any variation on the facts of the case. Your goal is to determine whether the
expert has developed a complete understanding of the facts and how he learned those facts. You will often be
surprised to hear that the expert is relying on what the opposing party or his attorney has told him. The experts
understanding of the facts should be developed from his independent review of the facts. This examination usually
requires considerable questioning similar to the following:
When was the expert initially contacted by the attorney and what assignment was he given? What was he
initially told of the facts? What reliance did he place upon those facts? What time did he spend in the initial
consultation? What facts did he think were particularly important in the initial consultation?
What did the expert request from the attorney and why? What did he receive and when? What was important
about the information he requested? What did he hope to receive or find in the requested materials?
When did he review the materials supplied to him? What did he learn of significance? How much time did he
spend on the initial review? Did he feel he was in any way inadequate or unqualified after having read the
materials?
After having studied the materials, did he recognize any inherent conflicts between the position he knew the
lawyer wanted him to take and positions taken in other cases or studies? Had he ever testified against the
attorneys client or any industry groups of which the client is a member?
Did he make additional requests for information? What additional information did he need and why? What
was becoming particularly important to him and why?
When did he first go to any outside sources and why? What were those sources, i.e., literature, peers, and
other consultants, witnesses, police, his own staff, etc.? How did he begin to develop his model for further
investigation? Did he determine he needed experiments, onsite visits, advance laboratory studies,
photographic studies, further testimony from key witnesses, specimens, etc.; and, if so, why? What
additional information did he need? What did he expect or hope further studies would show?
Is he aware of any conflicts or controversy within his profession or within the professional literature over his
theory, approach, or model? If so, how did he deal with the controversy or, alternatively, why did he not take
the controversy or conflict into account?
Was there any information which he felt he needed in order to reach any final opinions, but was unable to
obtain? Was there information which he felt would be helpful or which he wished the attorney would have
supplied him, but had to do without?
What experiments, inspections, or studies did he conduct? Did he discard any such studies as unnecessary,
too costly, or unlikely to give the right answer? How much time was spent in these studies or experiments,
and what was the involvement of the attorney in approving the studies or dealing with the results of such
studies?
At what point did he decide he had enough information to begin finalizing his opinion? How did he proceed
to finalize his opinion? What was the involvement of the lawyer in drafting the final opinions? Did he
maintain any drafts of final reports? Are there other calculations, photographs, experiments which he
conducted but which do not form the basis for his opinion? Did he rely upon any facts supplied by the
attorney in finalizing his opinion? Are there general subject areas which at the beginning of his assignment
he thought he would be investigating but which are not a part of his final opinions? In other words, did the
expert find some good and some bad for the attorney and limit his opinions only to those areas helpful to
the attorneys cause?
Did he make preliminary findings, calculations, or studies which he discarded? Did he destroy any notes or
studies? Did he communicate any such preliminary findings to the attorney?
Is his final opinion based solely upon facts he has been supplied and discovered, or is it also based upon
assumptions which he has not tested? If so, why does he accept these assumptions? Where are they
recognized as reliable or accepted?
Is he finished with his investigation? Is he prepared to express a professional opinion (where required, to a
reasonable degree of medical certainty, etc.) as to his opinion? If not, what else must be accomplished and
why? If the opinions expressed in the deposition are preliminary, when will he finalize the opinions and in
what way will he supplement his preliminary opinions with a report, with a verbal communication to the
attorney? Would he be willing to supply you directly with any supplementary opinions, studies, etc.?

Your interrogation of the experts understanding of the facts should reveal to you whether he accepts the facts that
your client has proffered or he has made a differing set of factual assumptions. If the expert has made a differing set
of factual assumptions, you may want to ask the expert to assume the facts as your client or other witnesses have
related them. This is a strategy decision. If you feel confident that your set of facts is likely to be true, you may want
to save asking the expert witness a hypothetical question which changes the facts until the time of trial. It is much
more difficult for an expert to respond and change his testimony at trial than between the time of his deposition and
trial.
However, if you decide to proceed with hypothetical questions at the deposition, it is possible that the expert may
reformulate his opinion in your favor. Conversely, it is also possible that the expert may explain to you that your
differing facts could not possibly have occurred. If he does so, then make him tell you every reason your facts are
impossible. It is much easier to regroup your case now as opposed to at the time of trial. Your outline should leave
room to explore differing factual assumptions.
You may want to take a middle course and simply ask the expert if he or she had the benefit of certain facts while
formulating the opinion. If the answer is no, and the jury later finds that those particular facts are material, then the
jury is likely to discount any opinion without their benefit.

The basis for an experts opinions usually takes place on several levels. The first basis is the experts knowledge and
understanding of the case related facts. Your previous interrogation of the expert should have his understanding of
the facts pinned down. The second basis is the experts knowledge and experience in the field, that is, his
qualifications applicable to the set of facts. Of course, your previous interrogation concerning the experts
qualifications may well serve you in limiting the experts knowledge and experience as the basis for his opinions.
The third basis is the experts use of scientific methods and techniques to analyze the facts learned or any
assumptions that he has made as the basis for his opinions and conclusions. Lastly, the fourth basis is the experts
reliance upon accepted texts, standards or other documents to support his opinion. Some people consider a fifth basis
for an experts opinion to be logic and common sense. Certainly whether common logic is considered a basis for
the experts opinion, it is an area you may want to probe during the deposition. Do all aspects of the experts opinion
hold up to a common sense scrutinyput another way, when you peel off the trappings of fancy language and
multiple professional degrees, is the opinion believable to a lay person? The best way to get at this is to try to restate
the experts opinion in simple terms that show its fallacy and get the expert to agree with your characterization. The
caveat of course is that you may decide to hold particularly good traps for trial.
You should remember that under Fed. R. Evid. 703 the expert witness can base his opinions not only upon facts or
data that the opposing party intends to prove, but also upon facts or data which are neither admissible nor offered as
evidence by that party. The only requirement is that the data be of the type reasonably relied upon by experts in the
field . Under 703 and under most state evidentiary rules, texts, literature and other writings, which would be
otherwise considered inadmissible hearsay, may be admissible before the jury; provided that the evidence is reliable.
This does not make the extrinsic evidence admissible per se. However, the expert witness can refer to materials
before the jurymaking such materials tantamount to admissible evidence. The logic is that the material is not
being offered to prove the truth of the matter asserted, but merely as the basis for the experts opinion. This type of
extrinsic evidence can take many forms. Nonetheless, trial judges do occasionally exercise independent judgment
over whether the material upon which the expert has based his conclusions has been reasonably relied upon. See,
e.g., Boucher v. U.S. Suzuki Motor Corp., 73 F.3d 18, 21 (2d Cir. 1996); Soden v. Freitliner Corp., 714 F.2d 498,
502-503 (5th Cir. 1983).
For example, a medical expert may rely upon laboratory findings contained in the plaintiff-patients medical chart
and refer to the findings in front of a jury to explain the basis for his opinion on the proper diagnosis. An engineer
may rely upon a building code provision in support of his opinion that an entranceway was defectively designed. An
accident reconstruction engineer may rely upon witness statements to support the basis for his opinion on the cause
of an accident. The reliability of laboratory evidence may be considerably greater than the eyewitness statements. In
each example, with a proper foundation, the expert will be permitted to read or publish to the jury statements
contained in documents upon which he is relying.
The types of hearsay materials upon which an expert may base his opinion include the following:
Learned Treatises: articles published in scientific or professional journals, medical or engineering textbooks,
etc.
Trade publications: national, state or local building codes, etc.
Government records: statutes, rules, regulations, ordinances, etc.
Business records: medical records, witness statements, police reports, accounting records, etc.
Professional publications: standards, guidelines, policies or procedures, etc.
Litigation documents: deposition transcripts, interrogatory answers, affidavits, etc.
Of course, an expert for either the plaintiff or the defendant can use this type of evidence to support his opinion or
conclusion. The plaintiffs expert may rely on such evidence to conclude that negligence or a defective condition
occurred. The defendants expert may rely upon such evidence to conclude that the conduct or product was safe.
These types of documentary evidence can be very damaging and difficult to cross-examine, unless you have
researched the documents and properly deposed the expert regarding the materials. Before the deposition, you need
to know whether the documents are reliable. Your deposition questions for the expert should be designed to
establish that the evidence is subject to dispute, scientific debate, or outright rejection.
After establishing and locking in all the bases for the experts opinion, you may then want to press as to whether
changing any of those bases would lead the expert to change his or her opinion.
Similarly, to the extent the expert is relying on certain methodologies and your expert has relied on competing
methodologies to reach different conclusions, you may want to try to get the expert to buy into the reasonableness of
the methodologies followed by your expert.
Once you have determined the experts understanding of the facts and the basis for his opinions, you need to
determine whether he has used any scientific, technical or specialized knowledge to analyze those facts or generate
support for his opinions. For example, in a tire blowout case, the expert may have used tire separation testing
methods and techniques to determine whether the facts occurred in the manner claimed. The methods and techniques
used by various experts to test a theory for the plaintiff or defendant has become the source of tremendous pre-trial
motion controversy. Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). Under Daubert, in
preparing to depose the expert witness, your question preparation should include an analysis of whether the experts
opinions or any analysis of the facts are based on reliable methods and techniques in his field. You should not
dismiss the possibility that the experts opinion may be based on a flawed analysis or unaccepted methods, i.e. so-
called junk science. At the experts deposition, if you have not carefully explored the validity of his methods, then
you have nothing on which to base a motion in limine to exclude a harmful, but invalid, expert opinion concerning
your case. The party proffering an experts opinions and conclusions has the burden of showing that the experts
evidence is the result of reasonably reliable methods and techniques. The trial judges who preside in the federal
courts and in many state courts are the gatekeepers who decide whether to admit or exclude novel expert
testimony or opinions. The trial judges decision to admit or exclude an expert opinion, because the opinion is not
scientifically based, is only reversible on appeal upon a showing of an abuse of discretion. General Electric Co. v.
Joiner, 522 U.S. 136 (1997). Under Joiner, if your deposition questioning of the opposing expert convinces the trial
judge to exclude the experts testimony, your opponent will have a tremendous burden on appeal to reverse such a
ruling.
The design of your questions concerning the validity and reliability of an experts opinions and conclusions should
originate from the ruling in Frye v US, 293 F. 1013 (D.C. Cir. l923), a United States Supreme Court decision in
which the general acceptance test for determining the admissibility of an experts use of novel or pseudoscientific
evidence was adopted. Under Frye, the attorney deposing the expert witness wants to discover whether the experts
theories, data, methods and principles are generally accepted by other experts in the same scientific field. Today, the
attorney deposing the expert witness should be mindful that many state jurisdictions apply the Fyre standard to the
admissibility of novel expert witness testimony. E.g. Arizona: Logerquist v. McVey, 1 P.3d 133 (2000); California:
People v. Leahy, 882 P.2d 321 (l994); Colorado: Brooks v. People, 975 P.2d 1105 (1999); Illinois: People v. Miller,
670 N.E.2d 721 (IL Sup. Ct. l996); New York: People v. Wernick, 674 N.E.2d 322 (N.Y. l996).
Interestingly, in Donaldson v. Central Ill. Pu. Serv. Co., 767 N.E.2d 314(Ill. 2002), the Illinois Supreme Court
recently held that under Frye the general acceptance standard for scientific evidence does not require that a
majority of experts in the field support the scientific technique proffered. There, the parents of children with
neuroblastoma, a rare form of cancer, filed a negligence suit against the owner of a coal glasification plant. The
plaintiffs called expert witnesses in the field of epidemiology who relied upon the scientific technique of
extrapolation to support their opinion that exposure to coal tar from the plant had caused the cancer. The defendant
objected that the extrapolation method was not generally accepted in the scientific community. Affirming the
admission into evidence of this testimony, the Donaldson Court explained that the general acceptance standard
does not mean universal acceptance of methodologies by a consensus or even a majority of experts. The relationship
between coal tar and neuroblastoma has simply not been the subject of extensive study, the Court found, due to the
rarity of the disease and ethical considerations of exposing humans to coal tar for research purposes. The Donaldson
Court concluded that the experts called by plaintiffs extrapolated from similar, yet not identical, scientific studies
and theories and that extrapolation from other studies and theories is sufficiently established to have gained general
acceptance in these limited circumstances.
Under Frye, you should always ask the opposing expert the preliminary question: Are your opinions and conclusions
based on theories or methods that have been generally accepted by others in your field? If the expert does not know
the answer, then the opposing attorney cannot use the experts testimony to lay the foundation to admit the experts
opinion testimony at trial. You will have won the deposition. If the expert answers Yes, then you should be
prepared to force him to identify each source for his statement and the basis on which he has made that statement.
After Frye, the Supreme Court in Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993) clarified and
strengthened the criteria required to admit expert opinion testimony based on scientific matters. The Daubert Court
held that the general acceptance test enunciated in Frye had been supplanted by the Federal Rules of Evidence.
Later, in Kumho Tire Co. v Carmichael, 119 S. Ct. 1167 (1999), the Court announced that the Daubert criteria for
the admissibility of scientific expert opinion testimony also applied to the opinions of non-scientific expert
testimony. In response to Daubert and its progeny, Federal Rule of Evidence 702 governing the admissibility of
expert testimony has been amended, effective December 1, 2000. Under Rule 702, a new standard is firmly in place
by which the federal courts shall determine the admissibility of all, not only novel, evidence used by an expert in
support of his opinions and conclusions. Essentially, the new standard establishes a two-pronged analysis for expert
scientific or technical evidence: 1) is the reasoning and methodology underlying the experts theory or opinion
reliable; and 2) is the proposed evidence relevant to the facts of the case? Accordingly, the attorney deposing an
expert witness would be well served to ask the expert questions which could determine the admissibility of the
experts testimony at trial.
In many instances, when an expert witness is disclosed, the opposing partys attorney concedes that the testimony, if
accepted, would assist the trier of fact to understand the evidence or to determine a fact in issue. You should not
make this concession. The proliferation of junk science and expert inflation is well-documented. Too often, an
attorney accepts the experts methods and techniques simply because he looks well-qualified on paper. This is true
for defense experts as well as plaintiffs experts. You will be well served to make a Daubert type inquiry of the
opposing partys expert.
Under Daubert, your outline for analyzing the experts methods and techniques should include the following areas
of inquiry:
Have the experts methods or techniques ever been tested?
Have the methods or techniques used by the expert ever been the subject of a peer review process by
colleagues in the same field?
Have the experts methods or technique been published in a peer reviewed journal or text?
Does the experts technique or method have a known or potential rate of error?
Do standards exist for the techniques or methods used?
Are the experts techniques or methods generally accepted in the field?
Your inquiry on the methods and techniques used by the expert should be flexible. The Daubert court made it clear
that the factors identified above are not exhaustive. The advisory opinions to Federal Rule of Evidence 702 provide
other excellent areas of inquiry which may be relevant to your deposition questions depending on the nature and
type of expert evidence being offered.
If you have read and researched the opposing experts allegedly scientific methods and techniques, and perhaps
consulted with your own expert regarding the acceptance of these methods and techniques in the field, then you may
be successful in laying the foundation to later exclude the experts use of these methods and techniques at trial as the
basis for his opinion and even exclude the entire opinion.

You must be prepared to depose an opposing expert witness concerning whether any texts, literature or other
scientific or technical writings in the field are authoritative. However, before you prepare to use an authoritative
treatise at an experts deposition, you must understand how and when you can use them at trial. Federal Rule of
Evidence 802(18) governs the use of authoritative texts and other material at trial. Under Rule 803(18), if an
opposing expert witness testifies that a text or other document, which would be otherwise inadmissible hearsay, is a
reliable authority, then statements contained in the text or document can be read into evidence before the jury. This
is considered substantive evidence. Similarly, if your expert witness has testified or is prepared to testify that a text
or other document is a reliable authority, then you may cross-examine the opposing expert with statements contained
in the text or document in front of the jury. However, it is not considered substantive evidence; it is impeachment
evidence. You should consult the evidentiary rules in your jurisdiction regarding use of authoritative texts as
substantive evidence. Some state jurisdictions do not allow introduction of a text on direct examination as
substantive evidence. See, e.g. Lawson v. G. D. Searle & Co., 64 Ill.2d 543 (Ill. Sup. Ct. 1976). On direct
examination, the expert can testify that he is familiar with a text or study, that he has read it, and that he bases his
opinion upon it; however, he is not permitted to read the content of the material to the jury. Schuchman v. W.R.
Stackable, 555 N.E.2d 1012 (1990). However, on cross-examination of an expert, an attorney may read from a text
before the jury to impeach the expert with a contrary statement. Darling v. Charleston Community Hospital, 33
Ill.2d 326 (Ill. Sup. Ct. 1965). The jury hears the statement but it is not evidence.
Under Rule 803(18), the trial judge acts as the gatekeeper over use before the jury of any text or other document
claimed to be authoritative. Schneider v. Revici, 817 F.2d 987, 991 (2nd Cir. 1987). The trial judge must determine
that the treatise which is being offered is trustworthy as viewed by professionals in the field. Fed. R. Evid.
803(18), Advisory Committee Note. Authoritative treatises may take the form of textbooks, journal articles, or even
videotapes published by a professional organization. Constantino v. Herzog, 203 F.3d 164 (2nd Cir. 2000)
(American College of Obstetricians & Gynecologists teaching video on methods for delivering infant with dystocia
admitted as authoritative text).
The party intending to use a text as an authority has the burden to lay a foundation that the text is authoritative.
Schneider, supra. The foundation is typically established by an expert witness testifying that the treatise or author is
a recognized authority on the subject at issue. Id.
Practice Tip: Authoritative Treatises

At the deposition of the opposing expert witness, you should ask the witness the preliminary question
whether he considers any of the written materials that he has relied upon in support of his opinions to be
authoritative on the subject matter to which he is testifying. Obviously, if he answers no, then he will not
be reading any of the materials to the jury at the time of trial.
For the expert witness who does identify a text as authoritative, you must be prepared to question him regarding the
basis for his opinion that the text is authoritative. Has he used the text as a reference in the past? Why is it
recognized as authoritative? What makes a specific text authoritative when compared to other texts? You should
also consider questioning the expert using a Daubert analysis. If the text is not accepted under the Daubert criteria,
then a trial judge is not likely to accept the experts testimony that the text is authoritative.
Of course, opposing counsel will have disclosed the allegedly authoritative text to you in pre-deposition discovery.
You should obtain each text, article or other document that the opposing party has identified before the deposition.
The footnotes to the article can be invaluable. Often, the author of the article has cited to other journal articles by
leading authors in the same field about the same inquiry. Undoubtedly, you will find dispute among authors about
opinions which can be drawn about particular findings. For example, in the field of obstetrics, much has been
written lately regarding nucleated red blood cell (NRBCs) counts in newborn infants and the ability to rely upon
NRBCs to calculate the timing of a brain damaging insult to the newborn during labor and delivery. A review of the
published literature in the field quickly reveals the use of different total counts and ranges of times which are being
used to assess when the damage occurred. If you confront the expert with differing studies and literature, then he
may not be able to explain why the materials that he relies upon as authoritative are any more trustworthy or
accepted than other materials.
You must also be prepared to ask the expert whether he acknowledges any of the texts or other documents that you
intend to use in your case-in-chief as authoritative. If you represent the plaintiff, then you probably have disclosed
through your expert authoritative texts, etc., that you intend to use. Presumably your expert has rendered the opinion
at his deposition that the text is authoritative; otherwise, you will not be in a position to meet your foundational
burden at trial with the text before use in front of the jury. Obviously, the opposing expert will have read the text or
other document that you intend to offer. When the expert refuses to acknowledge a text as authoritative, you should
be prepared to ask each reason for the refusal. Remember the deposition can give you advance warning of how the
opposition intends to deal with your authoritative evidence. If you represent the plaintiff, then you may have also
obtained time to declare rebuttal witnesses or opinions. If so, you may wish to confront the opposing expert with
texts or other materials and declare them as authoritative rebuttal evidence. This type of preparation can be
extremely disarming to the opposing expert. He will not have had an opportunity to ponder his response to your
authoritative texts.

The final area of your expert deposition outline should be designed to understand and explore the experts opinions.
At this stage in the deposition your goal is to commit the witness to the subject matter upon which he will express
opinions. Usually an expert witness will have a few discrete areas upon which he will testify. Make the witness
identify what those areas are so that you have defined the scope of the experts opinions. Make sure you pin the
witness down as being prepared to address only those subject areas. This will prevent the opposing party from
inserting new subject matter areas of opinion by an expert on the eve of trial.
Using the report or interrogatory answer that you received which summarized the experts opinions prior to the
deposition, you should mark the report or interrogatory as an exhibit to the deposition or read the material into the
record. This should be the starting point for the part of your deposition dealing with the opinions. Ask the witness to
make any clarifications or corrections.
Practice Tip: Expert Opinion

You may wish to limit the expert to the opinions set forth in the report or interrogatory answer. This can
be done by simply not asking any more questions but rather stopping your interrogation. If the opposing
counsel attempts to elicit new opinions not contained in the report or interrogatory, then you may be able
to ask the court to bar the new opinion as untimely disclosed.
You may choose to interrogate the expert about each of the opinions previously disclosed. If you have followed a
well-prepared outline for the deposition, then the validity of the opinions should be obvious to you. You will know
whether the expert has built a credible foundation on which to support his opinions using his qualifications, the
factual evidence, scientific methods and techniques and authoritative texts. If the foundation is incredible, the
opinions will crumble. Having followed a well-prepared outline and strategy, you should complete the experts
deposition and have understanding and control of his opinion testimony.
You may also want to try to get the expert to buy into opinions offered by your expert that are not directly
contradicted by your opponents experts opinions. Walk through your experts written report and find out what your
opponents expert agrees with. Ask the expert to agree:
That your expert is qualified to offer the opinions he or she has offered, or that your expert is well respected
in the field.
That certain treatises relied upon by your expert are authoritative.
That methodologies followed by your expert are valid.
In fact, you may want to walk through the Daubert factors with your opponents expert:
You would agree that the methodology [followed by my expert] has been tested.
You agree that that methodology has been peer reviewed.
You agree that that methodology has been published in a peer reviewed journal.
You agree that the rate of error in the methodology [followed by my expert] is within acceptable norms.
You agree that the methodology [followed by my expert] is generally accepted in the field.
Another thing to consider is whether your opponent has disclosed multiple experts each of whom has submitted an
expert report. If so, you may want to attempt to get each expert to critique aspects of your opponents other expert
reports.
639A Scope of Examination of Expert Witness

Both the Rules and the discovery statutes of most states allow for a deposition of an expert witness who is expected
to testify at trial. See 123. In deposing an expert, you have practically an unlimited scope of examination as long as
the questions are relevant to the issues of the action, and to the experts opinion. But see David Tunick, Inc. v.
Kornfeld, 151 F.R.D. 534 (S.D.N.Y. 1993) (although oral examination of an expert witness at a deposition is
liberally permitted, the scope of examination is generally limited to information designed to facilitate cross-
examination). The principal qualification on this statement is that normally an expert cannot be examined on matters
unrelated to his offered testimony at trial. If the expert utilizes the attorneys work product to form his own opinion
to which he will testify at trial, the work product privilege may be deemed waived. Boring v. Keller, 97 F.R.D. 404,
407 (D. Colo. 1983). Cf., All West Pet Supply Co. v. Hills Pet Products Div., Colgate-Palmolive Co., 152 F.R.D.
634, 637-638 (D. Kan. 1993) (attorneys work product does not lose protection under 26(b)(3) by reason of being
sent to expert witness).
Frequent disputes arise when one party seeks to depose the other party (or employee of the other party) as an expert
witness or to discover his opinion when that party or expert will not be called to testify at trial as an expert. This
raises the issue of whether a party or employee of a party may be compelled to involuntarily testify as an expert
witness for the adverse party.
For example, in Movan v. Pittsburg Des Moines Steel Co., 6 F.R.D. 594 (D.C. Pa. 1947), the issue was whether
defendants had negligently designed a steel gas tank. Plaintiff sought to question defendants chief engineer on his
opinion of the safety and suitability of the grade and chemical constituency of the steel used in the gas tank. The
court held the engineer did not have to give his opinions, noting that while a party may call an officer, director or
employee of an adverse corporation, the scope of examination is limited to the facts he had observed, and not
speculation and opinion to what might have been done to prevent injury. Movan at 596. See also, Imposition of
Sanctions in Alt v. Cline, 589 N.W.2d 21, 27 (Wis. 1999) (Party seeking experts opinion can only compel expert to
give existing opinions; an expert cannot be required to do additional preparation); Hickey v. U.S., 18 F.R.D. 88 (D.
Pa. 1952); People ex. rel. Kraushaar Bros. & Co. v. Thorpe, 72 N.E.2d 165 (N.Y. 1947). However, there is also
substantial authority allowing such examination. See Annotation, Right to Elicit Expert Testimony from Adverse
Party called as Witness, 88 A.L.R.2d 1186 (1963). See also Annotations, Pretrial Discovery of Facts Known and
Opinions Held by Opponents Experts under Rule 26(b)(4) of Federal Rules of Civil Procedure, 33 A.L.R.Fed. 403
(1977); and, Pretrial Deposition B Discovery of Opinions of Opponents Expert Witness, 86 A.L.R.2d 138 (1962).
See also Dallas v. Marion Power Shovel Co., 126 F.R.D. 539 (S.D. Ill. 1989).
In retaining and preparing an expert witness for deposition, the safe course of action is to assume that nothing you
say to or give to the expert and nothing the expert writes or mentally prepares is privileged or otherwise excluded
from your adversarys examination. In other words, review the rules applicable to nonexpert, nonparty witnesses and
the privileges applicable thereto.
Often a party designates as an expert witness or a consultant its own employeewho indeed fully qualifies as an
expert in the relevant areabut who also was a participant in the events at issue in the lawsuit. Absent exceptional
circumstances, a consulting experts knowledge of facts and opinions held is privileged under Rule 26(b)(4)(B) only
to the extent they were obtained or formed after being retained or specially employed by a party in anticipation of
litigation or preparation for trial. As to events prior to that time, the person who may subsequently have been hired
as a consultant, is an ordinary fact witness. Similarly, if the events involved in the litigation continue, and the expert
is an actor, knowledge concerning these acts cannot be hidden behind the consultant privilege. Designating a fact
witness as a consultant does not clothe him with privilege he would otherwise be without. See Axelson, Inc. v.
McIlhany, 798 S.W.2d 550, 554 (Tex. 1990).
Similarly, an expert witness which you retain may have some privilege as to your communications with him. See
763.
639.3A Putting it All Together Into a Deposition Outline
So by the time you actually sit down and start writing your expert deposition examination outline, you will have
already read the experts written opinion carefully, transcripts of the experts prior testimony, articles written by the
expert, and any other bases on which the expert has identified his or her opinion.
Expert deposition outlines tend to take on typical formats, so you may want to consider varying the order if you fear
that using a familiar examination order will make a well prepared or a much experienced expert too comfortable.
The Experts Retention: Examine the scope of the experts assignment.
The Experts Qualifications: Examine the nexus between the qualifications and questions posed to the expert.
The Experts Biases: Examine grounds that may undermine the weight the trier of fact would give to the
experts opinions.
The Experts Process: Examine to what extent the experts opinion was freely and independently derived.
The Experts Understanding of the Facts: Examine the facts upon which the expert relies, the source of those
facts, and any facts to which the expert has not been made privy.
The Experts Methodology: Examine how the expert applied the facts the expert identified as material to a
set of rules in order to derive the proffered opinions, and then probe whether the methodology was reliable.
The Experts Agreement with Your Expert: Examine facts, methodologies and opinions of your expert with
which the expert you are deposing agrees.
Disagreements with Other Opposing Expert Reports: If your opponent has disclosed multiple experts, each
of whom has done an expert report, try to get each expert to critique the others.
The Experts Opinions: Lock the expert in, then follow the opinion from questions presented, through facts
and their application to a particular methodology, and then test with common sense.
And of course do not forget to include in your outline a list of your deposition goals.

Form deposition outlines for examination of particular experts follow. For substantive areas of the examination, your
outline will have to fit the facts of your case.
641A Outline for Deposing Expert Engineer Product Liability Case

I. Qualifications
Engineering school attended
years attended
degree(s) obtained, B.S., M.S.
science studied
Post Doctorate study
area of study
thesis topic
Professional licenses
years obtained
States held
examinations taken
Written or published any literature applicable to engineering issues involved
why written
research used
peer reviewed
Given any lectures, presentations or seminars applicable to the area of engineering involved
research performed
engineering literature and texts consulted, used or relied upon
subjects taught
applicability of subject to present issues
Prior product design experience
types of products designed
any product design released for commercial production
role on any product design team
prior product similarity to subject product, i.e. safety feature, hazard
Special expertise, training, experience or interest in area of product engineering at issue
describe special qualifications
Employment history
names of employers
positions held
how long
relationship of job to product manufacture
Industry involvement
organization memberships, i.e. ANSI, ASAE, SAE
committee positions held
role of committee
Engineering publications
trade journals reads or subscribes
government standards or codes read
Accident investigation experience
prior product accident investigations
similarity to present injury
Forensic engineering experience
hazard analysis
failure analysis
technical training
II. Litigation Experience
Professional time involved as an expert
percentage of weekly time engaged in the private manufacturing industry
percentage of weekly time engaged in expert witness activity
Number of claims requested to review
percentage of claims reviewed for plaintiffs
percentage of claims reviewed for defendants
Depositions given
number of depositions given on an annual basis for past 5 years
percentage of depositions given on behalf of defendant manufacturers versus plaintiff product users
Trial testimony given
number of times testified as expert witness on annual basis for past 10 years
percentage of trial appearances for defendants versus plaintiffs
Relationship with law firm or lawyer
number of cases retained
Income
percentage of annual income derived from litigation related work
annual income earned from litigation related work
Advertising
solicitation of business through professional journals
Expert services
cases obtained from expert witness services
III. Work Performed in the Case
Engagement in the case
the date retained
who contacted youthe attorney for party, the party, or insurance company
the facts described by contacting person
Opinions formed before review of case related materials
was an opinion requested by telephone at initial contact
did you express an opinion by telephone on initial contact
IV. Inventory of Materials Provided in the Case
Materials provided by counsel
correspondence
engineering drawings
product testing data
warranty data
photographs
product facsimiles
facsimile labels, manuals or instructions
incident reports
witness statements
medical records
deposition transcripts
memorandum
engineering literature, texts, etc.
prior accident history data
Materials provided by expert
engineering literature, texts, etc.
test data
Materials excluded
missing records related to case
missing deposition transcripts or statements of witnesses
missing standards or codes
missing test or prior accident history data
V. Compensation Arrangements for the Case
Hourly rates
fee for review of materials
fee for deposition testimony
fee for trial testimony
Any promise of future business for correct result?
VI. Product Inspection and Notes Made by Expert
Product inspections performed
date(s)
persons present
component parts examined
photographs taken
measurements made
notes made at inspection
Facsimile products inspected
date(s)
persons present
component parts examined
photographs taken
measurements made
notes made at inspection
Forensic Product testing
date(s)
persons present
component parts tested
tests performed
Daubert testing methodology and techniques used
photographs, videos taken
measurements made
test findings
notes made of testing
Materials reviewed by the expert
itemize documents readnotes or abstracts made
deposition transcripts readnotes or abstracts made
Notes regarding opinions or conclusions formed
Notes regarding disputed facts in the case
VII. Understanding of the Subject Product Design
Review engineering design of product
product function
human factors interface
Product development
drawing board designs
design alternatives considered
prototypes produced and results
prototype testing and results
prior designs discontinued
state of the art
Safety hazards to product
admit or deny hazard alleged
hazard analysis performed
failure modes and effects analysis
Accident hazard experience
complaints
warranty claims
claims made
lawsuits filed
Industry accident hazard experience
safety committee reports
accident studies
government statistics, i.e. Consumer Products Safety Commission
Safety features
safety features existing on product, i.e. devices, labels, etc.
safety considerations discussed, i.e. labels, guards, deadman switches
all persons involved in safety decisions
alternative safety designs considered
safety features rejected and why
safety features discontinued
testing of safety features added, rejected or changed
Compliance with safety
standards applicable, i.e. ANSI, CPSC, NTSB
governmental codes and regulations applicable
industry recommended practices
subject product compliance with standards, codes, and practices
product differences with standards, codes or practices and why
VIII. Understanding of the Alleged Occurrence
Review plaintiff consumers conduct
was use of product intended by design
was misuse of the product anticipated
Use of depositions of plaintiff and witnesses
does testimony support intended use of product by plaintiff
if so, describe in detail
does testimony support any misuse of product
Assumptions about use of product
has expert assumed facts, statements, depositions or physical evidence
if so, how did he make assumption?
has expert used deposition testimony related to findings in medical record?
IX. Alternative Product Design
Feasibility of design
knowledge of alternative design
technical requirements
economics of design alternative
State of the Art
what is it?
product capability to meet
X. Authoritative Literature
Texts, literature, etc. reviewed
identify each considered authoritative
witnesses prior use of text, etc.
prior use of text in the relevant field
recognition of text in the relevant field
knowledge of peer review
Statements contained in the text
identify language upon which witness refers or relies
purpose for which witness refers or relies upon statement
Contrary text, literature, etc.
witness recognize any contrary materials
explanation of differing statements
XI. Opinions and Conclusions
Is subject product defective or unsafe?
describe hazard
describe defect, i.e. safety feature missing, additional instructions, poor design feature, etc.
Alternative design available
describe alternative design
would design reduce or eliminate risk of injury
feasibility
Proximate cause
did product likely cause the plaintiffs injury?
mechanism for the injury
would alternative design reduce or eliminate likelihood of injury?

I. Qualifications
years attended
where
what years
Fellowships
what specialty
Board Certifications
area of specialty
describe special qualifications
why written
research used
peer reviewed
Given any lectures, presentations or seminars applicable to the area of medicine involved
research performed
medical literature and texts consulted or relied upon for
Teaching and Academic Appointments
Private practice
how long
define patient population, e.g. adult cardiac patients
any prior patients with the same outcome
Hospital staff privileges
any disciplinary proceedings, suspensions or temporary revocations
Medical publications which regularly reads or subscribes
Professional time involved as an expert
percentage of weekly time engaged in the practice of medicine
percentage of weekly time engaged in expert witness activity
Number of claims requested to review
percentage of claims reviewed for plaintiffs
percentage of claims reviewed for defendants
Depositions given
percentage of depositions given on behalf of defendant health care providers versus patients
Trial testimony given
percentage of trial appearances for defendants versus plaintiffs
Relationship with law firm or lawyer
number of cases retained
Income
percentage of annual income derived from litigation related work
annual income earned from litigation related work
Advertising
solicitation of business through professional journals
Expert services
cases obtained from expert witness services
III. Work Performed in the Case
Engagement in the case
the date retained
who contacted youthe attorney for party, the party, or insurance company
the facts described by contacting person
Opinions formed before review of case related materials
was an opinion requested by telephone at initial contact
did you express an opinion by telephone on initial contact
IV. Inventory of Materials Provided in the Case
correspondence
medical records
memorandum
medical literature, texts, etc.
Materials provided by expert
medical literature, texts, etc.
test data
Materials excluded
missing medical records related to case
missing deposition transcripts of witnesses involved in care and treatment of patient
V. Compensation Arrangements for the Case
Hourly rates
fee for review of materials
Any promise of future business for correct result?
VI. Notes or Documents Prepared in the Case
Materials reviewed by the expert
medical records readnotes or abstracts made
depositions transcripts readnotes or abstracts made
Notes of opinions or conclusions formed
Notes of disputed facts in the case
VII. Anatomy/Medical Terms Defined
Review anatomy of patient involved
any anomalies in plaintiffs anatomy
Define medical terms
make expert limit use of term to his definition
make expert agree on definition of term
VIII. Understanding of Care and Treatment Provided
Review patient care and treatment in medical record
number of visits either in hospital or office
history obtained from the patient: significant complaints
physical examination performed: significant signs and symptoms
tests ordered: lab tests, x-rays, etc.
Defendants diagnosis
experts understanding of history and findings that support diagnosis
Defendants treatment of condition
experts understanding of the treatment, i.e. tests, medication, follow-up
Use of depositions of plaintiff and defendant
does testimony supplement history, physical exam, diagnosis or treatment?
experts view of conversations between plaintiff and defendant
conversations claimed which are not in the medical record
Assumptions about care and treatment
has expert assumed facts from history or examination?
if so, how did he make assumption?
has expert used deposition testimony unrelated to medical record?
Results or outcome
IX. The Plaintiffs Injury
Any pre-existing or underlying conditions that explain bad result or injury
if so, describe condition
list source of pre-existing information is found
state every finding supporting pre-existing condition
Injury suffered
mechanism for the injury
X. Opinions Formed in the Case
a. Standard of Care Opinions
Definition of Standard of Care
is it a national or local standard applicable to the defendant physician?
Reasonable degree of medical certainty
is the opinion held to a reasonable degree of medical certainty?
What does the standard of care require under the circumstances?
has the expert always acted in the same manner?
would the expert act the same as the defendant under these circumstances?
b. Proximate Cause Opinions
Definition of proximate cause
can there be more than one cause of an injury?
Does the expert hold an opinion as to the cause of injury or death?
if so, state what caused injury or death?
make expert describe mechanism
Would defendants earlier diagnosis or treatment have likely avoided the injury or death?
if not, state reasons
Was the defendants conduct a cause of the injury or death?
XI. Basis for Each Opinion
Obtain the basis for each of the experts opinions
medical facts relied upon to form opinion
education, training or experience relied upon to form opinion
medical or scientific principles
Standards published
medical literature
XII. Authoritative Texts
Texts, literature, etc. reviewed
identify each considered authoritative
witnesses prior use of text, etc.
prior use of text in the relevant field
recognition of text in the relevant field
knowledge of peer review
Statements contained in the text
identify language upon which witness refers or relies
purpose for which witness refers or relies upon statement
Contrary text, literature, etc.
witness recognize any contrary materials
explanation of differing statements
I. Qualifications
years attended
degrees obtained, e.g. B.S. in Mechanical Engineering
courses in accident reconstruction or reverse engineering
year(s) obtained
States held
examinations taken
Literature written or published applicable to issues involved, e.g. metallurgy, physics, paint analysis,
computer modeling, etc.
subject matter
how applicable to instant case
why written
research used
peer reviewed, i.e. Society of Automotive Engineers (SAE) committee review
date(s) published
Lectures, presentations or speeches given applicable to issues involved
subject matter
how applicable to instant case
why given
research used
date(s) given
transcripts available
courses taught
content of course(s) applicable to instant case
position held, i.e. tenured
Special expertise or training in accident reconstruction
(Note: many state and local police officers receive accident reconstruction training and experience which qualifies
them to investigate simple automobile accidents. You should inquire extensively about the training and experience
of former police officers who are retained to reconstruct an accident.)
police academy attended
traffic safety courses taken
accident reconstruction courses taken
Specialized experience in accident investigation
number of accidents investigated
employer(s)
positions held
Automotive industry experience
crashworthiness testing
failure analysis
hazard analysis
safety analysis
Forensic engineering experience
number of accidents investigated
computer modeling and simulation
computer animation
organization memberships, i.e. ANSI, ASAE, SAE
committee positions held
role of committee
III. Work Performed in Case
IV. Inventory of Materials Provided in Case
V. Compensation Arrangements
(Note: Examining attorney should refer to 641A for outline detail to sections II-V above.)
VI. Inspection and Testing of Subject Automobiles and Notes Made
When and who
date(s) performed
persons present
Operating condition of brakes
type of brake system to each vehicle, e.g. antilock, rear wheel, four wheel, etc.
records of maintenance or replacement of brake shoes, calipers, drums, etc.
particular findings or failures
testing of braking distance and findings
defects to brakes
Operating condition of tires
type of tires
records of replacement or retred of tires
age
any excessive wear and tear
Operating condition of steering systems
type of steering system
particular findings
Damage points to vehicles involved
identify each damage point relied upon by witness
identify each damage point ruled out as significant by witness
identify pre-existing damage to vehicle
prior body damage estimate, replacement or repair records relied upon by witness
measurements
Testing of damage points
testing performed, e. g. paint analysis, metal fatigue analysis
purpose of tests
specimens obtained
Methodology (Daubert standard) for testing or techniques used
Photographs or videotape of vehicles
identify
purpose
relevant depictions
VII. Inspection of Scene of Occurrence
When and who
date(s)
persons present
General description of scene
streets involved
pavement type, e.g. asphalt, concrete
street markings, i.e. lane dividers, crosswalks, etc.
lane widths
distances
traffic controls
posted speed limits
Surveying or mapping of street scene
survey notes
survey system used
drawings made
relevant geographical markers, e.g. stop signs, driveways, etc.
Physical evidence of occurrence observed
skid marks, including distance and direction
impact debris from vehicles, including location
motor oils, grease, etc. found on pavement
impact points on pavement
post-impact resting points of vehicles
VIII. Assumptions Made about Alleged Occurrence
Use of deposition testimony
statements about points of impact
statements about post-impact resting points of vehicles
statements about speed of vehicles
Use of police reports or witness statements
location and measurements of skid marks
inspection of vehicles, including damage points
Reconciliation of conflicting testimony or statements
how performed
basis to rule out witness observation
IX. Opinions and Conclusions
Speed of vehicles at impact
formula used to calculate speed
braking distances used
co-efficient of friction used for pavement
Vehicle operator perception/reaction times used
formula used
sight lines considered
Points of impact to each vehicle
basis
Points of impact between vehicles
basis
Location of impact on pavement
basis
Time and location when vehicle operators applied brakes
Proximate cause of impact, e.g. excessive rate of speed, deficient and worn brakes
basis
Alternative accident cause scenarios based on conflicting evidence

I. Qualifications
Architectural school attended
years attended
degrees(s) obtained
years obtained
States held
examinations taken
Professional experience
prior design of same or similar structures, i.e. when, how many
prior safety inspections of same or similar structures, i.e. describe, when, how many
prior building code compliance review of same or similar structures
prior building construction or management of same or similar structures
Special expertise, training or experience in subject type structures, e.g. stairways
describe
II. Employment history
(Note: Request a copy of experts curriculum vitae which may lead to other areas of qualification. You may also
wish to consult other sample expert witness outlines, i.e. 641A for additional areas of inquiry about qualifications,
such as teaching, publications, professional organizations, etc.)
III. Investigation of Scene
Site inspections performed
date(s)
persons present
areas examined, e.g. stairway, walkway, lighting
photographs taken
measurements made
sketches, diagrams made
IV. Documents Reviewed
correspondence
building plans and drawings
photographs
maintenance and repair records
governmental citations
incident reports
witness statements
medical records relating to history or manner of plaintiffs slip or fall
Materials provided by witness
building codes and ordinances
professional design standards
local weather reports
V. Understanding of Alleged Defective Condition
describe condition in dispute
identify location, size, etc.
length of time existed
how created
who created
persons responsible for maintenance or repair
remedial measures performed or adopted
VI. Governmental Laws
State or local building codes, ordinances or statutes applicable to subject premises
identify each provision reviewed
how provision applies to subject structure
intent of provision relied upon
prior experience applying provision to same or similar structure, e.g. height of riser to stairway
accepted variances from provision
State or local building codes, ordinances or statutes determined inapplicable
explain why
VII. Professional Publications
Design standards applicable, e.g. ANSI, AIA, BOCA, etc.
identify each provision reviewed
how provision applies to subject structure
intent of provision relied upon
prior experience applying provision to same or similar structure, e.g. recommended slope of driveway to
prevent formation of standing water or ice.
accepted variances from provision
Design standards determined inapplicable
explain why
VIII. Understanding of Alleged Occurrence
Describe conditions
weather, i.e. rain, snow or ice
natural lighting, i.e. sun shining, cloudy, dark
artificial lighting, i.e. location, degree of illumination
Describe plaintiffs conduct
clothing
shoes, including heals and sole composition
walking, running
direction looking when slip or trip causing fall occurred
Mechanism of fall
portion of foot, i.e. toe or heal in contact with defect
reaction of plaintiffs body, i.e. twisting ankle
sequence of parts of body striking pavement
Resting body position
direction facing
body parts contacting pavement
Contradictory factual accounts of alleged occurrence
eyewitness descriptions
inconsistent statements recorded in plaintiffs medical history
Assumptions made about manner of occurrence
basis
reconciliation of contradictory factual accounts
IX. Opinions Regarding Defective Condition
Is alleged condition defective?
explain
Does alleged condition violate any governmental code or ordinance?
identify provision relied upon
explain violation
Does alleged condition violate accepted professional design standards?
identify standard relied upon
explain applicability
Does alleged defect create a hazard to public?
describe hazard, e.g. unexpected step causing loss of balance
X. Proximate Cause of Alleged Occurrence
Did alleged defective condition likely cause plaintiffs slip, trip or fall resulting in injury?
explain basis for opinion
Was a violation of a building code or ordinance a cause of plaintiffs injury?
Was a violation of a professional design standard a cause of plaintiffs injury?
Assuming defendant had complied with all applicable governmental laws and professional standards would
plaintiffs injury likely have been avoided?
Did conduct of plaintiff cause or contribute to injury?
describe conduct, e.g. running when should be walking
Did a natural condition cause or contribute to plaintiffs injury?
describe condition, e.g. rain causing wet shoes

Lock in the appraisers opinions.
Establish bases to undermine appraisers credibility.
Look for inconsistencies in appraisers methodology.
Get appraiser to agree with my appraisers estimates of value.
Undermine appraisers conclusion.
II. Appraisers Engagement
Were you engaged by the party for the first time in connection with this litigation? Did you do your
appraisal after the commencement of this litigation? You understand that you were asked to do the
appraisal for use in this lawsuit?
What is your typical appraisal fee? What did you charge here? Are you charging an hourly rate for work
on the litigation above and beyond your appraisal fee? Was your compensation tied at all to the amount
of the appraisal or the outcome of the litigation?
Did you sign an engagement agreement? What does it say? Who prepared it? Did you make any changes
to it?
Do you have your own lawyer separate from the partys counsel? Did your lawyer help negotiate your
engagement agreement?
With whom did you talk about your engagement?
Specifically what were you asked to do?
Was your engagement revised at any time? If so, how?
III. Appraisers Qualifications
Describe your educational background.
Additional appraisal training?
Professional licenses?
Employment?
How many appraisals/year?
Residential versus commercial?
What is your familiarity with the area of subject property? How many appraisals have you done in that
area?
Have you been qualified by a court before to give expert appraisal opinion testimony? If so, when, what
court, and what were the circumstances?
IV. Appraisers Biases
Do you know the party? Do you know their counsel?
Do you have an interest in the property?
Do you own property in the vicinity?
How many times have you been engaged in connection with a lawsuit before?
How many times deposed before? How many times testified before a court before? What percentage of
your work is devoted to doing appraisals in connection with court proceedings?
V. Preparation of the Appraisal and for the Deposition
Who wrote the appraisal report you submitted in connection with this lawsuit? Did you get any
assistance?
Did you produce any preliminary drafts?
Did you show them to counsel? To anyone else?
Did you receive any written comments?
Did you provide or were you asked to provide any oral reports about your conclusions before you
committed them to paper?
Did you make any changes to your report based on comments from others?
Are there any words in your report that you did not personally write?
How did you prepare for the deposition?
Were you given any documents to read? What?
Were you prepared by counsel? What did counsel tell you?
Did you ask counsel any questions?
Did you discuss questions that you might be asked? Did you discuss how to answer those questions?
VI. Factual Basis for the Appraisal
How did you collect information for the appraisal?
Were you given any information by the party or its counsel?
Describe your inspection of the site.
VII. Appraisal Methodology
Are you familiar with the Uniform Standards of Professional Appraisal Practice or USPAP?
Is it your practice to follow USPAP when doing your appraisals?
Describe your methodology in valuing the subject property?
Did you follow here a cost approach, income approach, or a sales comparison?
In what ways did this appraisal vary from the USPAP standards?
How did you determine which comparables to use? Were there any that you considered but decided not
to use? Did you look at offers, or only closed sales prices?
Describe in what ways the properties you chose to use as comparables are similar to the subject property.
How do they differ?
a. Lot size, building size, neighborhood, condition of property, new amenities, applicable zoning
requirements and limitations?
What adjustments did you make to account for the differences between each comparable property and the
subject property?
Why did you limit your list of comparables to the ones you chose? Do you believe that your sample size
is statistically significant?
What are the dates of the sales comparables you chose?
How has the market changed in the interim? What adjustments did you make for those changes?
VIII. Areas of Agreement
Have you read the appraisal report submitted by my client?
You know the appraiser? Agree the appraiser has a good reputation? Agree the appraiser is licensed?
Agree the appraiser is familiar with the subject area? You do not question the appraisers qualifications
to provide the report that the appraiser submitted, right?
You agree that the appraiser followed the USPAP standards, right?
[Review list of comparables] You agree that this list is appropriate?
Can you identify other areas where you agree with the report?
IX. Appraisers Conclusions
[Test appraisers degree of certainty in conclusion]
[Test conclusion against common sense]
Have you shown your conclusion to any other appraisers? What was their reaction?

I. Qualifications
years attended
degree(s) obtained, B.S., M.S.
science studied, geology, hydrology, environmental science
Post doctorate study
area of study
thesis topic
years obtained
states held
examinations taken
if any taken more than once, why failed
recertification or continuing education requirements
disciplinary actions against licenses
Continuing education
courses taken
papers written for courses
if graded, what grades were earned
Employment history
names of employers
periods of employment
positions held
responsibilities associated with positions
has prior environmental work been audited by any state or federal agency
has site(s) expert declared closed been re-opened for further investigation or remediation by any state or
federal agency
Professional writings
peer-reviewed journals
non-reviewed articles in journals or elsewhere
seminar papers
why written
research used
national industry organizations, ANSI, etc.
state organizations
positions held
role of any committees, working groups, drafting groups of which expert is a member
Deposition experience
percentage of depositions for potentially responsible party, innocent party
Trial testimony experience
number of times serving as non-testifying witness on annual basis for past 5 years
percentage to times in each capacity for potentially responsible party, innocent party
has expert or company for which s/he worked ever been sued in connection with experts work
III. Compensation Arrangements for Case
Hourly rates
fees for remedial project work
fee for review of reports, lab results, etc.
IV. Understanding of Contaminated Site
Prior experience
remediating this type of contamination
with similar soil/groundwater/indoor air conditions
using this remedial technology
history of being audited for similar sites or technologies
Nature and extent of soil contamination
horizontal and vertical extent of sampling
which contaminants were tested for and why
which contaminants were not tested for and why
confidence in delineation of contamination
soil conditionspH, carbon levels, etc. that could interfere with results
chemical fingerprinting to identify age and sources of contamination
other possible sources, local and regional background levels
availability of regulatory exemptionsmetals used in pesticides for orchards, coal and ash in fill
Nature and extent of groundwater contamination
which contaminants were tested for and why
which contaminants were not tested for and why
confidence in delineation of contamination
groundwater conditionspH, BOD, etc. that could interfere with results
chemical fingerprinting to identify age and sources of contamination
other possible sourcesintermingling with plumes from other sites, local and regional background levels
appropriate testing methodology, e.g., micro wells can over report NAPL levels
seasonal groundwater fluctuations
fractured bedrock hiding reservoirs of contamination
reliability of groundwater flow modelpresence of fill, foundations, nearby pumping, etc. that may be
causing local disruptions
Nature and extent of indoor air contamination
what is exposure pathway from soil/groundwater into building
alternative indoor sourcessmokers, cleaning products, idling trucks, etc.
ambient air testing
consistency of results on different floors with suspected soil or groundwater source
Sampling and testing protocols
sample collection methods, field screening
use of trip blanks, duplicate samples, temperature control
sample hold time
chain of custody
laboratory certification
use of proper EPA or state testing protocols for contaminant(s) and media
comparison of laboratory detection level to action levels under statute
V. Remedial Alternatives
Remedial technology
how was technology chosen over alternatives
literature, agency guidance, other texts reviewed
discussion of remedial technology selection with state or federal agencies
appropriate for contaminant, media, and timeframe
limits on technology given soil and groundwater conditions
what alternative technologies are/were available
what is the state of the art for addressing this contaminant(s) in this media
are there emerging remedial technologies that might work better
expected timeframe for achieving regulatory compliance
results of small scale testing of technology at site
Remedial costs
cost of implementing remedial technology
operations and maintenance costs, for how long
VI. Opinions and Conclusions
what was source(s) of contamination
when was contamination released
is site completely closed under all applicable state/federal requirements
if not, when will site be completely closed
is the imposition of land use/activity restrictions required

Preparing a testifying expert witness for his or her deposition requires considerable finesse, circumspection, and
planning in light of the general discoverability of such preparation. Thus, you need take care not to divulge trial
strategies that could be compromised if disclosed by the expert during the deposition.
There are some general themes that you want to hammer home with most experts:
The amount of the experts fee is not tied to the substance of the experts ultimate opinions or to the outcome
of the litigation.
The expert otherwise has no stake in the outcome of the litigation.
The expert is qualified to answer the specific questions posed by the retaining party.
The expert did not take anyones word for it regarding the material facts, but independently examined
pertinent documents and testimony.
The experts methodology and its application to the material facts was reliable and in accordance with
generally accepted norms.
The experts opinions were independently derived and not dictated by counsel or by a desired outcome.
The experts opinions are logical and would make sense to lay triers of fact.
Give yourself some room with your opinionsdo not let the other side pin you down too easily.
Finally, rules that apply to lay fact witnesses apply also to experts: listen to the question, make sure you
understand it and ask for clarification if you do not, pause to gather your thoughts and answer (and to give
me a chance to object if appropriate), then answer the question asked and only the question asked.
In preparing your expert for his or her deposition, you will want to anticipate your opponents strategy and then
game plan for how to meet it. Two approaches your opponent will likely take with your expert is to (1) change the
facts your expert identified as the bases for his or her opinions to see if your expert will accordingly change the
corresponding opinions; and (2) try to get your expert to accept as much of your opponents experts opinions and
their bases as possible. The trick is to prepare your expert to concede as little as possible without losing credibility
by, for example, disagreeing with what any lay juror would think could not be disagreeable.
For you to be able to so prepare your expert, it will be essential that you fully understand your opponents case and
your opponents experts report. If there are material disputes of fact in the case, make sure your experts opinions
apply to both the facts as you believe them to be and the facts that your opponent believes them to be. During the
preparation session, probe your experts commitment to his or her opinions by challenging them under different
factual scenarios.
You likely will also want to go through, perhaps line by line, your opponents experts report with your expert
during the deposition preparation session. Find out how much your expert can reasonably challenge and with which
parts your expert must agree in order to maintain credibility. Similarly, make sure that your expert is familiar with
any other reports that you have had other experts prepare in your case. Go over the report to make sure there are not
areas of disagreement among your own experts and, if so, look for ways to explain or minimize the areas of
disagreement (and certainly prepare your expert not to volunteer the areas of disagreement).
But again, be careful how much of your legal strategy to discuss with your expert, lest it be revealed during your
experts deposition.
Chapter 7
Making and Responding to Objections


751 Objections to Embarrassing or Harassing Questions
755 Objections to Questions Outside the Scope of the Rule 30(b)(6) Designated Subject Matters
761.1 Was the Purpose of the Communication to Obtain Legal Advice?
767 Documents Reviewed by Witness in Preparation for, or During Deposition

Throughout the deposition, counsel for both sides must grapple with the scope of proper examination. While your
questions may be far-reaching, there are limits. Questions which have no relevance to the subject matter of the
litigation, or which seek privileged, personal or confidential information may not be fair game, and opposing
counsel may properly object to them. Indeed, in some instances, the most relevant information is subject to a court
recognized privilege and may be protected from disclosure.
This chapter focuses upon the scope of permissible examination. It also covers grounds for objecting to improper
questions and will provide a practical guide for making your objections and preserving a record for later review by
the court. Lastly, it will discuss in summary fashion the rules of privilege which may be used to bar certain
examination. These topics are important to both examining and defending counsel. Only if you have a solid grasp
on the rules governing the scope of your examination can you be confident that you have examined the deponent on
all topics permitted by the Rules. Similarly, only by knowing the scope of allowable discovery can you protect your
witness from impermissible inquiries.
Of course, as the attorney for a party, you have a right to object to questions, even if you do not represent the
witness. Similarly, a nonparty witness or his attorney may have the right to object to questions. See Stokes v. Lorain
Journal Co., 266 N.E.2d 857, 861 (Ohio Common Pleas 1970).
710 Scope of Witness Examination: Relevance to Claim or Defense of a

Party
In December 2000, Rule 26(b)(1), which governs the scope of discovery, was amended resulting in a change in the
scope of permissible examination of a deposition witness. As amended the Rule provides:
Parties may obtain discovery regarding any matter, not privileged, that is relevant to the claim or defense of any
party, including the existence, description, nature, custody, condition and location of any books, documents, or
other tangible things and the identity and location of persons having knowledge of any discoverable matter. For
good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.
Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to
admissible evidence.
The new standard, limiting the scope of discovery to information relevant to the claim or defense of any party, has
changed six decades of federal case law. The old standardrelevant to the subject matter involved in the pending
actionis abolished. The committee notes to the amended Rule make clear that the standard is intended to limit
discovery to matters raised in the pleadings. The parties may not engage in fishing expeditions as previously
sanctioned in Hickman v. Taylor, 329 U.S. 495 (1946). Nor may the parties use discovery to develop claims or
defenses which are not identified in the pleadings. Notes of Advisory Committee to 2000 Amendment; see also
Laurenzano v. LeHigh Valley Hosp., Inc., 2001 WL 849713 (E. D. Pa., 2001) at 2.
However, under the amended Rule one court has attempted to maintain broad latitude in the scope of relevant
discovery stating:
[relevance] is broadly construed, and a request for discovery should be considered relevant if there is any
possibility that the information sought may be relevant to the claim or defense of any party.When the discovery
sought appears relevant on its face, the party resisting the discovery has the burden of establishing the lack of
relevance by demonstrating that the requested discovery (1) does not come within the broad scope of relevance as
defined under Fed. R. Civ. P. 26(b)(1), or (2) is of such marginal relevance that the potential harm occasioned by
discovery would outweigh the ordinary presumption in favor of broad disclosure. Carolina Indus. Prods., Inc. v.
Learjet Inc., 2001 WL 1155297 at 2 (D. Kan. 2001).

The introductory language in Rule 26(b) states that the general rules as to the scope of allowable discovery apply
[u]nless otherwise limited by order of the court in accordance with these rules.... The drafters of the Rule
recognized that there would be times when discovery should be curtailed even though it fell within the general
ambit of relevance to the subject matter. For example, a partys income tax return is generally held not privileged
... and yet courts have recognized that interests in privacy may call for a measure of extra protection. Notes of
Advisory Committee to 1970 Amendment, Subdivision (b).
Under the quoted provisions of Rule 26(b), the court retains equally wide latitude to restrict the scope of discovery
when necessary to advance the legitimate purposes of the federal Rules. As one court has explained:
Discovery ... should be confined to developing facts underlying a plaintiffs claim or claims and not used as a
fishing expedition to discover what else may be amiss or to develop wholly new claims unrelated to what is
averred in the complaint .... The mere allegation of one specific claim of an alleged violation of the securities law
does not per se entitle a plaintiff or his counsel to roam through a defendants files at will.
Edwards v. Gordon & Co., 94 F.R.D. 584, 585-586 (D.D.C. 1982).

For example, the court may restrict the scope of examination to specific issues. If a motion to dismiss for lack of
jurisdiction or for summary judgment is pending, the court may be willing to limit the scope of discovery to those
issues. Compare McBride v. Merrell Dow Pharmaceuticals, Inc., 717 F.2d 1460, 1469 (D.C. Cir. 1983). In addition,
under Rule 26(c), a party or witness can seek a protective order directing that certain matters not be inquired into or
that the scope of discovery be limited to certain matters, or that trade secrets or other confidential research,
development, or commercial information not be disclosed or be disclosed only in a designated way.
The courts power to restrict the scope of discovery is theoretically limited by the requirement that the restriction be
in accordance with these rules. Presumably this is a reference to 26(c) which permits restricting the scope of
discovery to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.
Whether the court is considered as having inherent power to restrict the scope of discovery, or whether it is limited
to the grounds of 26(c) is probably irrelevant; the grounds of 26(c) probably are sufficiently broad to encompass
every area of inquiry which justice requires to be precluded. Finally, you should note that the 1993 amendments
to the Federal Rules of Civil Procedure place inherent limitations upon the number and length of depositions.
Amended Rule 30(a)(2) sets out these limitations. For application of that rule, see 125.1.

As a general exception to the rule that discovery must pertain to issues relevant to the subject matter of the
litigation, both the Federal Rules and the rules of many states allow inquiry into a defendants insurance coverage.
See, e.g., 215 ILL. COMP. STAT. 5/143.24b (West 1998) (mandating disclosure of dollar amount of liability coverage
to claimants). The 1993 amendments to Rule 26 now make the discovery of a partys insurance coverage part of the
overall, initial mandatory disclosures. See Rule 26(a)(1)(D). The drafters of the recent amendment were continuing
the notion that the disclosure of insurance information will enable counsel for both sides to make the same,
realistic appraisal of the case, so that settlement and litigation strategy are based on knowledge and not speculation.
See Advisory Committee Notes, 1970 Amendment. The amendment, however, reiterates that this information is not
admissible at trial.

It is common practice for an examining attorney to inquire about the steps taken by the witness to prepare for his
deposition. If the deponent is a nonparty and has not consulted with his own counsel, this line of inquiry is clearly
permissible. If the witness has reviewed documents or has talked with others to refresh his recollection, that
information could be used at trial to show bias, influence on testimony or lack of credibility. Even if the witness
claimed that his preparation for the deposition had no impact upon his testimony, the examining counsel would have
the right to challenge that assertion at trial. Under the broad scope of permissible discovery, few courts would be
likely to restrict this area of inquiry.
If the witness is a party and has been prepared for deposition by his attorney, you will run into thorny issues of
attorney-client and work product privilege. Indeed, even if the witness is not a party, but has been prepared by his
attorney or the attorney for a party, there may be a privilege assertion. Be aware, however, that the 1993
amendments to the Federal Rules of Civil Procedure have added a new subsection that will have an impact upon
your ability to prevent inquiry into preparation for the deposition on grounds of attorney-client privilege or work
product. Amended Rule 26(b)(5) provides that if any party is withholding information on grounds of privilege or
protection as trial preparation material, that party must make the claim expressly and must describe the nature of
the documents, communications, or things not produced, in a manner which will enable other parties to assess the
applicability of the privilege or protection. To withhold any materials without such notice will subject you to
sanctions under Rule 37(b)(2) and may actually be treated as a waiver of the protection. Thus, if you are preparing a
witness and disclose to him information you believe is not discoverable or is privileged, you must be prepared at the
deposition to expressly state your claim of privilege and to describe the documents or communication which you
claim are properly withheld. Privilege issues are discussed beginning at 760.
Fed. R. Evid. 612 entitles an examining party to review documents used by a witness to refresh his memory for the
purpose of testifying. Although the rule is targeted toward testimony at trial, it has been held applicable to testimony
at depositions as well. See generally Annotation, Use of Writing to Refresh Witness Memory as Governed by Rule
612 of the Federal Rules of Evidence, 73 A.L.R. Fed 423 (1985).

The Federal Rules of Evidence govern attacks on a witnesss credibility, as well as methods of impeachment. See
Fed. R. Evid. 404, 608 and 609. During the deposition, you may want to discover information which might later be
used to attack the credibility of an adverse witness. So long as the information sought is relevant to the subject
matter of the dispute, or is reasonably calculated to lead to the discovery of admissible evidence, your inquiry is
permissible. See Annotation, Discovery, in Civil Case, of Material Which is or May be Designed for Use in
Impeachment, 18 A.L.R. 3rd 922 (1968).

If you are defending the deposition of a witness designated to answer questions on behalf of an organization noticed
under Rule 30(b)(6), you should object to any questions that go beyond the scope of the topics listed in the
deposition notice. This raises two questions: 1) should you then permit your witness to answer the question posed,
and 2) if so, what is the effect of the answer?
That a question may fall outside the scope of the Rule 30(b)(6) notice is not a ground for instructing a witness not to
answer the question. It is the basis for an objection, which then preserves the objection until the time of trial when
the judge can rule on whether the question indeed falls outside the scope of the noticed topics. If the attorney taking
the deposition displays a pattern of asking questions outside the scope of the deposition notice such that the
witnesss attorney believes the deposition is being taken in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress the witness, then the witnesss attorney always has the option of suspending the deposition
for the purpose of seeking immediate judicial intervention under Fed. R. Civ. P. 30(d)(4). See Paparelli v.
Prudential Ins. Co., 108 F.R.D. 727 (D. Mass. 1985).
There appears to be, however, some uncertainty in the case law as to the effect of the answer to a question that may
be outside the scope of the topics listed in the Rule 30(b)(6) notice. One United States District Court has written:
If the examining party asks questions outside the scope of the matters described in the notice, the general deposition
rules govern (i.e. Fed. R. Civ. P. 26(b)(1)), so that relevant questions may be asked and no special protection is
conferred on a deponent by virtue of the fact that the deposition was noticed under 30(b)(6). However, if the
deponent does not know the answer to questions outside the scope of the matters described in the notice, then that is
the examining partys problem.
King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995). It is unclear to what special protections the court
was referring. It appears that the court meant that the organization is relieved of its obligation to present a prepared
witness on questions outside the scope of the noticed topics, but to the extent that the witness can answer the
questions, the answers remain binding on the organization. But then in Detoy v. City & County of San Francisco,
196 F.R.D. 362, 366-67 (N.D. Cal. 2000), another federal court purported to embrace the reasoning in King (calling
the holding accurate and logical), yet then commented, [p]rior to trial, counsel may request from the trial judge
jury instructions that such answers were merely the answers or opinions of individual fact witnesses, not admissions
of the party. Thus, apparently contrary to King, the court in Detoy would find answers to questions beyond the
scope of the deposition notice admissible but not binding on the organization, instead treating them as answers of
the witness as an individual.
Neither holding is entirely satisfactory. Parties seeking to depose an organization are required to identify in advance
of the deposition the topics of examination in part to provide the organization the opportunity to formulate the
organizations official (and hence binding) position on the noticed topics. A Rule 30(b)(6) witness presented with a
question beyond the scope of the deposition notice may be able to provide an answer based on personal observation,
but not necessarily the official answer of the organization, which may be different. Thus, any such answer to a
question outside the scope of the notice should not be binding on the organization.
Nor, however, should responses to questions beyond the scope of the deposition notice necessarily be considered
the personal answers of the individual designated by the organization under Rule 30(b)(6). If the deposing party
wants the deponents personal answers to questions, the deposing party can separately notice the deposition of the
individual. In that case, the parties may agree to have the individual appear in a dual capacity, answering questions
both for the organization, and, where appropriate, in his or her personal capacity. But absent agreement, if the
deposing party wants the personal answers of a witness, the deposing party should notice a separate deposition.
So in practice, here is how it should work. A question is posed that is arguably outside the scope of the notice. The
defending attorney objects, stating that the question is outside the scope of the deposition notice (if asked for the
objections basis). The examining attorney should then think about his or her question to consider whether such an
objection might be sustained at the time of trial. If the examining attorney thinks there is little risk in the objection
being sustained, the examining attorney should insist on an answer to the question. At trial, if the objection is
overturned, the answer will come in as binding on the organization; if the objection is sustained, then the answer
will not come in. On the other hand, if the examining attorney thinks that the defending attorney might be right, that
the question might legitimately be beyond the scope of the notice, then the examining attorney should (a) try to
reframe the question in such a way that it would fall within the noticed topics, (b) ask if the witness is agreeable to
answering the question in his or her personal capacity (unless the parties have already agreed that the Rule 30(b)(6)
and personal depositions will dual track at the same time), or (c) ask for an answer, knowing that it may be
inadmissible, but using it for discovery purposes in the search for other sources of admissible evidence.
Practice Tip: Are Objections to Questions as Beyond the Scope of a Rule 30(b)(6) Notice
Waived if Not Asserted During the Deposition?
As discussed elsewhere in this book, when depositions are taken in accordance with the Federal Rules
(and the rules of most states), an objection is waived if, had it been stated at the time of the deposition,
the interrogating attorney could have reframed the question so as to cure any defect in the question. On
the other hand, there is no need to state an objection to a question the appropriateness of which cannot
be resolved at the time of the deposition, such as whether the question calls for hearsay or information
irrelevant to the case. It is not entirely clear into which category to place questions that are arguably
beyond the scope of a Rule 30(b)(6) notice. If you ask a question that is arguably beyond the scope of the
notice, and that is pointed out to you, you could reframe the question to make it clearly fall within one of
the noticed topics (which would indicate that the objection must be stated or waived). That, however, is
not always possible and the parties are left with a dispute that can only be decided by the judge (and
hence no waiver if the objection is not stated). Since the law is unclear on this point, it is probably safer to
state the objection at the time of the deposition.
Objections to the deposition procedure must be made at the time the objectionable procedure occurs or when it
reasonably could have been discovered. If an objection is not made seasonably, it may be deemed waived.
Procedural objections include objections regarding the notice of the deposition, qualifications of the reporter, and
completion and return of the deposition. There is no special language which must be used. It is sufficient to state the
fact that you are objecting and the reason for your objection.

Rule 32(d)(1) provides that all errors and irregularities in the notice of deposition are waived unless written
objection is promptly served on the party giving the notice. Such errors and irregularities include when the
deposition is to be taken, the place of the deposition, the address or correct name of the witness, and the timing of
commencement of discovery.
The purpose of the prompt objection requirement is to avoid waste and surprise. The defending attorney is not
permitted to await the time of the deposition, and, with everyone assembled, make a technical objection that could
have been cured had the objection been made earlier. Similarly, he cannot await the use of the deposition at trial,
and void its use by reason of some error or irregularity in the notice or procedure.
Under Rule 32(d)(2), objections relating to the qualifications of the officer before whom a deposition is to be taken
are waived, unless they are made prior to the deposition or as soon thereafter as the disqualification becomes known
or could be discovered with reasonable diligence. Again, the philosophy of the rule is that a party cannot sit upon a
disqualifying fact and thereafter void the deposition. The requirement that the objection be promptly made gives the
examining party the opportunity to obtain a different reporter to record the deposition, or to defer the deposition
until such time as an appropriate officer can be secured.

Under Rule 32(d)(4), all errors or irregularities in the manner in which testimony is transcribed or a deposition is
prepared, signed, certified, sealed, endorsed, transmitted, filed or otherwise dealt with by the officer are waived
unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after the defect
is or should have been ascertained. Thus, if you assert that the transcript does not state what was said, seek a
correction by the reporter. If the correction is not promptly made, file a motion to suppress. Similarly, if you assert
that the deposition was improperly signed, certified, etc., make your objection promptly. The objecting party cannot
sit on an objection until it is too late to correct the error.

If the notice of deposition includes a request for documents pursuant to Rule 30(b)(5), or if a subpoena duces tecum
is served, be sure that any objections thereto are timely made. If you simply wait until the deposition and orally
assert objections, you may already have waived any objections. For example, as to a Rule 30(b)(S) request for
production, the provisions of Rule 34 apply; however, a response (objection) may be required prior to the time of
the deposition. Under Rule 45, Subpoena, objections under 45(b) must be made at or before the time specified for
production. Under Rule 45 (d)(I), objections must be made the earlier of 10 days after service or the time specified
in the subpoena for production.

Rule 32 creates two categories of objections: 1) those which are waived if not made during the course of the
deposition, and 2) those which are not waived and may be made when the deposition is offered at trial as evidence.
Subject to the provisions of Rule 28(b) and subdivision (d)(3) of this rule. objection may be made at the trial or
hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of
the evidence if the witness were then present and testifying.
Rule 32(d)(3) provides:

(A) Objections to the competency of a witness, or to the competency, relevancy, or materiality of testimony are not
waived by the failure to make them before or during the taking of the deposition, unless the ground of the objection
is one which might have been obviated or removed if presented at that time.
(B) Errors and irregularities occurring at the oral examination in the manner of taking the deposition, in the form of
the questions or answers, in the oath or affirmation, or in the conduct of the parties, and errors of any kind which
might be obviated, removed or cured if promptly presented, are waived unless seasonable objection thereto is made
at the taking of the deposition.
The Rule continues the basic philosophy that an objection is waived unless promptly made, if the objection is one
which might be cured by the examining attorney.
As the defending attorney, you should consider making all objections that you would make at trial, even if the
objection is one that is not waived if not made during the trial. First, this eliminates the need to determine whether a
particular objection is waived if not made. Second, it keeps you alert in your defending role. Third, when your
opponent offers a portion of the deposition at trial, your, objections are already made, and there is less chance that
you will forget the grounds for an objection. In following this strategy, however, keep in mind that at trial you
normally would not object to every improper question.

Rule 32(d)(3)(B) states that any objection which may be obviated, removed or cured is waived if not promptly
made. Specific examples of objections which may be waived include objections:
to the form of the questions or answers;
to lack of foundation for the question, including lack of foundation for a question requesting an opinion;
to the lack of qualifications to give an opinion or to testify;
to the conduct of the parties.
The most common objection which may be waived if not made is an objection to the form of the question. See
Houser v. Snap-On Tools Corp., 202 F. Supp. 181, 188 (D. Md. 1962); Kirschner v. Broadhead, 671 F.2d 1034,
1037-1038 (7th Cir. 1982). If the examining party asks a leading question to a neutral witness and the defending
attorney objects to the form on the grounds a leading question is not permissible under Fed. R. Evid. 611(c), the
examiner can usually rephrase the question in a non-leading form. Under the Rules, the defending attorney cannot
simply wait until the deposition is offered as evidence and assert an objection to questions then posed, since the
examining attorney might not have the means of curing the objection at that time.
Objections to the form of questions include: that the question assumes a fact not in evidence; that the question is
argumentative; that the question is incomprehensible, ambiguous, or misleading; and that the question is a
compound question. Because the style of questions can vary dramatically, you will have to determine whether an
objection is proper on a question-by-question basis.
Objections to the form of answers are also waived unless made promptly. If the witness makes a nonresponsive
answer, or offers inadmissible hearsay, you must note your objection or move to strike promptly or risk waiving it.
For example, objection as to lack of qualifications to testify to an opinion and other foundation objections can be
waived if not made. See Bahamas Agricultural Industries, Ltd. v. Riley Stoker Corp., 526 F.2d 1174, 1180-1181
(6th Cir. 1975); Cordle v. Allied Chemical Corp., 309 F.2d 821, 822 (6th Cir. 1962).
Equally important are objections to the conduct of the attorneys and witnesses. Such objections might include
conferring with counsel or other persons before answering a question, improper interjections by the defending
attorney, and distracting activity. If these objections are made, they should be pursued promptly with the court.

Rule 32(d)(3)(A) lists two grounds for objection which do not have to be made prior to the time a deposition is
offered at trial, so long as the objection could not have been cured if made at the time the deposition was taken. The
first category is competency of the witness. Fed. R. Evid. 601 sets forth the general rule on competency of witnesses
that [e]very person is competent to be a witness except as otherwise provided in these rules. Fed. R. Evid. 602
requires the witness to have personal knowledge before giving testimony and Fed. R. Evid. 603 requires that the
witness take an oath or affirmation before giving testimony. Objections based upon these provisions may be
reserved for trial although you must make certain that the examiner could not have cured these objections at the
deposition had they been raised at that time.
The Rule also provides that objections to the competency, relevancy, or materiality of testimony are not waived
unless they are based upon grounds which could have been obviated or removed if presented at the deposition.
Under this portion of the Rule, objections to answers based upon hearsay or answers which violate the parol
evidence rule may be reserved for trial. In addition, objections as to relevancy need not be noted for the record,
although in some cases you may wish to limit examination or seek a protective order if the questioning moves
beyond the subject matter of the lawsuit.

A standard tactic for many examiners is to continuously and regularly summarize the testimony of the witness and
then each time inquire of the witness whether that summary is correct. Obviously, a witness has no obligation to
give opinions as to the accuracy of a summaryif the questions that have been propounded have been answered,
there is no need to summarize the testimony, or for the witness to opine as to it.
On the other hand, in some instances, a reasonable summary may be a meaningful way to keep the deposition
progressing.
An example of a possibly objectionable summary might be as follows:
Q. So your testimony is that if the sums have been received by the Bank to cure the default on the
Wellington Notes, and if the funds had been in excess of the debt owing by Larson to the bank, the Bank
probably would have paid the money jointly to Binghamton and Larson?
The question obviously contains multiple elements, any of which may be incorrect. The question is potentially
objectionable at least on the grounds that it mischaracterizes the witnesss prior testimony, and improperly calls
upon the witness to opine on the accuracy of the examiners summary, including the precise meaning of the words
used therein.

In general, questions that call for a fact witness to express an opinion are objectionable. Failure to point out the
defect in such questions to the examiner risks waiving the objection, since such questions can sometimes be
reformulated so as not to call for a subjective opinion.
That said, unless the examiner insists on asking so many hypothetical or opinion questions to the fact witness that
they border on harassment, the defending attorney should permit the witness to answer the questions after stating
the objection for the record (and if they do become harassing and the defending attorney instructs the witness not to
answer, then the defending attorney must immediately suspend the deposition for the purpose of seeking court
intervention under Fed.R.Civ.P. 30(d)(4)). As the United States District Court for the District of Connecticut stated
in Namoury v. Tibbetts, No. 3:04CV599, 2007 WL 638436, *3 (D. Conn. Feb. 27, 2007), The proper procedure to
follow would have been to note the objection for the record and seek to exclude the testimony at trial. In that case,
the defending attorney instructed his witness not to answer a series of hypothetical questions posed by the
examining attorney, but did not immediately suspend the deposition to seek court intervention. The parties cross-
moved to compel and for a protective order. The court ruled that the instructions not to answer were improper, as
they did not fall under any of the three recognized bases for an instruction not to answer: to protect a privilege, to
enforce a court order, or to suspend and seek immediate court intervention under Rule 30(d)(4). The court ordered
the defending attorney to pay for the examining attorneys costs in bringing a motion to compel, and costs that
would be incurred in a resumption of the deposition. The court, however, also instructed the examining attorney to
limit his hypothetical questions when the deposition resumed.
Percipient witnesses to the facts of an incident may be experts in their own right, e.g., treating physician, inventor,
house design engineer. If their depositions are noticed prior to the time of expert disclosure, objection is sometimes
permitted; expert testimony cannot be elicited prior to the time for expert disclosure. See, Right of Independent
Expert to Refuse to Testify as to Expert Opinion, 50 A.L.R. 4th 680 (1994).
Sometimes these objections may be avoided by artfully crafting questions that elicit the experts state of mind and
thought process at the time of the incident, as opposed to asking the deponent his or her opinions. Other times, the
issue is simply that the expert wants to be paid as an expert, and the problem is avoided by making that offer.

It is clearly appropriate to object to questions that seek the disclosure of information that is personal, confidential,
irrelevant or otherwise protected by privilege. Beyond merely objecting to these questions, you will undoubtedly be
faced with the decision as to whether to instruct your witness not to answer the question.
The modern practice of attorneys instructing witnesses not to answer questions has been the subject of considerable
criticism. All too often, the ability to give an instruction not to answer has been abused in order to thwart the
examining partys ability to discover relevant information, to interfere with an orderly deposition or as a dilatory
tactic. See, e.g., 1990 Federal Council, A Report on the Conduct of Depositions, 131 F.R.D. 613, 616617.
In response to these abuses, Rule 30(c) provides that while objections made at the deposition are to be noted upon
the record, the examination shall proceed with the testimony being taken subject to the objections. (Emphasis
added.) More importantly, since directions not to answer are potentially more disruptive than objections, Rule
30(d)(1) severely restricts the ability of counsel to properly give such instructions. Under Rule 30(d)(1), instructions
not to answer are prohibited except in three circumstances: 1) to claim a privilege or protection against disclosure,
2) to enforce a court directive limiting the scope or length of permissible discovery and, 3) to suspend a deposition
to enable the presentation of a motion to protect a deponent from bad faith tactics or unreasonable conduct that is
annoying, embarrassing or oppressive. See, 1993 Advisory Committee Notes Rule 30. Riddell Sports, Inc. v.
Brooks, 158 F.R.D. 555, 557 (S.D.N.Y. 1994).
Under the current rules, instructions not to answer should be used sparingly and only on the grounds set forth in
Rule 30(d)(1). For example, the fact that the question is irrelevant or repetitive is not an appropriate basis for
instructing a witness not to answer. Hearst/ABC-Viacom Entertainment Services v. Goodway Marketing, Inc., 145
F.R.D. 59, 63 (E.D. Pa. 1992); Armstrong v. Hussmann Corp., 163 F.R.D. 299, 302 (E.D. Mo. 1995).
Prior to the recent amendment to the Rules, many courts allowed instructions not to answer where the information
sought is subject to privilege, or is personal or confidential. Coates v. Johnson and Johnson, 85 F.R.D. 731,733
(N.D. Ill. 1980); Intl Unions of Electrical, Radio and Machine Workers v. Westinghouse Electric Corp., 91 F.R.D.
277, 279 (D.D.C. 1981). Professor Moore suggests that an instruction not to answer is also appropriate when the
question calls for information beyond the scope of allowable discovery. 4A MOORES FEDERAL PRACTICE 37.02[2].
One court has defined the right to refuse to answer as when serious harm is likely to result if the deponent
answers. See, e.g., Nutmeg Insurance Co. v. Atwell, Vogel & Sterling, 120 F.R.D. 504, 508 (1988). Certainly, that is
the essence of why a question should not be answered; once the deponent divulges privileged information, it cannot
be retracted; the damage is done.
Several cases hold that when a deponent refuses to answer a question, the deponent then has an absolute duty to
move for a protective order pursuant to Rules 26(c) and 30(d). See First Tennessee Bank v. Federal Deposit
Insurance Corp., 108 F.R.D. 640, 641 (E.D. Tenn. 1985); Paparelli v. Prudential Ins. Co., 108 F.R.D. 727, 731 (D.
Mass. 1985); American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 175 (D. Mass. 1985). However, Rule
37(a)(2)(B) specifically contemplates a motion to compel when a deponent refuses to answer a question, thus
suggesting that it is acceptable for the witness to decline to answer and then wait to defend such a motion.
The logic of an instruction not to answer is that the defending party may be injured or prejudiced by the revelation
of the privileged information, even if held inadmissible. Thus, if privileged information is revealed, the information
that the examiner obtained and the prejudice therefrom might never be erased. Similarly, questions that are within
the scope of allowable examination but are personal and sensitive to the witness could permanently damage the
witness were he required to answer, simply subject to an objection. At least concerning instructions not to answer
based upon privilege, most courts have implicitly agreed that the burden of going forward for a court determination
of whether the answer is privileged should be on the party seeking the information, under Rule 37.
In addition to questions calling for privileged information, some courts allow an instruction not to answer for any
question to which the examiner is not entitled to an answer. Thus, the test of whether an instruction not to answer is
proper is whether the examiner would be entitled to an order compelling the witness to answer. For example, in In
re Folding Carton Antitrust Litigation, 83 F.R.D. 132 (N.D. Ill. 1979), defending counsel refused to allow answers
to questions on grounds other than privilege. The court did not consider whether the defending attorneys and
witnesses should have recessed the deposition and sought protective orders. Rather, the court simply considered
whether plaintiff was entitled to an order compelling answers under Rule 37(a). Questions to which the court found
answers were unnecessarily included:
Ambiguous questions to point of being misleading and argumentative;
Questions previously answered;
Questions requiring a study and comparison of documents and the performance of mathematical
calculations;
Questions calling for interpretation of documents of which the deponent had no personal knowledge;
Questions containing incorrect factual assumptions, because they were argumentative and misleading.
See also Keogh v. Pearson, 35 F.R.D. 20 (D.D.C. 1964); Hampton v. Pennsylvania Railroad Co., 30 F.R.D. 70
(E.D. Pa. 1962).
Some local rules specifically address the question of instructions not to answer. For example, Local Rule 207(i) (D.
Wyo.) provides an instruction not to answer should the question be made solely on the ground of privilege, and
provides that either party may seek an immediate ruling on the validity of such an instruction. If a prompt ruling
cannot be obtained, the direction not to answer made on the grounds of privilege stands and the deposition
continues until a ruling is obtained or the problem resolves itself.
If you are unable to instruct the deponent not to answer a question because privilege is inapplicable, consider the
alternativesa motion to limit the scope of discovery or termination of the deposition. Rule 30(d)(3) specifically
provides that upon the demand of the objecting party or deponent the taking of the deposition must be suspended
so that a motion for such relief can be presented to the court. However, you should be extremely careful in
attempting to unilaterally terminate a deposition merely because you feel that the examining party is asking
repetitive or irrelevant questions. See Hearst/ABC-Viacom v. Goodway Marketing, 145 F.R.D. 59, 63 (E.D. Pa.
1992) (where offending attorney sanctioned for wrongfully terminating deposition instead of seeking a protective
order). If you believe that there are justifiable grounds to limit or terminate the deposition, consider motioning the
court under Rule 30(d)(1).

If opposing counsel instructs his or her witness not to answer a question, make sure that counsels instruction, and,
if possible, the basis for the instruction, is clearly on the record. Make sure the record reflects the claimed basis,
especially if the instruction is based upon something other than that which is authorized by Rule 30(c)(2). To make
a clear record, have the witness state that he or she is refusing to answer the question, and whether the refusal is
based upon the advice of counsel or otherwise. Often, the record will be clear because your initial question has been
followed by colloquy of counsel and possible extended argument. A simple follow-up question: Do you refuse to
answer the question? avoids this uncertainty. Similarly, be sure that your question to which the instruction is
directed is clear and reasonably narrow, to avoid a dispute as to what testimony the question requested. Consider
seeking the same information by variously phrased specific questions; the privilege may apply to some questions
but not to others. Finally, if you are considering contesting the privilege, ask the appropriate questions to determine
whether the bases for asserting the privilege exists.
If you are the defending attorney, also be aware that you bear the burden of establishing that a question calls for
privileged information. Consider conducting voir dire examination of the witness to establish the elements of the
privilege for presentation at a later hearing.
In the event that opposing counsel severely inhibits your ability to conduct the deposition, you may apply for an
order under Rule 30(d) to prevent obstructive tactics, along with a request that the costs incurred be assessed against
the offending party.
Moreover, Rule 37 provides remedies for such conduct. Under Rule 37:
(a) Motion For Order Compelling Disclosure or Discovery.
A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling
disclosure or discovery as follows:
...
(2) Motion.
...
(B) If a deponent fails to answer a question propounded or submitted under Rules 30 or 31, or a corporation or other
entity fails to make a designation under Rule 30(b)(6) or 31(a) ... the discovering party may move for an order
compelling an answer .... The motion must include a certification that the movant has in good faith conferred or
attempted to confer with the person or party failing to make the discovery in an effort to secure the information or
material without court action. When taking a deposition on oral examination, the proponent of the question may
complete or adjourn the examination before applying for an order.
...
(4) Expenses and Sanctions.
(A) If the motion is granted or if the disclosure or requested discovery is provided after the motion was filed, the
court shall, after affording an opportunity to be heard, require the party or deponent whose conduct necessitated the
motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable
expenses incurred in making the motion, including attorneys fees, unless the court finds that the motion was filed
without the movants first making a good faith effort to obtain the disclosure or discovery without court action, or
that the opposing partys nondisclosure, response or objection was substantially justified, or that other
circumstances make an award of expenses unjust.
Accordingly, in making any motion to compel further answers and for a request for costs and attorneys fees, you
must make an informal good faith attempt to resolve the dispute. However, if you have reached the point where it is
even necessary to make such a motion, your attempts to resolve the matter will probably be unsuccessful. Therefore,
carefully document your attempts for purposes of your motion.

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION TO COMPEL ANSWERS AT DEPOSITION

Pursuant to Fed. R. Civ. P. 30(d) and 37(a)(3)(C), Plaintiff, John D. Harmed,
moves the Court for an order compelling Samuel P. Bigshot to provide answers to
deposition questions that were posed to him. During the deposition, Mr. Bigshot
refused to answer questions concerning the personnel working at the store on the
day in question. The questions are relevant to Plaintiff's ability to take
complete discovery in this matter and do not call for either privileged or
confidential information. Nevertheless, Defendant's counsel improperly instructed
Mr. Bigshot not to answer. This behavior prolonged the deposition and prohibited
Mr. Harmed's right to a fair deposition.
Plaintiff has attempted unsuccessfully to resolve this issue with Defendant.
Because Defendant can provide no substantial justification for its objection,
Plaintiff is entitled to recover his reasonable costs, including attorneys' fees,
in bringing this motion. Fed. R. Civ. P. 37(a)(5).
JOHN D. HARMED,
By his attorney,
________________________
5 Main Street
Dated: _______________
DECLARATIONS
Your declaration should include the factual basis of the disputeincluding a copy of the transcript, if possible, why
the inquiry was proper, and the instruction(s) was notas well as your attempt to informally resolve the dispute
before the filing of the motion.
MEMORANDUM OF LAW
The motion should include a memorandum of points and authorities supporting the relief sought. See 740.

If you instruct a witness not to answer a question and the witness complies, you have successfully precluded the
examiner from learning the forbidden information. However, you may also be precluded from offering such
evidence at trial; it would be unfair to offer evidence which was unavailable to your opponent during discovery. See
Annotation, Assertion of Privilege in Pretrial Discovery Proceedings as Precluding Waiver of Privilege at Trial, 36
A.L.R. 3d 1367 (1971). Thus, be prudent in your assertions of privilege; if you are too broad, you may exclude
needed evidence from your case.
Thus, it is important not to be overly broad or overly narrow when instructing a witness not to answer. If you are too
broad in your instruction, you may exclude from your own case needed evidence. If you are too narrow, allowing an
answer to privileged information may constitute a waiver of the privilege. Often, the easy resolution is to reach
stipulations with the examiner. If the examiner will not stipulate, the court should be quick to impose such
stipulations.

After a witness has been instructed not to answer, some examining attorneys instruct the reporter to certify the
question. The rules make no mention of certification of questions. (Some state rules provide for a certification
procedure.) In practice, however, this generally is taken as an instruction to the reporter to transcribe the question
and the instruction not to answer separately, with the implicit threat that the examiner will use this transcript to seek
an order under Rule 37 compelling an answer. If you intend to file a motion to compel answers, identifying the
portions of the deposition you need to support your motion for priority transcription by calling for certification will
ease and expedite the process.

On occasion, the examiners questions to the witness may go beyond the scope of allowable discovery. Often,
counsel is fishing or seeking marginally relevant information. Sometimes, however, the examining attorney may
improperly ask irrelevant questions intentionally for tactical reasons. Such is not only not permitted by the rules, but
may constitute an ethical violation. See Code of Professional Responsibility DR-7-106(e)(2).
There is no provision in the Rules which permits the defending attorney to ask how an examiners question falls
within the scope of allowable discovery. Nonetheless, it is a reasonable procedure and is used often. Unfortunately,
modern day discovery has become excessive and abusive. When the questions appear to be beyond the scope of
discovery, and particularly if they are embarrassing or harassing, ask opposing counsel to explain how the questions
relate to the subject matter of the case. The examining attorney may provide an explanation or proceed to another
area of inquiry. If he refuses to respond, however, you have the option of demanding that the deposition be
adjourned in order to seek a protective order. Under Rule 30(d)(1) your rights to merely instruct the witness not to
answer the question is limited. See 740.
Rule 30(d)(1) presents a dilemma for both the examining and defending attorneys. Neither attorney wants to invite a
situation where the defending attorney has no choice but to terminate the deposition under Rule 30(d)(4) for the
purpose of seeking court intervention. If you are defending a deposition and this situation arises, one solution is to
politely advise the examining attorney that you believe the particular line of questioning is inappropriate and that
you are inclined to terminate the deposition under Rule 30(d)(4). Then ask the examining attorney if he or she
would save the line of questioning until the end of the deposition. If agreed to, this tactic permits completion of all
parts of the deposition except for the disputed line of questioning, and if the court sustains the objection, the
deposition will not have to be resumed.
751 Objecting to Embarrassing or Harassing Questions

An examiner may ask questions which, while technically within the scope of allowable discovery, appear calculated
to annoy or harass the witness. Rule 26(c) specifically provides that a court may make any order which justice
requires to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense. If
you are unable to convince the examiner to cease, you again have the option of requesting a recess to move the
court for a protective order. See Rule 30(d)(3). However, you may be on shaky ground if you attempt to instruct
your witness not to answer without promptly moving for a protective order. See 740.
Prior to Rule 30(d)(1)s restrictions, the few courts considering the issue have held it is proper for a defending
attorney to instruct his or her witness not to answer a question when the examiner is questioning in a manner which
harasses, embarrasses or badgers the deponent. See Amco Engineering Co. v. Bud Radio, Inc., 38 F.R.D. 51, 53
(N.D. Ohio 1965).

There is very little law governing the rights of an attorney representing a witness who is not a party to the litigation.
Sometimes the witness has no interest in the litigation; other times the witness is a potential additional party.
However, if you represent a nonparty witness, you probably have the same rights as a party witness.

Parties are increasingly represented by multiple counsel at depositions, either as interrogators or defenders. This
practice has been regularly sanctioned by the courts. See, e.g., Martin v. City of Indianapolis, 28 F. Supp. 2d 1098,
1105 (S.D.Ind. 1998) (time spent by multiple attorneys on different aspects of a case may reduce total expenditures
by enhancing efficiency); New York State Assn for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.
1983) (prevailing parties are not barred as a matter of law from receiving fees for sending a second attorney to
depositions to assist).
With several attorneys representing a deponent, the likelihood of multiple objections to questioning follows. Courts
have rebuked attorneys for the type of objections raised, but not for the fact that several attorneys made them at the
same time. See, e.g., Armstrong v. Hussmann Corp., 163 F.R.D. 299, 66 (E.D.Mo. 1995). For this reason, counsel
taking depositions must be prepared for double barreled Rambo litigation defenders, and know what to do when
they strike. Here are a few tips:
1. Remain calm. Although it can be intimidating when two (or more) attorneys are attacking your question at
once, remember that it is your deposition, and you are in control.
2. Maintain that control by taking the objections one at a time. Address each attorney as if his is the only
objection, and deal with it as you would any other objection. Then address the other objection in the same
fashion. If both attorneys are making essentially the same objection, have one attorney give his complete
argument, and then direct the other attorney to follow.
3. Remember, the transcript is your side. The more opposing counsel make their record, the less likely their
objections will be taken as stated concisely and in a non-argumentative and non-suggestive manner (as
required under Rule 30(d)(1)), which will bolster your argument, should a Rule 37 hearing become
necessary.
If you know that the deponent is going to be represented by multiple counsel at the deposition, see if you can set
ground rules for multiple objections before the deposition begins. See 522.

The examining attorney rarely needs to think in terms of objecting. Certainly you would not object to your own
questions. On the other hand, you must be prepared to object to improper answers. See Rule 32(d)(A) and (B).
Remember, the opposing party may seek to offer all or a part of the deposition as evidence.
For example, suppose you ask a question calling for the witnesss personal knowledge which you believe will be
helpful to you. Instead of answering from his personal knowledge, the witness answers with hearsay information
which is harmful to your case, or with a nonresponsive answer consisting of a narrative of his position. You should
immediately object and move to strike the answer. If you do not so object, the nonresponsive or hearsay answer may
be admissible. You should also re-ask the question, specifically asking for personal knowledge only.
755 Objections to Questions Outside the Scope of the Rule 30(b)(6) Designated Subject
Matters
As discussed in 715, if you are defending a Rule 30(b)(6) deposition, you should object to any questions that you
believe fall outside the scope of the topics identified in the deposition notice. You must then permit the witness to
answer the question unless you have a different basis on which to give an instruction not to answer.

Objections based upon privilege are among the most difficult to handle. Books have been written on privileged
communications, and it is a topic that cannot be covered in a few pages. It nonetheless is an important part of the
deposition process. For the examining lawyer, the testimony to which privilege is asserted may provide key facts,
admissions and sources of other evidence which may be the key to winning the case. For the defending lawyer,
maintaining the privilege and precluding opposing counsel to certain privileged information may be the key to his
winning the case. However, too often the assertion of privilege is loosely made with no reasonable basis therefore,
and too often the assertion is accepted by the examining attorney without fully exploring whether in fact the
testimony sought is privileged. The succeeding sections will cover only basic principles that most jurisdictions
follow. Under Fed. R. Evid. 501, all privileges are determined by the principles of common law as interpreted by the
courts of the United States, or, if the action is based upon state law, in accordance with state law. In addition to the
sections that follow, see 646 for specific privilege exceptions.

One of the more common sources for an instruction not to answer a question is the attorney-client privilege. The law
on attorney-client privilege is extremely complicated, and varies from district-to-district and state-to-state. Note that
in federal court, the court will typically apply the state privilege choice of law rules in diversity cases and will try to
discern a federal common law of privilege in federal question cases, although in doing so, the federal court will
typically look to state privilege decisions as guidance on the common law. The following comments are meant to
help acquaint you with the subject matter. You should anticipate likely areas of objection based upon privilege and
be prepared to deal with them.
While the law of attorney-client privilege varies somewhat from state to state, normally there are three general
elements which must be demonstrated for the privilege to exist:
1. The communication must seek or give legal advice or be a part of obtaining or rendering legal advice;
2. The communication must be to or from a professional legal advisor in his capacity as such; and
3. The communication must be made in confidence.
See 8 WIGMORE EVIDENCE, 2292, at 554 (McNaugthon Rev. 1961). If an attorney-client privilege is asserted, you,
as the examining attorney, must inquire into each of these bases to determine whether the assertion of privilege is
valid. Similarly, if you are asserting the privilege, you may want to establish these facts by voir dire.
761.1 Was the Purpose of the Communication to Obtain Legal Advice?
In order for a communication to be within the attorney-client privilege, its purpose must be to obtain or provide
legal advice. If the communication was for another purpose, there may be no privilege. See, e.g., Hercules, Inc. v.
Exxon Corp., 434 F. Supp. 136, 144 (D. Del. 1977) (if purpose of communication is to solicit advice on nonlegal
matters, there is no privilege); Georgia-Pacific Plywood Co. v. U.S. Plywood Corp., 18 F.R.D. 463 (S.D.N.Y. 1956)
(Communications dealing exclusively with the giving of business advice or the technical engineering aspects of
patent procurement or any other matters which may be handled by laymen are not privileged). Cf., Diversified
Industries Inc. v. California Sierra Financial Services, 572 F.2d 596, 610 (8th Cir. 1977) (Holding that a matter
committed to an attorney is presumed to be for the sake of legal advice unless it clearly appears to be lacking in
aspects requiring legal advice). As the examining attorney, you have the right to discover information relating to the
nature of the relationship between the alleged counsel and client in order to determine whether or not the purpose of
the communication was to obtain legal advice.
Corporate clients communicating with in-house counsel raise special privilege issues: 1) was the in-house counsel
acting in a legal capacity; and 2) was he or she communicating with employees of the corporation entitled to
attorney-client protection.
Where the attorney at issue works in-house, particularly where that attorney has business in addition to legal
responsibilities, the line between legal counsel and business advice can be a little hazy. For example, in Borase v.
M/A COM, Inc., 171 F.R.D. 10 (D. Mass. 1997), plaintiff moved to compel answers to deposition questions posed
to defendants former Senior Vice-President, Corporate Secretary, and General Counsel, who had been instructed
not to answer the questions on the ground of attorney-client privilege. In opposing the motion to compel, the
defendant stood solely on the ground that the witness had been an in-house lawyer. The court found that the
proponent of the privilege had failed to meet its burden of establishing a basis for refusing to answer the questions
posed: Merely saying that he was so acting [in the capacity as General Counsel] in a memorandum of law is
patently insufficient to meet the burden. Neither can it be assumed. Id. at 13. Rather, to meet its burden, the
defendant needed to establish, by affidavit, the precise facts upon which the substance of certain conversations
into which plaintiff had inquired were protected by the attorney-client privilege. Courts have varied as to what those
precise facts must show in order to establish that advice given by an in-house attorney was legal in nature and
hence due proper protection from disclosure. In general, the proponent of the privilege must demonstrate that the in-
house attorney was acting in his or her capacity as lawyer as opposed to business person and that the
communication to or from the in-house lawyer would not have been made but for the need to transmit legal
advice. See First Chicago Intl v. United Exch. Co., Ltd., 125 F.R.D. 55, 57 (S.D.N.Y. 1989).
Furthermore, just because the communication between the lawyer and an employee is legal in nature does not
necessarily entitle it to protection. If the employee is not part of a corporations control group, the communication
must have concerned a matter within the employees corporate duties in order for the employee to be considered
part of the client. See Upjohn Co. v. United States, 449 U.S. 383, 394 (1981), and cases which have followed it.
Because the extent of the protections afforded by the attorney-client privilege does vary from jurisdiction to
jurisdiction, it is advisable to consult local case law when the issue arises.
In order for attorney-client communications to be privileged, they must have been kept confidential. If third parties
are privy to the discussion, or if the substance was thereafter revealed to third parties, the privilege may be waived.
See In re Ampicillin Antitrust Litigation, 81 F.R.D. 377, 389-390 (D.D.C. 1978); Burlington Industries v. Exxon
Corp., 65 F.R.D. 26, 37 (D. Md. 1974). Be particularly careful where a third party, not the agent or representative of
either the attorney or client, is allowed to sit in on the legal discussions. See generally MCCORMICK ON EVIDENCE,
91 at 217-221 (3d ed. 1984).
The attorney-client privilege can be easily waived. One example occurs where privileged information is disclosed to
a third party. Moreover, if the advice of counsel is placed at issue in a lawsuit, the privilege may be deemed waived.
See TransWorld Airlines, Inc. v. Hughes, 332 F.2d 602, 615 (2d Cir. 1964). The allegations raised at trial may be
sufficient to put the attorney-client relationship at issue and thus constitute a waiver of the privilege.
The privilege can also be waived by partial disclosure of the privileged communication. As a general rule, any
attempt to waive the privilege or a portion of a privileged communication about a given subject matter may
constitute a waiver for the entire subject matter. See e.g., Hercules, Inc. v. Exxon Corp., 434 F. Supp. 136, 156 (D.
Del. 1977); Duplan Corp. v. Derring Milliken, Inc., 397 F. Supp. 1146, 1162 (D.S.C. 1975).
Sometimes, counsel for a party will represent non-party witnesses at their depositions. This is not without risk of a
privilege waiver. Where the attorney is sharing information conveyed back and forth between the party-client and
the non-party client, and when the attorney shares with the non-party client thoughts on strategy from the
underlying litigation, there is a question of a privilege/work-product doctrine waiver.
Courts have approached this question as a matter of whether there is a commonality of interest between the party-
client and the non-party client. The commonality of interest concept is designed to preserve and not extend the
privilege. Every communication between a lawyer and someone who has a commonality of interest with his client
does not become privileged. DiPalma v. Medical Mavin, Ltd., No. 95-8094, 1998 U.S. Dist. LEXIS 1747, at *9
(E.D. Pa. Feb. 10, 1998). Because courts have taken varied approaches as to the breadth of the commonality of
interest doctrine, if you are representing multiple clients in a matter, you may want to consult the applicable case
law in your jurisdiction before serving as a conduit of information among your clients. For example, in Ferko v.
NASCAR, 219 F.R.D. 396, 402 (E.D. Tex. 2003), the court held that the doctrine applied only when the multiple
clients were actual or potential co-defendants in litigation. Under this reasoning, information shared with a non-
party witness who faces no litigation exposure would not be privileged and would be fair game for inquiry during a
deposition. By contrast, the court in In re State Commn. of Investigation Subpoena No. 5441, 544 A.2d 893, 896
(N.J. Super. Ct. 1988) took a somewhat broader view, finding that communications with a third-party client may
still be protected even where the third-party client faces no immediate liability, as long as the non-party clients
interests are identical, with those of the party-client. See also Sky Valley, LP v. ATX Sky Valley, Ltd., 150 F.R.D.
648 (N.D. Cal. 1993).
If opposing counsel asserts an attorney-client privilege and directs his client not to answer questions relating to
allegedly privileged communications, attempt to ascertain whether each of the elements of privilege has been
satisfied. Most courts will allow you to inquire about the identity of the parties involved in the communication, the
time, date and general subject matter of the discussion and the purpose for it. See United States v. Dickinson, 308 F.
Supp. 900 (D. Ariz. 1969), affd, 421 F.2d 702 (9th Cir. 1970). See generally, Annotation, Disclosure of Name,
Identity, Address, Occupation or Business of Client as a Violation of Attorney-Client Privilege, 16 A.L.R. 3d 1047
(1967).
Consider asking some or all of the following questions:
When did the communication occur?
Where did it occur?
Who instigated the communication and why?
Who was present?
What subject areas were discussed?
What was the purpose of including [the attorney] in on the discussion?
Was legal advice given?
Has any part of the conversation been disclosed to others?
Who asked you to obtain legal advice? [For corporate employee]
If your deposition is governed by the amended Federal Rules of Civil Procedure, remember that amended Rule
26(b)(5) requires the attorney asserting the privilege to make the claim expressly, and to describe the privileged
material with particularity sufficient to allow you to assess the applicability of the privilege. You will want to make
reference to the Rule and request an immediate record to be made by opposing counsel, not only for purposes of
assessing the privilege, but also for bolstering a claim of waiver if the privilege is incorrectly asserted or without
sufficient particularity. See 713.
It is worth keeping in mind that in many jurisdictions, in civil cases, a party can seek an adverse inference from the
other partys assertion of a privilege. Of course, in criminal cases, no such adverse inference can be drawn from the
assertion of the right against self-incrimination.
One twist on privilege arises during the examination of a witness who verified a complaint. Frequently, the
verification states that the witness has relied on his or her own personal knowledge as well as information provided
by others that the witness believes to be true. If the source of the information is from counsel, can the witness assert
the attorney-client privilege to avoid inquiry into the preparation of the verified complaint? One case that addressed
this question is IDS Life Insurance Company v. SunAmerica, Inc., 95 C 1204 95 C 1212, 1995 WL 505497, at *1
(N.D. Ill. Aug. 21, 1995). The court reasoned:
When a witness makes a statement and verifies it in a complaint, regardless of who that witness is, he is going to
have to give the basis for that statement if asked at a deposition. To that extent, he has waived any attorney/client or
work product privilege by verifying the complaint which makes the assertions. He cannot make the statements and
now claim a privilege when asked what the basis for the statement is.
For practitioners using verified complaints, a method to avoid this might be having your client verify only selective
parts of the complaint necessary to accomplish the goals of verification. This should allow for the attorney-client
privilege to remain in effect for non-verified allegations.

The work product privilege generally provides a measure of qualified protection to documents prepared by a party
or by a partys representative in anticipation of litigation or for trial. It is codified in Rule 26(b)(3) which requires a
showing of substantial need in order to discover the materials. It also requires the courts, in ordering discovery, to
protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or
other representative of a party concerning the litigation. It should be noted that the materials may be prepared by a
party or a representative of a party. The privilege is not limited to materials prepared by or at the direction of an
attorney.
The work product privilege is most commonly applied to documents and other tangible items and arises in response
to document requests rather than deposition questions. However, the privilege goes further and applies to questions
which seek to discover the substance of work product through deposition testimony. See Peterson v. United States,
52 F.R.D. 117, 320 (S.D. Ill. 1971); In re Anthracite Coal Antitrust Litigation, 81 F.R.D. 516, 521 (M.D. Pa. 1979).
Courts have been reluctant to allow discovery of work product material through questions directed to those who
have reviewed those materials.
In Hisaw v. Unisys Corp., 134 F.R.D. 151 (W.D. La. 1991), defense counsel refused to allow the defendant to
answer whether he had spoken to anyone or reviewed any documents in preparation for his deposition. Defense
counsel did not seek a protective order, which the court held was improper and in violation of Rules 30(d) and
26(c). For this impropriety alone, I am inclined to grant the plaintiffs motion to compel.
The court further defined guidelines for future depositions:
For future depositions, the following guidelines shall apply:
(1) Counsel may inquire into the identity of any persons with whom a deponent conferred in preparation for his or
her deposition. F.R.C.P. 26(b)(1).
(2) Such inquiry may not, however, include questions which tend to elicit specific questions posed to the witness by
any counsel involved in this litigation, the generalized inquiry pursued by counsel, the facts to which counsel
appeared to attach significance, or any other matter that reveals counsels mental impressions concerning the case.
(3) Any party challenging the production of documents reviewed by a witness in preparation for a deposition must
file a motion for protective order pursuant to Rule 30(d). Counsel is further advised that the rule in the Fifth Circuit
under In re International System and Controls Corp., 693 F.2d 1235 (5th Cir. 1982) is that even where work-
product immunity protects the documents themselves, the underlying facts are discoverable. Hinsaw at 153.

Documents reviewed by a witness prior to and in preparation for his deposition which were selected and organized
by counsel may fall under the work product privilege. In Sporck v. Peil, 759 F.2d 312, 315 (3d Cir. 1985), the Third
Circuit held that the selection process of defense counsel in grouping certain documents together out of thousands
produced in litigation was work product and entitled to protection under Rule 26(b)(3). As a result, the court held
that a general question directed toward identifying the documents reviewed in preparation for a deposition could not
be asked. Instead, counsel was limited to asking whether specific testimony was influenced by particular documents
that the witness had reviewed. If so, counsel was free to inquire as to the identity of those particular documents and
to determine the nature of the influence.
While this selection-based work product privilege has been embraced by many jurisdictions, it is far from being
universally accepted. See, e.g., Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458, 462-463 (D.
Md. 1998); Resolution Trust Corp. v. Heiserman, 151 F.R.D. 367, 374 (D. Colo. 1993); Bohannon v. Honda Motor
Co. Ltd., 127 F.R.D. 536, 538 (D. Kan. 1989). Even in jurisdictions where the privilege has been recognized, it may
be lost if counsel has shown the witness documents setting forth work product, such as memoranda analyzing the
opponents claims, statements, or summaries of fact. In such cases, those materials may be discoverable if they were
used in preparation for a deposition. See Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613, 617 (S.D.N.Y.
1977). But see Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183 F.R.D. 458, 467 (D. Md. 1998); see also
James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144-146 (D. Del. 1982); Wheeling Pittsburg Steel Corp. v.
Underwriters Laboratories, Inc., 81 F.R.D. 8, 9-10 (N.D. Ill. 1978); Heron Interact, Inc. v. Guidelines, Inc., 244
F.R.D. 75 (D. Mass. 2007) (party must produce privileged documents used to refresh witnesss recollection during
witnesss preparation for deposition).
While an attorneys notes may be discoverable, a party deponents contemporaneously made notes, reviewed in
preparation for a deposition are not. In Derderian v. Polaroid Corp., 121 F.R.D. 13, 15 (D. Mass. 1988), the court
denied production of the notes, concluding that they were not mandatory under Fed. R. Evid. 612, and that the
interests of justice did not require production. The court held that the defendant had other sources of the events of
alleged sexual harassment, and that defendant was not entitled to the notes in order to explore discrepancies
between plaintiffs complaint and her notes, or to look for possible admissions or statements against her interest.
All this being the case, some courts continue to hold that the work product privilege takes priority over the right to
production under Fed. R. Evid. 612. See Al-Rowaishan Establishment Universal Trading & Agencies, Ltd. v.
Beatrice Foods Co., 92 F.R.D. 779 (S.D.N.Y. 1982) (documents solely reflecting attorneys mental impression not
subject to production, as rights under Fed. R. Evid. 612 are outweighed by work product privilege); see generally,
Annotation, Use of Writing to Refresh Witness memory as governed by Fed. R. Evid. 612, 73 A.L.R. Fed. 407
(1985). Cf., S&A Painting Co. v. O.W.B. Corp., 103 F.R.D. 407, 410 (E.D. Pa. 1984); In re Comair Air Disaster
Litigation, 100 F.R.D. 350, 353 (E.D. Ky. 1983).
Disclosure of work product to a witness other than the client may constitute a waiver of the privilege without regard
to Fed. R. Evid. 612. In Gall v. Jamison, 44 P.3d 233 (Colo. 2002), the Colorado Supreme Court held that an
attorneys letter to a testifying expert witness was not protected by the work-product privilege where the witness
considers information in the letter when forming an opinion. However, generally it is held the work product
privilege is not waived by disclosure to another party having a common interest, such as a co-defendant. See Castle
v. Sangamo Weston, Inc., 744 F.2d 1464 (11th Cir. 1984); cf., Annotation, Attorney-Client Privilege as Affected by
Communications Between Several Attorneys, 9 A.L.R.3d 1420 (1966).

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION TO COMPEL PRODUCTION OF

DEPOSITION PREPARATION MATERIALS
The [Party] hereby moves under Fed. R. Civ. P. 26(b)(1) and 37 and Fed. R. Evid.
612 to compel production of materials reviewed by [witness] to refresh his
recollection in preparation for his deposition. During his deposition, [witness]
testified that he reviewed certain documents prepared by his counsel to refresh
his recollection. Specifically, the witness testified that: [quote from
transcript]. See copy of transcript at [page], relevant excerpts of which are
attached to the accompanying affidavit as Exhibit A. [Party] served a document
request for the materials. See copy of the request attached to the accompanying
affidavit as Exhibit B. [Opposing Party] objected to the request on the ground
that the materials reviewed by the witness are protected from disclosure by the
work product doctrine. See copy of objections attached to the accompanying
affidavit as Exhibit C. [Party] and [Opposing Party] have conferred in good faith
to resolve the dispute between them. However, no compromise appears possible as
the materials are either protected from disclosure or they are not. The matter is
therefore ripe for adjudication by this Court.
This Court should find that [Opposing Party] must produce the materials reviewed
by [witness] to refresh his recollection because:
Documents used to refresh a witnesss memory prior to testifying at a
deposition are discoverable where disclosure is necessary in the interests
of justice. See Fed. R. Evid. 612. This rule applies to writings prepared by
counsel that would otherwise be protected by the attorney-client privilege
or work product doctrine. See, e.g., Derderian v. Polaroid Corp., 121 F.R.D.
13, 15 (D. Mass. 1988); Redvanly v. Nynex Corp., 152 F.R.D. 460 (S.D.N.Y.
1993).
The policy behind the rule is that effective cross-examination is frustrated
when documents used by counsel to help prepare and possibly shape a
witnesss testimony are immunized from disclosure. See Berkey Photo, Inc. v.
Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977). The purpose of Rule 612 is
to promote the search of credibility and memory. Sporck v. Peil, 759 F.2d
312, 317 (3d Cir. 1985).
Courts typically employ a three-pronged test under Rule 612 to determine if
documents reviewed by a witness prior to a deposition are discoverable: (1)
the witness must use the writing to refresh his memory; (2) the witness must
use the writing for the purpose of testifying; and (3) the court must
determine whether production is necessary in the interests of justice. See
Nutramax Laboratories, Inc. v. Twin Laboratories, Inc., 183 F.R.D. 458, 468
(D. Md. 1998).
All three prongs are met here. The first two prongs are met by [witnesss]
deposition testimony. The third prong is met because [witness] is a key
witness in this case and his testimony concerns material issues in the case.
His credibility and memory will be important at trial.
WHEREFORE, [Opposing Party] should be compelled to produce the materials used by
[witness] to refresh his recollection during his deposition preparation.

Work product privilege only precludes inquiry into the substance of the work product, not its existence. You may
want to inquire into the existence of the following:
witness interviews
witness statements (audio recordings, signed statements, lawyer summaries)
tests run and reports thereon
reports of investigators
photographs
documents given to nonparties, including experts
films (accident reconstructions, day in the life of injured plaintiff, etc.)
Once you have determined that specific work product exists, you should ask some or all of the following questions
to determine if the privilege is legitimately asserted and whether there are overriding circumstances compelling
disclosure:
Who prepared the document or thing?
At whose direction was it prepared?
When was it prepared?
Why was it prepared?
To whom was it given?
By whom was it reviewed?
What other sources for obtaining the substantial equivalent of the materials are available?
What is the importance of the materials to the litigation?
See Annotation, Protection from Discovery of Attorneys Opinion Work Product under Rule 26(b)(3), Federal Rules
of Civil Procedure, 84 A.L.R. Fed. 779 (1987).
There is no insured-insurer privilege. Communications between an insured and insurer are a potential wealthy
source of information for the insureds litigation opponent. But unfettered discovery into insured-insurer
communications would surely chill an insurers ability to make informed decisions about coverage and defense.
Thus, where a party seeks discovery of an insureds communications with its insurer, such as through a deposition
of an insurance adjuster, courts have looked to see if the communication may fall within the protections of the
attorney-client privilege or work product doctrine.
Courts have differed on the breadth to which they have recognized the attorney-client privilege and work product
doctrines as bases for refusing to disclose insured-insurer communications. There has been general agreement that
after an insurer has acknowledged its obligation to provide a defense to its insured, confidential communications
between the insurer and its insured are privileged, regardless of whether the insured is communicating with the
adjuster or with defense counsel appointed by the insurer. See, e.g., State Farm Fire & Casualty Co. v. Superior
Court, 216 Cal. App. 3d 1222 (1989) (The insured both by contract and by statute has a duty to cooperate in his
defense and to disclose information and facts concerning the action. Where statements are given by the insurance
adjuster for the purpose of defending against the liability claims, they are protected from third party discovery by
the attorney-client privilege.); see also Pittston Co. v. Allianz Ins. Co., 143 F.R.D. 66, 71 (D.N.J. 1992) (analyzing
the issue as one of common interest extending the attorney-client privilege).
Beyond that, some courts have adopted as a test whether the communication was made for the purpose of aiding the
insureds defense and whether the insured had a reasonable expectation of confidentiality in the communication.
See, e.g., Cutchin v. State, 792 A.2d 359, 366 (Md. App. 2002). Thus, for example, if an insured is involved in a
two-car accident and provides details to its insurance adjuster before ever being threatened with litigation by the
driver or passengers of the other car, that communication arguably might not be protected should litigation later
ensue.
If your factual circumstances raise questions as to whether a refusal to provide discovery of insured-insurer
communications is justified, John P. Luddintons article, Insured-Insurer Communications as Privileged, 55 A.L.R.
4th 336 (2004) collects and discusses the treatment of the issue across the country.
A slightly different question is whether a party can discover an investigation conducted by the insurer where there is
no issue as to communications between the insured and insurer. Courts have approached this question as more
closely related to the work product doctrine, rather than the attorney-client privilege. In Page v. DiMaggio
Plumbing & Heating, No. 980334003S, LEXIS 3187 (Conn. Super. Ct. Nov. 15, 2000), the court permitted
discovery into the insurers investigation after concluding that given the passage of time since the incident in
question, there was no other way for the plaintiff to secure the information sought.

Occasionally in civil litigation, a witness will refuse to answer a question on the ground that the response may
incriminate the witness. The Fifth Amendment privilege against self-incrimination may be asserted by a witness in a
civil proceeding. Kastigar v. United States, 406 U.S. 441, 444 (1972). The Fifth Circuit in In re Corrugated
Container Anti-Trust Litigation, 620 F.2d 1086, 1088-1092 (5th Cir. 1980), laid out a framework within which it is
proper for a witness in a civil proceeding to assert the privilege against self-incrimination. The privilege is triggered
when the witness has a reasonable apprehension of self-incrimination; pending criminal charges are not a pre-
requisite to the assertion of the privilege as a basis for refusing to answer a deposition question. Note that courts
typically will review the assertion of the privilege against self-incrimination on a question by question basis. See,
e.g., DeLeo v. Wacholvia Bank, No. 2D06-580, 2007 WL 101214 (Fla. App. Div. Jan. 17, 2007).
There are a number of caveats about the privilege. First, it is available only to natural persons. Therefore, a witness
may not refuse to answer a question on the ground that it could incriminate an organization, such as a corporation
for which the witness serves as an officer, director, or employee. See Braswell v. United States, 487 U.S. 99, 105-
110 (1988). There was an interesting wrinkle in the case of In re Anthracite Coal Antitrust Litigation, 82 F.R.D. 364
(M.D. Pa. 1979). There, plaintiff served a Fed. R. Civ. P. 30(b)(6) notice on the defendant organization. The
defendant organization, as permitted by the rule (see 454.1), designated a witness without personal knowledge of
the topics in the notice and then endeavored to educate the designee as to information within the organizations
knowledge. Certain executives of the organization, however, refused to reveal to the organizations designee
information they knew about the Rule 30(b)(6) topics on the ground that disclosing such information risked
incriminating those individuals and hence would violate their Fifth Amendment right against self-incrimination.
After the deposition, during which the organizations designee was unable to answer certain questions pertaining to
noticed topics, the plaintiff moved for sanctions. The court observed that the organization enjoys no Fifth
Amendment protection and because the organization did not deny the responsive information was in the possession
of its executives, its failure to reveal that information through its designee during the deposition was sanctionable.
Id. at 368. It ordered that the defendant organization was precluded at trial from introducing evidence on the topics
about which its designee had been unable to answer questions during the Rule 30(b)(6) deposition. Id. at 370.
Second, the privilege is one that may be asserted as a basis for refusing to provide a response to discovery; it may
not be deployed surreptitiously as a means to provide a partial answer leaving out the incriminating part of a fully
responsive answer. Once a witness endeavors to respond to a deposition question, he or she must do so fully and
truthfully. See United States v. Tramunti, 500 F.2d 1334, 1343-44 (2d Cir. 1974).
Third, and most significantly, courts have recognized some severe consequences from the assertion of the privilege.
Courts have been willing to consider Rule 37(b)(2) remedies for a witness refusing to answer a question on the
ground that it may incriminate him or herself. At a minimum, courts seem willing to permit adverse inferences from
the assertion of the Fifth Amendment privilege. In appropriate cases, courts have imposed more serious sanctions.
For example, in Cape Wind Associates v. Donelan, No. 04-0913, 2004 LEXIS 165 (Mass. Super. Ct. April 29,
2004), the defendant refused to answer questions that went to the heart of the case and which were exclusively in
the defendants domain. The court commented:
The evidence relating to the acts with which [the defendant] is charged are peculiarly and totally within his
knowledge, and are significantly outside of the information possessed by other persons or entities. Consequently,
the only real way in which [the plaintiff] may discover and obtain such evidence is from [the defendant] himself. If
[the defendant] choosesas is his rightnot to provide that evidence, then he should not be permitted to challenge
the claims against him in this civil action.
Memorandum and Order at 3 (emphasis added).

Interestingly, similar repercussions may result where the plaintiff seeks to avoid civil discovery. One such case is
Pavlinko v. Yale-New Haven Hosp., 470 A.2d 246 (Conn. 1984). The court spelled out plaintiffs dilemma:
However sincere the plaintiff may have been in claiming the privilege, the effect of such assertion was to severely
limit the scope of the inquiry and thus make the defendants the innocent victims of the plaintiffs self-created
predicament. In these circumstances it is not unfair to compel the plaintiff to choose between silence and the pursuit
of his malpractice claim. A plaintiff cannot use one hand to seek affirmative relief in court and with the other
lower an iron curtain of silence against otherwise pertinent and proper questions which may have a bearing upon his
right to maintain his action.
Id. at 251; see also Henson v. Citizens Bank of Irving, 549 S.W.2d 446, 447 (Tex. Civ. App. Eastland 1977).
See generally F. Fendler, Waive the Fifth or Lose the Case: Total Preclusion Orders and The Civil Defendants
Dilemma, 39 SYRACUSE L. REV. 1161 (1988).
While courts have imposed harsh sanctions on the party asserting the privilege, the risk of the assertion does also
pose a dilemma for the party seeking the discovery. If the other side asserts the privilege, the discovering party may
not learn information vital to the case, yet a court in most circumstances may be unwilling to impose the draconian
sanctions contemplated by some of the cases cited above. Thus, consistent with good discovery practice, where a
Fifth Amendment issue fairly can be anticipated, it behooves both parties to discuss a compromise solution. Here
are some options:
A. Immunity: Pursuant to the federal use immunity provisions, 18 U.S.C. 6001-6005 (1998), a court has the
authority to confer-use immunity for any testimony given at a deposition. However, a motion of this type
typically requires the consent or nonobjection of the prosecutor. Moreover, courts will strictly construe a grant
of immunity in a prior criminally related matter that is then used by a civil opponent at a later date. See, e.g.,
Pillsbury Co. v. Conboy, 459 U.S. 248, 260 (1983) (Use immunity was intended to immunize and exclude from
a subsequent criminal trial only that information to which the government expressly has surrendered future use).
See also Daly v. Superior Court, 19 Cal.3d 132, 148, 137 Cal. Rptr. 14, 24 (Cal. 1977).
B. Stay-of-Proceedings Pending Running of Statute of Limitations: A court may stay the proceedings of a case
until the statute of limitations on the applicable criminal statutes have run. United States v. Talco Contractors,
Inc., 153 F.R.D. 501, 516 (W.D.N.Y. 1994).
C. Protective Order: The court has the authority to issue a protective order barring the disclosure of the deposition
outside the litigation. Rule 26(e). Martindale v. Intl Tel. and Tel., 594 F.2d 291 (2d Cir. 1979). However, the
protection afforded by a protective order is not as extensive as the Fifth Amendment because,
no matter how broad its reach, [it] provides no guarantee that compelled testimony will not some way find its way
into [third party] hands-for use in a subsequent criminal prosecution.... [and] a Rule 26(c) protective order may be
overturned or modified based on improvidence, extraordinary circumstances or compelling need....
Andover Data Services v. Statistical Tab. Corp., 876 F.2d 1080, 1083 (2d Cir. 1989). See also, United States v.
Talco Contractors, Inc., 153 F.R.D. 501, 505-506 (W.D.N.Y. 1994). But see DeLeo v. Wacholvia Bank, No.
2D06-580, 2007 WL 101214 (Fla. App. Div. Jan. 17, 2007) (court affirmed witnesss right to refuse to answer
questions after invoking his Fifth Amendment privilege despite party seeking discoverys suggestion that the
court issue a protective order preventing disclosure of the witnesss answers; court noted limitations of
protective orders to assure that testimony will never reach prosecutors office).
D. Preclusion: The deponents testimony may be barred as to all noncollateral matters at trial, United States v. One
Parcel of Real Property Commonly Known as 901 N.E. Lakewood Drive, Newport, Ore., 780 F. Supp. 715, 721-
22 (D. Or. 1991), even where the deponent seeks to waive the privilege at the eleventh hour before trial. SEC v.
Drexel Burnham Lambert, 837 F. Supp. 587, 602 (S.D.N.Y. 1993). See also, F. Fendler, Waive the Fifth or
Lose the Case: Total Preclusion Orders and The Civil Defendants Dilemma, 39 Syracuse L. Rev. 1161 (1988);
Andover Data Services v. Statistical Tab. Corp., 876 F.2d 1080 (2d Cir. 1989). This motion may be made under
certain circumstances prior to trial in the form of a protective order. See, Pacers, Inc. v. Superior Court, 162
Cal. App. 3d 686, 208 Cal. Rptr. 743 (1984).
E. Waiver: Once the privilege is waived, a witness cannot refuse to fill in the details, Rogers v. United States, 340
U.S. 367, 373, 71 S. Ct. 438, 422, 95 L. Ed. 341 (1951), unless those answers further incriminate the witness. In
re Master Key Litigation, 507 F.2d 292, 294 (9th Cir. 1974). See also, E.F. Hutton & Co. v. Jupiter Dev. Corp.,
91 F.R.D. 110, 116 (S.D.N.Y. 1981).

When you question a deponent about discussions he has had with his attorney in preparation for the deposition that
may have refreshed the deponents recollection, there is a direct collision with the attorney-client privilege. While
the case law is scant on the issue, it may be a wise policy for the defending attorney to consider that any comments
to a witness in preparation for his deposition are discoverable. See Mudd v. U.S., 798 F.2d 1509, 1512 (D.C. Cir.
1986), a criminal case, wherein the court suggested that the prosecutor could cross-examine the defendant
concerning the coaching he received from counsel in preparation for cross-examination. See also Perry v. Leeke, 88
U.S. 272, 282 (1989).
The Mudd decision is no doubt a unique case. Generally, the attorney-client privilege takes priority over Fed. R.
Evid. 612 with respect to any discussions with counsel. In re Coordinated Pretrial Proceedings in Petroleum
Antitrust Litigation, 658 F.2d 1355, 1361 (9th Cir. 1981). See also, Annotation, Discovery of Documents Within the
Attorney-Client Privilege under FRE 612, and Gerdes v. United States, 425 U.S. 80, 91 (1976).
Any discussion of a nonparty witness with a partys attorney or of any witness with a person other than his attorney
in preparation for his deposition may not be privileged, and therefore may be a potentially proper inquiry in a
deposition. Cf., Ford v. Philips Electronics Instruments Co., 82 F.R.D. 359 (E.D. Pa. 1979) (examiner may not
inquire as to defending attorneys pre-deposition questions to the nonparty witness). In modern litigation, it is
becoming commonplace for an attorney or client to employ the assistance of an expert witness consultant to assist
in the preparation of the deponent for deposition. These preparation sessions are often conducted without presence
of counsel, or they commonly use otherwise privileged information. Inquiry into the occurrence of such discussions
is within the scope of permissible examination, at least relating to discussions of facts to which the deponent is
testifying. Such discussions may well have altered the deponents recollection of factual information, as well as
incorporated the consultants interpretation of facts related in the preparation sessions. There may be a privilege that
will attach to these discussions. However, you are still entitled to explore the foundational facts of the event to test
the assertion of a claim of privilege, if any.
In Connolly Data Systems, Inc. v. Victor Technology, Inc., 114 F.R.D. 89, 92 (S.D. Cal. 1987), the Court, applying
California law, held that the work product privilege was applicable to the communications of the attorney for the
defendant company (Victor) with the companys former employee, Hanson. Defendants lawyer contacted Hanson,
asked him what he knew about the litigation, and asked Hanson questions that sought information that would be
useful in preparing Hanson for a future deposition. These conversations took place in person and, later, by
telephone. After this preparation, defendants attorney took Hansons deposition. In the course of plaintiffs cross-
examination, Hanson was asked as to what he discussed with defendants attorney prior to the deposition regarding
the litigation.
The court found that under California law, the attorney-client privilege did not apply to those communications;
however, the federal work product privilege did apply:
Insofar as this inquiry [by plaintiff] sought to discover what [defendant] Victors attorney said to [Victors former
employee] Hanson or what [defendant] Victors attorney asked Hanson, the answers may tend to divulge the mental
impressions, opinions and theories of Victors attorney. However, if the inquiry was limited so that it only sought to
discover what Hanson knew about the facts involved or what he said to Victors attorney about the facts of the case,
the questions were proper. 114 F.R.D. at 96.
***
Plaintiffs counsel may inquire into the substance of Hansons knowledge concerning matters relevant to the subject
matter of the litigation. However, plaintiffs counsel may not ask questions that tend to elicit the questions posed to
Hanson by Victors attorney, the general line of inquiry pursued by her, the facts to which Victors attorney
appeared to attach significance or any other matter that reveals Victors attorneys mental impressions, theories,
conclusions or opinions concerning the case. Id.
Indeed, the cases relied upon seem to apply the principle to communications of an attorney to any nonparty witness.
See Ford v. Philips Electronics Instruments Co., 82 F.R.D. 359, 360 (E.D. Pa. 1979); Phoenix Nat. Corp. Inc. v.
Bowater United Kingdom Paper Ltd., 98 F.R.D. 669, 671 (N.D. Ga. 1983); United States v. International Business
Machines Corp., 79 F.R.D. 378, 379-380 (S.D.N.Y. 1978). Presumably, however, the witness himself has the right
to waive the privilege.

Other privileges exist such as a Fifth Amendment privilege, husband-wife privilege, clergy-penitent privilege,
physician-patient privilege, accountant-client privilege, and psychologist-patient privilege. The existence and scope
of each privilege will vary depending upon the jurisdiction. Objections should be handled in the same manner as an
attorney-client privilege. Similarly, most jurisdictions recognize a limited government information (executive)
privilege (e.g., Ellsberg v. Mitchell, 709 F.2d 51, 57 (D.C. Cir. 1983)), and a reporters sources privilege. See, e.g.,
U.S. v. Cuthbertson, 651 F.2d 189, 195 (3d Cir. 1981).
In re Master Key Litigation, 507 F.R.D. 292, 293-294 (9th Cir. 1974) defined the rules 1) that the right to assert
ones privilege against self-incrimination does not depend upon the likelihood, but upon the possibility of
prosecution, and 2) that an ordinary witness may pick the point beyond which he will not go, and refuse to
answer any questions about a matter already discussed, even if the facts already revealed are incriminating, as long
as the answers sought may tend to further incriminate him.
Other privileges to be considered include:
Official information privilege: files, reports and memoranda of government agencies, disclosure of which
would be harmful to the public interest. See Discovery of Government Documents and Official Information
Privilege, 76 Colum. L. Rev. 142 (1976).
Diplomatic or military secrets privilege. See United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97
L.Ed. 727 (1953).
Informants concerning commission of crime. See 8 WIGMORE, EVIDENCE 2374(f) (1961).
Arbitrators thought processes in reaching decision. Container Technology Corp. v. J. Gadsden Pty., Ltd.,
781 P.2d 119, 122 (Colo. App. 1989), citing United Steel Workers v. American Manufacturing Co., 363 U.S.
593, 598 (1960).
In administrative litigation, the administrative agency frequently will assert the deliberative process or
executive privilege or the closely-related quasi-judicial privilege so as to avoid deposition questioning (or the
production of documents) related to the process through which the administrative agency reached the decision at
issue in the litigation. These privileges have long been recognized by federal courts as appropriate for federal
agencies to assert. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150-51 (1975). State courts have split on
recognizing the existence of such privileges. See, e.g., Gwichin Steering Committee v. State, 10 P.3d 572, 578 (Ak.
2000) (recognizing the privileges); Babets v. Secretary of the Executive Office of Human Services, 526 N.E.2d 1261
(Mass. 1988) (rejecting the privileges). Note that federal courts hearing appeals from actions by state agencies
typically look to state privilege law, in part to protect the expectations of the state agency. See, e.g., Allen v.
Chicago Transit Authority, 198 F.R.D. 495, 501 (N.D. Ill. 2001).
In practice, most jurisdictions are fairly consistent in what may and may not be discovered from administrative
agency decision-makers. Similar to the work product doctrine, the mental processes of agency decision-makers are
generally off-limits; underlying facts, such as what documents the agency considered and who the agency talked to
in reaching its decision, are generally fair game for discovery.

If the witness has refused to answer a question on the grounds of privilege, your remedy is a motion to compel an
answer pursuant to Rule 37(a)(2). The essence of the showing must be that the information called for by the
question is not privileged, or that the privilege has been waived. For example, if the attorney-client privilege is
asserted, the movant must show that one of the elements necessary for the privilege to be in effect does not exist.
Did the communication to which the privilege is asserted seek legal advice, or give legal advice?
Was the communication with a lawyer (in limited circumstances, his legal assistant or secretary) acting as a
lawyer (not as a business advisor, etc.)?
Was the communication made in confidence and maintained in confidence?
The answers of the witness to these questions and the follow-up questions often provide the easiest means of
proving the elements do or do not exist. If you can show the court that one of these three elements do not exist, you
should be entitled to an order directing the witness to answer.
767 Documents Reviewed by Witness in Preparation for, or During a Deposition

Federal Rule of Evidence 612 authorizes the disclosure of privileged documents used by a witness to refresh his or
her memory if the witness used that document (1) while testifying or (2) before testifying, provided the court, in its
discretion, determines it necessary in the interest of justicesto have the writing produced. Most courts agree
that, under (1), a document reviewed by a witness during testimony must be produced. Courts, however, diverge on
how (2) of this rule applies.
Some courts have held that disclosure is mandated by Rule 612 even in the face of privileged documents. On the
other end of the spectrum, other courts have held that production is mandated only if the document was used in a
manner which waived privilege. Privilege can be waived, for example, if the individual disclosed the document to a
party outside the privileged relationship. Recently, some courts have struck a balance between these two approaches
by using a third functional analysis test. In it the court requires first that the documents have a sufficient impact
on the testimony to trigger production. If they do, the court should then balance whether production is necessary for
a fair cross-examination or whether it is excessive in scope.
Practitioners are advised that the most conservative approach would be to assume that any documents used before or
during a deposition are subject to production upon request. Therefore, discuss with your clients what documents
they should, and should not, review in their deposition preparation so as to assess the potential risks of any privilege
waivers. For additional information, see 434.

It is impossible to list all possible objections to the range of questions that are posed in a deposition. However, the
following provides at least a general list of some of the most common objections during a deposition.
Form of the question
Ambiguous question
Leading question
Question assumes facts not in evidence
Compound question
Lack of foundation for the question
The question calls for privileged information
Attorney-client privilege
Work product privilege
The question calls for hearsay
The question has been asked and answered
The answer was not responsive
The question is irrelevantbeyond the scope of allowable discovery
The question calls for a narrative answer
The question calls for prejudicial information
The question is argumentative
The document speaks for itself? (The document is the best evidence)
The question calls for [the witness to testify as to] a legal conclusion
The question mischaracterizes the testimony of the witness

An objection to a question should merely state Objection, and a concise phrase as to the basis of the objection:
Objection, leading question.
Objection, beyond the scope of allowable discovery.
Objection, calls for hearsay testimony.
The examiner normally does not respond to the objection except to tell the witness you may answer the question,
or to state I will rephrase the question. If the examiner does not understand the basis for the objection, he may ask
for an explanation.
Rarely does it serve any value to argue an objection. Without a judge to referee, there will rarely be a victor.

Greene, The Folklore of Depositions, 11, No. 4 Litigation 13 (Summer, 1985)
McElhaney, Objecting at Depositions, 14, No. 4 Litigation 51 (Summer, 1988)
Knowles and Vote, Limiting Discovery Through Protective Orders, 29, No. 1 For the Defense 18 (January,
1987)
Gergacz, Attorney-Corporate Client Privilege (Garland Law Publishing, 1987)
Epstein and Martin, The Attorney-Client Privilege and the Work Product Doctrine (2d Ed., ABA, Section of
Litigation, 1989)
Dombroff, Trial Objections (James Publishing, 1987)
Louisell and Mueller, Federal Evidence 200-249 (Lawyers Co-operative Publishing Co. 1979)
Stone and Liebman, Testimonial Privileges (McGraw-Hill Book Co. 1983)
Renne, Piercing Privilege Claims, 15, No. 4 Litigation 17 (Summer, 1989)
McElhaney, When to Object, 75 ABA Journal 98 (June 1989)
Nemser, Massachusetts Evidentiary Privileges (MCLE 2003)
Chapter 8
Defending the Deposition


832 Demeanor
832.1 Your Demeanor
832.2 Your Witnesss
Sample: Motion to Terminate Deposition for Bad Faith

In an ideal world, your role as the defending attorney would be complete once the deposition began. Your witness
would be prepared, he would carefully listen to each question, would take his time in responding and there would be
no ambiguity in the record. Moreover, your opponent would be polite, would ask proper and reasonable questions
and would not try to mislead your witness. You could just come along for the ride.
Alas, we do not live in an ideal world. As the defending attorney, your attendance and active involvement is
essential. Indeed, you may find you have to expend more energy concentrating on defending a deposition than you
would if you were taking one.
This chapter will focus on your role as the defending attorney during a deposition. For the most part, it assumes that
the deponent is friendly to you and will follow your advice. In cases where the witness is neutral or unfriendly, your
role may be far more limited and you may be limited to making your objections for the record and conducting your
own cross-examination.

Your last opportunity to prepare your witness for the deposition comes when you meet him just before the
deposition. This is an important opportunity and should not be overlooked. You not only have one last chance to
review expected areas of testimony, but you also have a chance to gauge your witnesss confidence and answer any
last minute questions. Now is the time to try to determine whether your witness has sufficient confidence to perform
well in the deposition. It is also the time to make sure that he is not so cocky as to give flippant answers or to fail to
listen carefully to the questions being asked.
Whenever possible, plan to meet your client or witness at your office or some other neutral site. Schedule the
meeting sufficiently in advance of the deposition so that you will not be rushed or forced to cover final points
quickly; not only are you unlikely to accomplish anything, you may succeed in making your witness more nervous
and thereby hinder his performance. If nothing else, the final meeting should be calm and restful, and, in most
situations, used as an opportunity to build confidence.
If you must cover any substantive points during this final meeting, limit their number to an absolute minimum.
There are two reasons for this. First, your witness likely will not be able to integrate much new information just
before the deposition and your efforts to cram in new information or cover new topics will probably not be
successful. Second, those efforts may backfire and succeed in confusing a witness who wasnt confused before.
If anything, use this time to calmly go over a few essential points about the deposition process and to answer any
questions the witness might have. Remember that a deposition is a strange and sometimes fearful experience for the
witness and he may have conjured up terrible images of the process during the preceding days or nights. This is an
excellent opportunity to hear out any concerns he might have and to dispel them.
One approach to final preparation is to remind the witness that he only needs to remember to tell the truth and that
to do so he will have to remember the following rules:
1. Listen carefully to the question.
2. Make sure you understand it.
3. Answer the question that has been asked.
4. Qualify your answer where appropriate.
Whatever you do, dont try and go over a laundry list of rules for giving a deposition, and this is not the time to grill
your witness with the thirty most difficult questions. These items should have been covered before. Remember that
your job is to instill confidence and calmness in your witness and you will only accomplish that by creating a calm
and confident atmosphere at this meeting.
Before the deposition begins, take one last opportunity to review your objectives in defending the deposition.
Certainly one key objective is to minimize the quantum of damaging testimony given by the witness. Careful
preparation of the witness within the bounds of ethics is the only means to this end.
In any given deposition you will also have other objectives including:
To make sure that your witness feels comfortable with the deposition process at all times and thus be better
able to give truthful and accurate answers.
To minimize the risk that the witness inadvertently gives misleading or incorrect testimony.
To prevent improper conduct of the examining attorney which may adversely affect the truthfulness and
accuracy of the witnesss testimony.
To prevent the witness from answering improper or prejudicial questions when there is no basis for them.
To prevent the deponent from testifying as to information which is privileged.
To ascertain the examining attorneys knowledge and theories of his case.
To achieve these goals, you will need to be mentally prepared to defend the deposition as well as physically
prepared to concentrate throughout the entire process.
Prior to defending the deposition, you should also review any plans you have made to cross-examine the witness or
to make sure that various points are covered during the deposition and placed on the record. This strategy has two
purposes. The first is to educate your opponent about your evidence in the hopes of fostering a favorable settlement.
The second is to make sure that relevant testimony is preserved in case the witness is unavailable for trial. If you are
planning to cross-examine extensively, make sure that your witness is adequately prepared. Eliciting testimony from
an unprepared witness may be counter-productive, if not disastrous.

As you enter the deposition room, take charge. Introduce yourself and your client to the persons present. Seat the
witness in the proper place, with refreshments if desired. Make sure the witness is comfortable. If your client
smokes, find out if there are any objections to his smoking. If there are, reach an agreement that recesses will be
taken in accordance with the deponents smoking needs. If your client (or you) are bothered by smoke, request that
no one smoke, and insist if necessary.
Prior to the deposition, you should have decided on the demeanor you want to project to both your opponent and
your witness. If you feel that your witness needs to be kept on guard, consider maintaining a more formal
relationship with opposing counsel. In contrast, if you want your witness to relax, adopt a more friendly demeanor
and make idle conversation with your opponent and others before the deposition begins. Keep in mind that your
client probably considers opposing counsel to be an arch enemy and may not understand how you can be friendly
toward him.
In any event, keep in mind that your behavior and demeanor will have an important impact on your witnesss
emotional state. If you appear to be in control, he will be more confident and a better witness. If you appear to be
ready to defend him at any time, he will be better able to defend himself. In contrast, if you appear uneasy or
tentative, your witness will be more so. If you fall asleep, you will need a new client.

A good time to address preliminary issues is just before the deposition begins. If you can resolve them at that time,
you may want to have that fact placed in the record. If not, you may also want to make a record of that fact. For
example, you may have objections regarding errors and irregularities in the notice of deposition or the subpoena, or
concerning disqualification of the reporter. If so, you will want to state that fact for the record, particularly if you
intend to allow the deposition to proceed. Similarly, if you anticipate problems concerning the length of the
deposition or a special need for recesses, you may want to raise such issues in advance. In any case, be aware that
Rule 32(d) requires certain objections to be made promptly once the deficiency is discovered.

If the deposition is being taken by audio or videotape, you should take certain precautions to make sure that the final
recorded product fairly presents your witnesss testimony. The first step is to supervise a sample recording. This
will allow you to check the location and operation of the microphones for you, the deponent and the examiner. They
should all record at approximately the same volume level. If the deposition will be by videotape, you should also
check the lighting. Is it satisfactory for you and for your witness? Does it leave either of you with unpleasant
shadows? Does it distract your witness? In addition, discuss with the cameraman how he will be filming. Will the
camera be focused on the deponent or on whoever is talking? Will a zoom lens be used, etc.? Reach an agreement
with the cameraman and with the examining attorney on these issues.

Once the deposition begins, make a record of all stipulations that have been reached with opposing counsel and, if
necessary, of any orders of court with respect to the conduct of the deposition. Possible areas for stipulations
include:
1) Objections
2) Camera techniques for video depositions
3) Nondisclosure of testimony to third parties (confidential information)
4) Exhibits
5) Recesses
6) Sequestration of deponents.
Generally, it is not desirable to reserve all objections. First, the objecting process keeps you, as defending attorney,
alert and considering every question and answer. Second, it is easier to recognize and enunciate objections during
the course of the examination than it is while reviewing a transcript that is offered into evidence in the middle of
trial. Third, objections are one of the few ways you can show the witness you are standing by and with him in the
deposition. Fourth, objections interrupt the examiners smooth flow; if he asks objectionable questions, you should
not quickly give up your right to make the deposition less effective.
On the other hand, there are circumstances where it might be desirable to reserve all objections:
You want your witness to tell his story in an uninterrupted manner.
You are at a juncture where you do not yet know or do not want to reveal your objection strategy.
Your objections distract your witness.

If the examining attorney has requested that documents be produced, they are normally reviewed and copied, if
necessary, prior to beginning the deposition. If a large number of documents are to be produced, consider producing
them in advance of the deposition or taking a recess while opposing counsel reviews them. It is seldom productive
for you or your witness to sit and watch the opposition review files.
Some examiners proceed with an adverse partys deposition without first requesting production of documents.
When the witness identifies the existence of documents during the course of the deposition, they will then ask that
they be produced forthwith. How should you handle the request?
If you have previously reviewed the documents and have them available, you may want to produce them at that
time. One reason to do so is to avoid the possibility of a second deposition after the documents have been produced.
While there is no rule limiting the number of times a person may be deposed, most courts will not allow a second
deposition unless good cause is shown. Dont give your opposition good cause for a second deposition by refusing
to produce discoverable documents that are readily available.
If you have not reviewed the documents or they are not readily available, the better course is to decline to produce
the documents at the deposition. Rule 34 gives a party 30 days to review documents for privilege and to prepare
objections to requests. If the request is made during the course of the deposition, remind your opponent that he
chose to proceed with the deposition without first requesting documents. You can argue that a second deposition
should not be allowed in view of his tactical decision. You may want to create a record by asking the examiner if he
would like to defer the deposition until after he serves his requests for production. Indeed, this option should be
considered when the notice of deposition is first received.
If the documents are not readily available, your opponent probably will ask you to produce them at a later time.
Consider asking him to make a formal request under Rule 34 or instead to at least set out his requests by letter
which you will consider. Agreeing to produce documents on the spur of the moment can be dangerous, particularly
if you have not reviewed them. In addition, you may not remember to produce them after the deposition has
concluded; a Rule 34 request or a confirming letter will remind you.
One of your most important roles in defending the deposition is to protect your witness from unfair or improper
questions. If opposing counsels question is improper or misleading, you can and should object. If it calls for
disclosure of confidential or privileged information, consider advising your witness not to answer the question. And
where it appears that your witness is tired or does not understand the question, you must intervene and take
corrective action. None of these tactics should be used to obstruct a fairly conducted deposition; rather, they should
be used when the deposition is not fairly conducted or when your witness is tired or confused or is otherwise in
danger of making an inaccurate record.

Rule 30(d)(1) has been amended to define the manner in which objections are made at a deposition. The Rule
provides:
Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner.
A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation
directed by the court, or to present a motion under Rule 30(d)(4).
The amended Rule codifies a large body of case law which limited objections at depositions. Recently, in Miller v.
Waseca Medical Center, 205 F.R.D. 537 (2002), the court addressed the new amendment. The defendants argued
that the plaintiffs counsel made personal remarks and ad hominem attacks on defense counsel, all of which intruded
upon the course of the deposition.
The Miller court held that a party object and instruct a witness not to answer under limited circumstances and
warning that a party does so at its own peril if it is wrong on the merits of the objection. Id. at 538-9.
Whether intentional or not, opposing counsels questions may be confusing, misleading or otherwise improper. In
most cases, your objections should be short and to the point: Objection, leading question, Objection, hearsay,
Objection, assumes facts not in evidence, or Objection, lack of foundation. If the examining attorney asks for a
further explanation of your objection, provide a sufficient explanation to make a full record of your grounds for
objecting. Failure to provide an explanation may be grounds for overruling the objection at trialparticularly if it is
a curable objection. On the other hand, in order to expedite the deposition (and minimize the disruptive effect of
objections on the flow of the examination), the examiner should have the right to limit the objection to the simple
statement of objection.
Often the witness will answer a question before you have had time to consider it. If you conclude that the question
was objectionable, move to strike the answer, state the reason and note that the deponent answered so quickly that
there was insufficient time between question and answer to interpose the objection. This should be sufficient to
preserve your objection unless it was based on privilege and your opponent can claim waiver. If necessary, move
for a protective order with respect to your objection.
Consider making any objection that you would normally make if the testimony were offered at trial, even though
under the Rules all objections except those which are curable may be reserved until trial. See Chapter 7. This
procedure serves several purposes. First, it will help keep you alert during what otherwise might be several hours of
uninteresting testimony and thus ready to deal with those few trick questions which are slipped in. Second, your
witness will be reassured that you are defending himhe is not standing alone. Third, if the deposition is offered at
trial, you will have already preserved any objections you might have wanted to assert. Too often a portion of a
deposition is quickly offered at trial, and the defending attorney fails to make appropriate objections because he
does not have adequate time to consider the matter.
This does not mean that you should make every conceivable objection merely to place it in the record. Little
purpose is served by making minor technical objections such as to leading questions concerning background
information. Make objections for a specific reasonnot merely to enforce strict compliance with the rules on
unimportant points.
It is not proper to make numerous objections simply to attempt to interrupt the flow of the examiner. Such tactics
are not only unethical, they may be counterproductive. For one, they may cause your witness to become confused or
lose his train of thought. For another, if the deposition is offered at trial, your excessive objections may have an
adverse impact upon the trier of fact. Moreover, your witness must be prepared to stand on his own when he
testifies at trial.
Do not argue objections with opposing counselit is rarely fruitful. You usually will not convince him, nor him
you. It may interrupt the examining attorneys train of thought, but it is more likely to interrupt your witnesss train
of thought and concentration.
The decision as to whether to object must be based upon a specific strategy. At trial it is unlikely that you will
object to technically objectionable questions. Rather, you object when a purpose will be accomplished by your
objection. Similarly, in a deposition, whether you should object should be based upon a consideration of what is
best for you and your case and whether an objection will help accomplish your goal. Some factors to consider in
deciding whether or not to object:
It keeps you alert and attentive in what might be a boring circumstance.
It shows the deponent that you are supporting him and he is not standing alone against the examiner.
It is easier to make the objections during the course of the testimony instead of during the heat of trial when
the deposition may be offered.
It disrupts the examiners flowan appropriate objective so long as it is done for other primary reasons and
within the bounds of professionalism.
Objections ensure that the record is clear and clean (protected).
Is the objection necessary to keep out harmful evidence?
Consider the impact of objections upon your witness: does it confuse him, give him a welcome respite,
disrupt his thought processes, etc.?
What exactly do you want to accomplish?
832 Demeanor
832.1 Your Demeanor

Your demeanor during a deposition should be nothing less than that expected at trial. Your voice and conduct at
deposition should reflect confidence, attentiveness, alertness and, above all, professionalism. Not only does such
conduct and attitude transfer to the witness, but it also tends to make the witness much more comfortable in a
seemingly hostile and foreign environment. You should insure that your witness feels a sense of comfort by
protecting the deponent from harassing, oppressive and embarrassing examination. Avoid disclosing to your
opponent any personal weaknesses through facial expressions or body language.
832.2 Your Witnesss
You must be cognizant of any signals you receive from your witness. If your witness shows signs of fatigue, it will
generally effect the quality of his testimony. Likewise, if the witness exhibits anger or confusion, the witness may
make unintended statements that could harm otherwise favorable testimony. You may want to ask if the witness
needs a recess or request a recess on your own. If the witness has slouched down in the chair or if his voice begins
to falter, gently remind the witness to sit up or to keep his or her voice up.
Your witness will be relying upon you for protection during the deposition. As a result, never allow your opponent
to harass your witness through voice inflections or conduct. Even though taken outside the presence of the court, a
deposition is to proceed in a fashion approximating trial. Accordingly, the examiner is not allowed to shout at,
accuse, badger, hover over or act improperly towards the witness. If counsel does, you should immediately lodge
your objection and request that the offensive conduct stop. If the attorney refuses or continues, you may adjourn the
deposition to file a motion for a protective order with a request for sanctions.
If you anticipate a problem prior to the deposition, consider recording the deposition by video or audio tape so that
you will be able to demonstrate the improper conduct to the judge. Usually the mere audio recording of the
deposition will keep such an examiner in line.
A coaching objection is an objection meant as much to subtly hint to a witness how to answer a question as to
preserve evidentiary rights. It is also improper under Federal Rule of Civil Procedure 30(d)(1) (Any objection
during a deposition must be stated concisely and in a non-suggestive manner). What follows is a partial roster
of frequently-stated objections and comments by attorneys defending depositions, accompanied by a discussion of
how courts have addressed such objections and comments.
Asked and answered It may be surprising to many lawyers that there is, in fact, no rule of civil procedure
prohibiting an examiner from asking the same question more than once. Indeed, such a tactic may be a good test of
a witnesss veracity, for the simple reason that it is hard to tell a lie the same way twice. Yet, the defending attorney
rightfully should be wary of such questions as, even for the truthful witness, they invite contradictions in testimony.
The intent, then, of the asked and answered objection is to signal to the witness that the particular question has
been asked before and to take special care to answer it the very same way again. At its most pernicious, the
objection can be used to frustrate the discovery process entirely. For example, the examining attorney asks a
question. The witness evades the question. The examining attorney restates the question. The defending attorney
then objects as the question as asked and answered. The witness, emboldened by counsels objection, then refuses
to elaborate further claiming that the question has already been fully answered. The examining attorney never gets a
full or non-evasive answer to a proper question. For this reason, courts have looked askance at the objection,
particularly when accompanied by either an instruction not to answer or a witness who simply refuses to answer. In
part, courts analysis focuses on Rule 30(d)(4). If questions are being repeatedly asked to such an extent as to
unreasonably annoy, embarrass, or oppress the witness, the defending attorneys remedy is to suspend the
deposition for the purpose of seeking court intervention. Short of that, the examining attorney should be permitted
to ask questions unimpeded by defending counsel. See, e.g., Betts v. United Airlines, Inc., 1998 WL 1792475, *1
(N.D. Cal. Aug. 14, 1998) (stating that asked and answered is an improper basis for objecting to a deposition
question); El-Yafi v. 360 East 72nd Owners Corp., 1995 WL 276140, *1 (S.D.N.Y. May 11, 1995) (Asked and
answered is not an appropriate objection on deposition). Perhaps the most thorough discussion of the asked and
answered objection comes in Smith v. Logansport Community School Corporation, 139 F.R.D. 637 (N.D. Ind.
1991). There, the Northern District of Indiana wrote that:
In passing, the court must note that it would not be appropriate for counsel examining a deponent to repeatedly and
deliberately duplicate questions previously asked by other counsel. Such a practice, although not shown to have
occurred in this instance, could support a motion to terminate a deposition under Rule 30(d), if employed to such an
extent that bad faith or a motive to harass the deponent could properly be inferred. At the same time, however, an
oral deposition is not merely a device to uncover and develop information. It also provides a legitimate and efficient
means of testing a witnesss knowledge, recollection and veracity. To these ends, counsel should be free to follow-
up and explore the same subject matter covered during a previous examination, especially where the deponents
earlier responses were evasive, equivocal, or inconsistent with other testimony or evidence.
Id. at 646.
Answer only if you know This comment, often not even accompanied by the word objection falls within a
category of seemingly non-controversial (who could argue that a witness should answer if he or she does not
know?) remarks often made by defending counsel during depositions to hint to witnesses how to respond. This is
evident because the most common answer following an answer only if you know remark is I dont know. Not
surprisingly, where a pattern of such conduct is evident from a transcript, courts have imposed sanctions. See, e.g.,
City of New York v. Coastal Oil New York, Inc., 2000 WL 97247, *2 (S.D.N.Y. Jan. 28, 2000) (Review of the
entire transcript also shows that defense counsel often made objections which had the appearance of coaching the
witness by continually reminding the witness by stating, if you know, or if you remember.); Learning
International, Inc. v. Competence Assurance Systems Inc., 1990 WL 204163, *2-3 (S.D.N.Y. Dec. 13, 1990)
([Counsel] also objected in such a way as to suggest to witnesses that they should withhold information of which
they were not absolutely certain but which could have led to the discovery of admissible evidence. [Such objections
included:] You dont have to speculate. Answer only if you know).
You can answer, but only if you understand the question This is another of the seemingly non-controversial
remarks frequently stated during depositions, yet usually unaccompanied by the word objection. The intent,
however, is typically to break the questioners rhythm and to suggest to the witness how to be evasive in answering
the question. The court in Hall v. Clifton Precision, 150 F.R.D. 525, 530 (E.D. Pa. 1993) first noted that objections
are frequently interposed [improperly] for the purpose of disrupting the rhythm of a deposition, then stated:
I also note that a favorite objection or interjection of lawyers is, I dont understand the question; therefore the
witness doesnt understand the question. This is not a proper objection. If the witness needs clarification, the
witness may ask the deposing lawyer for a clarification. A lawyers purported lack of understanding is not a proper
reason to interrupt a deposition. In addition, counsel are not permitted to state on the record their interpretations of
questions, since those interpretations are irrelevant and often suggestive of a particular desired answer.
Id. at 530 n.10. See also Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697, 700 (S.D. Fla.
1999) (If the witness is confused about a question, or if a question seems awkward or vague to the witness, the
witness may ask the deposing counsel to clarify the question. Surely they are intelligent enough to know when
they do not understand a question). Apart from the suggestive nature of such interjections, courts have also decried
the prolonging effect of transcripts littered with such statements. Thus, in discussing abusive deposition tactics
generally, the court in McDonough v. Keniston, 185 F.R.D. 22, 23 (D.N.H. 1998), noted that, Multiple and/or
unnecessary objections, statements such as if you remember, if you understand, etc., prolong depositions.
You are mischaracterizing his testimony This is a tricky area for attorneys defending a deposition. In order
to follow-up on earlier testimony, questions frequently begin with the predicate, You testified before that This
is a buzz-phrase for defending counsel to listen-up. Whether what follows in the question is an accurate summary of
prior testimony or not, defending counsel is likely to object that the question mischaracterized the previous
testimony. The real objection here is foundation. If the summary of prior testimony in the predicate to the pending
question is not accurate, then the question lacks foundation. As discussed earlier, if the deposition is proceeding
under the Federal Rules of Civil Procedure, then it would be appropriate to object to the question as one containing
a defect that can be cured at the time of the question (because the examining attorney can rephrase the predicate).
However, if all objections except those as to form have been reserved to trial, then no foundation objection is
needed here. Thus, while a question containing a summary of prior testimony may invite a proper foundation
objection, courts will not condone anything other than a concisely stated objection, on the view that if the predicate
to the question does mischaracterize the earlier testimony, the witness is capable of saying so. See, e.g., City of New
York v. Coastal Oil New York, Inc., 2000 WL 97247, *7 (S.D.N.Y. Jan. 28, 2000) (ordering the re-opening of
deposition and that offending counsel pay for costs after counsel repeatedly instructed witness not to answer
questions, including on the ground that the examiner was mischaracterizing [the witnesss] testimony); Armstrong
v. Hussmann Corp., 163 F.R.D. 299, 302 & n.14 (E.D. Mo. 1995) (finding it was improper for defending counsel to
object to a question as mischaracterizing previous testimony and then stating on the record what the prior testimony
was, thereby signaling to the witness to answer the pending question consistently with the lawyers objection).
I am sure counselor would not want this witness to guess or speculate There is no rule that an examiner
may not ask a witness to guess or speculate. The objection likely grows out of the evidentiary rule of witness
competence. A fact witness may only testify at trial as to what the witness has personal knowledge. Therefore, a
deposition answer based on a guess or speculation likely would not be admissible at trial. Yet, the rules permit
inquiry into areas that would not be admissible at trial, as long as the questions appear reasonably calculated to
lead to the discovery of admissible evidence. Fed. R. Civ. P. 26(b)(1). A good practice when faced with such an
objection is to state clearly that you want the guess or speculation, then inquire into the process through which, or
the basis on which, the guess or speculation was made. You may indeed learn that the witness does have personal
knowledge of the matter of the inquiry, or you may discover other avenues (witnesses, documents) for further
discovery.
The document speaks for itself This is a common objection stated when a question asks for a witnesss
understanding or interpretation of a document. Lawyers understandably get quite nervous when questions get into
the content of documents, particularly when causes of action or defenses turn on the meaning of documents. Yet the
objection is really no more than a relevance objection, and courts are hesitant to permit defending counsel to be the
one to decide whether parole evidence would be permissible at trial. See, e.g., Collins v. Intl Dairy Queen, Inc.,
1998 WL 293314, *2 (M.D. Ga. June 4, 1998) (With respect to relevant documents, it is not a valid objection in
the deposition of a witness who has or may have some relevant knowledge concerning the document or its subject
matter, that the document speaks for itself. The questioning attorney ordinarily is entitled to inquire of a witness
concerning his or her relevant knowledge concerning the contents and subject matter of a document).
(Cutting witness off) I think youve now answered the question Every good witness preparation session
includes the advice to the witness to stop talking once the question is fully and truthfully (yet concisely) answered.
Invariably, however, witnesses ramble and go beyond the question asked. The inclination when defending a
deposition is to cut such witnesses off. If done with frequency during a deposition, courts have imposed sanctions.
See, e.g., Cholfin v. Gordon, 1995 WL 809916, *10 (Mass. Super. Ct. Mar. 22, 1995). Better to wait until a break to
remind the witness of the ground rules in answering questions.

This section looks at recesses and attorney-deponent conferences from the perspective of the attorney defending the
deposition (compare 637 above which looked at the issue from the perspective of the attorney taking the
deposition). This section examines three questions: 1) when should you call for a recess?; 2) what should you do
when your client asks for a recess?; and 3) what can you discuss during the recess?
Recesses called by defending counsel. While you do not control the transcript, you should be cognizant throughout
for times when it would be appropriate to take a break. You should of course think first about your client. Calling
for periodic breaks will help keep your client sharp. Similarly, it takes a lot of concentration defending a deposition,
listening to every question and formulating objections to be asserted in that moment between the end of the question
and the beginning of an answer. If you find your mind wandering in any way, ask for a break. In general, you
should wait until the end of a line of questions to ask for a break.
But there may be times when you want to take a break during a line of questioning. If your witness is struggling
with a line of questioning, you may want to ask for a break. If examining counsel will not agree, you will have to
decide whether to wait, or to march out of the room. While most courts look askance at such behavior, you may
want to do a quick weighing of the risks between staying in the room and the witness immolating on the stand or
marching out of the room and opposing counsel taking the time and expense to seek court intervention. Do not
forget, however, that if you set the precedent in a deposition of walking out during a line of questioning, you can
expect to face similarly obstructionist behavior the next time you are taking a deposition in the case.
Recesses called by the witness. Periodically, witnesses themselves will ask for a break. Often, the examining
attorney will agree right away. Sometimes, however, the examining attorney will ask to finish the line of
questioning. At this point, you need to assess the urgency of the witnesss request. Your client is counting on you to
protect him or her and backing your client up in this situation may outweigh the risk that examining attorney will
later seek court intervention for an improperly called recess.
What may be discussed during a recess. This is no prohibition of counsel and witness talking about matters
unrelated to the deposition during recesses. Also, courts generally permit discussions about general deposition
technique during breaks. Thus, during recesses you may want to take the opportunity to remind your witness of
some of the ground rules you discussed during the witness-preparation sessions, such as not speculating, answering
questions concisely, pausing before giving answers to permit time for objections, etc. Courts differ, however, on
whether it is permissible for counsel and deponent to discuss the substance of questions during recesses. Further,
courts have held that where conferences are held in circumvention of such prohibitions, the attorney-client privilege
may be waived as to the substance of the conference.
The leading case prohibiting a lawyer and witness from discussing the substance of questions during recess is Hall
v. Clifton Precision, 150 F.R.D. 525 (E.D. Pa. 1993). Noting that case law on the issue was scant at the time, the
Eastern District of Pennsylvania articulated a clear standard: lawyer and witness may not confer during a deposition,
even during breaks, unless to consider an issue of privilege. Because it is such a frequently cited case, it is quoted
from at some length here:
The witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers
coaching or bending the witnesss words to mold a legally convenient record.
The fact that there is no judge in the room to prevent private conferences does not mean that such conferences
should or may occur. The underlying reason for preventing private conferences is still present: they tend, at the very
least, to give the appearance of obstructing the truth.
These rules also apply during recesses. Once the deposition has begun, the preparation period is over and the
deposing lawyer is entitled to pursue the chosen line of inquiry without interjection by the witnesss counsel.
Private conferences are barred during the deposition, and the fortuitous occurrence of a coffee break, lunch break,
or evening recess is no reason to change the rules. Otherwise the same problems would persist. A clever lawyer or
witness who finds that a deposition is going in an undesired or unanticipated direction could simply insist on a short
recess to discuss the unanticipated yet desired answers, thereby circumventing the prohibition on private
conferences. Therefore, I hold that conferences between witness and lawyer are prohibited both during the
deposition and during recesses.
FN7./To the extent that such conferences do occur, in violation of this Opinion and Order, I am of the view that
these conferences are not covered by the attorney-client privilege, at least as to what is said by the lawyer to the
witness. Therefore, any such conferences are fair game for inquiry by the deposing attorney to ascertain whether
there has been any coaching and, if so, what.
Id. at 528-29. Since 1993, a number of jurisdictions, both federal and state, have followed Hall v. Clifton
Precisions lead. See, e.g., Collins v. Intl Dairy Queen, Inc., 1998 WL 293314 (M.D. Ga. June 4, 1998) (citing Hall
and holding that, [t]he witness and his or her counsel do not have the right to discuss documents privately before
the witness answers questions about them); In re Matter of Anonymous Member of the South Carolina Bar, 552
S.E. 2d 10, 16 (S.C. 2001) (Once a deposition begins, an attorney and a client may have an off-the-record
conference only when deciding whether to assert a privilege or a newly-produced document. Conferences called
to assist a client in framing an answer, to calm down a nervous client, or to interrupt the flow of a deposition are
improper and warrant sanctions); In re PSE&G Shareholder Litigation, 726 A.2d 994 (N.J. Super. Ct. 1998)
(prohibiting conferences during breaks including lunch recess, but permitting conferences at the conclusion of
each day of a multi-day deposition).
Not all jurisdictions to have considered the question have taken such a hard line. The leading case criticizing the
breadth of the Hall v. Clifton Precision holding is In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614 (D.
Nev. 1998). There the District Court for the District of Nevada wrote:
[T]his Court is of the opinion that the Hall decision goes too far and its strict adherence could violate the right to
counsel. The Hall decision effectively precludes counsel and his witness from speaking to each other once a
deposition has begun, until it is finished. If they so much as speak to each other, opposing counsel then has the right
to inquire into everything that was said. It is one thing to preclude attorney-coaching of witnesses. It is quite
another to deny someone the right to counsel.
If [breaks] are requested by the deponent or deponents counsel, and the interrogating attorney is in the middle of a
question, or is following a line of questions which should be completed, the break should be delayed until a
question is answered or a line of questions has been given a reasonable time to be pursued. So long as attorneys
do not demand a break in the questions, or demand a conference between questions and answers, the Court is
confident that the search for truth will adequately prevail.
Id. at 620-21. The reasoning in In re: Stratosphere Corp. Securities Litigation seems to provide a fair balance
between protecting the truth-seeking functions of depositions while still giving counsel defending depositions
proper leeway.
Because of the variation in rules among jurisdictions, before defending a deposition in a particular jurisdiction, you
should look up the applicable rules of attorney-deponent conferences.

Effective December 1, 2000, an oral deposition is limited to one day of seven hours. As newly amended, Rule
30(d)(2) provides:
Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven
hours. The court must allow additional time consistent with Rule 26(b)(2) if needed for fair examination of the
deponent or if the deponent or another person, or other circumstances, impedes or delays the examination.
In two recent cases the court has decided that the seven hour rule must be flexible and may not be used as a strict
time limit. In Sabre v. First Dominion Capital, 201 WL 1590544 (S.D.N.Y., Dec. 2001), the court was confronted
with a witness who had substantial knowledge in his individual capacity and as a designated Rule 30(b)(6)
corporate representative. Sabre held that two independent seven-hour periods apply noting that a Rule 30(b)(6)
deposition is substantially different from a deposition of an individual. Id. at 1. The court reasoned:
Any entity that wanted to limit the testimony of an individual could accomplish that goal by designating the
individual as a 30(b)(6) witness; under defendants interpretation, every minute spent conducting the 30(b)(6)
deposition would be deducted from the time available to probe the witnesss individual knowledge. Conversely,
defendants interpretation would also permit any entity to curtail 30(b)(6) examinations by designating as a 30(b)(6)
witness a person who previously testified for six hours as an individual and has only one hour left on his or her
presumptive seven-hour clock. An interpretation that would lead to such absurd results must be rejected. Id.
The Sabre court went on to observe that its ruling does not mean attorneys have carte blanche to depose a witness
for seven hours as an individual and seven hours as a corporate representative. In many cases when dealing with
closely held corporations, the knowledge of an individual also constitutes the substantive and complete knowledge
of the entity. Id. at 2.
In Miller v. Waseca Medical Center, 205 F.R.D. 537 (D. Minn., 2002), the defendants complained that the witness
was evasive and answered yes or no questions with long narrative replies which exhausted the seven hour time
allotted. Recognizing its duty to enforce the new Rule, the Miller court held that additional time was needed for a
fair examination of the witness under the circumstances. The court admonished the parties to refrain from repetition
and unnecessary colloquy and to answer questions directly. Id. at 538.
The Advisory Committee notes recognize that reasonable breaks are necessary during a deposition and that the
parties should not become preoccupied with timing. Factors that justify longer depositions include questioning:
About events that occurred over a long period of time
About numerous or lengthy documents that the deponent has not read
About previously unproduced documents which were requested
By multiple attorneys in multiparty litigation so long as the questioning is not duplicative
Full exploration of an expert witnesss theories and techniques
The Rule clearly contemplates that depositions be conducted in an efficient and organized manner. The examiner
must have a well-organized outline to his questioning and a well-defined strategy for obtaining the testimony that he
needs for his case. The days of deposition marathons are over.
The Rule also clearly contemplates that when there are multiple parties to the case, that if one attorney conducts a
seven hour deposition of a witness, then another attorney shall not be deprived of ample time to examine the
witness. However, under Rule 26(b)(2), the questioning cannot be redundant or duplicative. The time limits force
the attorneys to interrogate the witness with relevant questions, learn what the witness has to offer on the merits of
the controversy and conclude the deposition.

Objections: One of the most important roles of the defending attorney is to make objections to questions. Rule
32(d) provides that objections to improper questions are waived if not made at the time the question is asked. See
730. Hence, in the event that the deposition is used at trial, proper objections must be made during the course of
the deposition so as to exclude inadmissible evidence at trial. Chapter 7 covers the scope of potential objections.
Section 831 defines the manner of making objections.
Motions to Strike: Sometimes the answer of the witness includes objectionable testimony. For example: hearsay,
privileged information, scandalous or prejudicial statements. If the objectionable nature of the testimony was
anticipated from the question, of course an objection should have been made to the question. However, once the
testimony is given without objection to the question, you must move to strike the testimony. Like objections, the
motion to strike is for the record and will be ruled upon by the judge should the testimony be offered into
evidence.
Instructions Not to Answer: In a few circumstances, the defending attorney should instruct the witness not to
answer the question. (If the witness is not a client, the defending attorney can merely state his objection and request
the witness not to answer.) See 740. In brief, instructions (requests) to the witness not to answer the question are
generally appropriate where irremediable damage would occur if the question were answered subject to objection.
However, the alternative of adjournment and filing a motion for a protective order is more appropriate in certain
circumstances.
Often in the course of a deposition, the defending attorney may interrupt the question or answer to clarify the
question or to clarify the answer. Just as during trial, this procedure may be proper or improper depending upon the
circumstances. See 542 and 647, supra.
If the questioner does not object to the defenders efforts at clarification, the procedure is proper. The examiner may
appreciate clarification of a question, rather than an objection, particularly in an area in which he is not informed. It
may enable the examiner to get to the heart of the inquiry (which the defending attorney may want) much more
quickly. On the other hand, if the examiner objects to such procedures, narrative clarifications are improper and the
defending attorney should simply note his objection based upon ambiguity, etc.
Practice Tip: Reenactments at Deposition

Reenactments at a deposition have been found to be an efficient and helpful means of discovery,
Kiraly v. Berkel, Inc., 122 F.R.D. 186 (E.D. Pa. 1988), Roberts v. Homelite Div. of Textron, Inc., 109
F.R.D. 664, 668 (N.D. Ind. 1986). While this privilege has been embraced by many jurisdictions, it is far
from being universally accepted. See, e.g., Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 183
F.R.D. 458, 462 (D. Md. 1998); Bohannon v. Honda Motor Co. Ltd., 127 F.R.D. 536, 538 (D. Kan. 1989);
Resolution Trust Corp. v. Heiserman, 151 F.R.D. 367, 374 (D. Colo. 1993). Consult your jurisdiction's
rules as to whether the opposing counsel may require such nontestimonial conduct by your client. If not,
you may well want to prohibit, by objection, any attempt to have your witness reenact the event in
controversy, other than through providing an oral description.
Similarly, the defending attorney may interrupt to clarify the answer of the witness. This too may or may not be
improper, depending upon the examining attorneys attitude. Generally, if the witness made an obvious error, e.g., a
date, it usually is better to correct it immediately rather than hours later. On the other hand, technically you may
make corrections only by cross-examination. However, in the courtroom correction of obvious errors is permitted,
and so too in depositions.
See 542. As defending counsel you should be particularly alert to the witness becoming fatigued. Depositions are
not intended to be trial-by-exhaustion, and you should call for recesses to avoid a witness testifying while fatigued.
Rarely would anyone object to a ten-minute recess after every hour of testimony. More frequent recesses may be
appropriate, depending on the reasonable needs of the particular witness.
Use the recesses to refresh the witness. Usually the witness should walk around, and not just sit. Physical activity
relaxes and rests the mind. Similarly, use the time to build the witnesss confidence (or, in some instances, to deflate
his ego). If necessary, remind the witness of the basic rules of being deposed, and of the big picture. However, do
not use the time to discuss details. Keep his mind clear, dont reload it with detail.
Conferences should be held with the witness after a question but before the answer only in very limited situations.
For example, if either you or the witness perceive that a question propounded might call for privileged testimony, a
conference might be justified to discuss a non-privileged response, or whether an objection must be asserted.
In most situations, the witness, particularly if unprepared, is a poor match for a competent examiner. Add the
disparity created by training, experience and preparation of the examiner to the psychological concern about a
deposition that many witnesses exhibit, and the potential for incorrect testimony is substantial.
Hence, an important role for you is that the witness identify with you as his defender or supporter. Often this role is
only in the imagination of the witness, but it is still important. The role may be created by your relationship with and
demeanor toward the examiner before and during the examination, the tone of your objections, your comments
during recesses, etc. When the examiner is an aggressive or obnoxious lawyer, create the impression with your
witness that he is not standing alone.
Among your many tasks during the course of defending a deposition is to be sure the record is clear, unless you
conclude that a confusing record would be more in your clients interest. Generally, you have no obligation to
correct the examiners mistakes.
The best approach to a clean transcript is to recognize that it is not video, and gestures will not be recorded:
If the witness answers a question by nodding yes or no, request that he verbalize the answer, or note for the
record that the witness answered yes or no.
If the witness refers to a size by pointing to something, ask him to verbalize it into standard measures.
If the witness begins his answer before the question is concluded, ask him to pause before answering. Check
that the reporter has the question and the answer.
If the witness refers to this document, clarify by stating that the witness is referring to Exhibit
____________.
A few other hints are equally important:
Be sure the witness allows the examiner to complete the question before answering, and vice versa. The
reporter cannot record two people talking at once.
Be sure the examiner and the witness do not use unintelligible words.
Sometimes the bad-faith examiner so exceeds the scope of propriety in his examination that action must be taken
beyond instructing the witness not to answerit is necessary to seek to terminate the deposition because of the bad
faith of the examiner.
For example sometimes the mere asking of the questioneven if the witness refuses to answer itmay cause the
witnesss testimony thereafter to be unreliable. For example, in some instances questions about the deponents sex
life, about particular details of an accident; details about the death of a loved one, etc. may have a major mental
impact on the witness. If such questions are asked in bad faith, it may be grounds not only under Rule 26(e)(4) for a
protective order precluding examination into the areas, but also for an order under 26(c)(1) terminating the
examination. Obviously, such a remedy is appropriate only in extreme circumstances. See, Hearst/ABC-Viacom
Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 59, 62-63 (E.D. Pa. 1992) (length of deposition
alone is not determinative of bad faith). That said, the defender cannot terminate the deposition; he can only recess
the proceedings so as to provide time to seek an order of termination.
Sample: Motion to Terminate Deposition for Bad Faith

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION TO TERMINATE DEPOSITION FOR BAD FAITH

Pursuant to Fed. R. Civ. P. 30(d)(3) and 26(c)(1), Defendant Big Business, Inc.,
moves the Court for a protective order terminating deposition of Samuel P. Bigshot
for bad faith. This motion is made on the grounds that Plaintiff's counsel's
questions concerning Mr. Bigshot's private life and his relationship with his
children and ex-wife are irrelevant to such proceeding, are made in bad faith, and
are meant only to annoy or embarrass Mr. Bigshot.
BIG BUSINESS, INC.,

By its attorney,
________________________
O. Posing Counsel
30 Ash Street
Dated: _______________
DECLARATIONS
Your motion should include declaration(s) setting forth the basis of the motion, i.e., inappropriate questions, over
objections, harassment of witness; relevant portions of transcript, if available, and your good faith efforts to resolve
the dispute prior to filing the motion.
MEMORANDUM OF LAW
Your motion should include a memorandum of points and authorities in support of the requested relief.
Rule 30(d)(2) allows for sanctions on a person who impedes, delays or frustrates the fair examination. The main
sanctionable activities include, among other actions, coaching the witness, extraneous colloquies by counsel,
interruptions, excessive recesses, speaking objections and improper instructions not to answer. Courts may levy
costs for this conduct, including attorneys fees, on the person acting in such manner. As such, these sanctions can
be levied against the attorney as well as the deponent.
Defending attorneys are advised to take reasonable steps to ensure your deponent is not engaging in any
obstructionist tactics. Likewise, deposing attorneys should be on the lookout for these tactics and, where
appropriate, terminate the deposition under Rule 30(d)(3) and move to compel further responses and for the
imposition of sanctions.
Using Rule 30(g), parties may also recover costs via sanctions for the failure of a deponent or their representative to
attend the deposition. These costs include attorneys fees. In addition, under Rule 37(b)(2), a court has the
discretion to levy such an extreme sanction as dismissal of the entire claim for discovery violations.
Sanctions may also result for refusal to answer questions or evasive and unresponsive tactics and the subsequent
filing of a motion to compel answers. These sanctions are discussed further in 635.

Regardless of the time they spend preparing, few witnesses are skilled at the deposition process and most will
quickly revert to their natural character as they respond to your opponents questions. What can and should you do
when your witness persists in volunteering information or fails to answer the question asked? Like other situations,
it depends upon the witness, the situation, and your opponent. Sometimes there is little you can do.
After a nonresponsive answer, one option is to move to strike and state explicitly to the witness that the answer was
not responsive and that he must listen carefully to the questions. You can also use recesses to reinforce your earlier
admonitions and to emphasize the dangers of his tactics.

Like trials, depositions are adversary proceedings. A witness is required to answer fully and truthfully the question
asked: no more, no less. So, what do you do when the witness gives long narrative responses not limited to the
question asked? The first step, where possible, is to seek a recess to confer with your witness and advise him to limit
his answer to the question asked. If he fails to follow your advice, or if there is no opportunity for a recess, move to
strike his answer in whole or in part on the ground that it is not responsive. Admonish the witness, politely but
firmly, that he should answer only the question. If the witness persists and he is a friendly witness, take another
recess and again explain the procedure and what is expected of him. Explain the dangers of volunteering
information.

Many witnesses become emotionally involved with the case and, if presented the opportunity, will argue with
opposing counsel during the deposition. If your witness is drawn into an argument with opposing counsel, object
and move to strike argumentative questions and answers from the record. Try to take control of the situation and let
both opposing counsel and your witness know that you wont tolerate such behavior. If that fails and your witness
persists, take a recess and discuss the mutter with your witness. Explain the adverse effect of his argumentative
answers, including the fact that it only prolongs the deposition. If you must reprimand your witness, be careful to
use only that degree of reprimand that will place the witness in the proper frame of mindnot so much as to destroy
his confidence.

On occasion a witness will find that he has suddenly lost his memory or that he cannot answer a question which he
easily answered earlier when you were preparing for the deposition. If you encounter this situation, take a recess
and try to determine the cause of the forgetfulness. Is he afraid or nervous? If so, build up his confidence with
assurance of the fine job he is doing. The mere act of taking a break may calm him down sufficiently to allow him
to regain his memory.
Urge your witness to take time to think about each question. If it might help, consider producing documents which
might refresh the witnesss recollection. As an alternative, have your witness explain on the record that specific
documents might refresh his memory. It is then up to your opponent to place those before him if he wants to get the
full story. At the least his impeachment at trial will be less effective if he chooses not to use the documents.
Sometimes a witness will get the idea that he is gaining some tactical advantage by being forgetful. Point out that if
he testifies that he cannot remember facts today he will be subject to sharp impeachment at trial if he suddenly
remembers. Urge him to do his best to answer each question as completely as possible.

Witnesses who do not speak English, or who do not speak or understand it well, present their own unique issues.
1. If the witness does not speak English, the party noticing the deposition must provide one, unless otherwise
ordered by the court.
2. Even if the witness is supposedly fluent in English, should an interpreter be requested? Depositions are
about words, and a witness must have a mastery of the language far beyond that required for simple survival
in society in order to testify well. A witness who speaks haltingly or minimal English may not be able to
testify to the distinction between chronic and acute pain. Counsel for such a witness may be remiss in not
requesting an interpreter, even if it means paying for the interpreter.

All but the most careful witnesses will occasionally make a mistake or otherwise testify inaccurately. During
preparation sessions with your witness, encourage him to make corrections immediately upon discovering a
mistake. Whenever he realizes that his testimony is erroneous, he should know that he has the right and duty to
correct himself.
If you discover that your witness has erred or has not been complete in his answer, you should endeavor to correct
the record. Depending upon when the discovery is made, you may have to choose from one of several options. The
first is to consider interjecting to make sure the record is clear. For example, if your witness has testified that he
only wrote to the defendant in March and you know that he has overlooked another letter, consider interjecting:
Excuse me but just so the record is clear, did you consider your letter of April 4 when you answered that
question? While technically this is not a correct procedure, you may want to consider it on those rare occasions
when you can do so without it appearing that you are coaching the witness. Please note that this technique should
not be used as a guise for coaching the witnesswhich is clearly not proper. It is simply to be sure an important fact
is not overlooked.
A second option is to await a recess and discuss the testimony with the witness. Upon recommencement of the
deposition, the witness can announce that he wishes to make a correction of his earlier testimony. If further
examination on the subject is anticipated, another alternative is to wait for an opportunity to correct the prior
testimony as the part of an answer to a new question. However, if the examiner does not return to the subject, the
opportunity will be lost.
A third option is to await your cross-examination and question the witness about the testimony at that point. While
this is technically a correct procedure, it has practical disadvantages. The first lies in the possibility that you will
forget to raise the point once you have the opportunity. Depositions can take days and can cover substantial ground.
The second lies in the advantage of having the correction on or near the same page as the erroneous testimony. If
you wait until cross-examination to correct the testimony, you will have to find it later if the incorrect version is
offered at trial.
If the error is relatively minor, you have the option of waiting until the transcript is prepared. The witness always
has the opportunity to correct any errors he discovers. The downside to this method is that the witness can be
accused of changing his testimony after having met with his attorney. In most cases, it is better to correct the
testimony during the deposition. See 458.2.

Once the examining attorney has completed his examination, you have the opportunity to question the witness.
Should you question the witness? If the witness is friendly and is likely to testify on your behalf at trial, most
attorneys pass on cross-examination. However, you should not be so quick to waive this valuable right. You should
first consider the following:
Is the witness cooperative, neutral or adverse?
If the witness is cooperative and will be available at trial, there is ordinarily no reason to elicit further facts from
him. You can interview him to obtain full information without your opponent learning everything that you learn.
Normally it is only when you are uncertain about the witness or his testimony that you should preview his testimony
by recording it in the deposition.
Has the opponent established any facts adverse to your case that might be mitigated by further examination?
If your opponent has established certain facts which appear negative to your case but which could be mitigated
through cross-examination, consider asking those questions.
Is it better to defer my examination until trial?
Would the use of this deposition prejudice you at trial if the witness were to become unavailable to give testimony?
If your answer is yes, consider carefully whether you should try to clear up the record before the deposition has
been concluded. Many lawyers do not bother to do so on the assumption that their witness will be available at trial.
But can you be so sure? People move away, take new jobs or become incapacitated without warning. If you do not
cross-examine, you may lose your opportunity to bring out this testimony at trial.
Moreover, if the witness is a party or party representative, the deposition may be offered against him at any time. If
you have not cross-examined your witness, you may not be able to offer your side of the story until later in the trial
when you can call your witness. In a lengthy jury trial, this could be a significant disadvantage and could prompt
you to cross-examine when the record does not tell the whole story with respect to a key point.
Do you know what the answers to your questions will be?
The golden rule of cross-examination is: dont ask a question unless you know its answer. If you havent prepared
your witness for cross-examination, you are taking great risks if you proceed. At the least, ask for a recess before
you begin your questioning.
Do you want to use the deposition to promote settlement?
If you have prepared helpful testimony, you might want to display it in order to promote a settlement. The downside
to this strategy is that it tips off your opponent to your tactics.
Are there any corrections to the testimony that should be made?
As discussed earlier, this is one important reason to conduct cross-examination.
If the witness is adverse or neutral (but not cooperative) to you, you may choose to conduct full cross-examination
in order to learn what he has to say. In such a case, you should proceed as if you noticed the deposition.
Will the witness be available at trial?
If the witness may not be available at trial, there obviously is a greater need to bring out all testimony helpful to
your cause.
Does the witness have any favorable knowledge that should be brought out in the event he is unavailable for
trial?
Do you need to discover what further knowledge the witness might have?
Should you impeach the testimony of an unfavorable witness?

Once all questioning has finished, the deposition is concluded. In some cases the examiner may seek to simply
recess the deposition, to be reconvened in the future. There may be a valid basis for recessing rather than
concluding: the witness may have failed to produce documents requested pursuant to Rules 45 or 34, the witness
may have refused to answer questions, etc. In those instances, a recess is appropriate.
If there appears to be no valid basis to recess rather than conclude the deposition, you should object to the proposed
recess, state that the witness is present for any further questions, and that otherwise the deposition is concluded. If
you do not, your opponent may claim the right to thereafter resume the deposition and may seek to have you
produce the witness again.
If you have not already reached agreement on these points, consider stipulations regarding the reading, correcting
and signing of the transcript by the witness. Under Rule 30(d), the witness and the parties may stipulate to the
procedures for reviewing the deposition and you may be able to save your client the inconvenience of having to
review his deposition at the court reporters office. Moreover, the parties may waive any review or signing by the
witness altogether. From the defending attorneys point of view, this is usually not desirable.

As soon as possible after the conclusion of the days examination, prepare a summary memo. Points that you may
want to cover include:
Evaluation of the witnesss performance. A year or more later your memory of the witness may be dimmed.
However, an accurate valuation of his credibility and potential impact may be essential to your evaluation of
the case for settlement, or your strategy as to how to use the witness at trial.
Considerations when you prepare the witness to testify at trial. Did he speak too quickly, did he answer
nonresponsively, did he volunteer, etc. The key is to learn from being a deponent how to be a more effective
witness at trial.
Any further factual investigation that should be done, based upon the examiners questions as well as the
witnesss answers.
Any legal or factual theories the examiner appears to be advancing that were not previously considered.
Any points that should be covered during future depositions of your witnesses or those whom you will
depose.
Your thoughts on any instructions to the witness not to answer, if it appears the examiner may file a motion
to compel. The reasons and basis for your instruction may not be as obvious weeks later when it is time for
you to respond to such a motion.
As soon as the transcript is received, carefully review it for possible errors in the testimony. If you believe
there are errors, discuss them with the witness so that he may consider whether he should make any
corrections.

Some practitioners keep a deposition notebook in which, after each deposition, they write down things that did or
did not work during the deposition. These practitioners find it helpful to periodically review their deposition
practice notes so as not to repeat prior mistakes. Particularly for junior practitioners such discipline helps ensure that
each deposition will serve as a learning experience.

Daniels, Defending Depositions, 71 ABA Journal 53 (Oct., 1985)
Hamilton, Taking and Defending Depositions, II, No.2 Litigation 20 (Winter, 1985)
Chapter 9
Special Deposition Situations


911 Procedural Requirements for Depositions Taken Prior to Commencement of an Action
Sample: Motion to Allow Deposition of Susan B. Verysick to Perpetuate Testimony Pending Appeal
913 Use of Rule 27 Depositions
934 The Reporter

From time to time, special deposition situations arise which are not governed by the normal rules and procedures.
For example, you may want to take a deposition prior to the filing of a case, or pending appeal. Or you may need to
take a deposition out of state or in a foreign country. For most practitioners, these situations are unusual if not rare.
However, when they arise, they are important. This chapter will provide a brief overview of handling these
situations.

At some point during your career, you may need to take a deposition prior to filing a lawsuit. One reason might be
that a key witness is ill, aged, or about to leave the jurisdiction. Another is because you don't feel that you have
sufficient facts upon which to base a lawsuit and an adverse party has the information needed for your investigation.
In either event you haven't yet filed a lawsuit but you need information or need to preserve testimony. What do you
do?
Rule 27 governs the taking of depositions before an action has been filed or while your case is on appeal. In a case
that has not been filed, Rule 27 requires that you file a verified petition for leave to take a deposition in a United
States District Court in the district in which any one or more of the expected adverse parties resides. The petition
must be filed in the name of the petitioner and must allege that the petitioner expects to be a party to an action
cognizable in a court of the United States, but is presently unable to bring it or cause it to be brought.
The words cause it to be brought are important for potential defendants. In many cases a plaintiff waits until just
before the statute of limitations has run before bringing suit. This may work a tremendous disadvantage on a
defendant who may find that witnesses have moved or evidence is lost once suit is filed. Where a suit is likely but
may not be filed for several years, a defendant may take advantage of Rule 27 to discover and preserve evidence
and testimony.
The petition for leave to take a deposition must also include the following information:
The petitioners interest in the subject matter of the expected action.
The facts which the petitioner desires to establish by the deposition and the reasons for desiring to perpetuate
these facts.
The names or descriptions of the persons the petitioner expects to be adverse parties and their addresses so
far as known.
The names and addresses of the persons to be examined and the substance of the testimony which the
petitioner expects to elicit from each.
See Annotation, Right to Perpetuation of Testimony Under Rule 27 of Federal Rules of Civil Procedure, 60 A.L.R.
Fed. 924 (1982). In essence, the petition must show a compelling reason why the deposition should be taken prior to
the institution of a lawsuit between the parties and must assure the court that other interested parties will have an
opportunity to participate in the process.

PETITION TO
PERPETUATE
TESTIMONY OF
_________________
Petitioner (name) states:

1. Petitioner is a resident of ________ and state of ________ which is within
the jurisdiction of this court. (Name of prospective defendant) is a resident of
the state of ________ and is subject to the jurisdiction of this court.
2. Petitioner intends to file a complaint in this court against (name of
prospective defendant) seeking to [here state the nature of the cause of action
and relief sought, i.e., to recover damages for personal injuries caused by
negligence of defendant and sustained by petitioner].
3. [In this paragraph you should describe the basic facts upon which you claim
liability arises.]
4. [In this paragraph state the reason(s) why the deposition is needed
immediately, i.e., witness is terminally ill.]
5. Petitioner desires to perpetuate the testimony of ________ . The testimony
of the witness is expected to disclose that [set forth substance of anticipated
testimony].
WHEREFORE, Petitioner prays that the court issue an order authorizing (him/her) to
take the deposition of ________ upon oral examination for the purpose of
perpetuating (his/her) testimony pursuant to Rule 27 of the Federal Rules of Civil
Procedure.

VERIFICATION
Since the Rules require a verified petition, your petition should contain the appropriate declaration attesting to the
facts in the petition.
911 Procedural Requirements for Depositions Taken Prior to Commencement of an

Action
Rule 27(a)(2) sets forth the procedures you must use to notice the deposition. The first step is to serve a notice upon
each expected adverse party stating that the petitioner will appear before a court at a designated time and place to
request leave to take the deposition. (A copy of the petition to the court seeking leave to take the deposition must be
attached to your notice.) The notice must be served in accordance with the rules for service of process as set forth in
Rule 4(d) and may be served either within or outside of the district where the request will be heard. Moreover, it
must be served upon all necessary parties at least 20 days prior to the date of hearing. In exceptional circumstances,
and upon a showing that service cannot be made upon any expected adverse party despite due diligence, the court
has latitude to make other orders for service including for service by publication as it deems appropriate. If service
cannot be made in accordance with Rule 4(d), the court is directed to appoint an attorney to represent the unserved
potential adverse party. If the expected adverse party is a minor or incompetent, the court is directed to appoint a
guardian or other representative pursuant to Rule 17(c).
Rule 27 does not set forth guidelines for determining whether the proposed deposition should be allowed.
Presumably a good cause standard will be used. If the court allows the deposition, it must enter an order identifying
the persons who shall be deposed and specifying the subject matter of examination. The court must also specify
whether the deposition should be taken upon oral examination or by written interrogatories. In all other respects, the
deposition proceeds in accordance with the normal rules of discovery. Where disputes arise, the court who has
authorized the deposition is authorized to resolve them and it acts in place of the court where the action would be
pending if suit had been filed.
NOTICE OF DEPOSITION
OF ____________________
Date: ___________
Time: ___________
Place: ___________

will take the oral deposition of (name) whose address is __________ before (name
of court reporter) , a certified court reporter, and which will continue day to
day until completed.
The testimony of (name of witness) will be taken pursuant to the order of court
dated (date) , a copy of which is attached hereto.


In some cases you may need to depose certain witnesses while your case is on appeal. For example, if the trial court
has granted your opponents motion to dismiss or for summary judgment, you may risk the loss of key witnesses
before the appeal can be determined. Consequently, Rule 27(b) authorizes you to file a motion with the district court
for leave to take a deposition. As with a motion to take a deposition before an action is filed, Rule 27 (b) requires
you to specify the names and addresses of the persons to be examined, the substance of the expected examination,
and the reasons for perpetuating their testimony. Upon the courts finding that the perpetuation of the testimony is
proper, it may order that the depositions be taken.
Sample: Motion to Allow Deposition of Susan B. Verysick to Perpetuate Testimony Pending
Appeal

DISTRICT OF STATE
______________________________________
)
JOHN D. HARMED, )
)
Plaintiff, )
)
v. ) No.: 555-555-XYZ
)
)
Defendant. )
______________________________________)
MOTION TO ALLOW DEPOSITION OF SUSAN B. VERYSICK

TO PERPETUATE TESTIMONY PENDING APPEAL
Pursuant to Fed. R. Civ. P. 27(b), Plaintiff, John D. Harmed, moves the Court for
an order to permit deposition of Susan B. Verysick pending the appeal on file.
This motion is made on the grounds that Ms. Verysick is a material witness that
Plaintiff intends to call in further proceedings concerning this matter. Ms.
Verysick, however, is also terminally ill. Preserving the requested testimony will
ensure the relevant information pertaining to the dispute is available for any
further proceedings should they prove necessary.
JOHN D. HARMED,
By his attorney,
_________________________
5 Main Street
Dated: _______________
DECLARATIONS
Your motion should contain declaration(s) that set forth relevant and admissible facts justifying the need to take the
deposition in the event of further proceedings.
MEMORANDUM OF LAW
The motion should set forth relevant law in support of the relief sought.
913 Using Rule 27 Depositions

A deposition taken in accordance with Rule 27 may be used in any action involving the same subject matter
subsequently brought in a United States District Court. See Rule 27 (a)(4). Curiously, the Rule also provides that if
the deposition is not taken pursuant to Rule 27, it can be used if it would otherwise be admissible in evidence in the
courts of the state in which it was taken. Presumably, this provision was added to encompass depositions taken
pursuant to state court authority prior to an action being filed. In either case, the provisions of Rule 32(a) govern the
use of the deposition in court proceedings.

Rule 27(c) provides that Rule 27 does not limit the power of the court to entertain an action to perpetuate testimony.
The notes of the Advisory Committee explain that this section preserves the right to employ a separate action to
perpetuate testimony under Title 28 U.S.C., former 644 as an alternative method of taking a deposition prior to the
filing of an action.

Because more and more cases cross state and even national boundaries, you will find yourself frequently taking
depositions out of state or outside of your district. Under the federal rules, the procedure for taking depositions in
another district is generally the same as for taking a deposition in the forum district. Getting leave to take a
deposition out of state in a state case often involves additional steps or added complications.

If your out-of-district deponent is a party or an officer, director, managing agent or designated person under Rule
30(b)(6) of a party, the procedures are the same as if the deposition were to be taken in the forum district. Your
notice of deposition will compel attendance of a party to an out-of-district location just as it would to a deposition
held in the forum district. See Chapter 2. Similarly, if you receive such a notice directed to your client, you have the
same options to object to the notice or move for a protective order. The latter is particularly appropriate if the out-
of-district deposition is in a location which is inconvenient for you or your witness.
Rule 26(c) gives you two courts in which to file a motion for protective orders regarding an out-of-district
depositioneither the court in which the action is pending or the court in the district where the deposition is taken.
The Eighth Circuit has held that while Rule 26 permits either court to adjudicate the dispute, the moving party must
first file in the jurisdiction in which the deposition is held. In re Digital Equipment Corp., 949 F.2d 228, 231 (8th
Cir. 1991) (proper place for motion to compel was district court in which the deposition occurs; court where action
is pending only has jurisdiction if court where depositions are to take place transfers the motion thereto). Therefore,
you should file objections to depositions in the district wherein the deposition is set to be taken, but be aware that
the court has discretion to transfer the matter back to the forum court.

Rule 45 makes the noticing and taking of an out-of-district deposition fairly simple. In order to compel a nonparty
witness to attend a deposition, you must serve him with a subpoena issued by the federal court sitting in the district
in which the deposition is to be taken. Rule 45(a)(2). The forum court has no power to compel attendance at a
deposition held outside the district in which it is located. Only the district court in the district where the deposition
is to be taken may compel attendance and enforce a subpoena through its contempt powers. Id. Rule 45(c)(3)(A)(ii)
requires that a deponent who is not a party or an officer of a party be deposed within 100 miles from where the
deponent resides, is employed or regularly transacts business in person.
Under Rule 45(a)(3), subpoenas are issued by the clerk, or by a lawyer (a) for a court in which the lawyer is
authorized to practice or (b) a court for a district in which a deposition or production is compelled, if the deposition
or production pertains to an action pending in a court in which the attorney is authorized to practice. Once the
subpoena has been issued, it must be served upon the deponent in accordance with Rule 45(b)(1). A subpoena may
be served by any person who is not a party and is not less than l8 years of age. This includes the United States
Marshal, but marshals in many districts will not serve civil process or will require advance payment of fees. If you
plan to use the marshal, check in advance. If the marshal will issue your subpoena, mail the subpoena and
supporting documents to the marshal, together with your check for witness fees and mileage, plus a check for his
fees.
Private process servers are usually the preferred alternative to the marshals office for service of subpoenas. Either
an attorney in the area or the Yellow Pages can provide names of process servers.
A subpoenaed nonparty deponent may seek protection in the Court which issued the subpoenai.e., the Court in
whose district the deposition is or was to be taken. See Rule 45(c)(1), Rule 45(c)(3)(A), Rule 26(c), 30(b) and
37(a)(1). It is unclear whether the alternative of seeking relief always in the district where the action is pending is
retained under Rule 26(c), given the amendments to Rule 45. In addition, Rule 45(c)(I)(B) provides that the
deponent may object to production of evidence for inspection or copying if he does so within 14 days after the
service of the subpoena or before the time specified for compliance if such time is less than 14 days after service.
The written objection must be served upon the party or attorney designated in the subpoena and upon being made,
the party serving the subpoena is not entitled to inspect and copy the materials except pursuant to an order of the
Court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon
notice to the person commanded to produce, move at any time for an order to compel production. However, such an
order to compel production shall protect any person who is not a party or an officer of a party from significant
expense resulting from the inspection and copying commanded.
In state court actions, different procedures must be followed. If the state court in which the action is pending does
not have jurisdiction over the nonresident whom you wish to depose, it is necessary to invoke the assistance of
another state court which does have jurisdiction over that individual. Most states have adopted the Uniform
Interstate and International Procedure Act (or its predecessor, the Uniform Foreign Deposition Act) or some
equivalent procedures whereby the adopting state will issue subpoenas in connection with civil actions pending in
other states. The specific statute or rules of the state in which you want to take the deposition should be consulted or
you should instead retain local counsel to assist you in getting a subpoena issued.
You should normally serve a subpoena on a nonparty deponent, even if he agrees to appear voluntarily. If the
deponent fails to appear and a subpoena was not served, a court can order you or your client to reimburse the other
partys reasonable expenses, including attorneys fees, of appearing for deposition. Out-of-state travel and
accommodations can result in a substantial bill. The only safe exception to this rule is if opposing counsel has
stipulated to his producing the witness for deposition at the time and place.

Most districts have local rules which apply to or govern the taking of depositions. Seldom do they distinguish
between depositions taken pursuant to locally pending litigation and those taken as part of out-of-state or out-of-
district litigation. It is a good practice to familiarize yourself with the local rules of the court where the deposition
will be held and to comply with those rules.
As with a local deposition, it is your responsibility to make arrangements for a place to take the deposition and for a
court reporter to be present. As a matter of professional courtesy, many lawyers will make a conference room
available for an out-of-state attorney to use. Other locations include a hotel room or conference room, the court
reporters office, a courthouse, or the deponents home or office (if he agrees).
A quality reporter is always essential, home or away. Most attorneys will provide you with names of qualified
reporters in their city. Your own reporter may also be able to refer you to out-of-town reporters. Beware, however,
that when you go to an outside reporting firm directly, you may get one of their beginning reportersthe best being
saved for repeat business.
On rare occasions consider taking your regular reporter with you to record the deposition. Your reporters
familiarity with the case, with confusing names and words, and with your peculiar habits and procedures as well as
the added assurance of quality may make the additional expense worthwhile. If the number of copies of the
transcript the reporter will sell justifies it, he may pay his own expenses.

Generally, a state court has no jurisdiction over nonresidents outside the geographical area of the state (except as to
long arm situations): it cannot compel nonparty nonresidents to appear in state or in another state for deposition.
Hence, when you want to take the deposition of a nonresident nonparty, unless that deponent will voluntarily
appearin or out of state, you must rely upon the rules and statutes of the state where the witness can be found or
resides to force the deponent to appear for deposition. While this book does not attempt to cover the various state
court deposition procedures, you should note that probably all states have procedures for deposing its residents in
the state in connection with civil actions pending in other states. Regrettably, however, the procedures of the several
states differ substantially. A review of the MARTINDALE-HUBBEL LAW DIRECTORY, Law Section, under the
particular state will provide a brief summary of its procedures for subpoenas in those circumstances.
1. Some states require a motion or application to a court be prepared and filed. N.J. Ct. Civ. Proc. 4:11-4 (ex parte
motion allowed); Ariz. R. Civ. Proc. 30(h) (notice to opposing counsel required). The first step is to determine
how to obtain process of the witnesss state.
2. Other states will permit a court clerk to issue the subpoena whenever an out-of-state litigant presents the foreign
subpoena. Utah Ct.R. 26(h)
3. A number of states have adopted the Uniform Deposition Act which makes local witnesses subject to out-of-
state proceedings, but fails to specify how the actual subpoena may be obtained. Calif. Civ. Proc. Code 2029
(West 1993). See, Uniform Foreign Depositions Act 9B U.LA. 60. Nevertheless, local custom in many such
states is that a subpoena service or local counsel may issue local subpoenas if presented with a valid out-of-state
subpoena. See, Millstein, A Road Map to Interstate Discovery Practice, The Practical Litigator, Vol. 4, No. 3
(May 1993).
4. Check the state to determine whether local counsel is required. Typically, no such requirement exists, since
often the taking of a deposition does not constitute practice of law, unless a court appearance is required. See,
Me. R. Civ. Proc. 30(h)(3)(vii) (local counsel required), Ariz R. Civ. Proc. 30(h) (no local counsel required).
Where no rule exists, adoption of procedures by a state allowing for the taking of depositions for use in another
state may be interpreted as giving implicit approval for out-of-state lawyers to take depositions.
5. While almost all states require a valid subpoena or discovery notice from the state where the action is venued,
some jurisdictions require you to present an actual court order, commission, or other document requiring judicial
intervention, before obtaining process in their state. Dist. Col. R. Civ. Proc. P.28-I(a). See also, Freedom
Newspapers, Inc. v. Egly, 507 So. 2d 1180 (Fla. Ct. App. 1987) (Florida Rule), but see, Gorie v. Gorie, 48
Misc.2d 411, 414-15, 265 N.Y.S.2d 19, 21-22 (1965).
1. Subpoena or Commission?
While almost all states require a valid subpoena or discovery notice from the state where the action is pending, some
states require that parties obtain a court order commission or writ from the forum state before a subpoena can be
issued. See Dist. Col. R. Civ. Proc. P. 28-I(a). See also, Freedom Newspapers, Inc. v. Egly, 507 So.2d 1180, 1183
(Fla. Ct. App. 1987). Cf., Ill. S. Ct. Rule 204(b); Gorie v. Gorie, 48 Misc.2d 411, 414-415, 265 N.Y.S.2d 19, 21-22
(1965). Note that the source of these commission requirements may be either state.
2. Check Forum Rules Regarding Transcription
State procedures relating to court reporters vary and certification is not uniform. Some methods, such as steno-
masks are allowed in some states but not in others. Similarly, procedures for corrections should conform to the state
where case is venued, not the state where the deposition is taken.
Practice Tip: Acquaint Yourself With Local Forum Practices

Before attending a deposition in another jurisdiction, counsel may wish to call the reporter and ask
about local custom. Counsel may stipulate, however, that laws of the forum state will apply.

If one or more key witnesses reside in a foreign country, you may need to take a deposition outside the United
States. Numerous considerations come into play. The first is whether the country where the deposition is to be taken
will allow you to proceed or will assist you in compelling the deponent. The second is whether the economics of the
case justify the often considerable expense of getting the deposition arranged and taken. Unless you are experienced
with depositions in foreign countries, an attorney in the locale of the deposition should be retained for advice and
assistance.
[CAPTION]
COMMISSION FOR DEPOSITION

TO: A.P. Smalton, Deposition Officer
By order of Court entered on March 13, 20__, you are hereby commissioned to take
the deposition of R. P. Jones, whose address is 319 Larkspur Street, Denver,
Colorado.
You are empowered by order of Court to administer an oath to that witness and to
take his deposition on oral examination by counsel for the parties to this civil
action. This deposition shall be taken in Englewood, Colorado at 9:00 oclock a.m.
on March 30, 20__ at 372 Glendale Street, Englewood, Colorado [or, at a time and
place to be fixed by you].
You are instructed to cause the examination of this witness to be reduced to
writing and to be signed by the witness, and then to certify the deposition to
this court. The sealed and certified deposition shall be placed in a sealed
envelope marked Deposition of R.P. Jones and set forth the caption of this civil
action and the date of the deposition.
You shall send it to the undersigned Clerk of the above entitled court at 10397
Oakdale Blvd., Denver, Colorado.
DATED: March 14, 20__
_______________________________
Clerk of the District Court
City and County of Denver

Under Rule 29, parties may stipulate regarding most of the procedural aspects for the taking of a deposition. Thus, if
one party has control over a witness and is willing to cooperate, a foreign deposition can be a relatively simple
matter. The parties and the deponent agree upon a time and place for the deposition, and stipulate to procedures. A
qualified reporter is retained, either one to travel to the place of the deposition or one who resides in the locale. If
appropriate, a translator should be retained and a notice of deposition should be served.

If the parties are not willing to stipulate to the procedures for a foreign deposition, or if the witness is not
cooperative, the deposing party must fulfill the requirements of the federal rules, and, in most instances, the laws of
the place of the deposition before a deposition can be taken. In many countries, a deposition proceeding as we know
it may be improper. Other countries are signatories to various multi-national treaties which govern international
litigation. For example, the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
governs depositions in many countries including the leading European countries. An in-depth discussion of the
various international treaties governing discovery abroad is beyond the scope of this book and the reader is directed
to the sources listed at the end of this chapter.

Title 28 U.S.C. 1783 authorizes a United States court to issue a subpoena requiring the appearance of a person or
entity who is a national or resident of the United States and is in a foreign country. In order for the subpoena to
issue, the court must find l) that his testimony or documents are necessary in the interests of justice, and 2) that it is
not possible to obtain his testimony in admissible form without his personal appearance or to obtain the documents
in any other manner. The subpoena must be served in accordance with Rules 4 and 45(c), and must include the
tender of the estimated necessary travel and attendance expenses as determined by the court.
934 The Reporter

In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the
place in which the examination is held, either by the law thereof or by the United States, or (2) before a person
commissioned by the court, and a person so commissioned shall have the power by virtue of the commission to
administer any necessary oath and take testimony, or (3) pursuant to a letter rogatory.
In some cases, it may be desirable to employ a local court reporter who is familiar with local procedures. However,
given the fact that the deposition must be transcribed in English, and in full compliance with rules of the forum
court, serious consideration should be given to transporting your usual reporter to the foreign locale.

Title 28 U.S.C. 1781 provides for the department of state to receive letters rogatory issued by foreign and
international tribunals and to transmit them to tribunals, officers or agencies in the United States. In addition, 28
U.S.C. 1782 permits a court in the district in which a person resides or is found to give testimony or produce
documents in connection with a foreign or international proceeding.
However, there can be limits placed on what is a tribunal under the statute. See Okubo v. Reynolds, 16 F.3d 1016,
1018-1019 (9th Cir. 1994) (Tokyo District Prosecutors office is not a tribunal under 28 U.S.C. 1782(a)).

When you seek to depose government employees concerning activities within the scope of their official duties,
additional restrictions may apply. For example, top level governmental officials generally are immune from the
deposition process, at least absent a showing of extreme need. See People v. United States Dept. of Agriculture, 427
F.2d 561, 567 (D.C. Cir. 1970); United States v. Northside Realty Associates, Inc., 324 F. Supp. 287, 295 (N.D. Ga.
1971). In addition, there are various common law and constitutional doctrines that may limit the scope of
examination, such as state and military secrets and executive privilege. The statutes and regulations of the particular
department should be carefully reviewed. In Dixon v. Bowen, 126 F.R.D. 483, 489 (S.D.N.Y. 1989), the court
recognized a privilege as to government personnels subjective motivation in decision making.

Although still subject to being subpoenaed for a deposition, courts carefully scrutinize the propriety of permitting
depositions of elected officials. Typically, courts require that the party seeking the deposition demonstrate that (i)
the deposition is necessary to obtain relevant information that cannot be obtained from other sources; and (ii) that
the deposition will not significantly interfere with the officials performance of his or her governmental duties. See
Marisol A. v. Giuliani, No. 95CIV10533, 1998 WL 132810, at *2-*3 (S.D.N.Y. Mar. 23, 1998). The courts are
concerned about subjecting the mental impressions of policy makers to a potential flood of depositions. This
standard, however, does not apply if the deposition relates to the unofficial business of the governmental official.
The court in Jones v. Hirschfeld, 219 F.R.D. 71, 76 (S.D.N.Y. 2003), stated that it represents no intrusion on an
officials function to require the official to testify on a matter unrelated to that function. The court reasoned that the
standard of undue burden under Rule 26(c) and 45(c) was the appropriate standard to apply.
Certainly the most notorious political deposition was of President Clinton in connection with a suit filed by Paula
Jones. The District Court ordered that a noticed deposition and the trial date be deferred until after the conclusion of
Clintons presidency, several years out. The United States Supreme Court noted that the high respect that is owed
to the office of the Chief Executive, though not justifying a rule of categorical immunity, is a matter that should
inform the conduct of the entire proceeding, including the timing and scope of discovery. Id. at 707. Nevertheless,
the Supreme Court ruled that the District Court had abused its discretion. Such a lengthy and categorical stay takes
no account whatsoever of the respondents interest in bringing the case to trial. The complaint was filed within the
statutory limitations periodalbeit near the end of the periodand delaying trial would increase the danger of
prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the
possible death of a party. Id. at 707-08.

Rule 31 allows any party to take a deposition by written questions. The deposition is set up in the same manner as a
conventional deposition; notice of deposition is served on all parties, a subpoena is served upon the deponent if
necessary, and a location and reporter are arranged. At the time of serving the notice of deposition, the deposing
party serves his written questions upon each other party. Other parties then have 30 days in which to serve cross
questions upon the deposing attorney, who, in turn, has 10 days to serve redirect questions. The other parties then
have 10 days to serve recross questions.
Once the questions have been formulated, they are submitted to the court reporter who submits them to the witness.
In view of the ease of travel and the adoption of Rule 30(b)(7) allowing the taking of depositions by telephone,
depositions by written questions are seldom used. The benefit of using a Rule 31 Deposition Upon Written
Questions is that the depositions are the functional equivalent to interrogatories, however, they are not constrained
by a 25-question limit like interrogatories. As such, a party may use them to secure interrogatory-like answers to a
broad array of questions. However, if a deposition is taken via written questions, you may be precluded from taking
a later deposition if the court does not grant leave for a future deposition. The biggest cost of a Rule 31 Deposition
Upon Written Questions, other than the potential inability to depose the person additional times, is the inflexibility
of this form of deposition; the questions, crosses and redirects are fixed and cannot be adapted based on the
responses of the deponent.

Rule 30(c) provides:
... In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the
party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall
propound them to the witness and record the answers verbatim.
It is rare that this procedure will be satisfactory; not only has the examiner not heard the testimony, he has no
opportunity for followup questions. However, when it is concluded that attendance at the deposition is not otherwise
necessary, and limited objective facts are needed, the procedure is economical, particularly if the deposition is a
distant location. Participation in the deposition by telephone under Rule 30(b)(7), however, may be nearly as
economical and far more effective.

Although the deposition process contemplates a minimum of judicial intervention, there are numerous instances
where judicial intervention is sought and obtained, whether for protective orders under Rule 26(c), to compel
attendance of deponents under Rules 37(d) and 45, or to compel answers to questions under Rule 37. In addition,
the court may enter orders governing discovery under the Rule 26(f) discovery plan procedure. If a discovery order
issued by the court risks irreparable prejudice to your client, what is your remedy?
As a general proposition, discovery orders are not appealable; most discovery orders are interlocutory and are not
final determinations under 28 U.S.C. 1291. Indeed, nothing in the Rules or in the statutes provides for any appeal
of discovery orders. As with most rules, there are exceptions. If the order of the district court fits the following
criteria, an appeal may be allowed:
The order has a substantial impact on an outcome of the merits of the litigation.
The order may cause a party to suffer substantial prejudice or irrevocable injury, e.g., an order requiring a
party to reveal trade secrets that competitors will have access to because a protective order is denied.
See Annotation, Appealability of Order Pertaining to Pretrial Examination, Discovery, Interrogatories, Production
of Books and Papers, or the Like, 37 A.L.R. 2d 586 (1954).
There are two principal avenues for an appeal but both are rarely granted:
1. Petition for writ of mandamus or prohibition.
2. A certification under 28 U.S.C. 1292(b) by the trial judge that the order involves a controlling question of
law as to which there is substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.
See also Annotation, Appealability of Discovery Orders as Final Decisions Under 28 U.S.C. 1291, 36 A.L.R.
Fed. 763 (1978). In addition, some orders are deemed final for appeal because they did not affect the ongoing
litigation, e.g., an award of fees under Rule 37(b)(2).

With the growth of arbitration as an alternative to courts for dispute resolution, depositions in arbitration are
becoming more common. Both the Federal Arbitration Act and the Uniform Arbitration Act (adopted by most
states) have provisions allowing depositions under limited circumstances, and subpoenas to enforce attendance.
There are two basic situations that you may be confronted with in taking depositions in arbitration proceedings:
1. Depositions of parties
2. Depositions of nonparties
Depositions of Parties
Absent agreement between the parties, normally depositions of parties are not allowed in arbitration. The exception
under both the Federal Arbitration Act and the Uniform Act is that if a witness (including a party) will be absent
from the hearing, they may be deposed. Fed. Arb. Act, 9 U.S.C. 7, Unif. Arb. Act 7(b). However by agreement of
the parties, either before or after the dispute arises, there can be depositions of the parties in arbitrations.
Depositions of Nonparties
Similarly, depositions of nonparties are not allowed in arbitration unless the prospective deponent will be absent
from the hearing. The parties may agree that depositions may be taken, and, if the witness will appear without a
subpoena, that resolves problems. However, only in extreme circumstances will a court allow its subpoena power to
be used for discovery in aid of arbitration. See Harry F. Ortlip Co. v. George Hyman Construction Co., 126 F.R.D.
494, 497 (E.D. Pa. 1989); Cotter v. Shearson Lehman Hutton, Inc., 126 F.R.D. 19, 21 (S.D.N.Y. 1989); Oriental
Commercial & Shipping Co., Ltd. v. Rosseel, N.V., 125 F.R.D. 398, 400 (S.D.N.Y. 1989).

As to discovery depositions of parties, and cooperative nonparties, the procedures as agreed to by the parties will
generally govern. In the absence of agreement, a common law of arbitration (generally equal to the Rules) and the
arbitrators rulings will govern.
As to testimonial depositions under the Federal or State Arbitration Acts, the procedures are governed by the
applicable law of depositions: if the subject of the arbitration involves interstate commerce or maritime law, the
Federal Arbitration statute applies, and hence the Federal Rules of Civil Procedure relating to depositions would
apply. In all other instances, the law of the forum state probably would apply. Under the Federal Act and the
Uniform Act, the arbitrators can issue the subpoena. It is unclear as to the enforcement of the subpoena, but
presumably that lies with the court only.
As to subpoena of nonparties for discovery, as indicated above, it is extremely difficult to obtain. Procedurally, you
must file a complaint or petition with the court in order for it to assume jurisdiction of the arbitration for purposes of
aiding discovery. If the court so orders, proceedings thereafter are in accordance with the rules of that court.

Bishop, Service of Process and Discovery in International Tort Litigation, 23 Tort and Insurance Law Journal
70 (Fall, 1987)
Brodegaard, Taking Evidence and Discovery Outside the Hague Evidence Convention (ADA Monogram, 1987)
Annotation, What is Foreign Tribunal Within 28 USCS 1782 (As Amended in 1964) for Use in Which District
Court may Issue Discovery Orders in Response to Letters Rogatory, 46 A.L.R. Fed. 956 (1980)
Annotation, Construction and Effect of Rules30(b), (d), 31(d), of the Federal Rules of Civil Procedure, and
Similar State Statutes and Rules Relating to Preventing, Limiting, or Terminating the Taking of Depositions, 70
A.L.R.2d 685 7 B (1960)
Crane, Martin and Seaman, When the Other Side Sends YOU a Subpoena, 19, No.3 The Brief 22 (Spring
1990)
Brodegaard, Victory Abroad: A Guide to Foreign Discovery, 14, No.2 Litigation 27 (Winter 1988)
Willett, Obtaining Foreign Discovery for Use in Litigation in the United States, 39, No. 11, Trial Talk 297
(Nov. 1990)
Annotation, Right to Perpetuation of Testimony Under Rule 27 of Federal Rules of Civil Procedure, 60 A.L.R.
Fed. 924 (1982)
Annotation, Depositions to Preserve Testimony, Under 18 USCS 3503, 41 A.L.R. Fed. 764 (1979)
Millstein, A Road Map to Interstate Deposition Practice, The Practical Litigator, American Bar Association-
American Law Institute, Volume 4, Number 3, May 1993.
Chapter 10
Using the Deposition at Trial


1011 Using a Deposition Taken in the Same Civil Action in Which It Is Sought to Be Used
1012.1 Using a Deposition Taken in an Earlier Civil Action Involving the Same Parties and Subject
Matter, as Permitted by Rule 32(a)
1012.2 Using for Nonsubstantive Purposes a Deposition Taken in Another Proceeding as Permitted by
the Federal Rules of Evidence
1021.2 Using the Deposition of Adverse Party for Any Purpose
Testimony
1022.1 Using the Deposition of a Nonadverse Party as Substantive EvidenceThe Unavailable Witness
1023 Catchall Provision Allowing Use of Any Deponents Deposition
1041 Technical Objections Relating to the Taking, Transcribing, and Completion of a Deposition

Although depositions can be effective tools for settling a case, their primary purpose is to assist you in acquiring
useful ammunition for trial. If an opposing witness changes his testimony on an important point, your impeachment
based on his deposition testimony may dramatically point this out to the jury. Similarly, if an important witness
cannot be present at trial, or is beyond the courts subpoena power, admission of his deposition testimony may be
crucial to your case.
In conducting your discovery, never lose sight of the fact that even the best deposition with the most damaging
admissions has little value if it is not use able at trial. The most stunning testimony stands for naught if it cannot be
presented to the jury. Become familiar with the purposes for which deposition testimony can be used and the
technical requirements governing its use. Only then can you begin to meaningfully develop a strategy for
conducting depositions and later presenting them at trial. Rule 32 of the Federal Rules of Civil Procedure governs
the use of depositions at trial and therefore is extensively discussed in this chapter.
The Federal Rules of Civil Procedure treat all depositions the same. Some attorneys, however, distinguish so-called
discovery depositions that are taken to gather information, from trial (or preservation) depositions that are
taken to be introduced at trial in lieu of the deponents appearance. This distinction is recognized in some states. See
Laird v. Illinois Central Gulf Railroad Co., 208 111 App. 3d 51,566 N.E. 2d 944 (1991). But it has no effect in
federal practice. Tatman v. Collins, 938 F.2d 509, 510 (4th Cir. 1991). Under the Federal Rules, a deposition may
be taken for whatever purpose the deposing party has in mind, and he is under no obligation to disclose that purpose
to others. Further, once a deposition is taken there is no limitation on the way in which it can be used, provided that
the proposed use meets the requirements of the Rules, which are discussed below.
There are at least two situations in which attorneys may assert a distinction between discovery depositions and trial
depositions. First, an attorney opposing the admission of the deposition at trial may not have anticipated, at the time
the deposition was taken or at any time prior to trial, that the deposition would be offered as evidence at trial. If not,
the objecting attorney may not have elicited, in the deposition, testimony he anticipated covering at trial. (Indeed,
proper deposition, practice does not require an examiner to cover everything in deposition if he has good reason to
anticipate the deponent will be available at trial. Policies which prolong depositions are rarely desirable.)
The second situation arises when the attorney learns that a witness (who is not subject to the subpoena powers of the
court), who is expected to be available at trial for examination, will not be available after all. If the cut-off date for
discovery has passed, the attorney may move to take a trial deposition to avoid the prohibition on further
discovery.
You often can avoid these situations if, at a reasonable time prior to trial, you obtain from opposing counsel a list of
the depositions that he anticipates offering as evidence and the identities of the persons he will make available at
trial to be called as witnesses. If you are reasonably surprised by the intended use of certain depositions or the
unanticipated unavailability of certain witnesses, most courts will allow you to take a second deposition for use at
trial (as distinguished from a discovery deposition), if you make a reasonable showing of need.

Normally, the deposition you seek to use in a case was taken during the discovery proceedings in that case, and all
the parties in the case had an opportunity to participate in the deposition. Sometimes, however, you may want to use
a deposition taken in a different proceedingperhaps one that did not involve all the parties in your case. The
following subsections discuss what depositions may be used.
There are two basic requirements you must fulfill to use a deposition at trial or other evidentiary hearing. First, the
use must fulfill the conditions of Rule 32 which, as mentioned, governs the use of depositions at trial. Second, the
testimony must be allowed under the Federal Rules of Evidence.
Under Rule 32, a deposition may be used at trial against a party if:
The party against whom it is to be used was present or represented at the taking of the deposition, or had
reasonable notice thereof.
The use is within the four categories of use listed in the Rule.
The Rule also provides an alternative to the foregoing requirements. That is, under Rule 32(a), a deposition
previously taken may be used as permitted by the Federal Rules of Evidence.
Under Rule 80, the authenticity of the transcript of the deposition itself is proved by the certification thereof by the
person who reported the testimony. That is, the document is a self-authenticating document.
If the deposition testimony is to be offered as substantive evidence, the offer must be in accordance with the Rules
of Evidence, applied as if the witness were present and testifying. See Rule 32(a); Stroud v. Dorr-Oliver, 542 P.2d
1102, 1114 (Ariz. 1975). Even if the Rules of Evidence are satisfied, some courts suggest the use of a deposition at
trial is discretionary with the trial judge. See Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir. 1999).
1011 Using a Deposition Taken in the Same Civil Action in Which It Is Sought to be Used
The typical situation is for one party to seek to use a deposition taken in that civil action. The following subsections
will deal with variations of this typical situation you may encounter.
Rule 32(a) states that the right to use a deposition at trial is not affected by the substitution of parties pursuant to
Rule 25. This portion of Rule 32 was meant to cover a variety of situations in which the parties change. On the one
hand, it binds a representative or successor in interest of a party when that party has died. But it equally allows the
representative or successor to make use of an earlier taken deposition. Indeed, by its terms, Rule 32(a)(2) allows the
deposition of a party to be used against another person who has been substituted for the original party. See 4A
MOORES FEDERAL PRACTICE 32.07, at 32-38 ([t]hus, if the defendant has taken the deposition of the plaintiff and
subsequently the plaintiff assigns his claim to A, who is substituted for the original plaintiff, the defendant may use
the deposition of the original plaintiff as evidence of admissions against A.).
In many cases, additional parties are joined in litigation after depositions have been taken. Rule 32(a), however,
provides for use of depositions only against a party who was present or represented at the taking of the deposition
or who had reasonable notice thereof. See, e.g., Application of Royal Bank of Canada, 33 F.R.D. 296 (S.D.N.Y.
1963); Withers v. Mobile Gas Service Corp., 567 So.2d 253, 254 (Ala. 1990). Thus, to satisfy the Rule while using
a deposition is taken, counsel should be sure that the joined party either:
Had its interests adequately represented at the deposition, including the opportunity to cross-examine; or
Is given the opportunity to object to any questions asked, and to undertake a cross-examination.
The interests of the joined party may have been adequately represented at the deposition in a variety of situations.
For example, the joined partys predecessor in interest may have been a party to the action, represented by the same
lawyer as the joined party.
Similarly, a joined party can be given the opportunity to make objections by several means. For example, the parties
involved may stipulate that all of the joined partys objections are reserved for trial, or that the joined party may
insert objections into the deposition by amendment to the transcript. (Such stipulations, reduced to writing, are
probably within the scope of Rule 29, which governs stipulations regarding discovery procedure. You would be
safer, however, to incorporate the stipulation into a court order. Absent a stipulation, upon application, the court
should enter an order to the same effect.)
The joined party can be afforded the right of cross-examination by reopening the deposition.
If you have taken the deposition of the added party prior to joining him as a party, you should be able to use the
deposition at trial, even though his presence was as a nonparty. Codeiro v. Levasseau, 112 F.R.D. 209, 211 (D.R.I.
1986) (use of a deposition at trial is most appropriate vis-a-vis one who is a party at the time of trial, irrespective of
his former status). See Annotation, Admissibility in Evidence of Deposition as Against One Not a Party at the Time
of its Taking, 4 A.L.R.3d 1075 (1965). If you anticipate the need to use a deposition at trial and intend to offer it
against a party who was added after the deposition took place, consider the following alternatives:
Obtain a written stipulation from the additional party, under Rule 29, that the deposition may be used at trial.
Move for an order of court allowing use against the new party, with the stipulation that if the new party
wishes cross-examination, the deposition will be reopened.
Take a second deposition of the deponent, thereby allowing the new party to cross-examine.
If you are not able to secure a stipulation from the new party, take steps to have the matter resolved by the court
well in advance of trial.
Unless the parties stipulate, under Rule 30(a)(2), a party must obtain leave of court in order to take the deposition of
a person who has already been deposed in the case. The principles upon which the court determines whether to
grant leave are defined in Rule 26(b)(2).
Clearly, multiple depositions can be taken of the same person in appropriate circumstances. Often, for example,
after the deposition of a witness is taken in the ordinary course of discovery, it becomes apparent that the witness
will not be available for trial because of illness, absence, or otherwise. A second deposition may then be taken of the
deponent for the express purpose of offering the deposition at trial in lieu of live testimony. If two depositions are
taken, however, which one may be used at trialor can both be used?
In Gracia v. Lee, 976 F.2d 1344 (10th Cir. 1992), a medical malpractice action, the plaintiff took the deposition of
the defendant doctor in the regular course of discovery. Thereafter, the defendants attorney took the doctors
deposition for use at trial because of the doctors ill health. At trial, the defendant offered the second deposition,
which was admitted in evidence. The plaintiff then sought to offer excerpts from the first deposition, which
apparently were adverse to the defendant and contrary to his second deposition. The trial court sustained the
defendants objections to admission of the first deposition, and was affirmed on appeal, based on the following
analysis:
While a deposition of a party may be used against him for any purpose under Rule 32(a)(2), admission of the
deposition into evidence is not mandated. For example, it was held unfairly prejudicial to the defendant for the
plaintiff to use excerpts from the first deposition to attack the doctor at trialin absentiaafter the plaintiff had
elected not to use them at the preservation deposition, when the doctor would have had an opportunity to address,
on videotape, those excerpts for the benefit of the jury.
Several lessons can be learned from Gracia: Rule 32(a)(2) does not mandate admission of an adverse partys
depositionsthe court has discretion in extraordinary circumstances. Second, if you know your opponent is taking
a deposition for use at trial in lieu of personal testimony, and you have previously deposed that person, you should
treat the taking of the second deposition as if it were trialuse the first deposition as if the second deposition were
testimony in trial.
If the witness is on the stand, either deposition may be used to impeach the witness, since both are prior statements
under Fed. R. Evid. 801(d), and both are depositions under Fed. R. Civ. P. 32. Hence, the general rule is if two
depositions have been taken of a single person, both depositions may be used unless, in the courts discretion,
fairness requires a different result.
Both the original and the corrected version of the deposition may be used at trial. Podell v. Citicorp Diners Club,
Inc., 112 F.3d 98, 103 (2d Cir. 1997). If a witness has made an important change to his testimony in accordance
with Rule 30(e), you can expect an argument at trial over whether the corrected or the original version constitutes
the witnesss sworn testimony for purposes of impeachment or use as substantive evidence. Although both the
original and the corrected version should be allowed, some courts do not follow this practice or at least regulate the
order in which the original and corrected versions may be used.
The whole issue can be largely eliminated if, at the time you are taking the deposition and discussing deposition
procedures with the witness, you also advise him that although he has the right to make changes to the deposition,
both the original and the changes will be admissible against him. If the witness acknowledges his understanding of
that fact and no objection to the statement is made by opposing counsel, you may use the acknowledgment during
your cross-examination. You may also use the acknowledgment and opposing counsels silence to bolster your
argument that both versions of the deposition are admissible.
Conversely, in preparing your witness for deposition, you should emphasize the importance of truthfulness and
accuracy in the original testimony, given the consequences of significant written changes later. Also, make certain
that you are involved in the process whereby your client makes any changes to the deposition. Do not make the
mistake of allowing your client or witnesses to send changes directly to the court reporter for inclusion in the record
without proper review and advice from you concerning the need for and consequences of such changes.
For further discussion, see 1021.3 (use of adverse party depositions to impeach or contradict) and 1054
(introducing additional parts of deposition)
Normally, in some jurisdictions, for a deposition to be used it must be completed, tendered to the witness for
review and signature, and filed in accordance with the rules. (This procedure was followed in the federal courts until
the 1993 amendment to Rule 30(e) became effective; for further discussion, see 561.5.) Whether each of these
requirements must be satisfied, however, depends upon the particular use to be made of the deposition.
For example, if the deponent is sworn, the transcripteven though not signed or completed and thus inadmissible
as a deposition at trialmay be admissible as affidavit. Microsoft Corp. v. Very Competitive Computer Products
Corp., 671 F. Supp. 1250, at 1254 n. 2 (N.D. Cal. 1987). Therefore, a sworn but incomplete, unsigned deposition
may meet the evidentiary requirement for summary judgment under Fed. R. Civ. P. 56(e) if the testimony is made
on personal knowledge and sets forth facts admissible under the Rules of Evidence. See In re Sunset Bay Associates,
944 F.2d 1503, 1509 (9th Cir. 1991); Tormo v. Yormark, 398 F. Supp. 1159, 1168 (D.N.J. 1975).
The procedural requirements for a deposition are discussed in Chapter 3, 4 and 5. Most of these requirementssuch
as reasonable notice, opportunity to make corrections, and statements of reason for changesare waived if not
timely made. See, e.g., Cox v. Commonwealth Oil Co., 31 F.R.D. 583, 584 (S.D.Tex. 1962); Hodge v. Borden, 417
P.2d 75, 80 (Idaho 1966). Thus the proper fulfillment of these procedures are rarely an issue at trial. Moreover,
procedural irregularities may be irrelevant when the deposition is to be used for nonsubstantive evidentiary purposes
such as impeachment or refreshing recollection. See Appel v. Sentry Life Insurance Co., 739 P.2d 1380, 1382-1383
(Colo. 1987).

The following subsections discuss the use of depositions in proceedings other than the proceeding in which the
deposition was originally taken.
1012.1 Using a Deposition Taken in an Earlier Civil Action Involving the Same Parties and
Subject Matter, as Permitted by Rule 32(a)
Fed. R. Civ. P. Rule 32(a)(4) permits a deposition taken in an earlier state or federal action involving the same
subject matter and the same parties, or their representatives or predecessors in interest, to be used in the later action
just as if it had been taken during discovery in the later case. Although the Rule appears to require a substantial
identity of parties in the two suits, some courts have admitted depositions from earlier proceedings even though the
party against whom they were offered had no involvement in the proceedings. As one court has explained, a party
to a second suit need not have been a party to the prior suit if the interest of the objecting party in the prior suit was
calculated to induce as thorough a cross-examination as the interest of the present opponent. Rule v. International
Association, 568 F.2d 558, 569 (8th Cir. 1978). See also, Ikerd v. Lapworth, 435 F.2d 197, 205 (7th Cir. 1970),
where the court held that [a]lthough it is generally the rule that a deposition is not admissible as to one not having
the opportunity to be represented at its taking, the presence of an adversary with the same motive to cross-examine
the deponent and identity of issues in the case in which the deposition was taken with the one in which it is sought
to be used provide a well-recognized exception to the rule. The court specifically noted: We perceive no basis
upon which it can be assumed that the cross-examination of the deponents would have been any different had [the
nonrepresented partys] counsel had the opportunity to participate therein. 435 F.2d at 206. The courts have taken
varying positions as to what this provision of Rule 32(a) requires. You should carefully review the case law of your
jurisdiction before proceeding.
Lastly Rule 32(a)(4) requires that the deposition be lawfully taken and duly filed in the former action.
1012.2 Using for Nonsubstantive Purposes a Deposition Taken in Another Proceeding as
Permitted by the Federal Rules of Evidence
As discussed in 1011, Rule 32(a)(4) provides that a deposition previously taken may also be used as permitted by
the Federal Rules of Evidence. As noted earlier, this provision emphasizes that Rule 32 and the Federal Rules of
Evidence provide cumulative sources of authority for the introduction of deposition testimony. See 4A MOORES
FEDERAL PRACTICE 32.08, 32-42.
For what purposes do the Federal Rules of Evidence permit nonsubstantive use of such depositions? The principal
potential uses are:
Refreshing recollection (Fed. R. Evid. 612)
Impeachment by prior inconsistent statements (Fed. R. Evid. 613)
Statements against interest (Fed. R. Evid. 804(b)(3))
The use of a deposition taken in another proceeding for these nonsubstantive purposes merely requires proof of the
authenticity of the deposition (Rule 80) and then compliance with Fed. R. Evid. 612, 613 or 804(b)(3). The use of
the deposition is no different than the use of any document for such purposes.
Under the Federal Rules of Evidence, depositions taken in other proceedings can be used as substantive evidence.
Fed. R. Evid. 804(b) provides that certain former testimony is not covered by the hearsay rule excluding testimony
by a declarant who is unavailable as a witness. Specifically, under the Rule, former testimony is not excluded if
given:
in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against
whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity
and similar motive to develop the testimony by direct, cross, or redirect examination.
To use such a deposition:

The deposition must be testimony. This appears to require that the testimony be given under oath,
recorded, and in accordance with procedural requirements applying to the proceeding. United States v.
Callahan, 442 F. Supp. 1213, revd on other grounds, 596 F.2d 759 (8th Cir. 1979).
The deposition must have been taken in the course of a proceeding. This term should be read broadly to
mean an official inquiry conducted in a manner authorized by law, whether judicial, administrative,
legislative, investigative, or inquisitorial in nature. LOUISELL AND MUELLER, FEDERAL EVIDENCE 487
(1980). Examples given by Professors Louisell and Mueller include Coast Guard hearings, Equal
Opportunity Commission hearings, and voir dire examination.
The deposition must be taken in compliance with law. The law is Rules 28 and 31. See United States v.
Salim, 855 F.2d 944, 948-952 (2d Cir. 1988) (where a deposition taken in France pursuant to French law,
under which the magistrate did all the questioning based upon written questions submitted by the parties,
was admitted in a U.S. criminal trial.)
The party against whom the deposition is offered had an opportunity and similar motive to develop the
testimony by direct, cross-, or redirect examination. See, Rodriguez v. Pacificare of Texas, Inc., 980 F.2d
1014, 1020 (5th Cir. 1993), cert. denied, 508 U.S. 955 (1983) (Physicians testimony in workers
compensation case not later admissible in other tort action against employees physician and HMO, where
neither were parties to the earlier case nor had the opportunity to cross-examine the deposed physician).
Alternatively, you may use the provisions of Fed. R. Evid. 804(b)(5) to seek admission of a deposition taken in
another proceeding. That rule also permits admission of a deposition as an exception to the hearsay rule where the
declarant is unavailable but there are circumstantial guarantees of trustworthiness. See also Fed. R. Evid. 803(24)
for other exceptions to the hearsay rule. An extended discussion of these Rules is beyond the scope of this book.
However, if you have a deposition taken in another proceeding which you need to use in your case, there may be a
way to use it. Treat such a deposition as a written or verbal statement and analyze its admissibility by applying the
Federal Rules of Evidence.
As with all other depositions, the test of admissibility is not the proceeding in which the deposition was taken, but
rather whether it meets the requirements of Rule 32(a) or the Federal Rules of Evidence. For further discussion of
these requirements, see 1010.
Depositions taken in administrative proceedings can be used in a civil action if the requirements of 32(a) or Fed. R.
Evid. 804(b)(1), 804(b)(5) or 803(24) are met.
Rule 28(b) specifically recognizes that depositions in civil actions in the United States may be taken in foreign
countries. Procedures, requirements, and limitations on interrogating witness, however, are dramatically different in
many countries of the world. If the deposition fulfills all of the requirements of the Federal Rules of Procedure and
Evidence, you will have no problem in using the deposition at trial. However, suppose the deposition practice of the
foreign country does not comport with or allow the practices of our federal courts?
United States v. Salim, 855 F.2d 944 (2d Cir. 1988) involved a criminal trial in which the United States wished to
take and use at trial the deposition of a witness in France. However, French practice rejected audio and video tape
recordings, required that the magistrate do all questioning from written questions submitted by the prosecution and
defense counsel, and precluded defense counsels physical presence during the deposition. (The proceeding also
involved other practices of the French judicial system not different from ours.) The Second Circuit held the
deposition was admissible under Fed. R. Evid. 804(a) and Rule 28. The court noted that the advisory comments to
Rule 28 stated that the Rule was specifically designed to permit depositions to be taken in the manner provided by
the law of the foreign country in which the deposition is conducted. Rule 28 recognizes foreign procedures. The
requirement that the party against whom the deposition is sought to be used have an opportunity to cross-examine
the deponent was met even though defendants counsel could not view the witnesss demeanor and could not
develop a spontaneous line of inquiry. Cross-examination by submission of written questions was deemed
sufficient. Some of the drawbacks of a foreign deposition can be eliminated by the use of a live, video conference
deposition, which is discussed in more detail in 144.

Rule 32(a) sets forth the purposes for which a deposition may be used at trial and defines the circumstances in
which depositions may be used for those purposes. In general, the Rule contemplates that a deposition may be used
at a trial or at an evidentiary hearing for two primary purposes: 1) to impeach or contradict the testimony of the
deponent as a witness, and 2) as substantive evidencea substitute for a witnesss testimony in the trial or hearing.
In the latter case the Rule distinguishes between depositions of a party or party representative and the deposition of
any other individual. While a deposition of a party may be used for any purpose, the deposition of a nonparty
witness may only be offered as a substitute for live testimony in limited circumstances. Note that the Rules do not
distinguish between depositions taken for discovery and depositions for use at trial. All depositions are treated
the same way, regardless of the examiners purpose at the time of taking the deposition.

The deposition of an adverse party may be offered into evidence for any purpose whatsoever so long as it meets
other guidelines of admissibility as if the deponent were testifying in person. (For example, the evidence must be
relevant and competent.) Rule 32(a)(2). One purpose for the adverse party requirement is to avoid self-serving
statements being introduced via deposition testimony.
The determination of whether a deponent is adverse and whether the deponent is a party for purposes of Rule
32(a)(2) is made as of the time the deposition is taken, even if that party thereafter settles its dispute. For example,
in Iheme v. Simmons, 560 N.Y.S. 2d 167 (N.Y. City Civ. Ct. 1990), Stotts had never been a party to the suit, but had
filed a separate civil action against plaintiff and defendant, which was consolidated with the instant case. His
deposition was then taken. Thereafter, prior to trial, Stotts settled with plaintiff and defendant. At trial, plaintiff
offered Stotts deposition into evidence. The court held:
The critical time at which to apply the twin criteria of being a party and adverse interest is the time of the
deposition. At that time, it is in the interest of the person being deposed to make certain that his position is made
known clearly and concisely. His testimony is then recorded, not to be easily modified. What difference that, when
an adverse party uses deponents testimony at a trial years later, deponent no longer has an interest in the case?
A person designated to testify under Rule 30(b)(6) or 31(a) will be deemed a party for the purposes of Rule
32(a)(2). See also Rule 37. If the party is not an individual, anyone who, at the time the deposition was taken, was
an officer, director, or managing agent of the party will be deemed a party.
The term managing agent is unclear in the context of todays business world. Courts have held that a managing
agent must be more than a mere employee; he must have been vested with authority to exercise discretion in dealing
with corporate matters and his interests must be identified with those of the business. See, e.g., Krauss v. Erie Ry.
Co., 16 F.R.D. 126 (S.D.N.Y. 1954); Annotation, Who is a Managing Agent of a Corporate Party (to Civil
Litigation) Whose Discovery-Deposition may be Taken under Federal Rules of Civil Procedure or State
Counterparts, 98 A.L.R. 2d 622 (1964). The distinction between a mere employee and a managing agent, however,
may have been rendered somewhat moot by the broadening of Rule 32(a)(1) because it apparently allows, under
Fed. R. Evid. 801(d)(2), the use of admissions made by an employee during the course of his deposition so long as
those admissions relate to matters within the scope of his employment and were made while the employee was still
an employee. 4A MOORES FEDERAL PRACTICE 32.04 at 32-22.
An adverse party, as that term is used in Rule 32, refers to a party whose interests are adverse in fact, even though
that party may be nominally aligned as a co-party or may be the subject of cross-claims. Id., 32.04 at 32-18, 32-19.
For example, co-defendants may be adverse to each other, depending upon the nature of the claims asserted, just as
a third-party defendant is adverse to the defendant third-party plaintiff. However, a plaintiff may or may not be
adverse to a third-party defendant.
The statements in a deposition of an expert hired by a party may be deemed admissions under Fed. R. Evid.
801(d)(2)(c). Thus, even if, after his deposition, a witness is withdrawn as an expert, one court has held that his
deposition may be offered into evidence as an admission of the party that hired him. Collins v. Wayne, 621 F.2d 777
(5th Cir. 1980).
1021.2 Using the Deposition of an Adverse Party for Any Purpose
Rule 32(a)(2) provides that a deposition of a party or an officer, director, or managing agent of a party, or a person
designated by a party, may be used by an adverse party for any purpose. Normally, those uses are simply 1)
contradicting or impeaching the testimony of the deponent as a witness, or 2) as substantive testimony in lieu of the
deponent testifying. However, possible uses also include refreshing present recollection. The deposition of a party
may be offered as substantive evidence by an adverse party even if the party is available in the courtroom. Stauffer
v. Karabin, 30 Col. App. 357, 366, 492 P.2d 862, 866 (Colo. App. Ct. 1961); see, Pingatore v. Montgomery Ward
and Co., 419 F.2d 1138, 1142 (6th Cir. 1969), cert. denied, 398 U.S. 928 (1970) (error to limit use to
impeachment); Pursche v. Atlas Scraper & Engg Co., 300 F.2d 467, 488 (9th Cir. 1961), cert denied, 371 U.S. 911
(1962).
Automatic admissibility of depositions as substantive evidence in not a universal concept. For example, in the case
of Coletti v. Cudd Pressure Control, 165 F.3d 767, 773 (10th Cir. 1999), a wrongful discharge case, the trial court
refused to admit plaintiffs offer of defendants deposition as substantive evidence, making it available for
impeachment purposes only. The trial court reasoned that the deposition testimony was inappropriate on this basis,
since the defendant was available to testify. On appeal, the Tenth Circuit Court of Appeals held that while Fed. R.
Civ. P. 32 did, indeed, require admittance of the deposition regardless of availability of the witness, the trial court
had the discretion to limit its use, and that discretion would not be questioned absent a showing of prejudice to the
plaintiff. Since the trial court allowed plaintiff to use the deposition for impeachment, and plaintiff failed to use the
deposition for that purpose, she was deemed not to have been prejudiced by the trial courts action.
Over the years, other circuits have made similar holdings. See, e.g., Sanford Bros. Boats, Inc. v. Vidrine, 412 F.2d
958, 963 n.3 (5th Cir. 1969); Community Counselling Service, Inc. v. Reilly, 317 F.2d 239, 243 (4th Cir. 1963);
Klepal v. Pennsylvania Railroad Co., 229 F.2d 610 (2d Cir. 1956). In light of these decisions, a party should obtain
a ruling on the admissibility of depositions before trial.
Testimony
Rule 32(a)(1) states that a deposition may be used by any party for the purpose of contradicting or impeaching the
testimony of the deponent as a witness. (Note also that Fed. R. Evid. 607 provides that the credibility of a witness
may be attacked by any party, including the party calling the witness.) This is perhaps the most common use for
depositions. They are effective vehicles to reign in an opposing witness, either through impeachment or the threat of
impeachment. Once a witness is deposed, his testimony at trial will not often vary from the testimony he gave in
deposition. If it does, the deposition comes into play.
In 1980, Rule 32(a) was amended to authorize the use of depositions not only to impeach, but for any other
purpose permitted by the Federal Rules of Evidence. One example of how this amendment may be significant
derives from Fed. R. Evid. 801(d)(1), which allows a prior inconsistent statement of a witness to be offered as
substantive evidence, that is, to contradict rather than simply to impeach the witness. When you want the witnesss
earlier statement to be believed, you may offer it as substantive evidence rather than merely to show that the witness
has changed his testimony. Your argument to the fact-finder would be that not only should the witnesss testimony
at trial not be believedbecause he has been impeachedbut that his earlier inconsistent statement was truthful
and should be believed.
A second situation in which the any other purpose language may be significant comes from Fed. R. Evid.
801(d)(2), which classifies an admission by a party opponent as not hearsay. Under that evidentiary provision, the
following constitute statements by a party which are not considered hearsay and thus may be offered as substantive
evidence:
Statements made by a party (in either an individual or a representative capacity).
Statements in which the party has manifested an adoption or belief in the statements truth.
Statements made by a person authorized to make statements concerning a subject.
Statements by a partys agent or employee, concerning a matter within the scope of his agency or
employment, made during the existence of the relationship.
Statements made by a co-conspirator during the course and in furtherance of the conspiracy.
The interrelationship of this evidentiary provision and the broad referral in Rule 32( a) to the Rules of Evidence
suggests that a wide range of deposition testimony may be used against a partynot only to impeach his testimony,
but also as substantive evidence. See 4A MOORES FEDERAL PRACTICE 132.02 at 32-12. This is potentially
significant because the definition of a party in Fed. R. Evid. 801 (d)(2) is far broader than that contained in Rule
32(a)(2), which allows depositions to be used against a party for any purpose. Apparently, the intent of the drafters
of the 1980 amendment to Rule 32(a) was to make the Federal Rules of Evidence a parallel source of authority for
the use of depositions at trial, even if its provisions are sometimes broader than those contained in Rule 32.
Both the original and corrected version of a deposition are admissible in connection with impeaching or
contradicting a witnesss testimony. For example, if you have deposed an adverse party and obtained helpful
testimony which is then corrected to eliminate its helpfulness, at trial, if the witness testifies as he did in his
amended deposition, you may impeach that witness with the original deposition transcript. See, Hodge v. Borden,
417 P.2d 75 (Idaho 1966). Either you or your opponent may then bring out the fact of and reasons for the
corrections.
There are no limits on the use of a deposition of an adverse party as substantive testimony so long as the procedural
requirements of Rule 32 are met and the testimony is admissible under the Rules of Evidence.
On occasion a witness may draw a blank during the course of his testimony at trial and may be unable to testify
about events which he covered during an earlier deposition. If you are unable to refresh his recollection through the
use of documents or leading questions, you may ask him to review portions of his deposition for the same purpose.
See Fed. R. Evid. 612 (governing writings used to refresh memory).
If the witness still is unable to recall the earlier events after referring to his deposition transcript, you may offer the
deposition into evidence pursuant to Fed. R. Evid. 804(b) and Rule 32(a) because the witness, although present, is
deemed unavailable. (Fed. R. Evid. 804(a)(3) declares a witness unavailable when he testifies to a lack of memory
of the subject matter of an earlier statement.) Fed. R. Evid. 804(b) states that if the witness is unavailable, his prior
testimony in the same or a different proceeding may be admissible. This provision (in addition to the specific
grounds set forth in Rule 32) has been recognized as a basis for admitting deposition testimony. See United States v.
Intl Business Machines, 90 F.R.D. 377, 383-384 (S.D.N.Y. 1981). In such a case the testimony of the declarant in a
deposition is not hearsay if the party against whom the testimony is offered had an opportunity to develop the
testimony by examination. Thus, if the witness at trial simply cannot remember the events he testified to in his
deposition, Fed. R. Evid. 804 provides the vehicle for offering the witnesss deposition testimony into evidence. See
also, Fed. R. Evid. 803(5); McNamara and Sorensen, Deposition Traps and Tactics, 12 LITIGATION 48 (1985).
On the other hand, you may simply want to refresh the witnesss memory with his deposition. The following is an
example of how to do so.
First, establish that the witness once knew the information but can no longer remember it:
Q. What items were in the back seat of the car when you arrived?
A. I do not recall.
Q. Did you see the items in the back seat when you arrived?
A. Yes.
Q. Prior to today did you know what items were in the back seat of the car?
A. Yes.
Q. Today do you have any memory of what those items were?
A. No.
Second, establish that the deposition would refresh the witnesss memory:
Q. Do you recall that your deposition was taken on [date]?
A. Yes.
Q. At your deposition, did you know what items were in the back seat?
A. Yes.
Q. Would the transcript of that deposition refresh your recollection as to what was in the back seat?
A. Yes.
Alternatively, ask the witness what would refresh his memory:
Q. Is there anything that would refresh your recollection as to what was in the back seat of the car?
A. Yes, the transcript of my deposition.
Third, refresh the witnesss recollection:
Q. I hand you the transcript of your deposition taken on [date]. Please read page [number] to yourself.
[Pause] Is your memory now refreshed as to the items that were in the back seat of the car on [date]?
A. Yes.
Q. Please tell the jury the items that were on the back seat of the car when you arrived on [date].

As explained in the following subsections, the use of depositions of witnesses who are not adverse parties is limited
by the circumstances in which the deposition is sought to be used.
1022.1 Using the Deposition of a Nonadverse Party as Substantive EvidenceThe Unavailable
Witness
The deposition of any individual, whether or not he is a party or party representative, may be offered into evidence
if the party offering the deposition establishes that the witness is unavailable to testify. Rule 32(a)(3). Under the
Rule, a witness is considered unavailable if the court finds one of the following:
The witness is deceased.
The witness is more than 100 miles from the place of trial or is out of the United States (unless that absence
was procured by the party offering the deposition).
The witness is unable to testify because of age, illness, infirmity or imprisonment.
The party offering the deposition has been unable to subpoena the witness.
The witness is unable to recall his earlier testimony, even after referring to the transcript.
See Annotation, Construction of Statute or Rule Admitting in Evidence Deposition of Witness Absent or Distant
from Place of Trial, 94 A.L.R.2d 1172 (1964).
The party seeking to use a deposition for any of these reasons bears the burden of establishing that the witness is
unavailable. See, e.g., Transcontinental Energy Corp. v. Pacific Energy Resources, 683 F.2d 326, 330 (9th Cir.
1982); Nationwide Mutual Insurance Co. v. Dunkin, 850 F.2d 441 (8th Cir. 1988). If you suspect that the witness
will be unavailable for trial, try to establish that fact at the deposition. See Hartman v. U.S., 538 F.2d 1336, 1345
(8th Cir. 1976) (where the court held that a showing that the witness resided more that 100 miles away from the
place of trial at the time of deposition created a presumption of unavailability at trial absent any showing to the
contrary). See also, Annotation, Admissibility of Depositions, Under Rule 32(a)(3)(B) of Federal Rules of Civil
Procedure, Where Court Finds that Witness is More than 100 Miles from Place of Trial or Hearing, 71 A.L.R.Fed.
382 (1985). Questions during the deposition regarding whether the witness is willing to appear voluntarily in the
forum or anticipates being under some disability at the time of trial may be sufficient to establish the requisite
unavailability at the time of trial. An affidavit from the attorney or process server showing detailed efforts to
subpoena the witness or establishing the requisite basis for unavailability may also be needed. See State v. Keairns,
460 N.E.2d 245, 248-249 (Ohio 1984). Often, problems such as these are raised and resolved at the pretrial
conference. Indeed, the burden on the proponent of using the deposition transcript may be especially high where the
witness is present within 100 miles of the place of trial, but has not appeared pursuant to subpoena. Mere failure of
witnesses to show up at trial despite having been subpoenaed is likely not enough to establish unavailability. At a
minimum, the proponent should request bench warrants for the witnesses attendance. If their attendance is still not
secured, the proponent likely must still demonstrate that the party utilized reasonable efforts to secure the witnesses
attendance. See, e.g., Renaud v. Hernandez, No. 99 20 CV 0329, 0496 (Mass. App. Div. Jan. 12, 2004) (affirming
trial courts refusal to permit party to introduce deposition transcripts where court found the party had not met its
burden of demonstrating the unavailability of witnesses within 100 miles of the place of trial).
Rule 32(a)(3) also appears to authorize the use by a party of his own deposition in lieu of his personal appearance at
trial, so long as he meets the requirements of unavailability. See Annotation, Partys Right to Use, as Evidence in
Civil Trial, His Own Testimony given upon Interrogatories or Depositions Taken by Opponent, 13 A.L.R.3d 1312
(1967). This can be particularly useful where the party resides outside the jurisdiction but has been hauled into the
forum through the exercise of long-arm jurisdiction. See Bellany v. Molitor, 108 F.R.D. 1 (W.D. Ky. 1983). It also
may be effective if the party plaintiff is forced to sue in a foreign jurisdiction because of lack of more convenient
alternatives, or if the defendant is sued in an inconvenient forum. See 1024.
At least one court has held that a party may not rely upon Rule 32(a)(3)(B) (witness greater than 100 miles from
place of trial) to use the deposition of his expert in lieu of live testimony. In re Air Crash Disaster, 720 F.Supp.
1493, 1501 (D. Colo. 1989). The court in that case held that not only must the party offering the deposition satisfy
the requirements of Rule 32(a)(3), but also the requirements of FED R. EVID. 804(b)(1), even for the use of a partys
own deposition. The court also held that even if those requirements are satisfied, admission of deposition testimony
in lieu of oral testimony lies in the sound discretion of the court. In exercising that discretion, the court enunciated
five factors for consideration:
The proponents need for the evidence to be presented through deposition.
An opportunity provided the opponent to cross-examine the deposition witness on those issues.
The nature of the evidence to be presented.
The jurys need to observe the demeanor and credibility of the witness.
The actual unavailability of the witness, as distinguished from mere geographic distance from the
courthouse.
Given this approach to admission of depositions, you may want to obtain a ruling on admissibility prior to trial.
Application of the 100-mile criterion for unavailability is determined by measuring the distance from the witness as
of the time the deposition is offered, and during the period of trial when the testimony can be offered. United States
v. Intl Business Machines, 90 F.R.D. 377, 383 (S.D.N.Y. 1981). The 100 miles is measured from the courthouse
where trial will be held, and not from the boundary of the district. Tatman v. Collins, 938 F.2d 509, 511-512 (4th
Cir. 1991).
There is no difference between an adverse party and any other witness (such as a non adverse party) when the
deposition is used for impeachment. For a discussion of using the deposition to impeach or contradict an adverse
party, see 1021.3.
There is no difference between an adverse party and any other witness (such as a nonparty) when the deposition is
used to refresh recollection. For a discussion of using the deposition to impeach or contradict an adverse party, see
1021.5.
1023 Catchall Provision Allowing Use of Any Deponents Deposition
Rule 32(a)(3)(E) has a catchall provision which can provide another basis for offering deposition testimony in cases
where the traditional criteria governing unavailability cannot be established. Rule 32(a)(3)(E) allows a deposition to
be used upon a showing that such exceptional circumstances exist as to make it desirable, in the interest of justice
and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the
deposition to be used. The Rule requires you to give notice to opposing counsel and to make prior application to
the court for leave to use the deposition under this provision.
Neither the Rule nor the committee comments to the Rule provide meaningful guidance as to what constitutes
exceptional circumstances. However, a few court decisions provide at least minimal guidance. For example, in
Huff v. Marine Tank Testing Corp., 631 F.2d 1140, 1142 (4th Cir. 1980), the court held that the unexpected absence
of a witness, whom opposing counsel had said would be available at trial, constituted exceptional circumstances that
permitted introduction of the witnesss deposition.
Under the exceptional circumstances provision courts sometimes allow use of depositions in lieu of live testimony
by doctors or other people considered to be exceptionally busy, or by witnesses who are absent because of family or
other emergencies and whose testimony will not be contradicted. Generally, what constitutes exceptional
circumstances will be left to the sound discretion of the trial court. Comeaux v. T.L. James & Co., 666 F.2d 294,
301 (5th Cir. 1982); T.J. Morris Co. v. Dykes, 197 Ga.App. 392, 397, 398 S.E.2d 403, 407 (Ga. App. Ct. 1990).
However, discretion does not mean that admission may always be allowed in cases involving certain types of
people. For example, in Allgeier v. U.S., 909 F.2d 869, 876 (6th Cir. 1990), the trial court found that under
Kentucky practice, doctors were always deemed unavailable. The trial court admitted the deposition
notwithstanding the doctors actual availability by subpoena, under Rule 32(a)(3)(E). The Court of Appeals
reversed, holding the state practice of deeming doctors automatically unavailable did not apply in federal court.
Similarly, in Bobrosky v. Vickers, 170 F.R.D. 411, 414-415 (W.D. Va. 1997), the court noted that while Virginia
state rules automatically deem doctors unavailable for purposes of using depositions at trial, in federal court, it was
incumbent upon the party seeking to offer the deposition transcript at trial to present at least some evidence as to
the doctors schedules or personal circumstances.
Practice Tip: Exempted Professions

In addition to physicians, some jurisdictions have rules allowing the use of depositions as substantive
evidence at trial without a showing of unavailability from witnesses in certain professions such as
postmasters and court judges and clerks. Be sure to check the rules of your jurisdiction before trial.
No doubt there will be a continuing increase in the usage of the exceptional circumstances provision of Rule
32(a)(3)(E) to allow a deposition to be used as substantive evidence without the unavailability prerequisites of
32(a)(2)(E). If you intend to offer a deposition under Rule 32(a)(3)(E), try to obtain a ruling prior to trial, if
possible. Consider factors that might persuade the court that exceptional circumstances exist:
The reason the witness would be burdened by attending trial, and the nature of that burden (for example, the
effect of his absence from employment, interference with prior plans, or economic hardship).
Whether the witnesss testimony is in fact in issue. If the credibility of the witness is not in issue, it is less
likely that the court will find oral testimony of the witness in open court is needed for justice.
Whether the offered deposition is a videotape or a transcript. Obviously, a videotape is much closer to open
court testimony than a transcript. On the other hand, if it is a trial to the court, the judge may be attracted by
the opportunity to speed read the transcript in chambers.
Whether the trial is to the court or to a jury. Most judges feel that it is less important for them to hear
witnesses live than it is for a jury.

A party may use its own deposition for any purpose if it is unavailable (see 1022.1) or if a ground under the
catchall provision is established (see 1023).
1030 Procedure for Introducing Deposition Testimony as Substantive

Evidence
The following subsections discuss the procedures for introducing deposition testimony as substantive evidence.
Specifically, they cover designation of testimony to be introduced, publication, video depositions, unavailable
witnesses, and using depositions to refresh recollection.

There is no requirement that a party seeking to admit certain deposition testimony offer the entire deposition into
evidence. Rule 32(a) specially refers to the use of all or any part of a deposition. Typically, only a small portion will
be relevant for your purposes. If the testimony is offered as substantive evidence, designate by line and page
number the specific sections to be read to the jury.
Rule 32(a)(4) provides that if only part of a deposition is offered in evidence, opposing counsel has the right to
require the offering party to introduce any other part of the deposition which in fairness ought to be considered.
There is little case law as to what in fairness ought to be considered means. It probably requires the admission of
those additional portions of the deposition that explain an answer, or that elaborate on the content of the answer, so
that the portion offered is not misleading. See De Jesus v. Ridder, 411 F.2d 560 (7th Cir. 1969). However, some
courts suggest that once the foundation for admission by one party has been established and a portion of the
deposition admitted, the other party may offer any other portion of the deposition. See Rogers v. Roth, 477 F.2d
1154, 1159 (10th Cir. 1973).
While most courts are liberal in admitting other parts of the deposition offered by the opposing party, this provision
should not be considered a vehicle for allowing deposition testimony into evidence by a party who has not fulfilled
the requirements for offering the deposition as evidence, if the testimony offered is unrelated to the testimony first
offered. The final clause in Rule 32(a)(4), which states and any party may introduce any other parts, suggests that
opposing counsel may offer any remaining portions of the same deposition transcript when he presents his case.
This provision is tempered, however, by the preamble to Rule 32(a), which requires that the deposition testimony
being offered be admissible under the Rules of Evidence applied as though a witness were then present and
testifying. Moreover, it seems logical that the party attempting to offer other portions of the deposition be required
to show a basis for its admission pursuant to the grounds set forth in Rule 32(a)(1) through (3). Thus, if the
defendant introduces a portion of the deposition of the plaintiff for impeachment purposes, the plaintiff should not
be permitted to introduce other self-serving portions of the deposition not pertaining to the subject matter of the
portion introduced unless he establishes independent grounds for admissibility. Otherwise, the defendant would run
the risk of allowing the plaintiff to put his entire deposition into evidence, regardless of the inadmissibility of its
contents, as the price of impeachment.

Once the foundation for admission of the deposition has been established, you are ready to read (or publish) it
into evidence. If you are in trial to the court, the judge will often request that you, and your opposition, designate by
page and line the portions each of you want made a part of the record and he will read those portions in chambers.
The following is a typical designation, on a captioned pleading:
[Name]
[Address and phone number]
Attorney for [party]
[Name of court]
[Name], )
Plaintiff )
) PLAINTIFFS DESIGNATION
vs ) OF PORTIONS OF DEPOSITION
) OF [NAME] OFFERED
[Name], ) INTO EVIDENCE
Defendant )
)
Plaintiff offers the following portions of the deposition of [name] into evidence:
from to
1. Page 1, line 1 page 3, line 13
Dated: ________________ Signed: ________________

Attorney for [party]
The judge may then read the transcript at his leisure. He may ask the attorneys to note which objections made
during the deposition are renewed, and what reserved objections are now made. His rulings should be on the record.
An alternative followed by some courts is to have the offering party highlight in yellow the portions of the transcript
the offers, and then allow the adverse party to highlight his supplemental designations in blue. Some judges, even in
a trial to the court, have the depositions read aloud.
If depositions are to be read aloud, some courts want to rule on objections in advance, and some want to rule only
on objections made liveduring the course of the reading. Some judges want the reading to be in the sequence
appearing in the deposition, whether offered by plaintiff or by defendant; others want the offering party to read his
designated portions, and then the other party to read his additional portions. If you are the defending party, you
probably will want your offered portions to be read in sequence so they will proceed in a desired order or context.
If the portion to be read is short, the offering attorney may simply read the questions and testimony directly from the
transcript (skipping objections on which the court has already ruled, and colloquy of counsel). If the portion is more
than a few minutes long, it is better to have a person take the stand as if he were the deposed witness; you read the
question and the witness reads the answer exactly as it appears in the transcript. Unless objections have been ruled
on in advance, opposing counsel may object (unless the objection has been or is now waived) just as if the reader
were the witness.
It is important that you read the questions with the same type of emphasis you would if the deponent were on the
stand. Similarly, the person reading the answers should do so in a tone simulating that of the witness. (Indeed, some
attorneys hire a drama student or actor to read the answers, hopefully with more flair than the typical reader.) The
reading of depositions can be terribly boring to a jury, and a monotone questioner or answerer can quickly destroy
the impact you anticipated from the deposition. On the other hand, undue emphasis can also be objectionable. In any
event, the reader should practice prior to the reading.
Before reading the deposition, secure approval from the court to change the deposition exhibit numbers to
correspond to the trial exhibit numbers.
Rather than read to the jury verbatim portions of the deposition transcript, counsel may prefer to read a summary of
deposition testimony, which may be allowed by the court. In the case of In re Air Crash Disaster, 720 F. Supp.
1493, 1503 (D. Colo. 1989), the court required the offering party to prepare the summary and submit it to opposing
counsel. Presumably, any disputes as to the accuracy of the summary were resolved by the court. See also,
Oostendorp v. Khanna, 937 F.2d 1177, 1180 (7th Cir. 1991), cert. denied, 502 U.S. 1064 (1982).

If a video deposition is to be shown to the jury, most judges will rule upon objections in advance. Objections
include not only those directed to the questions and answers, but also to the filming or the prejudicial nature of the
pictures. See Marsee v. United States Tobacco Co., 866 F.2d. 319, 321 (10th Cir. 1989). The tape can then be edited
(usually by the video technician) to delete objections and to delete questions the court rules to be objectionable.
The mechanics of setting up the viewing of a video deposition are important. There should be one or two monitors
for the jurors, located so they can easily see the screen. Often separate monitors are provided for the judge and for
the attorneys. Fortunately, the reporters hired to do the video-taping are usually experts on these mechanics and can
provide the necessary equipment at trial.

When the witness is unavailable and the deposition testimony is critical to your case, you have no choice other than
to present the testimony through a reading of the deposition transcript. The key question here is how to convey the
information in the deposition with the most dramatic impact. Juries abhor having to sit while an attorney reads a
long deposition transcript in a dull monotone.
There are three steps to offering the deposition of an absent witness at trial:
1. Establish a foundation for using the deposition under Rule 32(a)(3) (and thus also under the Rules of
Evidence).
2. Read (that is, publish) the deposition to the judge or jury.
3. Secure rulings on objections.
Practices and procedures relating to offering and reading a deposition transcript vary substantially from district to
district, and indeed, from judge to judge within a district. You should ascertain the procedures of the particular court
in advance of trial, and be prepared to meet all the courts requirements.
The party offering the deposition has the burden of establishing that the deponent is unavailable and thus meets one
of the grounds in Rule 32(a)(3). The simplest way of doing so is to obtain the stipulation of opposing counsel.
However, if you cannot obtain a stipulation, several alternative courses of action are available.
To prove the witness is dead, present:
A death certificate, under Fed. R. Evid. 902
Testimony of a person having personal knowledge that the witness is dead
An obituary or other death notice under Fed. R. Evid. 902
To prove that the witness is more than 100 miles from the place of trial, provide:
An affidavit of the witness (preferably executed immediately prior to or at the time of trial) that he will
be more than 100 miles from the place of trial at the time of trial
Testimony that a long-distance call was placed to a designated number (at a location more than 100 miles
from trial) and the person answering identified himself as the witness (and made certain statements
indicating he was in fact the witness)
Testimony of a person having personal knowledge of the witnesss place of business and residence
A first class or certified letter, delivered to the addressee only (see 39 U.S.C. 5010)
Testimony of the witness in the deposition that at time of trial he will be in a distant location
(If necessary,) testimony that party offering the deposition did not procure the absence of the witness.
To prove that the witness is unable to attend or testify because of age, illness, infirmity or imprisonment,
present:
An affidavit of the witness
An affidavit or testimony of a person (such as doctor or close relative) with personal knowledge of the
extenuating circumstances
To prove that the party offering the deposition has been unable to procure the attendance of the witness by
subpoena, provide:
The subpoena, with affidavit form showing no return of service (see Rule 4(g), which suggests affidavit
is prima facie evidence)
An affidavit of unsuccessful efforts to locate the witness for service
(If necessary,) an affidavit or testimony of process server of inability to serve subpoena, and efforts made
Generally, the deposition of a witness who is more than 100 miles from the courthouse but still within the district
(and hence subject to the subpoena power) may be used. United States v. Intl Business Machines, 90 F.R.D. 377,
382-383 (S.D.N.Y. 1981). However, if the witness testifies as a part of the partys case, he cannot generally
thereafter be deemed unavailable. Id.
You should attempt to obtain a ruling on the use of depositions prior to trial. Most judges are reasonably flexible
and do not require strict proof. Proof is usually offered outside the presence of the jury. See Annotation, Sufficient of
Efforts to Procure Missing Witnesss Attendance to Justify Admission of His former Testimony-State Cases, 3
A.L.R. 4th 87 (1981).
The grounds for admission of a deposition under Rule 32(a)(3) may be established through counsels statements to
the court; sworn testimony or an affidavit is not automatically required as proof. See Sikyta v. Arrow Stage Lines,
Inc., 470 N.W.2d 724 (Neb. 1991), and federal cases cited therein. But see Maresh v. State, 489 N.W.2d 298 (Neb.
1992).

If the sole purpose in using the deposition at trial is to refresh the recollection of the witness, the proper procedure is
to have the witness read silently the relevant section of the transcript. See New Mexico Savings & Loan Assn. v.
United States Fidelity and Guaranty Co., 454 F.2d 328, 337 (10th Cir. 1972). However, in most instances, you will
want the trier of fact to hear the deposition testimony, that is, to use it as substantive evidence. Therefore, you
should try to use the transcript for more than solely refreshing recollection.
1040 Objecting to Admissibility of Deposition Testimony as Substantive

Evidence
Rule 32 also governs your right and responsibility to make objections to the admissibility of deposition testimony.
As a general rule, you must make all technical objections relating to the taking of a deposition within a reasonable
time after the grounds for the objection become known. All testimonial objections, except those based upon grounds
which might be cured if the objection were made at the time of the taking of the deposition, may be withheld until
trial.
1041 Technical Objections Relating to the Taking, Transcribing, and Completion of a

Deposition
Rule 32(d)(1) and (2) addresses objections relating to the noticing of a deposition and the qualifications of the court
reporter. The Rule requires that objections relating to errors and irregularities in the notice for taking a deposition or
the qualifications of the court reporter be made promptly or they will be deemed waived. Objections regarding
notice must be in writing and served upon the party giving the notice. Objections to the qualification of the reporter
must either be made before the taking of the deposition or as soon thereafter as the basis for disqualification
becomes known or could be discovered with reasonable diligence.
Rule 32(d)(4) addresses objections relating to errors or irregularities in the transcribing, signing, or certification of
the deposition. It similarly states that such objections are waived unless a motion to suppress all or part of the
deposition is made with reasonable promptness after the defect is or should have been ascertained. Under this Rule,
if a witness amends his testimony after the time for signing has elapsed, objection must be timely made or it will be
deemed waived.

Like technical objections (see 1041), certain objections which relate to specific questions or answers will be
waived if not made on the record. Rule 32(d)(3). Included are objections to the form of the question (e.g., that it is
leading, compound, or confusing), or any objection to the question which the examiner could cure if made aware of
the problem, including an objection to the of lack of foundation. Conversely, other objections, such as to the
competency of a witness, or to the relevancy or materiality of testimony, are not waived by failure to make them
before or during the taking of the deposition, unless the ground for that particular objection is one which could have
been cured if presented to the examiner.

Rule 32(b) provides a catchall provision for objections to admissibility of deposition testimony. A party may object
at trial to the admissibility of deposition testimony for any reason which would require the exclusion of the
evidence if the witness were then present and testifying. The Rule cross-refers to Rule 28(b), which governs dep-
ositions taken in foreign countries, and Rule 32(d)(3), which governs objections on matters which could reasonably
be cured if timely made.
Rule 32(b) codifies the common law rule that an objection to any aspect of a deposition may generally be reserved
for trial, unless the objection could have been remedied at the time it first arose. Its reference to Rule 28(b) (foreign
depositions) probably was meant to preserve the right to use evidence obtained in response to an interrogatory. The
reference to Rule 32(d)(3) (objections that could have been cured) apparently was meant to incorporate the
provisions dealing with testimony objections and was not meant to contradict the other provisions in Rule 32(d)
which relate to the form rather than the substance of the deposition.

Deposition testimony offered against a party pursuant to Rule 32(a)(2) may be offered at any time during the
presentation of your case, arguably even during the middle of another witnesss testimony. The key is to present the
testimony effectively. In order to have maximum impact, the testimony of the party opponent must be clear, cogent,
and carefully selected. Note that under Rule 32(a)(4) your opponent may ask that other portions of the deposition be
read if required to present a fair picture of the testimony actually given. See also, Fed. R. Evid. 106. As mentioned
(see 1032), some courts will have the testimony that you want and the testimony your opponent wants read in the
sequence that it occurred in the deposition; other courts will have you read the portion you want, and then your
opponent may read the additional portions he wants.
A court may require that you designate such testimony prior to the deposition. Whether it has been designated or
not, announce to the court, at an appropriate time, that you wish to read certain portions of your opponents
witnesss deposition to the jury. Before doing so, consider whether introductory portions of the deposition might be
helpful to inform the jury about the deposition process, such as the fact that the witness was under oath, the fact that
the witnesses attorney was present and that questions and answers were given.
There are many ways to present the testimony. If it is short, just read it to the jury and move on. Where lengthy
portions are to be presented, consider having someone else sit in the witness stand to read the testimony given in
response to your questions. (For further discussion, see 1032.) Treat the issue the same way you would if you were
offering the testimony of a witness who was unavailable.

Probably the most common use of a deposition is to impeach the testimony of a witness given at trial. Where a
witnesss testimony at trial has varied from his testimony at deposition, bring that fact to the jurys attention to
suggest that the witnesss credibility is subject to doubt.
The first step is to consider the significance of the prior inconsistent statement. If it is an isolated occurrence and
relates to an insignificant point, you may choose not to raise it. Few of us tell a story exactly the same way twice. In
fact, minor variations often make testimony more rather than less credible. However, if the inconsistency is major
and relates to a significant point, bring that fact to the attention of the jury. At this point, tactics control as much as
the rules of civil procedure, and the primary question is how to point out the inconsistency in the most effective
way.
One of the first and most important steps to take in impeaching a witness through prior inconsistent deposition
testimony is to establish a proper foundation. If the jury doesnt realize the circumstances under which a deposition
is taken, it may not attribute much importance to the earlier inconsistency.
During introductory cross-examination of the witness, establish that:
His deposition was taken
He was under oath and swore to tell the truth
His attorney was present (if applicable)
He had a chance to confer with his attorney before giving testimony
Also consider establishing that the witness:
Was admonished to tell the truth
Was advised to speak up if he didnt understand the question
(If applicable,) had an opportunity to read the transcript of his deposition and to make corrections
Signed the transcript with a sworn declaration that it was accurate
Note that one court has held that you cannot read into the record the reporters certificate that the deponent refused
to read or sign his deposition because it is hearsay. Ikerd v. Lapworth, 435 F.2d 197, 206-207 (7th Cir. 1970).
However, courts may permit you to ask the witness whether he refused to read and sign his deposition. This inquiry
may not be permitted, however, in jurisdictions applying the amended federal rules, which no longer require a
deponent to sign the deposition. See 561.5.
Laying a foundation for impeachment cannot be overemphasized. While you dont want the jury to get lost in all the
intricacies of the deposition process, make it aware of the formality and seriousness of the proceeding and the fact
that it is similar to the giving of testimony at court. Once a jury understands this, and understands the numerous
opportunities for the witness to correct or clarify testimony, it will realize the true significance of the changed
testimony given at trial.
Once you have explained to the jury what a deposition is all about and have established the solemnity and
importance of the event, you can begin the impeachment. Your approach to impeaching a witness will depend on
your own style as well as the dynamics of the particular situation. But it should be based upon what will be most
persuasive to the jury rather than mere compliance with the Rules of Procedure. The Rules give wide latitude for
your approach to impeachment, so you may and should focus on what is likely to have the desired effect with the
jury.
Have the witness reaffirm the statement made during his direct testimony. (If you are the direct examiner and are
seeking to impeach your own witness, there may be no need for reaffirmation.) For tactical reasons, you may not
choose to have the witness repeat the inconsistent statement. (For example, there is little to be gained by having
damaging testimony told twice.) Nonetheless, raise the subject matter in such a way as to prepare the jury for the
significance of the earlier inconsistent statement. This can be done obliquely by asking the witness:
Q. Do you recall testifying about the meeting you had with Mr. Jones on April 17th, [year]?
A. Yes.
At this point you should decide whether to have the witness repeat his trial statement. If you choose to do so, you
might prompt the witness as follows:
Q. Was it your testimony today that Mr. Jones said that he had not yet read the report you had sent him?
A. Yes.
Now you may introduce the prior inconsistent statement. No evidentiary foundation is required to use a deposition
for impeachment; the deposition transcript, if taken in that civil action, is self-authenticating. In most courts the
proper procedure is to open the sealed deposition transcript, or to ask the court for the sealed deposition transcript
and request leave to open it and to give it to the witness.
If necessary, this is the time to lay a foundation so that the jury understands the deposition process. If that has been
previously done, move to the prior inconsistent statement:
Q. Do you recall that at your deposition at [page and line], I asked you whether Mr. Jones had told you at
the April 17th meeting that he had read your report? [Showing deposition to witness.]
A. Yes.
Q. At that time, didnt you tell me the opposite of what youre saying today? [Reading answer from text in
deposition.]
A. Yes.
Another way to achieve the same result is merely to ask the witness if the following question was read and the
following answer given, and to then read the question and answer in the transcript. Decide exactly how to word
your impeaching questions, but keep in mind at all times that the touchstone for your strategy is what will have the
maximum impact on the jury.
Once the impeaching statement is before the jury, you could attempt to elicit an admission from the witness that he
was lying either then or now. In most cases, however, you should refrain from taking this step. Juries are more often
sympathetic to the hapless witness than they are, to the lawyer or the point being made. It is far more effective to
allow the jury to draw the conclusion that the witness was not being candid than to risk turning off a jury by
overstating your point.
If you decide to obtain such an admission from the witness, you must decide on the strength of your attack. The
possibilities range from asking the witness, And in one of these instances were you mistaken? to asking, Was the
testimony that you gave at your deposition the truth? or Which was the truththe testimony that you gave today,
or the testimony you gave at your deposition? You can also choose to be more blunt and ask the classic question:
In which case were you lying? Your judgment on these points will be honed by experience and by the dynamics
of the situation you are in at the time. Again, you are cautioned that attacks on a witness often redound against the
lawyer more than against the witness.
Where there are a number of relatively minor inconsistencies, emphasize their importance by collecting them. One
approach is to use a board or easel to show the number of inconsistent statements. Use headings such as Then and
Now and place a summary of the different statements in juxtaposition.
Judge Nancy E. Rice of the Denver District Court defined and demonstrated the proper use of a deposition for
impeachment in Colorado:
The purpose of impeaching a witness is to highlight for the fact finder contradictory testimony. If the witness said
the light was red at trial and in his deposition said the light was green, this disparity is relevant and ought to be
noted. The correct procedure begins with tying the witness down to the predicate statement:
Now, Mr. Witness, you said (on direct) (on cross) (in response to opposing counsel) that the light was red,
correct?
Witness: Yes. Then refer the witness to the contradictory statement.
Assuming you are using a deposition to impeach, ask permission from the judge to open the original deposition
(have the original deposition or the impeaching document at your fingertips), approach the witness, and leave the
deposition in front of him. Return to the podium and using your personal copy of the deposition establish the nature
of the impeachment document by saying, Ive placed in front of you your deposition taken on June 2, 1992, in my
office. Do you recall having your deposition taken at that time?
Next, if applicable, confirm that the prior statement was made under oath. Then refer the witness (and, indirectly,
opposing counsel) to the page which contains the impeaching statement: I direct your attention to page 13, line 13
of your deposition, sir. When the witness has situated himself, ask him about his prior testimony in a manner
which compels him to answer yes or no Its true, is it not, that at your deposition I asked you, What color was the
light? and you answered, The light was green?
Counsel should not paraphrase the deposition dialogue but rather quote the question and answer directly from the
deposition or prior statement. The dialogue should be stated in its entirety so as to prevent an objection.
Likewise the impeaching question and answer should not be taken out of context or be misleading. If the question is
asked so that a yes or no answer is demanded, no other answer is responsive. If the witness tries to wiggle his way
out of the impeachment by saying But that isnt what I meant, the attorney may object to the answer as
nonresponsive and insist on a yes or no.
It is imperative that the attorney control the examination by reading the impeaching dialogue himself and not give
the witness an opportunity to give a non-responsive, evasive answer.
Once the witness has been impeached the lawyer must make a tactical decision how to proceed. The lawyer may
want to move to another area completely and force opposing counsel to rehabilitate his witness: or the lawyer may
wish to allow the witness to explain the contradiction, betting on the witness becoming hopelessly entangled in his
web of deception.
One final thought. Most attorneys think of impeaching and refreshing only in the traditional sense of impeaching an
adverse witness and refreshing a friendly witness. Consequently, attorneys become flustered when they are called
upon to impeach their own witness or refresh the recollection of a hostile witness.
This problem can be avoided if one thinks of impeaching and refreshing as mere trial techniques or strokes in a
tennis match. A tennis player can hit a forehand crosscourt for a winner (impeaching an adverse witness) or hit an
easily returnable forehand volley right at the racket of the other player (impeaching your own witness).
Nancy E. Rice, Playing Court Tennis, Impeaching, Refreshing, 15, No. 11 The Docket 1 (Feb. 1992). Its all in
how the shot is executed.
An alternative and less traditional method of impeachment by deposition is to be more combative, for example:
Q. You stated a few minutes ago that you never drink before driving?
***
Q. But thats not what you said at your deposition, is it?
[If the witness admits the inconsistency, finish the question by asking]
Q. What you stated at your deposition was that you have occasionally been known to drink a bit before
driving?
If at any point the witness attempts to explain the inconsistency, the judge will probably permit the witness to do so.
If the inconsistent statement is admitted by the witness, it is not necessary to read the deposition into the record.
Occasionally, judges used to the more traditional method of impeachment (1051.2, supra) may prefer that cross-
examination proceed in that manner.
It may be noted that in this instance, it may be tactically unwise to ask the witness if he or she knew that he or she
was under oath when the deposition was taken; you have already implicitly accredited the deposition testimony as
the truth.

The steps to using the witnesss deposition to refresh his recollection are the same as those for the use of any
document to refresh a witnesss recollection. First, establish that the witness does not now know what he formerly
knew:
Q. Do you know the date you called Mr. Jones?
A. No.
Q. Did you formerly know the date that you called Mr. Jones?
A. Yes.
Next, establish that there is something that would refresh the witnesss recollection:
Q. Is there anything that would refresh your recollection as to the date you called Mr. Jones?
A. Yes, my deposition.
Q. Do you recall your deposition being taken in this civil action on [date]?
A. Yes.
Q. Do you recall you testified at your deposition as to the date you called Mr. Jones?
A. Yes.
Q. Would reviewing your deposition refresh you as to the date that you called Mr. Jones?
A. Yes.

There does not appear to be a uniformity of opinion as to whether the original transcript prior to corrections, or the
corrected transcript, should be the first to be published. Probably the offering party has the option to use either. See
Luqtig v. Thomas, 89 F.R.D. 639, 641-642 (N.D.Ill. 1981).
If the offering party uses the corrected transcript, the other party has the right to publish the testimony prior to the
corrections. Similarly, if the offering party uses the original transcript, the other party has a right to publish the
corrections.
For example, in Usiak v. New York Tank Barge Co., 299 F.2d 808, 810 (2d Cir. 1962), on cross-examination of
plaintiff at trial, defendants counsel read a question from the deposition and the original answer. Upon objection,
the trial court ruled that only the amended, and not the original answer, was admissible. The Court of Appeals held
that this ruling was in error, that the original answer should have been admitted, and the plaintiff would have been
free to introduce the amended answer and explain the reason for the changes.

If your opponent offers only part of a deposition into evidence, you may require your opponent to introduce any
other part which, in fairness, ought to be considered with the part introduced. Rule 32(a)(4). This provision permits
you to keep the portions of the deposition offered by your opponent in context.
In addition, Rule 32(a)(4) provides that any other party, adverse or not, may introduce any other parts. Thus, once a
deposition is used, it becomes usable by all, at least on the subject matter first introduced. For further discussion, see
1031. See also, Fed. R. Evid. 106.
1060 Checklist of Matters to Cover With the Court Concerning Using

Depositions at Trial
Before trial you should obtain rulings, instructions, or advice from the court regarding your planned use of
depositions at trial, particularly if you are not familiar with customary practices of the jurisdiction. These include:
A ruling that the deposition may be used (or advice on the type of foundation evidence that the court wants)
Instructions on whether depositions are to be read by a lawyer or by another person
Does each party read the portions it wants? Are they read in the sequence they appear in the transcript?
Does the court want written designations of portions to be offered? If so, how does the court want the
parties to indicate the portions to be introduced?

Annotation, Admissibility of Deposition, Under Rule 32(a)(3)(B) of Federal Rules of Civil Procedure, Where
Court Finds that Witness is More than 100 Miles from Place of Trial or Hearing, 71 A.L.R. Fed. 382 (1985)
Annotation, Admissibility in Evidence of Deposition as Against One not a Party at Time of its Taking, 4
A.L.R.3d 1075 (1965)
McNamara and Sorensen, Deposition Traps and Tactics, 12, No. 1 LITIGATION 48 (Fall, 1985)
Annotation, Construction of Statute or Rule Admitting in Evidence Deposition of Witness Absent or Distant from
Place of Trial, 94 A.L.R.2d 1172 (1964)
Blumenkopf, Deposition Strategy and Tactics, 5 AM. J. OF TRIAL ADVOCACY 231 (Fall, 1981)
Palmer, Cross-Examination: Using Depositions at Trial, 3 LITIGATION 21 (1977)
Annotation, Partys Right to Use, as Evidence in Civil Trials, His Own Testimony Given Upon Interrogatories or
Depositions Taken by Opponent, 13 A.L.R. 3d 1312 (1967)
McElhaney, Presenting Depositions: How to Make Transcripts and Videos Come Alive, 74 ABA JOURNAL 84
(July, 1988)
Bucklo, Can a Party be Required to Attend Trial, 14, No. 3 LITIGATION 33 (Spring, 1988)
Perwin, Use of Depositions in Federal Trials: Evidence or Procedure, 16, No. 1 LITIGATION 37 (Fall, 1989)
Annotation, Former Testimony Used at Subsequent Trial as Subject to Ordinary Objections and Exceptions, 40
A.L.R. 4th 514 (1985)
Annotation, Admissibility of Depositions Under Federal Evidence Rule 804(b)(1), 84 A.L.R. Fed. 668 (1987)
Annotation, Admissibility of Former Testimony of Nonparty Witness, Present in Jurisdiction, Who Refuses to
Testify at Subsequent Trial Without Making a Claim of Privilege, 92 A.L.R. 3rd 1138 (1979)
Annotation, Identity of Subject Matter or of Issues as Condition of Admissibility in Civil Case of Testimony or
Deposition in Former Proceeding of Witnesses Not Now Available, 70 A.L.R. 2d 494 (1960).
Eisenberg, Countering Deposition Abuse, 29, No. 9, COLORADO LAWYER 1889 (Sept., 1992).
Louisell and Mueller, FEDERAL EVIDENCE (1980).
Mitchell, What Would Happen If Videotaped Depositions of Sexually Abused Children Were Routinely
Admitted in Civil Trials? A Journey Through the Legal Process and Beyond, 15 U. Puget Sound L. Rev. 261-334
(1992)
Lowenthal, et al., Modern Mass Tort Litigation, Prior-action Depositions and Practice-sensitive Procedure, 63
Fordham L. Rev. 989-1031 (1995)
Chapter 11
Depositions and Technology
James Berriman
CEO, Evidox Corporation


1117.1 Overview of Procedures
1117.6 Other Topics
1118 Conclusion

Technology has changed both the substance and the logistics of deposition practice. This chapter will address both.
On substance, 1110 will describe how to depose a corporate record-keeper in the context of electronic discovery
(e-discovery), especially in light of the 2006 amendments to the Federal Rules of Civil Procedure. On logistics,
1120 will address the use of technology tools to automate the deposition process.
Although specific technology implementations tend to change rapidly, the underlying concepts tend to be stable and
universally applicable. This chapter will therefore focus on concepts. To provide context, however, this chapter will
occasionally include references to the most prevalent current implementations of technology, including specific
operating systems and software applications. These references are not intended to endorse particular products; they
are meant to describe implementations that the practitioner is most likely to encounter in the field.

Corporate document discovery is now primarily electronic. The most common repositories for business records are
the mail servers, file servers, database servers, web servers, local hard drives, tape archives, and other stores of
electronic documents in the possession, custody, or control of the corporate party from which discovery is sought.
Because most business records are now stored electronically, the appropriate witness in a record-keeper deposition
is likely to be an IT network administrator rather than a traditional records manager or clerk. To conduct an
effective record-keeper deposition, the attorney must now have at least a basic familiarity with the vocabulary of the
network administrator and the nature of electronic document storage on a corporate network.
The procedures mandated by the 2006 amendments to the Federal Rules of Civil Procedure have heightened the
need for deposing the electronic record-keeper. Discovery disputes involving questions of preservation, spoliation,
scope, burden, cost, and format now tend to be focused on technical issues relating to the storage and organization
of electronic documents.
Despite the focus on technological issues, the deposition of an electronic record-keeper continues to have the same
strategic objectives as the deposition of a traditional record-keeper. These include the following:
To determine the opposing partys policies and procedures on document retention and destruction.
To determine the efforts made by the opposing party to preserve documents from alteration or destruction in
light of the current litigation.
To determine the locations and custodians of potentially-responsive documents based on the facts in
controversy and the scope of the document request.
To determine whether the opposing party diligently searched for those documents, including the procedures
that were used to assure that potentially-responsive documents were recovered and produced.
To explore any apparent gaps in the production and to determine the extent to which potentially-responsive
documents may have been overlooked, altered, destroyed, or withheld from production.
The approach set forth in this chapter is intended to be sufficiently generic that it can be applied to most electronic
record-keeper depositions regardless of variations in the mechanics of document storage.

To conduct an effective deposition of an electronic record-keeper, you will need a basic understanding of the terms
that the record-keeper is likely to use in describing the storage and organization of electronic documents. The list of
terms set forth below has been stripped to bare essentials and has been limited to those that relate most directly to
the storage and organization of electronic documents in a typical corporate network. It is not intended to provide an
exhaustive description of network infrastructure. The definitions have been simplified to emphasize conceptual
rather than technical meaning.
A few of the definitions contain comparisons that are intended to prevent the attorney from using incorrect terms
when deposing an IT professional (such as inadvertently using the term memory when the term storage should
be used). The use of incorrect terms can cause ambiguities in the record and miscommunications with the witness.
The terms are presented in the order that best explains their usage. An understanding of the earlier terms may be
necessary to understanding some of the later terms.
Network: A network is a group of computers connected together to allow users to share access to electronic
information and to communicate with each other electronically. A corporate network typically includes servers
and clients, described below.
Server: A server is a network computer that provides services to other computers on the network. Such services
typically include hosting document repositories that can be shared by users, hosting applications that can be
shared by users, and serving data to users. The centralization of files and data on servers also allows the data to
be more readily backed up and to be centrally administered for purposes of security and maintenance. Note that
the word server can also refer to the specific software application on the computer that provides the service.
There are many kinds of servers, but not all provide services that relate directly to the storage of potentially-
responsive documents in the typical context of e-discovery. The following four kinds of servers tend to be the
focus of a record-keeper deposition because they store business communications, business records, and
corporate data of the kind usually regarded as evidence in a lawsuit:
Mail server: The mail server provides corporate email services. It typically contains the contents of the
individual mailboxes of the users on the network, including emails and attachments, as well as contact
information, calendars, and other utilities. Mailbox contents are typically stored on the mail server in an
integrated database format rather than as individual files. In the corporate world, common mail server
applications include Microsoft Exchange and Lotus Domino. There are also a number of Linux and UNIX-
based mail server applications.
File server: The file server provides a network storage location for repositories of electronic documents
created by users, such as word-processed documents, spreadsheets, and presentation documents. File servers
are typically set up to include private directories for individual users and shared directories for groups of
users. These are also known as file shares, described below. Access to private and shared directories are
controlled by permissions, described below. File servers, unlike mail servers, often do not employ any
particular software application to serve the files. This is because the ability to serve files is inherent to the
operating system and its file system. Therefore, file servers are typically distinguished by the kind of
operating system and file system they employ. In the corporate world, the most common file system is
Windows NT (the file system that is part of the Windows operating system). In corporate environments
where greater document control is necessary, there may be a document management or enterprise content
management application that serves the files.
Database server: The database server provides database services, both to users and to other servers. The
server application is called a database management system (DBMS). It typically contains a store of fielded
data organized in tables. Due to the very wide range of business needs in the corporate world, there are many
kinds of database management systemsbilling and accounting systems, banking and transactional systems,
inventory databases, medical databases, etc. Note, however, that many of these specialized systems are built
on general-purpose DBMS platforms that can be customized to suit many purposes. Commonly-encountered
DBMS platforms in the corporate world include SQL (available in several variants, including Microsoft
SQL and open-source MySQL) and Oracle.
Web server: The web server provides web pages and related services. A server that is specifically intended
to serve an internal network is called an intranet server; a server that is specifically intended to serve a
limited-access external network is called an extranet server. The underlying functionality, however, is the
same. Web servers are flexible platforms that are often linked to file servers and database servers to provide
web-based document repositories and to deliver database content through a web interface to the users.
Therefore, in many corporate networks, an intranet provides some of the services that would otherwise be
provided directly by a file server or database server. Common web server applications include Microsoft IIS
and the open-source Apache HTTP server.
Client: A client is a network computer that receives the services of a server computer. It is typically used by an
individual user to perform work on the network, and is therefore also known as a workstation. A client computer
or workstation can either be a desktop or a laptop. The word client also refers to the specific software
application that receives the service from the server. The following clients correspond to the servers described
above:
Mail client: This is an application that connects to a mail server so the user can access an email account
stored on the mail server. In the corporate world, the most common mail clients are Microsoft Outlook
(which typically, but not necessarily, connects to a Microsoft Exchange server) and Lotus Notes (which
typically, but not necessarily, connects to a Lotus Domino server).
File client: In many corporate networks, there is no specific client application for connecting to a file server.
Rather, access is gained via the operating system and file system of the client computer itself. This is
because operating systems are inherently designed for accessing remotely stored files and thus need no
additional client application. The ability of a particular client computer to access any particular server,
folder, or file is determined by the users permissions, described below. In some instances, you may
encounter a corporate network that uses a document management system which provides a specific software
client for interfacing with a file server. This is generally done when the company needs a more sophisticated
environment for accessing shared files, such as when there are issues of document control, version control,
history tracking, and more elaborate security and file organization needs.
Database client: This is an application that connects to a database server so users can make use of the data
stored in the database management system on the server. There are many kinds of database clients. It is not
uncommon for database clients to be customized to suit the particular needs of the corporation. It is also not
uncommon for users to access databases via a web client, described below.
Web client: This is a client application that can receive the web pages and services served by a web server.
It is also known as a browser. Commonly-found examples include Internet Explorer, Mozilla, Firefox, and
Opera. Because a web server can deliver output from database servers and file servers, a web client can
sometimes serve as the users interface to the contents of database and file servers.
Client-Server Architecture: This term refers to the computer network architecture described above in which
data and files are centrally stored on computers called servers which are accessed by individual users via local
workstations called clients. The terms server and client are also used to describe the particular software
applications that provide the server and client functionality on these computers. In the client-server model, the
server supplies most of the substantive content of the system (files and data) while the client provides the local
interface for the user to see and manipulate that content. This approach allows the benefits of centralized storage
while allowing the client computer to perform most of the local processing as users work on files. In a typical
configuration, a user might create and edit a file locally, but can save it on the network server. This approach
reduces network traffic and improves performance. The client-server model is by far the most prevalent
architecture in the corporate world.
Local Storage: In the client-server environment, the user often has the option to save files locally on the hard
drive of the client computer or on another local storage device (such as a memory key or by burning files to a
CD or DVD). In addition, certain user files tend to be saved locally by default, such as local copies of web pages
that the user has viewed. Therefore, even in the client-server model, there may be significant repositories of user
files that are stored locally rather than on the network.
Permissions (or Rights): These terms refer to the ability of a server administrator to grant or deny access to
particular network servers, folders, and files based on the logon identity of the user. There are various levels of
permissions. In the context of e-discovery and the search for user-created evidence, the most important
permissions include whether a user has the ability to view the contents of a particular server, folder, or file
(read permission) and whether a user has the ability to alter and save the contents of a particular server, folder,
or file (write permission).
File Share: This term refers to disk space on a file server that has been specifically allocated and assigned to a
particular user or group of users for file storage and sharing purposes. Access to a file share is determine by
permissions based on the logon identity of the user. In corporate networks, it is a common practice for each user
to have a private file share or home directory on a network computer for storing files to which no other use
has access. One of the purposes of providing a private file share to each user is that it allows each user to store
their private documents in a location that is backed up on a regular basis (as opposed to local storage on the
users own hard drive, which is less likely to be backed up). It is also common practice for groups of users to
have shared access to various directories based on department or workgroup. These directories are used to
stored documents that multiple users can view or edit when shared access or collaboration is desired.
Custodian Versus User: These terms are sometimes confused. The term custodian is a term of art in the field
of e-discovery. It describes a person (usually an employee) who has a logon account on a corporate network.
The term arises from the legal concept of having custody of relevant evidence, thereby making it discoverable
under Rule 34 (i.e., allowing discovery of documents in the possession, custody, or control of the party from
whom discovery is sought). Note that the term custodian is used only when describing the particular account
from which evidence is being collected. Due to this usage, the term custodian differs from what an IT
professional would call a user. For example, if the mailbox of user Adam is being collected for discovery
purposes, and the mailbox contains an email from user Beatrice, then only Adam is the custodian, although both
Adam and Beatrice are users. Beatrice is not the custodian in this context because the email was not collected
from her account.
Storage Versus Memory: These terms are sometimes confused. In the context of e-discovery, the term
storage should be used when describing the location of files stored on a computers hard drive or other storage
device. The term memory should not be used. This is because IT professionals tend to use the term memory
only when referring to the temporary scratch-pad of active computer memory where real-time processing
takes place. Such memory is chip-based, not disk-based, and its contents are volatile, i.e., they are lost the
moment the computer is turned off. Storage is the focus of e-discovery; memory is not.
Forensic E-Discovery Versus Non-Forensic (Normal) E-Discovery. There is often confusion regarding
forensic versus non-forensic acquisition of electronic data for e-discovery purposes. Forensic acquisition
typically involves making a byte-for-byte copy of an entire storage device (such as a hard drive), including the
apparently empty areas that do not contain active user files. Its primary purpose is to examine those portions of
the storage device that do not contain active user files to see if there is any recoverable data that might otherwise
be inaccessible, including things such as fragments of previously-deleted files or other hidden residue of user
activity. Non-forensic e-discovery, on the other hand, involves collecting the repositories of active user files
described above (mailboxes, file shares, database contents, etc.). Both are important, but both tend to be used for
different purposes. Forensic e-discovery is typically used where there is suspicion of deliberate user misconduct
(e.g., spoliation of evidence or attempts to cover tracks) or where there has been inadvertent loss of crucial data.
It tends to be more expensive and to be used only where there is a perceived need for that level of examination.
Non-forensic e-discovery, on the other hand, is the electronic equivalent of traditional discoverythe
straightforward search for responsive documents among the business records of the corporate party.
Image (or Mirror) Versus Copy: These terms are sometimes confused. In the context of e-discovery, the terms
image or mirror refer to the specific kind of forensic copying in which every byte of a storage device is
preserved, including those bytes that have no active file content. An image or mirror therefore reflects the exact
technical configuration of the entire storage device, stored in a specialized archival format that can only be
viewed with a forensic analysis tool. This means that an image is exactly the same size as the hard drive that was
imaged, even though the active content might occupy only a small portion of that drive. It also means that an
ordinary user cannot directly view the contents of an image or mirror. The term copy, on the other hand,
generally refers to the process of copying the active files from a storage device to another storage device in the
course of ordinary, non-forensic e-discovery. An ordinary copy of a file does not require a specialized forensic
tool to be viewed; it can be simply be viewed with the appropriate software application (e.g., opened as a Word
document or as an Excel spreadsheet, etc.). In the context of e-discovery, people sometimes incorrectly say that
the contents of a computer have been imaged or mirrored when, in fact, only the active files have been copied
from it.
Disaster-Recovery Backups versus Archival Backups. These concepts are sometimes confused. Disaster-
recovery backups are typically performed nightly by corporate IT departments (at least for critical servers). The
purpose is to allow a server to be restored to its previous state in the event of a catastrophic failure. Such
backups are typically made on a fixed number of backup tapes (e.g., 7 or 31) that are overwritten in a 7-day or
31-day rotation, going back to the first tape at the start of each weekly or monthly cycle. The making of disaster-
recovery backups is therefore an IT maintenance function. Archival backups, on the other hand, are primarily
made for the purpose of complying with corporate document retention policies relating to the long-term storage
of business records. They are typically made monthly. Note, however, that there is great variation in backup
practices. It is not uncommon to encounter companies that do not keep long-term archival backups.

To conduct an effective deposition of an electronic record-keeper, you should have at least a general familiarity with
the e-discovery process. This is because the e-discovery process will be one of the major topics of the deposition.
These are the steps that a party typically undertakes to collect and produce electronic documents in response to a
discovery request:
Identifying pertinent custodians. Civil discovery in the business context tends to begin with identifying the
potential employees and other witnesses likely to possess relevant documents. In the context of corporate e-
discovery, these witnesses are called custodians. As defined above, a custodian is a person (usually an
employee) who has a logon account on the clients network. Identification of pertinent custodians is an essential
first step because many electronic document repositories are organized or controlled by logon identity:
Email accounts (mailboxes) are organized by custodian.
Personal file shares (network home directories) are organized by custodian.
Permissions for shared network directories are granted by custodian.
Hard drives and other local storage repositories are issued to custodians.
Important: Do not forget to identify departed custodians who may have been present during the period relevant to
the dispute.
Identifying pertinent electronic repositories. The identification of custodians becomes the basis for
identifying the specific electronic repositories to which those custodians had access. This provides a rational
basis for narrowing the scope of e-discovery to a manageable size. This step includes identifying the particular
mail servers, file servers, database servers, and local repositories that contain the mailboxes, file shares, shared
data, and local data for the pertinent custodians.
Important: Do not forget to identify decommissioned systems and archives that might have been in use during the
period relevant to the dispute.
Preserving electronic repositories. After the pertinent custodians and repositories have been identified, steps
must be taken to ensure that the files and data in those repositories are not altered or deleted pending collection.
This is especially important for the purpose of avoiding sanctions under the 2006 amendments to Rule 37 of the
Federal Rules of Civil Procedure. Preservation is typically done by means of the following:
A preservation memo (litigation hold memo) should be issued to all pertinent (or potentially pertinent)
custodians instructing them to avoid deleting or altering files and data that might be relevant to the dispute.
A second preservation memo should be issued to the network administrators instructing them to suspend
routine data destruction policies for the pertinent (or potentially pertinent) electronic repositories pending
collection.
An archival full backup should be conducted of the servers that contain pertinent repositories (or, in the
alternative, a suitable existing full backup can be used).
Inventory should be taken of existing historical archives to identify those that may contain pertinent data
and to secure them against inadvertent destruction.
System changes, if necessary, should be implemented to accommodate the continued storage of relevant
documents going forward (e.g., increasing mailbox quota size for the pertinent custodians; postponing the
decommissioning of a server that may contain pertinent data).
Note that under the 2006 amendments to Rule 26(b)(2)(B), the obligation to produce electronic documents
can be limited if the burden on the producing party would be excessive. Accordingly, the duty to preserve is
not necessarily an absolute duty.
Employee interviews. The next step is to conduct interviews of the custodians and network administrators to
determine the specific locations within the electronic repositories where pertinent files and data are likely to be
found. For example, many corporate file servers are highly organized, with documents stored in folders
segregated by department and by project.
Harvesting pertinent repositories. This involves collecting copies of the mailboxes, personal file shares,
shared directories, database content, local repositories, and other collections of electronic files that have been
deemed pertinent to the dispute. This is sometimes done by the corporate IT department but is often done by an
e-discovery vendor.
Processing electronic files in preparation for review. This typically involves running various processes on the
collection of electronic documents to prepare them for substantive review by the attorneys. These processes can
include deduplication (removal of duplicate files), filtering based on date restrictions, filtering based on
keywords, and conversion of the files to a format suitable for use in a litigation support database system. This is
most often done by an e-discovery vendor.
Conducting attorney review. This involves substantive review of the processed files by attorneys to determine
responsiveness, privilege, and redactions.
Processing electronic files for production. Once the responsive documents have been flagged for production,
they are typically converted to an appropriate production format. This usually includes electronic images of the
documents (as they would appear if printed) linked to searchable full text and searchable fielded data extracted
from the documents. The images are typically endorsed with control numbers and confidentiality legends.
Redactions, if any, are burned into the images. The images, searchable text, and fielded data are produced on
electronic media to the opposing party.

Your preparations to depose an electronic record-keeper should include the following steps:
Vocabulary: Familiarize yourself with the network vocabulary terms summarized above.
E-Discovery process: Familiarize yourself with the e-discovery process summarized above.
Deposition notice: Familiarize yourself with the deposition notice and the schedule of topics included therein.
Document request: Familiarize yourself with your own document request, since it will form the basis for
questions regarding the adverse partys response.
Document production: Familiarize yourself with the general scope of the production made by the adverse
party, since presumably the inadequacies of the production were a motivating factor in noticing the deposition.
Collect examples of inadequacies: It can be useful to have concrete examples of gaps or inadequacies in the
production, such as pertinent emails that lack a response, emails that lack attachments, documents that reference
other documents not in the production set, absence of emails from key employees, documents produced in an
inappropriate format (e.g., not electronically searchable), etc.
Federal Rules of Civil Procedure: If your case is subject to the Federal Rules, familiarize yourself with the
requirements of the 2006 amendments regarding e-discovery. Key provisions include:
Rule 26(a)(1)(B): Automatic Disclosures. The list of items that a party must disclose automatically has
been amended specifically to address electronically stored information. A party must, without awaiting a
discovery request, provide to other parties a copy of, or a description by category and location of, all ...
electronically stored information ... that the disclosing party may use to support its claims or defenses ....
Rule 26(b)(2)(B): Scope of and Limitations on Discovery. The obligation to produce electronic documents
can be limited if the burden is excessive: A party need not provide discovery of electronically stored
information from sources that the party identifies as not reasonably accessible because of undue burden or
cost. This can be challenged, however: On motion to compel, ... the party from whom discovery is sought
must show that the information is not reasonably accessible .... If that showing is made, the court may order
discovery from such sources and may specify conditions for such discovery.
Rule 26(f): Conference of Parties; Preservation. During the initial conference, the parties must discuss
issues relating to preserving discoverable information and must include a discussion of any issues
relating to disclosure or discovery of electronically stored information, including the form in which it should
be produced.
Rule 16(b)(5): Pretrial Conferences & Scheduling Orders. After receiving the report of the parties under
Rule 26(f), the courts scheduling order may include provisions for the disclosure or discovery of
electronically stored information. According to the Committee Notes, this amendment is designed to alert
the court to the possible need to address the handling of discovery of electronically stored information early
in the litigation.
Rule 33(d): Interrogatories; Option to Produce Business Records. The option to provide access to
business records in lieu of answering interrogatories now explicitly addresses electronically stored
information. Where the answer to an interrogatory may be derived or ascertained from ... electronically
stored information and the burden of deriving or ascertaining the answer is substantially the same for
either party, it is a sufficient answer ... to specify the records from which the answer may be derived or
ascertained and to afford the party serving the interrogatory reasonable opportunity to examine, audit or
inspect such records and to make copies, compilations, abstracts, or summaries.
Rules 34(a) and (b): Request for Production of Documents. Electronically stored information may be
produced in either native format or other searchable format: Unless the parties otherwise agree, or the court
otherwise orders, ... (ii) if a request for electronically stored information does not specify the form of
production, a responding party must produce the information in a form in which it is ordinarily maintained,
or in an electronically searchable form. The party need only produce such information in one form.
Rule 37: Failure to Disclose; Sanctions. The amendments provide a safe harbor for inadvertent spoliation
of electronic documents: Unless a party violated an order in the action requiring it to preserve electronically
stored information, a court may not impose sanctions under these rules on the party for failing to provide
such information if: (1) the party took reasonable steps to preserve the information after it knew or should
have known the information was discoverable in the action; and (2) the failure resulted from loss of the
information because of the routine operation of the partys electronic information system.
Prepare your outline: You should prepare an outline based on the subjects set forth in this chapter, modified to
suit the specific facts of your case.

Throughout the deposition, you should be assessing whether the adverse party has provided the appropriate witness
in the role of electronic record-keeper.
The most appropriate witness is usually a person who has first-hand familiarity with the electronic document
repositories described above, including the partys mail servers, file servers, database servers, web servers, server
backup repositories, and desktop and laptop clients. For a large company, this is usually not the companys Chief
Information Officer or Director of IT. The holders of those positions tend to be focused on strategic planning,
supervision, and budgeting, and therefore tend to lack first-hand knowledge of day-to-day logistics. The most
appropriate witness is usually the network manager (or managers) directly responsible for those systems.
The witness should also be a person who has first-hand familiarity with the process of responding to the document
request. The witness should be someone who is familiar with the list of pertinent custodians, who participated in
identifying the pertinent repositories for those custodians, who participated in implementing the preservation
instructions (and perhaps in assisting the custodians in complying with them), and who participated in conducting
(or assisting the e-discovery vendor in conducting) the harvesting of the repositories.
Another important consideration regarding first-hand knowledge is whether the witness was present throughout the
time period in question. There is often high turnover in corporate IT departments. It is not uncommon to encounter a
situation in which the person responsible for the relevant systems was hired only recently and does not have direct
knowledge of the procedures that were in place during the relevant time period. In such a situation, a lower-level
employee with first-hand knowledge may be preferable.
To the extent that you detect significant gaps in the first-hand knowledge of the witness, you should ask the witness
to identify other employees who would be appropriate witnesses to fill the gaps.

Throughout the deposition of the electronic record-keeper, you will be exploring the steps taken by the adverse
party to comply with the document request and with its obligations under the rules of procedure.
Questions on these topics sometimes elicit objections on grounds of privilege and attorney work product. The
typical basis for the objections is that the process of document collection reflects the judgment and instructions of
the supervising attorney. You should be prepared from the outset to address such objections. Arguments for pushing
back may include the following, depending on the circumstances of the case:
The existence, preservation, and collection of documents are questions of fact that you are entitled to explore.
You are entitled to explore the e-discovery process to assess possible issues of authenticity and chain of custody,
because electronic documents generally require several steps of handling and processing prior to production, and
if handled improperly these procedures could affect the authenticity of the produced documents.
If there are apparent gaps in the production, you are entitled to explore the scope and adequacy of the e-
discovery process to support a possible motion to compel.
If there are apparent gaps in the production, you are entitled to explore the question of spoliation to support a
possible motion for sanctions.
A record-keeper might not be deemed to be a member of the corporate control group for the purpose of
establishing privilege with corporate employees (if your jurisdiction still uses the control group test).
A record keeper is a fact witness in a merely ministerial role, and communications regarding the logistics of the
e-discovery process tend to be merely ministerial.
A record-keepers communications regarding the e-discovery process may have involved others whose presence
extinguishes privilege.
There may also be objections based on scope, since the witness is likely to have knowledge of company-wide
systems that contain data and files beyond the limited collection produced in response to the discovery demand. If
so, keep in mind that the scope of permissible inquiry under Rule 26 is substantially broader than the requirements
for relevance at trial (i.e., Relevant information need not be admissible at the trial if the discovery appears
reasonably calculated to lead to the discovery of admissible evidence.).

Regarding the substance of the deposition, this chapter will not repeat the general advice contained in the preceding
chapters regarding procedures, preparations, tactics, and strategy. Instead, this chapter will focus only on the issues
that are specific to the electronic record-keeper.
1117.1 Overview of Repositories and Procedures
It is useful to obtain from the witness a general overview of the companys network architecture and procedures as
they relate to the relevant discovery sources. This will provide context for the specific discovery that was conducted
for your case. The overview need not be highly technical; an organizational overview of the major data repositories
and procedures is generally sufficient. The purpose is simply to determine where the relevant evidence is mostly
likely to reside on the corporate network and what format it is in, not to find out what kinds of routers and switches
the company network uses (or similar irrelevant details). This overview will provide context for the specific issues
to come later.
Important: IT systems are replaced or upgraded on a regular basis. It is not unusual to learn that the current
systems were not in operation during the entire period relevant to the dispute. It is therefore crucial to determine
when the transition to the current systems occurred and what happened to the prior systems and their contents. Note
that this generally is not an issue for file servers, since the contents of old file servers are easily copied to new file
servers. It is more of an issue with mail servers and other servers that use specific server applications, since
differences in format may preclude migration of data from the old server to the new server.
Important: Employee turnover is a common occurrence. It is therefore crucial to explore the companys procedures
surrounding the departure of key custodians, such as determining how the IT department handles the closing of
employee network accounts and what it does with the contents of the departed employees mailbox and other
electronic repositories.
Below are the basic questions that you may wish to ask regarding each of the main repositories of electronic
documents:
Mail servers:
Is there one centralized mail server for all employees?
If there are multiple mail servers, how are accounts allocated among the mail servers? (e.g., by department?
by office location?)
Which mail server or servers contain the accounts of the custodians relevant to this dispute?
What is the mail server application? (e.g., Microsoft Exchange? Lotus Domino?)
What mail client application is used by the employees to communicate with the server? (e.g., Microsoft
Outlook? Lotus Notes?)
Who is the administrator of the mail server?
How often are disaster-recovery backups made for the mail server? Describe rotation.
Where are the disaster-recovery backups stored?
How often are archival backups preserved for the mail server?
Where are the archival backups stored?
[Request an index of the archival backups of the mail server.]
How long has the current mail system been in operation?
If the mail system has changed during the relevant period, what was the prior mail system?
When did the change to the mail system take place?
Were the contents of the prior mail system imported into the current mail system?
Is the prior mail system still operational?
Is the prior mail server still in the companys possession? If not, what was done with it?
Were the contents of the prior mail system archived prior to the change?
How often was the prior mail system archived?
Where are the archives for the prior mail server stored?
[Request an index of the archival backups of the prior mail server.]
Is there a quota on mailbox size for users? If so, what is it?
When a users mailbox reaches its quota, what is done to reduce its size?
Is there automatic purging of mailbox contents? If so, on what schedule?
Is a users mailbox backed up or archived before contents are purged?
If so, where are the archives stored?
Do employees maintain their own mail archives (e.g., by exporting mailbox contents to local files)?
If so, where do they store their archives?
When employees leave the company, what happens to their mailboxes?
When employees leave the company, what happens to any archives of their mailboxes?
[If mailboxes are preserved, request an index of departed custodians whose mailboxes are preserved.]
File servers:
Is there one centralized file server for all employees?
If there are multiple file servers, how is usage allocated among them? (e.g., by department? by office?)
Does the company use a document management system for the management of user files on the file servers?
If so, what is it? Who administers it?
Do employees have personal file shares (private home directories) on the file server?
Is there a quota on the size of a personal file share? What is it?
When a personal file share reaches its quota, what is done to reduce its size?
Do employees have access to shared directories on the file server?
How are the directories on the file servers organized?
Who determines the organization of files on the file servers?
Who determine the names of folders and files on the file servers?
Who determines the permissions of users for access to shared directories on the file servers?
Which file servers contain the personal file shares of the custodians relevant to this dispute?
Which file servers contain the shared directories to which those custodians have access?
Is it possible to generate a list of the shared directories to which the custodians have access?
[Request production of such a list.]
Is there automatic purging of file server contents? If so, on what schedule?
What is the operating system of the file servers?
Who is the administrator of the file servers?
How often are disaster-recovery backups made for the file servers?
How often are archival backups preserved for the file servers?
[Request an index of the archival backups of the file servers.]
How long have the current file servers been in operation?
How old are the oldest user files on the file server?
What happened to the files that existed prior to that time?
If the file servers have changed during the relevant period, were the contents of the prior file servers copied
to the current file servers?
Were the contents of the prior file servers archived prior to the change?
How often were the prior file servers archived?
Where are the archives for the prior file servers stored?
[Request an index of the archival backups of the prior file server.]
When employees leave the company, what happens to their personal file shares?
[If personal file shares are preserved, request an index of departed custodians whose shares are preserved.]
Database servers:
[Note that database servers, unlike mail servers and file servers, are less likely to store custodian-specific
repositories of electronic documents. They are also much more company-specific and purpose-specific and
less generic than mail servers and file servers. Therefore, your exploration of this topic will have to be more
case-specific. Also note that discovery of the contents of database servers is often focused primarily on the
substantive reports that can be generated from the data (e.g., financial reports). The electronic record-keeper
may not be familiar with the substantive content and usage of the database server.]
Which database servers contain the databases used by the custodians relevant to this dispute?
What database management system (DBMS) do those servers use?
Who is the administrator of those database servers?
How often are disaster-recovery backups made for the database servers?
How often are archival backups preserved for the database servers?
[Request an index of the archival backups of the database servers.]
How long have the current database servers been in operation?
If the database servers have changed during the relevant period, were the contents of the prior database
servers migrated to the current servers?
Were the contents of the prior database servers archived prior to the change?
How often were the prior database servers archived?
Where are the archives for the prior database servers stored?
[Request an index of the archival backups of the prior database servers.]
Web servers:
[Note that web servers also tend to be less custodian-specific than mail servers and file servers, since
content generally isnt segregated by account. Web servers tend to store company-wide information rather
than specific user repositories. They also tend to obtain some of their content from the file servers and
database servers described above. There are, however, some intranet systems (like Microsoft Sharepoint)
that allow users to create their own document and content repositories for internal use.]
Please describe the companys internet, intranet, and extranet web servers.
Who is the administrator of those web servers?
Who is in charge of putting content on the web servers?
Do users have the ability to upload content to the web servers?
Do the custodians in this case have that ability?
How often are disaster-recovery backups made for the web servers?
How often are archival backups preserved for the web servers?
[Request an index of the archival backups of the web servers.]
How long have the current web servers been in operation?
If the web servers have changed during the relevant period, were the contents of the prior servers migrated
to the current servers?
Were the contents of the prior web servers archived prior to the change?
How often were the prior web servers archived?
Where are the archives for the prior web servers stored?
[Request an index of the archival backups of the prior web servers.]
Backup systems:
[Questions regarding the backup and archiving schedule for specific servers have already been addressed in
the sections above. In addition, you should ask the following question to determine the general format of the
backup tapes, since this may relate to whether restoration of archival data might be unduly costly or
burdensome under Rule 26(b)(2)(B).]
What backup software or system does the company use to generate its backups?
What backup hardware does the company use to generate its backups?
Has the backup system changed during the time period at issue?
If so, does the company still maintain its prior backup system?
If not, how does the company restore tapes from the prior time period?
Client computers (workstations, desktops, laptops):
Who is the administrator of the desktops and laptops that are issued to users?
Is there a record of which computers have been issued to specific employees?
Is there a record of which computers have been issued to the custodians in this case?
Have any of the custodians been issued more than one computer? Identify.
Do any of the custodians use or have access to more than one computer? Identify.
For the custodians during the relevant period, how often have their computers been replaced?
When an employees computer is replaced, what happens to any locally-stored files on the old computer?
For the custodians in this case, what happened to their locally-stored files when their computers were
replaced?
When an employee leaves, what happens to any locally-stored files on their computer?
Are the contents of employee computers preserved upon departure?
What happens to the computer itself?
Are the computers of departed employees re-issued to other employees?
If so, please describe the procedures used (e.g., is the hard drive wiped?)
For each of the departed custodians in this case (if any), were the contents of their computers preserved?
For each of the departed custodians in this case (if any), were their computers re-issued? To whom?
Other local storage devices:
Does the company provide support for Blackberries, PDAs, cell phones, or other devices that can be used for
communication and storage of data?
Who is the administrator in charge of these devices?
Is there a record of which devices have been issued to specific employees?
Is there a record of which devices have been issued to the custodians in this case?
Identify which devices have been issued to each of the custodians.
Does the company provide CD or DVD burners to employees?
Do any of the custodians have CD or DVD burners?
Does the company permit users to connect USB storage devices to company computers?
Do any of the custodians use USB storage devices?
Offsite systems:
Does the company have any offsite repositories of electronic documents? Describe.
Does the company use any vendors for hosting data offsite? E.g., web site hosting, extranet hosting, backup
hosting, etc.? Describe.
Do employees have access to offsite repositories of electronic documents? E.g., web mail? Describe.
You should determine whether the witnesss company has a general document retention and destruction policy,
whether the witness is aware of its terms, and whether the policy applies to the electronic repositories maintained by
the IT department. It is not uncommon to find that it does not. This is because the IT department is typically
responsible only for the technical functioning of the electronic document repositories rather than the substantive
business content of the documents, and therefore is not in a position to assess whether particular electronic
documents are substantively eligible for destruction. In some instances, a policy may specify purely objective
destruction criteria (such as a rolling 90-day purge on email) that would be handled by the IT department. There
may also be a specification in the policy for the preservation or archival backups.
If there is a policy, you should first explore the witnesss independent understanding without direct reference to the
document. This may help you to assess the degree to which the IT department actually complies with the
requirements of the policy. If a network administrator is not independently familiar with the requirements of the
policy, it would tend to suggest that compliance with the policy has not been incorporated into the standard
operating procedures of the IT department.
You should determine whether individual custodians are responsible for retention and destruction of their own
electronic files. You should determine if there were any changes in the policy during the entire period relevant to
the dispute, and if so, what procedural changes were made to address the policy changes. If you have not received a
copy of the policy in discovery (including any prior versions for the applicable discovery period), you should
request production.
The question of preservation of electronic documents for purposes of the litigation is an important one, especially
under the 2006 amendments to Federal Rules of Civil Procedure. Historically, a party has been entitled to seek
sanctions for deliberate spoliation of evidence or the failure to preserve evidence that it knew or should have known
was important to the case (this includes the ability to request that a jury be instructed that it may draw adverse
inferences from such a failure). As amended, however, Rule 37 now provides a safe harbor against sanctions for
inadvertent spoliation of electronic documents. The safe harbor applies only if the party took reasonable steps to
preserve the information after the party knew or should have known that the information was discoverable in the
action, and only if the loss occurred as the result of the routine operation of the partys electronic information
system. The safe harbor does not apply if the spoliation occurred in violation of a preservation order.
You should therefore explore at length the question of whether the party took reasonable steps to preserve electronic
information, including when those steps (if any) were taken, and whether any loss of data has occurred despite those
steps. The central issue on the question of preservation is whether the party issued specific preservation instructions
to its employees. Either answer to this question can be helpful: if the witness testifies that there were no preservation
instructions, it can support a sanctionable claim of spoliation; if the witness testifies that there were preservation
instructions, it can support a claim that documents have been withheld (because if a preservation instruction was
given, but documents are obviously missing from the production set, where are they?).
It also critical to establish the date on which the preservation instructions were first issued and to whom. This
provides a basis for assessing the diligence of the opposing party in satisfying its obligation to preserve. This is
especally important if the date of the instruction is significantly later than the date on which the party knew or
should have known that discovery of the electronic data was reasonably foreseeable.
The following questions should be asked to establish the existence, scope, and timing of any preservation
instructions:
Have you received any instructions to preserve electronic data and documents relating to this dispute?
Who issued those instructions?
What were the instructions that you received? (explore specifics)
When did you first receive those instructions?
In what form did you receive those instructions? (verbal, written, email)
Did you retain a copy of the instructions?
Who else received those instructions?
Did you receive instructions more than once? If so, how many times, when, and from whom?
Did you have any conversations about the instructions? If so, when and with whom?
Which employees were subject to the preservation instructions? Name them specifically.
Did those employees receive preservation instructions?
If so, did they receive the same instructions as you or different instructions?
Which employees were not subject to the preservation instructions?
[Ask for production of all preservation instructions.]
The following questions should be asked to establish how the witness interpreted the scope of the
instructions and how they were implemented:
What did you do in response to these instructions?
How did you determine which data and files should be preserved?
How did you determine which data and files should not be preserved?
What did you do to ensure that data and files were preserved?
Did you issue any instructions to others to ensure that data and files were preserved?
Did you preserve the contents of any mail servers? Describe.
Did you preserve the contents of any file servers? Describe.
Did you preserve the contents of any database servers? Describe.
Did you preserve the contents of any web servers? Describe.
Did you preserve the contents of any backups? Describe.
Did you preserve the contents of any offsite systems? Describe.
Did you preserve the contents of any local hard drives of custodians? Describe.
Did you preserve the contents of any other local devices of custodians? Describe.
Did you assist any of the custodians in preserving any local files or data?
Did you suspend any IT operations to prevent loss of data?
Have any network systems been replaced, decomissioned, or taken out of service since the preservation
instructions were issued?
If so, what did you do to prevent loss of data?
Have any workstations, desktops, or laptops of custodians be replaced, decommissioned, or taken out of
service since the preservation instructions were issued?
Have any custodians left the company since the preservation instructions were issued?
Are there any pending changes that could cause loss of data (decommissioning of old servers, transitioning
to new systems, replacement of employee computers, etc.)?
What steps have you taken to continue preserving data going forward?
A major objective of the deposition is to determine what procedures the party followed to comply with the
document request. This inquiry will obviously be case-specific, both as to the scope of the request and the particular
architecture of the companys network and electronic document repositories. The information learned in the
preceding sections will allow you to focus your questions. Note that the scope of what was preserved at the outset of
the litigation might be broader than the scope of what was actually collected for production.
You may wish to begin this section by marking the document request as an exhibit and determining whether the
witness saw it or used it as a guide during the collection process. Note, however, that the role of an electronic
record-keeper tends to be logistical or ministerial rather than substantive (i.e., maintaining the electronic repositories
without regard for their substantive content). If the document request is subject-matter based, it is possible that the
witness will not be familiar with those subject matters.
Also note that the entire harvesting operation may have been delegated to an e-discovery vendor. Even if this is the
case, the vendor would have required the assistance of an internal point of contact to provide information and
access.
You should ask the following:
What instructions did you receive regarding what to collect for production?
Did the scope of these instructions differ from the scope of the instructions that you received to preserve
electronic documents (if any)?
Have you preserved any repositories that were not included in the materials collected for production?
If so, what repositories have you preserved that were not collected for production?
Who did the actual collection (i.e., the companys IT department; an e-discovery vendor)?
From which repositories were files collected (servers, clients, backups, etc.)?
What were the criteria for narrowing the scope of what was collected?
Were the entire contents of the mail server collected? Or only the mailboxes of the pertinent custodians, and
if so, whom?
Were the entire contents of the file server collected? Or only the personal file shares of the pertinent
custodians, and if so, whom? Or only selected shared directories?
Were backups collected? If so, from which servers? From which dates?
What other server data was collected? Databases? Web pages?
Were local files collected? From which sources? For which custodians?
Was any searching or keyword filtering done at the collection stage? If so, describe.
Were files collected regarding departed custodians? Describe.
Were files collected from decommissioned systems? Describe.
Were files collected from offsite repositories? Describe.
After the documents are harvested from the partys network, but before they are reviewed by the attorneys for
substance, they are typically subjected to several levels of processing and culling by objective criteria. From an
evidentiary point of view, the significance of this step is that it may include deduplication, keyword filtering, date
filtering, custodian filtering, and other processes that narrow the universe of documents before they are assessed by
the reviewing attorneys. For purposes of testing the adequacy of the production, you will want to know what
processes were applied, what criteria were used, what was filtered out, and what was filtered in.
This step is usually done by an e-discovery vendor since it requires specialized tools. If so, you should explore the
extent to which the witness is familiar with what the vendor did. If a vendor was not used, you should explore what
processing was performed by the party. You should ask the following:
Were the files deduplicated? If so, was the deduplication done globally (i.e., across all custodians so that only
one unique instance of each document remains in the entire review set) or only within the files of each custodian
(so that one unique instance remains within each custodians repository)?
Were the files keyword searched? If so, what were the search criteria (including the keywords and Boolean
connectors used, i.e., AND, OR, NOT, etc.).
Were any date restrictions applied? If so, what were they?
Were any other filtering criteria applied? If so, what were they?
Were the files converted to a different format in preparation for review? If so, what format, and what elements
were captured in the conversion (e.g., image, text, fielded data, hidden data, etc.).
1117.6 Other Topics
The final stages of the e-discovery process (including attorney review, subjective culling, privilege calls, redactions,
and final processing and conversion for production) are typically handled by the attorneys representing the party.
Accordingly, you have probably reached the end of the witnessess knowledge regarding the process. At this point,
you may wish to inquire about the issues that are specific to your case and circumstances. This can include
exploring any apparent gaps in the production and determining the identities of other employees who may be able to
fill in the gaps in the witnesss knowledge.

There are a number of technology tools to help you prepare for, take, and use a deposition. This section will briefly
describe several examples that have proven to be especially effective, and are widely known and supported.

Technology tools do not change the traditional objectives for deposition preparation; they only provide more
effective ways to implement those objectives. Traditional preparation objectives include finding the most pertinent
documents to use as deposition exhibits, reviewing the transcripts of other deponents to find ammunition for
developing corroborating or conflicting testimony, and organizing facts to establish a credible framework into
which to fit the exhibits and testimony. Technology tools can greatly assist the attorney in achieving each of these
objectives, especially in the context of modern e-discovery.
These tools are also known as litigation-support database systems. They are designed to allow attorneys to review
document productions electronically. They can provide the following advantages:
Full-Text Searching. This allows the reviewing attorneys to perform keyword searches to find documents that
contain particular names, company names, email addresses, domain names, product names, terms of art, etc. It
also allows Boolean searching, which involves using multiple search terms with logical connectors (AND, OR,
NOT, etc.) to refine the searches. Electronic document productions can be made full-text searchable in two
ways:
If the production originated with native files in existing electronic formats (emails, word-processed
documents, spreadsheets, etc.), the existing text is typically extracted as part of the production process.
Indeed, under the new amendments to Rule 34, electronic documents are now required to be produced in an
electronically searchable form. When text is extracted from an existing electronic document as part of the
production process, the text is typically perfect.
Non-searchable documents (such as images scanned from paper) can be made full-text searchable by means
of Optical Character Recognition (OCR). OCR text is not perfect because it uses pattern-recognition
algorithms and is therefore dependent on the quality of the text in the image. OCR works very well with
clean black-on-white text in normal sizes and normal fonts. It works poorly or not at all with handwriting,
colored or low-contrast originals, small fonts, weird fonts, low-resolution faxes, and other low-quality
documents.
Fielded Searching. Documents in a litigation-support database system can also have fielded data. Fielded data
is searchable text organized into useful fields such as date, author, recipient, subject, etc. It allows the attorneys
to restrict searches by these criteria, such as by limiting search results to a particular date range or where a
particular name appears only as author. There are two ways to obtain fielded data:
If the production originated in a format that inherently includes fielded data (such as emails with header
fields), the data can be extracted as part of the production process.
Documents that lack fielded data can be manually coded to include the data. This involves having a team
of reviewers read the documents and manually enter the appropriate fields of data. This can be an expensive
process so is generally done only when the cost is justified.
Electronic review. Electronic files can be reviewed by paralegals and attorneys sitting at their desks using their
computers. This has several benefits: there is no need for a war room; the documents take no office space;
everyone has access to all of the documents all the time; the documents can be reviewed remotely; and the
project can be spread among multiple offices.
Coding and flagging. While attorneys are searching and review documents electronically, they can flag issues
in a systematic and granular way (e.g., entering issue codes; rating hotness from 1 to 5; etc.). In addition, the
coding itself is searchable. This can be very useful later when searching for documents to be used as exhibits at
a deposition.
There are two major categories of litigation-support database systems: internally-hosted systems and externally-
hosted systems. Internally-hosted systems are installed on the law firms own network. They allow firms to have
direct control over their databases and to retain in-house possession of their document repositories and data. The
best-known examples are Summation and Concordance. Externally-hosted systems are secure extranets that
attorneys can access via their web browsers. They allow shared access among multiple parties and provide hosting
for situations in which firms cannot (or do not wish to) host their own databases in-house. There are many vendors
who provide litigation-support database hosting services.
These allow attorneys to manage and search large collections of electronic transcripts. They allow full-text
searching, Boolean searching, annotating, viewing, and printing transcripts. The two best-known systems are
Summation and LiveNote.
These allow attorneys to organize collections of facts, dates, and documents, and thereby bring order to the chaos of
a large and complex litigation. They allow chronologies and indexes to be generated. The two best-known systems
are CaseMap and the Summation Case Organizer.

At the deposition itself, technology tools can allow the attorney to receive a real-time feed of the transcript, to use
the feed effectively in asking follow-up questions or preparing to cross-examine the witness, to conduct searches of
the prior transcripts, to conduct searches of the exhibits, to share access to the live transcript with colleagues located
offsite, and to communicate with colleagues regarding the substance of the deposition as it unfolds.
The best-known systems for receiving a real-time feed are LiveNote and Summation Realtime (a module of the
mobile version of Summation). These applications allow the attorney to connect a laptop to the stenographers
laptop and thereby to receive a streaming copy of the stenographic feed. This feed results in a dirty transcript
the raw uncorrected transcript as it exists prior to the proofing and editing necessary to make it an official transcript.
A dirty transcript is the result of the stenographers use of a phonetic transcription system filtered through a
computer program that attempts to convert the phonetic input to dictionary words. It generally lacks correct
spellings for non-dictionary words such as names and technical terms of art, and there may be errors involving
incorrect phonetic equivalents (e.g., there/their/theyre). A dirty transcript is nevertheless extremely useful. It is
generally legible, provides the attorney with a real-time record of the testimony, and allows the attorney to avoid
feverishly taking notes as the testimony proceeds.
Both LiveNote and Summation Realtime have similar user interfaces that are easy to use. As the dirty transcript
scrolls down the page, the attorney can pause and unpause the scrolling and can easily highlight particular lines of
testimony. This makes it easy for the attorney to scroll back to find the portions that can form the basis for follow-
up questions. The attorney can also conduct searches in the dirty transcript (but should allow for the spelling
imperfections). It is also possible to define a list of keywords that will automatically be highlighted when they
appear in the transcript.
Because LiveNote and Summation Realtime include transcript management tools, they also make it easy to open
and search earlier transcripts from the case while at the deposition. Remember to update your collection of dirty
transcripts to include the official, corrected versions that you receive from the stenographer after the deposition.
Important: When scheduling the deposition, you must specify in advance that you want to receive a real-time feed.
This is necessary to ensure that the stenographer is qualified to provide such a feed and will have the necessary
cables to connect with your laptop.

If you want the ability to conduct searches on your production database or exhibit database during the deposition,
mobile versions of Summation and Concordance are available. These allow you to have a local copy of your
litigation-support database systems. The practicality of this approach depends on the size of your databases. If the
document databases are especially large, you may wish to limit your local copy to pertinent subsets such as the
production that corresponds to the party or witness being deposed. Note that if you are using the mobile version of
Summation to receive the real-time transcript, you already have the application necessary to have a local copy of
your litigation-support database.
LiveNote offers a service that allows the stenographic feed to be transmitted offsite during the deposition. This
allows collaboration in real time with others who are not present in the room. This means that other attorneys at
your firm, co-counsel, experts, and clients can be virtually present at the deposition. A more basic approach to the
same concept is to use a laptop with wireless access and simply communicate with offsite participants via email
(perhaps by retyping or pasting the most pertinent testimonial passages).
Important: Any time you are at a deposition in which someone is using a real-time feed (whether text or video), or
is using wireless communications, you may want to establish on the record who else is present virtually. If you do
not ask, there may be no way for you to know. This is especially important if your deposition involves trade secrets
or information that is designated attorneys eyes onlythere may be parties, non-parties, or other non-attorneys
present in the room while the testimony is unfolding. This is also important if there is a sequestration order or
agreement in effect.

After the deposition has been taken, there are deposition technology tools that will help you to use it effectively. As
described above, transcript management systems like Summation and LiveNote are very effective for conducting
sophisticated searches and annotation of the transcripts. It is also possible to link images of the deposition exhibits
to the transcript.
One of the most effective ways to present a deposition at trial is to use a presentation tool that allows
synchronization of the transcript with video. This allows the jury to see demeanor and appearance of the deponent
as well as the scrolling transcript of the testimony. This can be especially important if the witness has a strong
accent, is soft-spoken, or is otherwise difficult to understandthe transcript provides the textual clarity while the
video provides the jury with a good view of the deponent. Presentation tools also allow the transcript text to be
called up in and displayed in real time during trial to allow impeachment of the witness. The best known
presentation applications for synchronized video and transcript display (as well as exhibit display) are TrialDirector
and Sanction. PowerPoint can also be an effective tool for displaying short deposition clips or transcript excerpts.
Appendix A
Full Text of the Hague Convention on the

Taking of Evidence Abroad in Civil or
Commercial Matters
The text of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters is reprinted
below. Counsel should note that each signatory to the conventions may or may not have opted out of particular
articles or portions thereof, and it is counsels responsibility to confirm which countries are current signatories to the
Convention, and which portions are in effect.
CONVENTION ON THE TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS

The States signatory to the present Convention,
Desiring to facilitate the transmission and execution of Letters of Request and to further the accommodation of the
different methods which they use for this purpose.
Desiring to improve mutual judicial co-operation in civil or commercial matters.
Have resolved to conclude a Convention to this effect and have agreed upon the following provisions
CHAPTER ILETTERS OF REQUEST
Article 1
In civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of
the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request,
to obtain evidence, or to perform some other judicial act.
A Letter shall not be used to obtain evidence which is not intended for use in judicial proceedings, commenced or
contemplated.
The expression other judicial act does not cover the service of judicial documents or the issuance of any process
by which judgments or orders are executed or enforced, or orders for provisional or protective measures.
Article 2
A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming
from a judicial authority of another Contracting State and to transmit them to the authority competent to execute
them. Each State shall organize the Central Authority in accordance with its own law.
Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other
authority of that State.
Article 3
A Letter of Request shall specify
(a) the authority requesting its execution and the authority requested to execute it, if known to the requesting
authority;
(b) the names and addresses of the parties to the proceedings and their representatives, if any;
(c) the nature of the proceedings for which the evidence is required, giving all necessary information in regard
thereto;
(d) the evidence to be obtained or other judicial act to be performed.
Where appropriate, the Letter shall specify, inter alia
(e) the names and addresses of the persons to be examined;
(f) the questions to be put to the persons to be examined or a statement of the subject-matter about which they
are to be examined;
(g) the documents or other property, real or personal, to be inspected;
(h) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used;
(i) any special method or procedure to be followed under Article 9.
A Letter may also mention any information necessary for the application of Article 11.
No legalization or other like formality may be required.
Article 4
A Letter of Request shall be in the language of the authority requested to execute it or be accompanied by a
translation into that language.
Nevertheless, a Contracting State shall accept a Letter in either English or French, or a translation into one of these
languages, unless it has made the reservation authorized by Article 33.
A Contracting State which has more than one official language and cannot, for reasons of internal law, accept
Letters in one of these languages for the whole of its territory, shall, by declaration, specify the language in which
the Letter or translation thereof shall be expressed for execution in the specified parts of its territory. In case of
failure to comply with this declaration, without justifiable excuse, the costs of translation into the required language
shall be borne by the State of origin.
A Contracting State may, by declaration, specify the language or languages other than those referred to in the
preceding paragraphs, in which a Letter may be sent to its Central Authority.
Any translation accompanying a Letter shall be certified as correct, either by a diplomatic officer or consular agent
or by a sworn translator or by any other person so authorized in either State.
Article 5
If the Central Authority considers that the request does not comply with the provisions of the present Convention, it
shall promptly inform the authority of the State of origin which transmitted the Letter of Request, specifying the
objections to the Letter.
Article 6
If the authority to whom a Letter of Request has been transmitted is not competent to execute it, the Letter shall be
sent forthwith to the authority in the same State which is competent to execute it in accordance with the provisions
of its own law.
Article 7
The requesting authority shall, if it so desires, be informed of the time when, and the place where, the proceedings
will take place, in order that the parties concerned, and their representatives, if any, may be present. This
information shall be sent directly to the parties or their representatives when the authority of the State of origin so
requests.
Article 8
A Contracting State may declare that members of the judicial personnel of the requesting authority of another
Contracting State may be present at the execution of a Letter of Request. Prior authorization by the competent
authority designated by the declaring State may be required.
Article 9
The judicial authority which executes a Letter of Request shall apply its own law as to the methods and procedures
to be followed.
However, it will follow a request of the requesting authority that a special method or procedure be followed, unless
this is incompatible with the internal law of the State of execution or is impossible of performance by reason of its
internal practice and procedure or by reason of practical difficulties.
A Letter of Request shall be executed expeditiously.
Article 10
In executing a Letter of Request the requested authority shall apply the appropriate measures of compulsion in the
instances and to the same extent as are provided by its internal law for the execution of orders issued by the
authorities of its own country or of requests made by parties in internal proceedings.
Article 11
In the execution of a Letter of Request the person concerned may refuse to give evidence in so far as he has a
privilege or duty to refuse to give the evidence
(a) under the law of the State of execution; or
(b) under the law of the State of origin, and the privilege or duty has been specified in the Letter, or, at the
instance of the requested authority, has been otherwise confirmed to that authority by the requesting
authority.
A Contracting State may declare that, in addition, it will respect privileges and duties existing under the law of
States other than the State of origin and the State of execution, to the extent specified in that declaration.
Article 12
The execution of a Letter of Request may be refused only to the extent that
(a) in the State of execution the execution of the Letter does not fall within the functions of the judiciary; or
(b) the State addressed considers that its sovereignty or security would be prejudiced thereby.
Execution may not be refused solely on the ground that under its internal law the State of execution claims exclusive
jurisdiction over the subject-matter of the action or that its internal law would not admit a right of action on it.
Article 13
The documents establishing the execution of the Letter of Request shall be sent by the requested authority to the
requesting authority by the same channel which was used by the latter.
In every instance where the Letter is not executed in whole or in part, the requesting authority shall be informed
immediately through the same channel and advised of the reasons.
Article 14
The execution of the Letter of Request shall not give rise to any reimbursement of taxes or costs of any nature.
Nevertheless, the State of execution has the right to require the State of origin to reimburse the fees paid to experts
and interpreters and the costs occasioned by the use of a special procedure requested by the State of origin under
Article 9, paragraph 2.
The requested authority whose law obliges the parties themselves to secure evidence, and which is not able itself to
execute the Letter, may, after having obtained the consent of the requesting authority, appoint a suitable person to do
so. When seeking this consent the requested authority shall indicate the approximate costs which would result from
this procedure. If the requesting authority gives its consent, it shall reimburse any costs incurred; without such
consent the requesting authority shall not be liable for the costs.
CHAPTER IITAKING OF EVIDENCE BY DIPLOMATIC OFFICERS, CONSULAR AGENTS AND

COMMISSIONERS
Article 15
In a civil or commercial matter, a diplomatic officer or consular agent of a Contracting State may, in the territory of
another Contracting State and within the area where he exercises his functions, take the evidence without
compulsion of nationals of a State which he represents in aid of proceedings commenced in the courts of a State
which he represents.
A Contracting State may declare that evidence may be taken by a diplomatic officer or consular agent only if
permission to that effect is given upon application made by him or on his behalf to the appropriate authority
designated by the declaring State.
Article 16
A diplomatic officer or consular agent of a Contracting State may, in the territory of another Contracting State and
within the area where he exercises his functions, also take the evidence, without compulsion, of nationals of the
State in which he exercises his functions or of a third State, in aid of proceedings commenced in the courts of a State
which he represents, if
(a) a competent authority designated by the State in which he exercises his functions has given its permission
either generally or in the particular case; and
(b) he complies with the conditions which the competent authority has specified in the permission.
A Contracting State may declare that evidence may be taken under this Article without its prior permission.
Article 17
In a civil or commercial matter, a person duly appointed as a commissioner for the purpose may, without
compulsion, take evidence in the territory of a Contracting State in aid of proceedings commenced in the courts of
another Contracting State if
(a) a competent authority designated by the State where the evidence is to be taken has given its permission
either generally or in the particular case; and
(b) he complies with the conditions which the competent authority has specified in the permission.
A Contracting State may declare that evidence may be taken under this Article without its prior permission.
Article 18
A Contracting State may declare that a diplomatic officer, consular agent or commissioner authorized to take
evidence under Articles 15, 16 or 17, may apply to the competent authority designated by the declaring State for
appropriate assistance to obtain the evidence by compulsion. The declaration may contain such conditions as the
declaring State may see fit to impose.
If the authority grants the application, it shall apply any measures of compulsion which are appropriate and are
prescribed by its law for use in internal proceedings.
Article 19
The competent authority, in giving the permission referred to in Articles 15, 16 or 17, or in granting the application
referred to in Article 18, may lay down such conditions as it deems fit, inter alia, as to the time and place of the
taking of the evidence. Similarly it may require that it be given reasonable advance notice of the time, date and place
of the taking of the evidence; in such a case a representative of the authority shall be entitled to be present at the
taking of the evidence.
Article 20
In the taking of evidence under any Article of this Chapter persons concerned may be legally represented.
Article 21
Where a diplomatic officer, consular agent or commissioner is authorized under Articles 15, 16 or 17 to take
evidence
(a) he may take all kinds of evidence which are not incompatible with the law of the State where the evidence is
taken or contrary to any permission granted pursuant to the above Articles, and shall have power within such
limits to administer an oath or take an affirmation;
(b) a request to a person to appear or to give evidence shall, unless the recipient is a national of the State where
the action is pending, be drawn up in the language of the place where the evidence is taken or be
accompanied by a translation into such language;
(c) the request shall inform the person that he may be legally represented and, in any State that has not filed a
declaration under Article 18, shall also inform him that he is not compelled to appear or to give evidence;
(d) the evidence may be taken in the manner provided by the law applicable to the court in which the action is
pending provided that such manner is not forbidden by the law of the State where the evidence is taken;
(e) a person requested to give evidence may invoke the privileges and duties to refuse to give the evidence
contained in Article 11.
Article 22
The fact that an attempt to take evidence under the procedure laid down in this Chapter has failed, owing to the
refusal of a person to give evidence, shall not prevent an application being subsequently made to take the evidence
in accordance with Chapter I.
CHAPTER IIIGENERAL CLAUSES
Article 23
A Contracting State may at the time of signature, ratification or accession, declare that it will not execute Letters of
Request issued for the purpose of obtaining pretrial discovery of documents as known in Common Law countries.
Article 24
A Contracting State may designate other authorities in addition to the Central Authority and shall determine the
extent of their competence. However, Letters of Request may in all cases be sent to the Central Authority.
Federal States shall be free to designate more than one Central Authority.
Article 25
A Contracting State which has more than one legal system may designate the authorities of one of such systems,
which shall have exclusive competence to execute Letters of Request pursuant to this Convention.
Article 26
A Contracting State, if required to do so because of constitutional limitations, may request the reimbursement by the
State of origin of fees and costs, in connection with the execution of Letters of Request, for the service of process
necessary to compel the appearance of a person to give evidence, the costs of attendance of such persons, and the
cost of any transcript of the evidence.
Where a State has made a request pursuant to the above paragraph, any other Contracting State may request from
that State the reimbursement of similar fees and costs.
Article 27
The provisions of the present Convention shall not prevent a Contracting State from
(a) declaring that Letters of Request may be transmitted to its judicial authorities through channels other than
those provided for in Article 2;
(b) permitting, by internal law or practice, any act provided for in this Convention to be performed upon less
restrictive conditions;
(c) permitting, by internal law or practice, methods of taking evidence other than those provided for in this
Convention.
Article 28
The present Convention shall not prevent an agreement between any two or more Contracting States to derogate
from
(a) the provisions of Article 2 with respect to methods of transmitting Letters of Request;
(b) the provisions of Article 4 with respect to the languages which may be used;
(c) the provisions of Article 8 with respect to the presence of judicial personnel at the execution of Letters;
(d) the provisions of Article 11 with respect to the privileges and duties of witnesses to refuse to give evidence;
(e) the provisions of Article 13 with respect to the methods of returning executed Letters to the requesting
authority;
(f) the provisions of Article 14 with respect to fees and costs;
(g) the provisions of Chapter II.
Article 29
Between Parties to the present Convention who are also Parties to one or both of the Conventions on Civil Procedure
signed at the Hague on the 17th of July 1905 [99 British Foreign and State Papers 990] and the 1st of March 1954
[286 UNTS 265], this Convention shall replace Articles 8-16 of the earlier Conventions.
Article 30
The present Convention shall not affect the application of Article 23 of the Convention of 1905, or of Article 24 of
the Convention of 1954.
Article 31
Supplementary Agreements between Parties to the Conventions of 1905 and 1954 shall be considered as equally
applicable to the present Convention unless the Parties have otherwise agreed.
Article 32
Without prejudice to the provisions of Articles 29 and 31, the present Convention shall not derogate from
conventions containing provisions on the matters covered by this Convention to which the Contracting States are, or
shall become Parties.
Article 33
A State may, at the time of signature, ratification or accession exclude, in whole or in part, the application of the
provisions of paragraph 2 of Article 4 and of Chapter II. No other reservation shall be permitted.
Each Contracting State may at any time withdraw a reservation it has made; the reservation shall cease to have effect
on the sixtieth day after notification of the withdrawal.
When a State has made a reservation, any other State affected thereby may apply the same rule against the reserving
State.
Article 34
A State may at any time withdraw or modify a declaration.
Article 35
A Contracting State shall, at the time of the deposit of its instrument of ratification or accession, or at a later date,
inform the Ministry of Foreign Affairs of the Netherlands of the designation of authorities, pursuant to Articles 2, 8,
24 and 25.
A Contracting State shall likewise inform the Ministry, where appropriate, of the following
(a) the designation of the authorities to whom notice must be given, whose permission may be required, and
whose assistance may be invoked in the taking of evidence by diplomatic officers and consular agents,
pursuant to Articles 15, 16 and 18 respectively;
(b) the designation of the authorities whose permission may be required in the taking of evidence by
commissioners pursuant to Article 17 and of those who may grant the assistance provided for in Article 18;
(c) declarations pursuant to Articles 4, 8, 11, 15, 16, 17, 18, 23 and 27;
(d) any withdrawal or modification of the above designations and declarations;
(e) the withdrawal of any reservation.
Article 36
Any difficulties which may arise between Contracting States in connection with the operation of this Convention
shall be settled through diplomatic channels.
Article 37
The present Convention shall be open for signature by the States represented at the Eleventh Session of the Hague
Conference on Private International Law.
It shall be ratified, and the instruments of ratification shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
Article 38
The present Convention shall enter into force on the sixtieth day after the deposit of the third instrument of
ratification referred to in the second paragraph of Article 37.
The Convention shall enter into force for each signatory State which ratifies subsequently on the sixtieth day after
the deposit of its instrument of ratification.
Article 39
Any State not represented at the Eleventh Session of the Hague Conference on Private International Law which is a
Member of this Conference or of the United Nations or of a specialized agency of that Organization, or a Party to
the Statute of the International Court of Justice may accede to the present Convention after it has entered into force
in accordance with the first paragraph of Article 38.
The instrument of accession shall be deposited with the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force for a State acceding to it on the sixtieth day after the deposit of its instrument
of accession.
The accession will have effect only as regards the relations between the acceding State and such Contracting States
as will have declared their acceptance of the accession.
Such declaration shall be deposited at the Ministry of Foreign Affairs of the Netherlands; this Ministry shall
forward, through diplomatic channels, a certified copy to each of the Contracting States.
The Convention will enter into force as between the acceding State and the State that has declared its acceptance of
the accession on the sixtieth day after the deposit of the declaration of acceptance.
Article 40
Any State may, at the time of signature, ratification or accession, declare that the present Convention shall extend to
all the territories for the international relations of which it is responsible, or to one or more of them. Such a
declaration shall take effect on the date of entry into force of the Convention for the State concerned.
At any time thereafter, such extensions shall be notified to the Ministry of Foreign Affairs of the Netherlands.
The Convention shall enter into force for the territories mentioned in such an extension on the sixtieth day after the
notification indicated in the preceding paragraph.
Article 41
The present Convention shall remain in force for five years from the date of its entry into force in accordance with
the first paragraph of Article 38, even for States which have ratified it or acceded to it subsequently.
If there has been no denunciation, it shall be renewed tacitly every five years.
Any denunciation shall be notified to the Ministry of Foreign Affairs of the Netherlands at least six months before
the end of the five year period.
It may be limited to certain territories to which the Convention applies.
The denunciation shall have effect only as regards the State which has notified it. The Convention shall remain in
force for the other Contracting States.
Article 42
The Ministry of Foreign Affairs of the Netherlands shall give notice to the States referred to in Article 37, and to the
States which have acceded in accordance with Article 39, of the following
(a) the signatures and ratifications referred to in Article 37;
(b) the date on which the present Convention enters into force in accordance with the first paragraph of Article
38;
(c) the accessions referred to in Article 39 and the dates on which they take effect;
(d) the extensions referred to in Article 40 and the dates on which they take effect;
(e) the designations, reservations and declarations referred to in Articles 33 and 35;
(f) the denunciations referred to in the third paragraph of Article 41.
IN WITNESS WHEREOF the undersigned, being duly authorized thereto, have signed the present Convention.
DONE at The Hague, on the 18th day of March 1970, in the English and French languages, both texts being equally
authentic, in a single copy which shall be deposited in the archives of the Government of the Netherlands, and of
which a certified copy shall be sent, through the diplomatic channel, to each of the States represented at the Eleventh
Session of the Hague Conference on Private International Law.
Specific country requirements can be found on-line at: http://www.hcch.net/e/status/stat20e.html

Table of Cases
A
Adams v. Bellsouth Telecomms., Inc., 138.1
Addamax Corp. v. Open Software Foundation, Inc., 244
Adkins v. Mid-America Growers, Inc., 121
Advance Sys., Inc. of Green Bay v. APV Baker PMC, Inc., 211.3
Aerotech Resources, Inc. v. Dodson Aviation, Inc., 240
Aetna Casualty & Sur Co. v. Hyman Constr. Co., 332
Ager v. Jane C. Stormont Hosp. & Training Sch. for Nurses, 225
Alexander v. Fed. Bureau of Investigation, 124, 210.1.1
All West Pet Supply Co. v. Hill's Pet Products Div., Colgate-Palmolive Co., 639A
Allen v. Chicago Transit Authority, 765
Allender v. Raytheon Aircraft Co., 221
Allgeier v. U.S., 1023
Alper v. United States, 213.3
Al-Rowaishan Establishment Universal Trading & Agencies, Ltd. v. Beatrice Foods Co., 762.1
Amco Engineering Co. v. Bud Radio, Inc., 751
American Hangar, Inc. v. Basic Line, Inc., 240, 410, 740
American Health Systems, Inc. v. Liberty Health System, 210.1.1
American High-Income Trust v. AlliedSignal, Inc., 2.10.3
American Tel. and Tel. Co. v. Grady, 310
American Universal Ins. Co. v. Falzone, 123
Andover Data Services v. Statistical Tab. Corp., 763
Anguile v. Gerhart, 142
Anker v. G.D. Searle & Co., 225
Appel v. Sentry Life Insurance Co., 1011.6
Archer Daniels Midland Co. v. AON Risk Services, Inc., 138
Armstrong Cork Co. v. Niagara Mohawk Power Corp., 211.2
Armstrong v. Hussmann Corp., 542, 630, 634, 740, 753, 832.4
Avirgan v. Hull, 332
Axelson, Inc. v. McIlhany, 639.2A
B
Babets v. Secretary of the Executive Office of Human Services, 765
Bahamas Agricultural Industries, Ltd. v. Riley Stoker Corp., 731
Baine v. General Motors Corp., 211.2
Baird v. Koerner, 636
Baird v. Larson, 241
Bank of New York v. Meridien Biao Bank Tanzania, 124, 454
Barber v. Ruth, 240
Barlow v. Esseite Pendaflex Corp., 561
Barnes v. Madison, 210.1.1
BCI Communication Systems, Inc. v. Bell Atlanticom Systems, Inc., 322
BDT Products, Inc. v. Lexmark International, Inc., 240
Beacon v. R.M. Jones Apartment Rentals, 321, 331
Bellany v. Molitor, 1022.1
Berkey Photo, Inc. v. Eastman Kodak Co., 762.1
Berry v. Crown Equipment Corp., 631A
Betts v. United Airlines, Inc., 832.4
Bieganek v. Wilson, 242
Biltrite Corp. v. World Road Markings, Inc., 113
Blackthorne v. Posner, 561
Bobrosky v. Vickers, 1023
Bogan v. Northwestern Mutual Life Ins. Co., 141, 210
Bogosian v. Gulf Oil Corp., 622A
Bohannon v. Honda Motor Co. Ltd., 762.1, 835.2
Bon Air Hotel, Inc. v. Time, Inc., 211
Booker v. Mass. Dept of Pub. Health, 212
Borase v. M/A COM, Inc., 761.1
Boring v. Keller, 639A
Boucher v. U.S. Suzuki Motor Corp., 635A
Bouygues Telecom S.A. v. Tekelec, Inc., 125
Braswell v. United States, 763
Bristol-Myers Squibb Co. v. Rhone-Poulenc Rorer, Inc., 622.2A
British Int'l Ins. Co. v. Seguros La Republica, S.A., 131.2
Broadband Communications Incorporated v. Home Box Office, Inc., 211.2
Brooks v. People, 636A
Brown v. Best Foods, A Division of CPC Intern., Inc., 620A
Burlington City Board of Education v. O.S. Mineral Products Co., Inc., 141
Burlington Industries v. Exxon Corp., 636, 761.2
Buycks-Roberson v. Citibank Federal Sav. Bank, 124, 211
Bywaters v. Bywaters, 142, 232
C
C&F Packing Co. v. Doskocil Companies, 210.1
C.P.C. Partnership Bardot Plastics, Inc. v. P.T.R., Inc., 565
Cafes v. LTV Aerospace Corp., 221
Cahn v. Cahn, 210.1.1
Caldwell v. Wheeler, 560
Calzaturficio S.C.A.R.P.A s.p.a. v. Fabiano Shoe Co., 637
Cape Wind Associates v. Donelan, 763
Cardenas v. Prudential Ins. Co., 211.2
Carolina Indus. Prods., Inc. v. Learjet Inc., 710
Castillo v. St. Paul Fire & Marine Insurance Co., 634
Castle v. Sangamo Weston, Inc., 762.1
Cent. States, Southeast & Southwest Areas Pension Fund v. Express Freight Lines, Inc., 131.2
Centennial Mgmt. Servs. v. Axa Re Vie, 244
Cherry Creek School Dist. No. 5 v. Voelker, 141
Cholfin v. Gordon, 634, 832.4
City of New York v. Coastal Oil New York, Inc., 832.4
Clark v. Beverly Health and Rehabilitation Services, Inc., 112
Clark v. Gen. Motors Corp., 622.1A
Clem v. Allied Van Lines Int'l, 142
Cleveland v. North America Van Lines, Inc., 240
Cleveland v. Palmby, 212
Clone Component Distributors of America, Inc. State of Texas, 232
Coates v. Johnson and Johnson, 740
Codeiro v. Levasseau, 1011.2
Coletti v. Cudd Pressure Control, 1010, 1021.2
Collins v. Int'l Dairy Queen, Inc., 832.4, 833
Collins v. Wayne, 1021.1
Comeaux v. T.L. James & Co., 1023
Community Counselling Service, Inc. v. Reilly, 1021.2
Connolly Data Systems, Inc. v. Victor Technology, Inc., 764
Constantino v. Herzog, 637A
Constellation NewEnergy, Inc. v. Powerweb, Inc., 124
Container Technology Corp. v. J. Gadsden Pty., Ltd., 765
Contardo v. Merrill Lynch, Pierce, Fenner & Smith, 213.3
Continental Federal Savings and Loan Ass'n v. Delta Corp. of America, 138, 231.1
Cootes Drive LLC v. Internet Law Library, Inc., 221
Cordle v. Allied Chemical Corp., 731
Cotter v. Shearson Lehman Hutton, Inc., 980
Cox v. Commonwealth Oil Co., 1011.6
Crawford Fitting Co. v. J.T. Gibbons, Inc., 240
Credit Lyonnais, S.A. v. SGC Int'l, Inc., 131.2
Crowe v. Nivison, 225
Crown Cent. Petroleum Corp. v. Garcia, 211.2
Culinary Foods v. Raychem Corp., 332
Cutchin v. State, 762.3
D
Daigle Maine Medical Center. Inc., 554
Dallas v. Marion Power Shovel Co., 639.1A
Daly v. Superior Court, 763
Darling v. Charleston Community Hospital, 637A
Daubert v. Merrill Dow Pharmaceuticals, Inc., 636A
David Tunick, Inc. v. Kornfeld, 639A
De Jesus v. Ridder, 1031
Dean Foods Co. v. Pappathanasi, 622.2A
DeLeo v. Wacholvia Bank, 763
DeLoach v. Philip Morris Companies, Inc., 561
Delozier v. First Nat'l. Bank of Gatlinburg, 223
Derderian v. Polaroid Corp., 762.1
Detoy v. City & County of San Francisco, 715
DiCecci v. Dillard House, Inc., 240
Digital Equipment Corp. v. Systems Industries, Inc., 634
DiPalma v. Medical Mavin, Ltd., 761.3
Diversified Industries Inc. v. California Sierra Financial Services, 761.1
Dixon v. Bowen, 950
Donaldson v. Central Ill. Pu. Serv. Co., 636A
Dravo Corp. v. Liberty Mut. Ins. Co., 124, 211
Duff v. Lobdell-Emery Mfg. Co., 561
Dunkin' Donuts, Inc. v. Mandorico, Inc., 211.3
Dunlap v. Reading Co., 321
Dunlap-McCuller v. Riese Organization, 142
Duplan Corp. v. Derring Milliken, Inc., 761.3
Durflinger v. Artiles, 225
E
E.F. Hutton & Co. v. Jupiter Dev. Corp., 763
Edwards v. Gordon & Co., 711
El Salto, S.A. v. PSG Co., 131.2
Elgas v. Colorado Belle Corp., 620A
Eli Lilly & Co. v. Commissioner of Revenue, 622.1A
Ellsberg v. Mitchell, 765
Elwell v. Conair, Inc., 561
El-Yafi v. 360 East 72nd Owners Corp., 832.4
Epling v. UCB Films, Inc., 211.3
Equal Employment Opportunity Commission v. Thruston Motor Lines, Inc., 212
Erstad v. Curtis Bay Towing Co., 561
Ethicon Endo-Surgery v. U.S. Surgical Corp., 630, 620, 634
F
Federal Deposit Insurance Corp. v. Butcher, 124
Ferko v. NASCAR, 761.3
Fiber Systems International, Inc. v. Roehrs, 141
First Chicago Int'l v. United Exch. Co., Ltd., 761.1
Fischer v. Alhadeff, 634
Fisher v. Goord, 513
Fisher v. State Farm Ins. Companies, 240
Ford v. Philips Electronics Instruments Co., 764
Frazier v. S.E. PA. Transp. Authority, 542, 632, 634
Freedom Newspapers, Inc. v. Egly, 925.1, 925.2
Freedom Wireless, Inc. v. Boston Communications Group, Inc., 622.2A
Frideres v. Schlitz, 321
Frye v US, 636A
Fuddruckers, Inc. v. KCOB I, L.L.C., 131.2
G
GMAC Bank v. HTFC Corp., 615.1, 635
Galella v. Onassis, 331
Galjour v. General American Tank Car Corp., 242
Gall v. Jamison, 762.1
Gannett Co. v. DePasquale, 310
Garcia v. Co-Con, Inc., 522
Gaw v. State By and Through Dept. of Transp., 561.3
General Electric Co. v. Joiner, 636A
Georgia-Pacific Plywood Co. v. U.S. Plywood Corp., 761.1
Gerdes v. United States, 764
Gibbs v. National R.R. Passenger Corp., 138
Gleneagle Ship Management Co. v. Leondakos, 131.1
Gluck v. Ansett Australia Ltd., 113
Golden Door Jewelry Creations v. Lloyds Underwriters Non-Marine Ass'n, 244
Goldwater v. Postmaster General of U.S., 241
Goodwin v. Boston, 210.1.1
Gorie v. Gorie, 925.1, 925.2
Gracia v. Lee, 1011.3
Green Construction Co. v. The Kansas Power & Light Co., 240
Greenway v. International Paper, 561
Gwich'in Steering Committee v. State, 765
H
Hall v. Clifton Precision, 410, 542, 634, 832.4, 833
Hall v. Sykes, 620A
Hampton v. Pennsylvania Railroad Co., 740
Hardin v. Belmont Textile Machinery Co., 213.3
Harrell v. State, 144.2
Harry F. Ortlip Co. v. George Hyman Construction Co., 980
Hartman v. U.S., 1022.1
Hasbro, Inc. v. Serafino, 213.3
Haviland & Co. v. Montgomery Ward & Co., 138
Hawthorne Partners v. AT&T Technologies, Inc., 561
Hearst/ABC-Viacom Entertainment Services v. Goodway Marketing, Inc., 740, 835.5
Henson v. Citizens Bank of Irving, 763
Herald Association, Inc. v. Judicial Conduct Board, 310
Hercules, Inc. v. Exxon Corp., 761.1, 761.3
Herman v. Marine Midland Bank, 225
Heron Interact, Inc. v. Guidelines, Inc., 762.1
Hickey v. U.S., 639.1A
Hickman v. Taylor, 710
Hill v. Lamulle, 240
Hirschfield v. Securities and Exchange Comm., 636
Hisaw v. Unisys Corp., 762
Hodge v. Borden, 1011.6, 1021.3
Hoechst Celanese Corp. v. National Union Fire Ins. Co., 138.1
Hose v. Chicago and North Western Transp. Co., 241
House v. Combined Ins. Co. of America, 225
Houser v. Snap-On Tools Corp., 731
Huff v. Marine Tank Testing Corp., 1023
Humphrys, Hutcheson & Moseley v. Donovan, 636
Hunt Int'l Resources Corp. v. Binstein, 211.3
I
IDS Life Insurance Company v. SunAmerica, Inc., 761.6
Iheme v. Simmons, 1021.1
Ikerd v. Lapworth, 1012.1, 1051.1
Imposition of Sanctions in Alt v. Cline, 639.1A
In Mulvey v. Chrysler Corp., 211.2
In re "Agent Orange" Project Liability Litigation, 566
In re Air Crash Disaster at Sioux City, 636
In re Air Crash Disaster at Stapleton Int'l Airport, 622A
In re Air Crash Disaster, 1022.1, 1032.1
In re Ampicillin Antitrust Litigation, 761.2
In re Anthracite Coal Antitrust Litigation, 762, 763
In re Atlantic Financial Management Securities Litigation, 430
In re Comair Air Disaster Litigation, 762.1
In re Coordinated Pretrial Proceedings in Petroleum Antitrust Litigation, 764
In re Corrugated Container Anti-Trust Litigation, 763
In re Cumins, 311
In re Deposition Subpoenas of Garlock, 2.10.3
In re Digital Equipment Corp., 921
In re Hollar, 210.1.1
In re Johnson and Johnson, 211.1
In re International System and Controls Corp., 762
In re Levine, 321
In re Linerboard Antitrust Litigation, 454.1
In re LTV Securities Litigation, 636
In re Master Key Litigation, 763, 765
In re Matter of Anonymous Member of the South Carolina Bar, 833
In re Norplant Contraceptive Products Liability Litigation, 125
In re Paoli RR PCB Litigation, 631A
In re PSE&G Shareholder Litigation, 833
In re Shell Oil Refinery, 322, 335, 622.1A
In re State Comm'n. of Investigation Subpoena No. 5441, 761.3
In re Stratosphere Corp. Securities Litigation, 637, 833
In re Sunset Bay Associates, 1011.5
In re Terra Int'l, 321
In re The One Bancorp Securities Litigation, 635
In re Tutu Water Wells Contamination CERCLA Litigation, 125
Int'l Unions of Electrical, Radio and Machine Workers v. Westinghouse Electric Corp., 740
Intel Corp. v. VIA Tech., Inc., 113
Intermedics, Inc. v. Ventritex, Inc., 622A
International Insurance Co. v. Montrose Chemical Corp. of California, 430
Inverness Medical Switzerland GMBH v. Acon Labs., Inc., 454.1
J
Jackson v. Woodford, 210
Jahr v. IU Intern. Corp., 138, 142
James Julian, Inc. v. Raytheon Co., 762.1
Joiner v. Choicepoint Services, Inc., 213.3
Jones v. Clinton, 438.2
Jones v. Hirschfeld, 951
Jos. Schlitz Brewing, Co. v. Muller & Phipps (Hawaii), Ltd., 430
Jou Jou Designs, Inc. v. JOJO Ligne Internationale, Inc., 210
K
Kallen v. Nexus Corp., 141
Kastigar v. United States, 763
Keogh v. Pearson, 740
Kerr v. Able Sanitary and Environmental Servs., Inc., 211.3
Kerschbaumer v. Bell, 321
Kinan v. City of Brocton Mass., 565
King v. Pratt & Whitney, 124, 715
Kiraly v. Berkel, Inc., 835.2
Kirschner v. Broadhead, 731
Klepal v. Pennsylvania Railroad Co., 1021.2
Krauss v. Erie Ry. Co., 1021.1
Kumho Tire Co. v Carmichael, 636A
L
Laborers Nat. Pension Fund v. ANB Inv. Management, 131.2
Laird v. Illinois Central Gulf Railroad Co., 1000
Lake Superior Paper Indus. v. County of St. Louis, 311
Lapenna v. Upjohn Co., 124
Latiolais v. Whitley, 144.2
Laurenzano v. LeHigh Valley Hosp., Inc., 710
Lawson v. G. D. Searle & Co., 637A
Learning International, Inc. v. Competence Assurance Systems Inc., 832.4
Ledden v. Kuzma, 310
Lewis R. Pyle Memorial Hosp. v. Superior Court, 310, 321
Liberty Mutual Ins. Co. v. Superior Court, 211.2
Lier v. Saint Mary's Medical Center, 145
Littlejohn v. Bic Corp., 332
Littman v. Walgreen Eastern Co., 213.3
Logerquist v. McVey, 636A
Los Angeles Trust Deed & Mortgage Exchange v. Securities and Exchange Comm., 522
Lugtig v. Thomas, 561
Lumpkin v. Bi-Lo, Inc., 322
Luqtig v. Thomas, 1053
M
M & C Corp. v. Erwin Behr Gmbh & Co., 138
M. Berenson Co. v. Faneuil Hall Marketplace, Inc., 121
Magee v. Paul Revere Life Ins. Co., 241
Mansmith v. Hameeduddin, 240
Maresh v. State, 1035
Marisco v. Sears Holding, 211.2
Marisol A. v. Giuliani, 951
Marker v. Union Fidelity Life Ins. Co., 212
Marmo v. Tyson Fresh Meats, Inc., 240
Marroco v. General Motors Corp., 623A
Marsee v. United States Tobacco Co., 516, 1033
Marshwood Co. v. Jamie Mills, Inc., 321, 333
Martin v. City of Indianapolis, 753
Martindale v. Int'l Tel. and Tel., 763
McBride v. Merrell Dow Pharmaceuticals, Inc., 711
McCarthy v. Barnett Bank of Polk County, 332
McDonough v. Keniston, 832.4
McHale v. Westcott, 241
McLean v. Prudential S.S. Co., 213.3
McNerney v. Archer Daniels Midland Co., 241
Melton v. McCormick, 560
Memphis Publishing Company v. City of Memphis, 310
Messing, Rudavasky & Weiliky v. President and Fellows of Harvard College, 112
Microsoft Corp. v. Very Competitive Computer Products Corp., 1011.5
Miller v. Universal City Studios, Inc., 321
Miller v. Waseca Medical Center, 831, 834
Milsen Co. v. Southland Corp., 331
Mitsui & Co. (U.S.A.) Inc. v. Puerto Rico Water Resources Authority, 212
Monsanto Co. v. May, 211.2
Moore v. Ashland Chemical, 631A
Morgan v. United Parcel Serv. of Am., Inc., 121
Morrison v. Reichhold Chemical, Inc., 240
Motel 6, Inc. v. Dowling, 561.4
Movan v. Pittsburg Des Moines Steel Co., 639.1A
Mudd v. U.S., 764
Murphy v. Board of Educ. of Rochester City School Dist., 221
N
N.L.R.B. v. Sears, Roebuck & Co., 765
Naatz v. Queensbury Cent. School Dist., 331
Naismith v. Professional Golfers Assoc., 322
Namoury v. Tibbetts, 734
National Acceptance Co. v. Doede, 223
Nationwide Mutual Insurance Co. v. Dunkin, 1022.1
New Mexico Savings & Loan Assn. v. United States Fidelity and Guaranty Co., 1036
New York State Ass'n for Retarded Children, Inc. v. Carey, 753
Niagara Mohawk Power Corp. v. Stone & Webster Engineering Corp., 211.3
Nicholas v. Pennsylvania State University, 113
Nilssen v. Osram Sylvania, Inc., 240
North Carolina Electric Membership Corp. v. Carolina Power & Light Co., 636
Northern States Power Co. v. Westinghouse Elec. Corp., 310
Nutmeg Insurance Co. v. Atwell, Vogel & Sterling, 740
Nutramax Laboratories, Inc. v. Twin Laboratories Inc., 762.1, 835.2
O
Odone v. Croda International Plc., 542
Oklahoma v. Tyson Foods, Inc., 141
Okubo v. Reynolds, 940
On the House Syndication, Inc. v. Federal Express Corp., 121
Oostendorp v. Khanna, 1032.1
Oriental Commercial & Shipping Co., Ltd. v. Rosseel, N.V., 980
P
Pacers, Inc. v. Superior Court, 763
Page v. DiMaggio Plumbing & Heating, 762.3
Paige v. Consumer Programs Inc., 220
Palm Beach Newspapers, Inc. v. Burk, 310
Paparelli v. Prudential Ins. Co., 715, 740
Paramount Communications v. QVC Network, 634
Patel v. Gayes, 620A
Pavlinko v. Yale-New Haven Hosp., 763
People ex. rel. Kraushaar Bros. & Co. v. Thorpe, 639.1A
People v. Avila, 544
People v. Leahy, 636A
People v. Miller, 636A
People v. United States Dept. of Agriculture, 950
People v. Wernick, 636A
Perry v. Leeke, 764
Peterson v. United States, 762
Peterson v. Willie, 225
Philip v. Monarch Knitting Machinery Corp., 222
Phillips v. Bradshaw, 141
Phoenix Nat. Corp. Inc. v. Bowater United Kingdom Paper Ltd., 764
Pillsbury Co. v. Conboy, 763
Pingatore v. Montgomery Ward and Co., 1021.2
Pittston Co. v. Allianz Ins. Co., 762.3
Podell v. Citicorp Diners Club, Inc., 1011.4
Posr v. Roadarmel, 141
Potashnick v. Port City Const. Co., 321
PPG Industries, Inc. v. BASF Corp., 112
Prasad v. MML Investors Servs., Inc., 243
Prevue Pet Prods., Inc. v. Avian Adventures, 211.3
Procter & Gamble Co. v. Bankers Trust Co., 310
Public Service Electric and Gas Comp. v. AEGIS, 112
Pursche v. Atlas Scraper & Eng'g Co., 1021.2
Q
Quantachrome Corp. v. Micromeritics Instrument Corp., 832.4
R
R.E. Linder Steel Erection Co., Inc. v. U.S. Fire Ins. Co., 634
Rainey v. Am. Forest and Paper Assoc., 124
Ralston Purina Co. v. McFarland, 630
Rapoca Energy Co. L.P., v. AMCI Export Corp., 138
Redvanly v. Nynex Corp., 762.1
Rehau, Inc. v. Colortech, Inc., 142, 211.1
Renaud v. Hernandez, 1022.1
Reshard v. Main Line Hosp., Inc., 138.1
Resolution Trust Corp. v. Heiserman, 762.1, 835.2
Rhee v. Witco Chemical Corp., 241
Rice v. Cannon, 210.1.1
Rice's Toyota World, Inc. v. Southeast Toyota Distributors Inc., 566
Riddell Sports, Inc. v. Brooks, 740
Rios v. Bigler, 561
Roberts v. Homelite Div. of Textron, Inc., 141, 835.2
Rockwell Int'l, Inc. v. Pos-A-Traction Indus., Inc., 311
Rocky Mountain Natural Gas v. Cooper Industries, 225
Rodriguez v. Pacificare of Texas, Inc., 1012.3
Rogers v. Roth, 1031
Rogers v. United States, 763
Rolscreen Co. v. Pella Products of St. Louis, Inc., 133
Ronald A. Katz Technology Licensing, L.P. v. Verizon Communications, Inc., 211.1
Rosenblum v. Warner & Sons, Inc., 241
Rule v. International Association, 1012.1
S
S&A Painting Co. v. O.W.B. Corp., 762.1
S.A. Healy Co. v. Milwaukee Metro Sewerage Dist., 241
Sabre v. First Dominion Capital, 834
Salas v. U.S., 620A
Salter v. Upjohn, 211.2
Sanders v. Circle K Corp., 124
Sanford Bros. Boats, Inc. v. Vidrine, 1021.2
Schiff v. Departmental Disciplinary Committee, 634
Schneider v. Revici, 637A
Schuchman v. W.R. Stackable, 637A
Schultz v. Talley, 634
Seattle Times Co. v. Rhinehart, 310, 332
SEC v. Drexel Burnham Lambert, 763
SEC v. Morelli, 211
SEC v. Parkersberg Wireless Ltd. Liab. Co., 561
SEC v. TheStreet.com, 310
Sedco Int'l, S.A. v. Cory, 636
Shapiro v. Freeman, 630
Sharjah Investment Co. v. P.C. Telemart, Inc., 310
Shelton v. American Motors Corp., 211.3, 630
Shiner v. American Stock Exchange, 211.3
Shulton, Inc. v. Optel Gorp., 222
Sikyta v. Arrow Stage Lines, Inc., 1035
Silverman v. Browning, 138.1
Six v. Henry, 635
Skidmore v. Northwest Engineering Co., 321, 322
Sky Valley, LP v. ATX Sky Valley, Ltd., 761.3
Smelser v. Northfolk Southern RR Co., 631A
Smith v. Logansport Community School Corporation, 832.4
Smith v. Shoe Show of Rocky Mount, Inc., 138
Smith v. State Farm Fire & Casualty Co., 620A
Smith v. Tenet Healthsystem SL, Inc., 240
Soden v. Freitliner Corp., 635A
Sony Electronics, Inc. v. Soundview Technologies, Inc., 454.1
Sporck v. Peil, 762.1
Spraglin v. MHK Assoc., 141
Sprague Electric Co. v. Cornell-Dubilier Electric Corp., 132
Sprint Communication Co. v. TheGlobe.Com, Inc., 454.1
State Farm Fire & Casualty Co. v. Superior Court, 762.3
State v. Hill, 141
State v. Keairns, 1022.1
Stauffer v. Karabin, 1021.2
Steadfast Ins. Co. v. Auto Marketing Network, Inc., 2.10.3
Stewart v. Colonial Western Agency, Inc., 410
Stocker Hinge Mfg. Co. v. Darnel Industries, Inc., 321
Stokes v. Lorain Journal Co., 700
Stone v. Morton Intern, Inc., 124
Stroud v. Dorr-Oliver, 1010
Sugarhill Records Ltd. v. Motown Record Corp., 211
Sullivan v. Glock, Inc., 620A
Summit Technology, Inc. v. Nidek Co., LTD, 240
Sunrich Food Group, Inc. v. Pacific Food of Oregon, 240
Swiers v. P & C Food Markets, Inc., 331
T
T.J. Morris Co. v. Dykes, 1023
Tagupa v. Odo, 544
Tatman v. Collins, 145, 1000, 1022.1
Techna-Quip, Inc. v. Perfection Gear, Inc., 331
Tennessee Bank v. Federal Deposit Insurance Corp., 740
Thompson v. Atlantic Building Corp., 321
Tilton v. Capital Cities/ABC, Inc., 240
Times Newspapers Ltd. (of Great Britain) v. McDonnell Douglas Corp., 332
Tingley Systems, Inc. v. CSC Consulting, Inc., 561
Tomingas v. Douglas Aircraft Co., 211
Tormo v. Yormark, 1011.5
Transcontinental Energy Corp. v. Pacific Energy Resources, 1022.1
TransWorld Airlines, Inc. v. Hughes, 761.3
Travelers Rental Co., Inc. v. Ford Motor Co., 211.2
U
U.S. v. Cuthbertson, 765
U.S. v. McKeeve, 144.2
U.S. v. Medjuck, 144.2
U.S. v. Microsoft Corp., 334
U.S. v. Omene, et al., 144.2
U.S. v. Taylor, 124, 454
U.S. v. Tolliver, et al., 144.2
UAW v. National Caucus of Labor Committees, 231.1
Undraitis v. Luka, 138
Unique Concepts, Inc. v. Brown, 630
United National Records, Inc. v. MCA, Inc., 636
United States v. Callahan, 1012.3
United States v. Campbell, 131.2
United States v. Cannon, 145
United States v. Davis, 243
United States v. Dickinson, 761.4
United States v. Fesman, 210.1.1
United States v. Garrett, 321
United States v. Hargro, 231
United States v. Int'l Business Machines, 1021.5, 1022.1, 1035
United States v. International Business Machines Corp., 334, 764
United States v. Johnson, 321
United States v. Leggett, 321
United States v. Liquid Sugars, Inc., 522
United States v. Mackey, 636
United States v. McWhirter, 131.2
United States v. National Medical Enterprises, Inc., 630
United States v. Northside Realty Associates, Inc., 950
United States v. One Parcel of Real Property Commonly Known as 901 N.E. Lakewood Drive, Newport, Ore., 763
United States v. Philip Morris, Inc., 211.3
United States v. Reynolds, 765
United States v. Salim, 1012.3, 1012.6
United States v. Talco Contractors, Inc., 763
United States v. Tramunti, 763
United States v. United Fruit Co., 334
United States v. Willis, 636
United Steel Workers v. American Manufacturing Co., 765
Upjohn Co. v. United States, 761.1
Usiak v. New York Tank Barge Co., 1053
V
Van Den Eng v. Coleman Co., 2.10.3
Van Pilsum v. Iowa State Univ. of Science and Technology, 630, 632, 634
Voelker v. Cherry Creek School District No. 5, 135
W
Wallace Products, Inc. v. Falco Products, Inc., 220
Walker v. United Parcel Services, 211.3
Washington State Department of Transportation v. Washington Natural Gas Company, Pacificorp, 240
Weibrecht v. Southern Illinois Transfer, Inc., 112
Weseloh-Hurtig v. Hepker, 141
West v. West, 223, 242
Westmoreland v. CBS, Inc., 231.1
Wheeling Pittsburg Steel Corp. v. Underwriters Laboratories, Inc., 762.1
Wiley v. Brown, 561
Williams v. Electronic Control Systems, Inc., 350
Withers v. Mobile Gas Service Corp., 1011.2
Wreath v. United States, 620A
Wright v. Patrolmen's Benev. Ass'n, 321
Y
Yates v. Elmer, 240
Z
Zenith Radio Corp. v. Matsushita Electric Industrial Co., 333
Index
A
ABA Model Rules of Professional Conduct

Rule 3.4(b), 138.1, 243, 244
Actions during course of deposition, 835
Adjourning of depositions. See Suspending of depositions
Admissions, of adverse witnesses, 121
Adverse party, deponent as,
definition of adverse party, 1021.1
deposition by, as substantive evidence, 1021.4
deposition by, used for any purpose, 1021.2
deposition by, used to impeach or contradict, 1021.3
deposition by, used to refresh recollection, 1021.5
Adverse witnesses. See also Witnesses
admissions of, 121
competency of, 911
credibility of, 714
cross-examination of, 850
Federal Rules of Civil Procedure 30(b)(6) and, 212
Federal Rules of Civil Procedure 32(a)(2) and, 1021.2
leading questions and, 530
minors as, 911
narrative testimony of, 617
notice of depositions and, 212, 911
timing of depositions and, 134
Affidavits
corporate officers and, 211.2
Agencies. See Government agencies
Always and never questions, 440
Amendments to Federal Rules of Civil Procedure
Rule 26(a), 112
Rule 26(b), 225, 713, 761.4
Rule 26(b)(1), 710
Rule 26(d), 131.1
Rule 26(f), 131.1
Rule 30(a)(2), 711
Rule 30(b), 515
Rule 30(b)(6), 123,124
Rule 30(c), 735
Rule 30(d)(1), 831
Rule 30(d)(2), 834
Antitrust actions, 334
APEX deposition, 211.2
Appeals, depositions pending
court orders and, 912
Federal Rules of Civil Procedure 27 and, 910, 912, 913
Federal Rules of Civil Procedure 32(a) and, 913
motions for leave to take and, 912
perpetuation of testimony and, 914
Arbitration proceedings, depositions in, 980
Argumentative witnesses, 615.1, 842
Associations
subpoenas and, 224
Assumptions and speculation, by witnesses, 440
Attendance at depositions
antitrust actions and, 334
checklist regarding, 350
clients and, 350
confidential information and, 333
defending of depositions and, 820
directors, managing agents, and officers of parties and, 211
exclusionary orders and, 310, 321, 331
expert witnesses and, 300, 350
fact witnesses and, 350
key witnesses and, 300, 350, 910
motions to exclude persons from depositions and, 321, 333, 340
nonparty witnesses and, 226, 322, 323
party witnesses and, 321
press and, 300, 310, 332
protective orders and, 321
public and, 300, 310, 332
trade secrets and, 333
Attorney-client privilege. See also Privileged information
assertions, use of, 761.5
clients and, 452
corporations and, 761.1
defense attorneys and, 646
elements of, 761, 761.1, 761.2, 761.3, 761.4, 765
employee protection, rule 26 (b), 622.1A
examining attorneys and, 761, 761.1
Federal Rules of Civil Procedure 30(b)(6) and, 454.1
Federal Rules of Evidence 612 and, 763
instructions not to answer questions and, 761
objections and, 761, 761.1, 761.2, 761.3, 761.4, 765
opposing counsel and, 761.4
preparation for depositions and, 763
voir dire and, 761
waiver of, 761.2, 761.3
witnesses and, 436, 523.3
Attorneys. See Defending of depositions; Demeanor; Examining attorneys; Opposing counsel; Taking of
depositions
Audio depositions
advantages and disadvantages of, 143
audio/visual technicians and, 231, 515
court orders and, 143, 231, 515
court reporters and, 231, 250
defending of depositions and, 822, 832
impeachment and, 143
opposing counsel and, 143, 231
stipulations and, 231, 515
subpoenas and, 231
transcripts and, 143
Audio/visual depositions, 515.1
Audio/visual technicians
audio depositions and, 231, 515
video depositions and, 231, 515, 1033
Badgering. See Harassment

Broad questions, witnesses and, 611, 612, 613, 617
Cast of characters, preparation of, 414

Children, as adverse witnesses, 911
Civil actions, depositions before commencement of
good cause and, 911
notice of depositions and, 911
perpetuation of testimony and, 914
petitions for leave to take and, 910
purposes of, 910
statutes regarding, 914
Clerks of court. See Court clerks
Clients
attendance at depositions and, 350
attorney-client privilege and, 452
discussing depositions with, 415
interviews and, 413
out-of-state (or district) depositions and, 921
seating arrangements and, 511
supplemental testimony and, 564
Closing deposition, 554, 640
Coaching, of witnesses, 630, 844
Competency
of adverse witnesses, 911
introductory examinations and, 533
of witnesses, 533, 732, 1042
Compound questions, 440, 731
Computerized transcripts. See also Transcripts
advantages of, 251
court reporters and, 251
indexing of, 563
Commission to deposition officer, sample, 925
Conference with client, 637
Conference rooms
seating arrangements and, 511, 820
Conferences
advantages of, 270
Federal Rules of Civil Procedure 26(f) and, 270
motions for, 270
purposes of, 270
Confidential information. See also Trade secrets
Federal Rules of Civil Procedure 26(c)(7) and, 333
instructions not to answer questions and, 633, 740
objections and, 700
protective orders and, 321, 333, 710, 711
stipulations and, 552
Copying machines, 511
Corporate officers. See also Corporations; Directors, managing agents, and officers of parties
affidavits and, 211.2
APEX, 211.2
deposing, 211.2
Federal Rules of Civil Procedure 26(c) and, 211.2
harassment of, 211.2
interrogatories and, 211.2
notice of depositions and, 211.2
objections and, 211.2
opposing counsel and, 211.2
Corporations. See also Corporate officers
attorney-client privilege and, 761.1
employees of 436.1
protective order and, 211.2
subpoenas and, 224
Corrections by deposing attorney, 561.3
Costs of depositions
attorneys fees and expenses and, 242
location of depositions and payment of, 240
witness costs and expenses and, 138, 243
Court clerks
issuance of out-of-state subpoenas and, 925.1
subpoenas and, 922
witness fees and, 222
Court orders. See also Exclusionary orders; Protective orders
appeals and, depositions pending, 912
appeals of, 970
audio depositions and, 143, 231, 514
civil actions and, depositions before commencement of, 911
conferences and, 270
contents of, 231
course of deposition and, 545
expert witnesses and, 639A
Federal Rules of Civil Procedure 37 and, 743
instructions not to answer questions and, 740, 741, 743
nonparty witnesses and, 231
opposing counsel and, 823
video depositions and, 231, 514
Court reporters
as a resource, 250
audio depositions and, 231
computerized transcripts and, 251
exhibits and, 513
Federal Rules of Civil Procedure 28(b) and, 934
Federal Rules of Civil Procedure 32(d)(2) and, 721
fees of, 240
foreign countries and, depositions in, 931, 934
hiring of, 200, 225, 250
oaths and, 521
objections and, 721
off the record and, 541
qualifications of, 250, 721, 1041
recesses and, 542
reliability of, 141
seating arrangements and, 511, 512, 513
stenotype machines and, 140
telephone depositions and, 232, 516
transcripts and, 140, 552, 561
trial and, use of depositions at, 1041
video depositions and, 231
written questions and, depositions upon, 960
Credibility
trial impeachment of, 1021.3, 1022.2, 1051-1051.2
Cross-examination
defending of depositions and, 811, 845, 850
of friendly witnesses, 850
of party witnesses, 850
scope of depositions and, 551
written questions and, depositions upon, 960, 961
De Bene Esse Depositions, 145

Defendant physician, sample outline 473.7
Defendant, sample outline in auto case, 473.2
Defending depositions
argumentative witnesses and, 842
coaching of witnesses and, 630, 845
conferences and, 833
correcting, reviewing, and signing of depositions and, 845, 850, 860, 870
court orders and, 631, 823
cross-examination and, 811, 845, 850
demeanor and, 820, 832
documents and, 540, 824, 843
Federal Rules of Civil Procedure 30(d) and, 630
forgetful witnesses and, 842
friendly witnesses and, 810
instructions not to answer questions and, 633, 740, 832
length of deposition day and, 834
motions to compel and, 635
narrative objections and, 633
narrative testimony and, 841
objections and, 540, 630, 631, 632, 633, 721, 730, 731, 821, 830, 831, 832, 860
obnoxious defense attorneys and, 634
preparation for, 400, 421, 422, 540, 810, 811, 844
privileged information and, 741, 760, 830, 833
procedural issues and, 421
purposes of, 811
recesses and, 540, 832, 833, 834, 840, 841, 842, 844, 860
redirect examination and, 540
stipulations and, 540, 631, 823, 860
subpoenas and, 421
summary memos and, 870
telephone depositions and, 540
transcripts and, 551, 870
video depositions and, 540, 822, 832
voir dire and, 741
witnesses and, 810
Demeanor
defined, 620
Demonstrative evidence, 141. See also Evidence
Deposition examinations. See also specific headings
Federal Rules of Civil Procedure 30(c) and, 620
Procedure 69(a) and, 131.2
outlines, see Outlines, samples
preparation of, 471
Depositions, see also specific headings
admissibility of, 1000, 1040-1043
alternatives, 112
as evidence, 1020
corrected, use at trial, 1011.4
de bene esse depositions, 145
elected officials, 951
failure to disclose information, 113
logistics, 139
notebook, 410
note-taking, 611
purposes of, 111, 417, 451, 610, 612, 710, 711, 1000
sanctions, 836
types, use of at trial, 1010 et seq.
unsigned, use at trial, 1011.5
written questions, 960
Deposition tools, 1120
generally, 1121
case organization tools, 1122.3
collaboration tools, 1123.3
deposition taking tools, 1123
document search and review tools, 1122.1
preparation tools, 1122
tools to use the deposition, 1124
Directors, managing agents, and officers of parties. See also Corporate officers
determination of status of, 211
subpoenas and, 211
trial and, use of depositions at, 1012.1
Discovery
e-discovery, 1113
Documents
destruction and retention policies, 1117.2
examining attorneys and, 824
Federal Rules of Civil Procedure 34 and, 213, 824
harvesting electronic documents, 1117.4
nonparty witnesses and, 200, 221
objections and, 922
preservation, 1117.3
refresh recollection, 534
requests for, examples of, 213
reviewing of, 413, 422, 824
withholding, 440
witnesses and, 762.1
work product privilege and, 762.1
E-Discovery, 1113
Embarrassing questions, 751
Employees and organizational opponent, 112.5
Engineer, sample outline in product case 473.8
Ethical rules
fact witnesses, 243
inducements, 244
Evasive witnesses, 615.1
Evidence. See also Demonstrative evidence
depositions as, 1020
exhibits as, 550, 611
facts and, 412
trial and, use of depositions at, 710, 1012, 1021, 1021.2, 1022.1, 1031
Examination outlines, see Outlines, samples
Examining attorneys
attorney-client privilege and, 761, 761.1
documents and, 824
objections and, 753, 831
privileged information and, 760
Excluding corporate partys representative from deposition, 335
Exclusionary orders, attendance at depositions and, 310, 321, 331. See also Court orders
Exhibits
concluding deposition and, 553
copies of, 418, 511, 514
as evidence, 550, 611
lists of, 514
marking of, 513, 514, 515, 520, 546
preparation of, 418
Expert witnesses. See also Witnesses
court orders and, 639A
Federal Rules of Civil Procedure 26(b)(4) and, 225, 241, 639A
Federal Rules of Evidence 702 and, 631A, 636A
Federal Rules of Evidence 703 and, 635A
Federal Rules of Evidence 803 and, 637A
fees of, 241, 639A
impeachment of, 632A
in-house, 622.1A
interrogatories and, 639A
learned treatises and, 637A
medical negligence, defense expert outline, 642A
objections and, 225, 734.1
opinions of, 635A, 638A, 638.1A
outline for introductory examination, sample, 630A
preparation of report, 632.1A
preparation to take depositions of, 456, 600A, 650A
qualifications of, 631A
speculation and, 440
stipulations and, 639A
subpoenas and, 241
work product privilege and, 622A, 639A
Extent of discovery methods, 621A
Facts
chronology of, preparation of, 414
evidence and, 412
legal issues and, 412
reviewing of, 422
Fact witnesses, 243, 350. See also Key witnesses; Witnesses
Failure to disclose information, 113
Federal Rules of Civil Procedure 4, 933
Federal Rules of Civil Procedure 4(d), 911
Federal Rules of Civil Procedure 17(c), 911
Federal Rules of Civil Procedure 26(b)
scope of depositions and, 125, 710, 711
Federal Rules of Civil Procedure 26(b)(1)
limitations on depositions and, 125, 715
taking of depositions and, 125
Federal Rules of Civil Procedure 26(b)(2), 712, 1011.3
Federal Rules of Civil Procedure 26(b)(3), 762
costs of depositions and, 241
expert witnesses and, 123, 225, 241, 639A
Federal Rules of Civil Procedure 26(c)
location of depositions 210.2
motions to exclude persons from depositions and, 321
press and, 332
protective orders and, 124, 125, 138, 211.2, 211.3, 221, 321, 332, 340, 561.3, 565, 710, 711, 970
public and, 332
scope of depositions and,711
sequence of depositions and, 133
timing of depositions and, 131, 210.1
Federal Rules of Civil Procedure 26(c)(7), 333
Federal Rules of Civil Procedure 26(e), 564
Federal Rules of Civil Procedure 26(f), 270
Federal Rules of Civil Procedure 27
appeals and, depositions pending, 910, 912, 913
civil actions and, depositions before commencement of, 910, 911, 913
Federal Rules of Civil Procedure 27(a)(2), 911
Federal Rules of Civil Procedure 28(b), 934
stipulations and, 260, 522, 931
Federal Rules of Civil Procedure 30, transcripts and, 240, 560, 561, 562
Federal Rules of Civil Procedure 30(a), 131
Federal Rules of Civil Procedure 30(a)(1), party attorneys, 211.3
Federal Rules of Civil Procedure 30(b), notice of depositions and, 123, 210, 212, 213, 421, 454, 535
video depositions and, 231.1
Federal Rules of Civil Procedure 30(b)(5), 213
adverse witnesses and, 212
corporate officers and, 124
corporations and, 124
government agencies and, 124
examinations, 715
introductory examinations and, 100, 133, 535
non-party witnesses and, 220, 224
partnerships and, 124
subpoenas and, 124, 224, 535
witnesses designated by organization and, 212.2, 715
witnesses not affiliated with organization and, 454
Federal Rules of Civil Procedure 30(b)(7), telephone depositions and, 142, 232, 516, 960, 961
Federal Rules of Civil Procedure 30(c)
deposition examinations and, 620
instructions not to answer
questions and, 740
Federal Rules of Civil Procedure 30(d)
length of deposition and, 834
motions to terminate or limit examination and, 740
recesses and, 832
suspending of depositions and, 340, 440, 715
joinder of parties and, 1011.2
objections and, 730, 731, 732, 821
subsequent deposition of deponent and, 1011.3
substitution of parties and, 1011.1
trial and, use of depositions at, 1000 et seq.
types of depositions used of at trial, 1010 et seq.
Federal Rules of Civil Procedure 32(a), 913
Federal Rules of Civil Procedure 32(a)(2), 1011.3, 1021.1
Federal Rules of Civil Procedure 32(d)(1), 721
Federal Rules of Civil Procedure 32(d)(2), 721
Federal Rules of Civil Procedure 32(d)(3)(B), 515
Federal Rules of Civil Procedure 32(d)(4), 561.1
Federal Rules of Civil Procedure 34, documents and, 213, 824
Federal Rules of Civil Procedure 37, 123, 743
Federal Rules of Civil Procedure 37(a)(2), 766
nonparty witnesses and, 137, 152.2
out-of-state (or district) depositions and, 137, 922
subpoenas and, 137, 222, 933
subpoenas duces tecum and, 221, 421
Federal Rules of Civil Procedure 69(a)
deposing defendant-judgment debtor, 495
post-judgment discovery, 131.2
Federal Rules of Evidence 401, 710
Federal Rules of Evidence 402, 524.4
Federal Rules of Evidence 603
oaths and, 521
witnesses and, 521, 732
Federal Rules of Evidence 611(c), leading questions and, 530, 731
Federal Rules of Evidence 612
witnesses and, 713
work product privilege and, 762.1
Federal Rules of Evidence 615, nonparty witnesses and, 322, 330
Federal Rules of Evidence 702, expert witnesses and, 631A, 636A
Federal Rules of Evidence 703, 635A
Federal Rules of Evidence 803, 637A
Files of witnesses, preparation of, 414
Foreign countries, depositions in. See also Location of depositions; Out-of-district depositions
Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters and, 932
interpreters and translators and, 931
key witnesses and, 930
law of jurisdiction and, 932
statutes regarding, 221, 933, 940
subpoenas and, 933
Forgetful witnesses, 615.2, 842, 843, 1021.5, 1022.3. See also Refreshing recollections; Witnesses
Form of answer, 432.2
Friendly witnesses. See also Witnesses and Independent witnesses
acceptance of service and, 223
advantages and disadvantages to depositions of, 122
cross-examination of, 850
discussing depositions with, 415
narrative testimony of, 841
Good cause
defined, 321
Government agencies. See also Government officers and employees
subpoenas and, 224
Government officers and employees, 950. See also Government agencies
Guardians, appointment of, 911
Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, 932

Harassment
of corporate officers, 211.2
objections and, 751
of witnesses, 440, 740, 750, 751, 832, 834
Hearsay, witnesses and, 731, 732, 753, 1021.3, 1021.5, 1022.2
Hostile witnesses. See also Witnesses
Immunity from depositions, 950

Impeachment
foundation for, 1051.1, 1051.2
tactics for, 1051.2, 1051.3
trial and, use of depositions at, 1020, 1021.3, 1022.2, 1031, 1051, 1051.1, 1051.2, 1051.3
witnesses and, 440, 522, 543, 561.1, 614, 615.2, 616.3, 714, 843
Independent Witnesses, 122
Index to videotape deposition, sample, 566
Indexing, of transcripts, 563
Issues/subject deposition summary, 563
Instructions not to answer questions. See also Questioning of witnesses
certification of, 743
confidential information and, 633, 740
court orders and, 740, 741, 743
deposition procedures and, 549
inaccurate instructions, 440
opposing counsel and, 633, 761.4
personal information and, 740
privileged information and, 633, 740
purposes of, 740
scope of depositions and, 740, 750
witnesses and, 633, 740, 741, 742, 743, 750
Insurance coverage, 712
Insured-insurer privilege, 762.3
Interpreters and translators
certification of, 544
foreign countries and, depositions in, 931
oaths and, 544
qualifications of, 234, 544
Interrogatories
expert witnesses and, 620A, 639A
Interstate depositions, 925
Interviews
clients and, 413
informal, current/former employees of organizational opponent, 112.5
witnesses and, 413
Introductory examinations
competency of witnesses and, 533
explanation of deposition process and, 531
identifying documents produced by witness and, 532
preparation of witnesses and, 534
Joinder of parties, 1011.2

Judges
timing of depositions and, 210.1
Juries
instructions to, 412
Key witnesses. See also Witnesses

attendance at depositions and, 300, 350, 910
Language difficulties, 615.5, 845

Leading questions
defined, 440
Federal Rules of Evidence 611(c) and, 611, 731
hostile witnesses and, 530
objections and, 731
purposes of, 615.3
witnesses and, 440, 526, 611, 615.1, 615.3
Learned treatises, 637A
Legal issues
facts and, 412
researching of, 412
reviewing of, 412, 422
Length, 534.16
Liability, 400-470
Liability witness outlines, 470
Limitations on depositions. See also specific headings,
number of, 125
Litigation hold memos, 1113
Location of depositions. See also Foreign countries, depositions in
costs of depositions and, 240
Federal Rules of Civil Procedure 26(c) and, 138, 152
nonparty witnesses and, 137, 152.2, 222
out-of-state (or district) depositions and, 138, 924
party witnesses and, 138, 152.1
protective orders and, 138, 152
seating arrangements and, 511
selection of, 136
subpoenas and, 137, 421
witnesss workplace, 138
Magazines. See Press

Magistrates, 600
Managing agents, defined, 1021.2. See also Directors, managing agents, and officers of parties
Mandamus, petitions for writs of, 970
Marshals, as process servers, 922
Memos. See Observation memos; Summary memos
Minors, as adverse witnesses, 911
Model Code of Professional Responsibility, DR7-109(c), 243
Motions
for orders to reopen deposition of Sam P. Bigshot, sample, 561.4
to compel answers, 635, 741
to compel production of deposition preparation materials, sample, 762.1
to dismiss for lack of personal jurisdiction, 131.1
leave to take deposition within 30 days after service of summons and complaint, sample, 210
objecting to Rule 30(b)(6) deposition, sample, 154
opposing date of deposition, sample, 210.1
opposing location of deposition, sample, 210.2
opposing taking deposition of corporate officer of party, sample, 211.2
order terminating deposition for bad faith, sample, 835.5
perpetuate testimony pending appeal, sample, 912
protective order to terminate, 835
protective order, Rule 30(b)(6), 212.1
under Rule 26(c) to exclude spectators from attending deposition, sample, 321
Motions for conferences, 270
Motions for contempt to enforce subpoenas duces tecum, 221
Motions for leave to take depositions
contents of, 912
sample, 137
Motions for protective orders. See also Protective orders
contents of, 211.2
deposition, sample, 210.1
for location of deposition, sample, 210.2
filing of, 211.2, 340
prohibiting deposition, sample, 211.2
timing of depositions and, 321, 340
to exclude spectators from deposition, sample, 321
to limit or modify notice of deposition, sample, 212.1
Motion for relief
sample, 221
Motions to compel answers
filing of, 611, 614, 615
Motions to compel subpoenas duces tecum, 221
Motions to correct transcripts, 561.1
Motions to exclude persons from depositions
Motions to modify subpoenas duces tecum, 221
Motions to quash
deposition notice, 210.1.1
subpoenas, duces tecum, 221
Motions to suppress
Federal Rules of Civil Procedure 32(d)(4) and, 561.1
transcripts and, 561.1, 722
Motions to terminate or limit examination, 740
Narrative objections, 642. See also Objections

Narrative testimony
of adverse witnesses, 615.3
of friendly witnesses, 841
of witnesses, 614, 615.3, 753, 841
Narrow questions, witnesses and, 612, 613, 615.1, 615.3, 631, 741
Narrow subject areas, deposition notice and, 212
Neutral witnesses, 615.4
Newspapers. See Press
Nonparty witnesses. See also Witnesses
acceptance of service and, 222
attendance at depositions and, 322, 323
checklist for setting up depositions of, 225
documents and, 200, 221
Federal Rules of Evidence 615 and, 322, 330
fees of, 222
location of depositions and, 222
objections and, 752
preparation for depositions and, 452, 713, 763
statutes regarding, 222
stipulations and, 231, 260, 323
subpoenas and, 200, 221, 222, 223, 224, 922
subpoenas duces tecum and, 221
trial and, use of depositions at, 1022.3
Notice
of deposition, 210
of deposition of officer of party, sample, 211
of motion for recording deposition by videotape, sample, 231
Notice of depositions
adverse witnesses and, 212, 911
associations and, 212, 454
contents of, 123, 210
corporate officers and, 211, 211.2
corporations and, 212, 474
documents and, 213, 431
errors and irregularities in, 721
examples of, 210, 212, 213
Federal Rules of Civil Procedure 27(a)(2) and, 911
Federal Rules of Civil Procedure 30(b) and, 124, 210, 212, 213, 421, 454, 535
Federal Rules of Civil Procedure 32(d)(1) and, 721
objections and, 721
partnerships and, 212, 454
perpetuate testimony, 911
purposes of, 200
service of, 911, 922
subpoena duces tecum, 213.3
timing of depositions and, 131, 210, 213, 213.3, 421, 911
Oaths
witnesses and, 520, 521, 732
Objecting
to hypothetical questions, 734
to notice of deposition requesting production of documents, 213.1
to summaries of evidence, 733
Objections
amendment to Rule 30(c), 735
attorney-client privilege and, 761, 761.1, 761.2, 761.3, 761.4, 766
coaching, 832.4
defending of depositions and, 630, 631, 632, 633, 721, 730, 731, 821, 830, 831, 832, 860
documents and, 922
embarrassing questions and, 751
examining attorneys and, 753, 831
expert witnesses and, 225, 734.1
Federal Rules of Civil Procedure 32 and, 730, 731, 732, 821
form of and response to, 771
harassment and, 751
location of depositions and, 210.2
multiple attorneys, 753
personal information and, 700
privileged information and, 700, 760
questioning of witnesses and, 730, 731, 1042
recesses and, 542
requests for production of documents and, 723
Rule 30(b)(6) deposition and, 154
strategy and, 831.1
subpoenas and, 221
subpoenas duces tecum and, 221, 421
timing of, 720, 721, 722, 730, 731, 732, 821, 1040, 1041
timing of depositions and, 210.1
trial and, use of depositions at, 1040-1043
waiver of, 720, 730, 731, 732, 1041, 1042
work product privilege and, 762, 762.1, 762.2
Observation memos, contents of, 552
Officers of parties. See Directors, managing agents, and officers of parties
Off the record, 541
Open-ended questions, 612
Opposing counsel
confer with privately, 630
directors, managing agents, and officers of parties and, 211, 454
discussing depositions with, 139, 416
exhibits and, 513, 611
instructions not to answer questions and, 633, 761.4
narrative objections and, 632
preparation and, 419
recesses and, 542
stipulations and, 260, 631, 711, 742, 823, 922, 1011.2, 1035
witnesses and, 431
Opposing depositions
lacking relevant information, 210.3
under Rule 30(b)(6), 212.1
Opposing taking deposition of officer, 211.1
Order
appointing interpreter, sample, 234
discovery conference, sample, 270
for recording deposition by videotape, sample, 231
Outlines, samples
Generally, 639.3A
Accident reconstructionist - auto negligence, 643A
Architect - premises liability, 644A
Creating an outline, 419.1
Defendant - auto case, 473.2
Defendant citys superintendent of streets - premises liability case, 473.6
Defendant-judgment debtor, 495
Defendant owner or occupier - premises liability case, 473.5
Defendant physician - medical malpractice case, 473.7
Defendant design engineer - product liability case, 473.8
Electronic Record-Keeper, 1110
Expert engineer - product liability case, 641A
Expert Environmental Professional - disposal site remediation, 646A
Eyewitness - automobile liability case, 473.3
Injured plaintiff - damages, 480.1
Liability witness, 470 et seq.
Medical negligence defense expert, 642A
Plaintiff - auto case, 473.1
Plaintiff - land use case to establish lack of standing, 490
Plaintiff - premises liability case, 473.4
Plaintiff - residential mold case, 473.9
Real Estate Appraiser, 645A
Treating physician, 480.2
Witness designated by organization, 212.2
Out-of-district depositions, 920. See also Out-of-state depositions
Out-of-state depositions, 925. See also Foreign countries, depositions in
clients and, 921
conference rooms and, 924
local rules and, 923
subpoenas and, 922
Uniform Foreign Deposition Act and, 922
Uniform Interstate and International Procedure Act and, 922
Parol evidence rule, 732

Partnerships
representatives of, 123
subpoenas and, 224
Party witnesses. See also Adverse party, Witnesses
as expert witnesses, 771
cross-examination of 850
defendant physician, sample outline 473.7
defendant, sample outline in auto case, 473.2
Federal Rules of Civil Procedure 26(e) and, 564
plaintiff, sample outline in auto case, 473.1
substitution of, 1011.1
supplemental testimony and, 564
trial use of depositions, 1012.1-1012.3, 1021 et seq., 1022 et seq.
work product privilege and, 713
Personal information
objections and, 700
Perpetuate testimony, 910 et. seq.
Perpetuate testimony pending appeal, sample, 912
Petitions for leave to take depositions, 910
Petitions for writs of mandamus, 970
Petitions for writs of prohibition, 970
Petition to perpetuate testimony, 910
Physician, sample outline, medical malpractice case, 473.7
Physician, treating, sample outline, 480.2
Pinning down of witnesses, 613, 614, 615.1, 615.2
Place of depositions. See Location of depositions
Plaintiff, sample outline in auto case, 473.1
Pleadings, reviewing of, 412, 422
Practice examinations, 435, 437
Precise recall, of witnesses, 440
Preparing, 124
visit pertinent location, 416.1
Press
Priority of depositions, 132
Privilege, preparing to assert, 423
Privileged information. See also Attorney-client privilege; Insured-insurer privilege; Work product privilege
defending of depositions and, 741, 760, 830, 833
disclosure, 767
examining attorneys and, 760
Federal Rules of Civil Procedure 37(a)(2) and, 766
motions to compel answers and, 765
self-incrimination, 763
verification, 761.6
Process servers, 922
Prohibition, petitions for writs of, 970
Protective orders. See also Court orders
appeals of, 970
confidential information and, 321, 333, 710, 711
directors, managing agents, and officers of parties and, 211.2, 474
Federal Rules of Civil Procedure 26(c) and, 211.2, 221, 321, 332, 340, 565, 710, 711, 970
good cause and, 321
location of depositions and, 138, 210.2
motions for, 211.2, 321, 340
press and, 332
public and, 332
purposes of, 732, 750, 751
suspending of depositions and, 512, 620
terminating deposition, 835
test for, 333
timing of depositions and, 210.1.1, 321, 340
to terminate, sample, 835
trade secrets and, 321, 333, 565, 710, 711
transcripts and, 561, 565
Public
access to deposition transcript, 310
Publicity in Taking Evidence Act, 334
Questioning of witnesses, objections and, 730, 731, 1032. See also Always and never questions; Broad ques-
tions; Compound questions; Embarrassing questions; Instructions not to answer questions; Narrow
questions; Open-ended questions; Tricky or objectionable questions; Written questions, depositions upon
R
Recesses
defending of depositions and, 832, 833, 834, 840, 841, 842, 845, 860
Federal Rules of Civil Procedure 30(d) and, 542.1, 832
Federal Rules of Civil Procedure 37(a)(1) and, 542.1
frequency of, 544, 833
length of, 544
objections and, 544
purposes of, 543, 525, 615.1, 750, 751, 833, 840, 841, 842, 845, 860
Recording deposition
methods, 140 et seq.
Re-cross examination, 551
Redepose witness, sample, 561.4
Redeposing a witness, 227
Redirect examination
Reenactments, video depositions and, 141
Refreshing recollections, of witnesses, 434, 534, 612, 613, 615.2, 713, 763, 843, 1014
Reopening deposition, 561.4
Reporters. See Court reporters
Schedule of depositions, preparation of, 132, 134

Scope of depositions. See also specific headings
cross-examination and, 551
expert witnesses knowledge, scope of, 639.2A
Federal Rules of Civil Procedure 26(b) and, 125, 710, 711
government officers and employees and, 950
strategic considerations, 534.1
Seating arrangements
clients and, 511
conference rooms and, 511, 820
court reporters and, 511, 512, 513
Second deposition, same witness, 125
Self-incrimination, 763
Sequence of depositions between parties, 132, 132.5
strategy and, 125, 134
Source materials, 150
Speculation, by witnesses, 440
Stenotype machines, 140. See also Court reporters
Stipulations
among counsel, discovery-, deposition-related, 139
contents of, 231
correcting, reviewing, and signing of depositions and, 551
exhibits and, 551, 562
expert witnesses and, 639A
foreign countries and, depositions in, 931, 932
nonparty witnesses and, 231, 260, 323
objections and, 522
opposing counsel and, 260, 631, 711, 742, 823, 922, 1011.2, 1035
pursuant to Rule 29 for taking deposition, sample, 260
video depositions and, sample, 231, 515
Subpoenas
associations and, 224
contents of, 123, 224
corporations and, 224
costs of, 240
court clerks and, 922
expert witnesses and, 241
Federal Rules of Civil Procedure 30(b) (6) and, 123, 224, 535
nonparty witnesses and, 200, 221, 222, 223, 224, 922
objections and, 221
partnerships and, 224
purposes of, 221
service of, 222, 922, 933
Uniform Foreign Deposition Act and, 922
Uniform Interstate and International Procedure Act and, 922
Subpoenas duces tecum
contents of, 221
motions for contempt to enforce and, 221
motions to compel and, 221
motions to modify and, 221
motions to quash and, 221
timing requirements, 213.3
Substantive testimony, 135
Substitution of parties, 1011.1
Summarizing testimony, witnesses and, 440, 613, 614, 615.3
Summary memos, 870
Supplemental testimony, 564
Suspending of depositions
purposes of, 340, 512, 620, 630, 740
Taking of depositions. See also specific headings

maintaining clear record and, 548
objections, 210.1, 210.2
petitions for, 910
preparation for, 400-418, 600
problem lawyers and, 547
Talkative witnesses. See Narrative testimony
Technology
Depositions and Technology, 1100
Essential Definitions, 1112
E-Discovery, 1113
Specific Deposition Topics, 1117
Document Retention and Destruction Policies, 1117.2
Litigation Preservation, 1117.3
Harvesting of Electronic Documents, 1117.4
Deposition Technology Tools, 1120
Generally, 1121
Deposition Preparation Tools, 1122
Document Search and Review Tools, 1122.1, 1123.2
Transcript Search and Review Tools, 1122.2
Case Organization Tools, 1122.3
Deposition Taking Tools, 1123
Real-Time Transcript Tools, 1123.1
Collaboration Tools, 1123.3
Tools to Use the Deposition, 1124
Telephone depositions
advantages of, 142
disadvantages of, 142
Federal Rules of Civil Procedure 30(b) (7) and, 142, 232, 960, 961
setting up of, 232
written questions and, depositions upon, 960, 961
Testimony. See Narrative testimony; Supplemental testimony
Timing of depositions
discovery planning meeting and report, 131.1
documents and, 131
Federal Rules of Civil Procedure 26(c) and, 131, 210.1
interrogatories and, 131
judges and, 210.1
motions for protective orders and, 321, 340
notice of depositions and, 131, 210, 213, 421, 911
protective orders and, 210.1, 321, 340
strategy and, 134
subpoenas and, 222
Trade secrets. See also Confidential information
Federal Rules of Civil Procedure 26(c) (7) and, 333
protective orders and, 321, 333, 565, 710, 711
Transcripts. See also Computerized transcripts
amendment to Rule 30(e), 561
certification of, 562, 722, 1041
confidentiality of, 321
copies of, 552
correcting, reviewing, and signing of, 522, 561, 561.1, 722, 1011.5
costs of, 240, 560
court reporters and, 140, 561.1, 562
disadvantages of, 141
exhibits and, 562
Federal Rules of Civil Procedure 30 and, 240, 560, 561, 562
filing of, 552, 562, 722
indexing of, 563
motions to correct and, 561.1
motions to suppress and, 561.1, 722
public and, 552
reading of, 1032, 1050, 1054, 1060
real-time transcript tools, 1123.1
requests for, 560
sealing of, 562, 722
search and review tools, 1122.2
trial and, use of depositions at, 1032, 1034, 1041, 1050, 1053, 1060
video depositions and, 561.1
Translators. See Interpreters and translators
Treatises, 637A
Trial, use of depositions at
admissibility and, 1000, 1031, 1040-1043
administrative proceeding, depositions taken in, 1012.5
adverse party and, 1021, 1021.2
by party of own deposition, 1024
directors, managing agents, and officers of parties and, 1021.1
earlier civil action, depositions taken in, 1012.1
evidence and, 710, 1020, 1021, 1021.2, 1022.1, 1031
Federal Rules of Civil Procedure 32 and, 1000 et seq.
foreign proceedings, depositions taken in, 1012.4, 1012.6
impeachment and, 1020, 1021.3, 1022.2, 1031, 1051, 1051.1, 1051.2
joinder of parties and, 1011.2
nonparty witnesses and, 1011.2
objections and, 1040-1043
other proceedings, depositions taken in, 1012 et seq.
refreshing recollection, 1022.3, 1036, 1052
subpoenas and, 1035
substitution of parties and, 1011.1
timing of, 1050
types of depositions usable, 1010
transcripts and, 1032, 1034, 1041, 1050, 1060
video depositions, 1033
Tricky or objectionable questions, 441
Unavailability of witnesses, 1022.1. See Attendance at depositions

Uniform Foreign Deposition Act, 922
Uniform Interstate and International Procedure Act, 922
Usual stipulations, 522. See also Stipulations
Video depositions
advantages and disadvantages of, 141
audio/visual technicians and, 231, 515, 1033
correcting of, 561.1
costs of, 240
court orders and, 231, 515
demonstrative evidence and, 141
judges and, 141
juries and, 141
location of depositions and, 210.2
motions for leave to take and, 141
notice of depositions and, 231, 421, 515
objections and, 141, 515, 1033
opposing, 231.1
preparation for, 439
procedures, 515
purposes of, 141
reenactments and, 141
subpoenas and, 231
transcripts and, 561.1
Videoconferencing, 144 et seq.
Voir dire
Witnesses. See also Adverse witnesses; Argumentative witnesses; Evasive witnesses; Expert witnesses; Fact
witnesses; Forgetful witnesses; Friendly witnesses; Hostile witnesses; Key witnesses; Neutral witnesses;
Nonparty witnesses; Party witnesses; specific headings
checklists regarding, 433, 534
correcting, reviewing, and signing of depositions by, 522, 561, 561.1, 844, 1011.4, 1011.5
current employee of organizational opponent, 112.5
demeanor of, 621
designated by organization, 212.2
examination of upon assertion of work product privilege, 638
Federal Rules of Evidence 603 and, 521, 732
Federal Rules of Evidence 607 and, 1022.2
fees of, 222
files of, preparation of, 414
former employee of organizational opponent, 112.5
importance of, 134
introductory remarks to, 531
lay witnesses and expert opinion questions, 622.2A
length of deposition days and, 543, 834
order of questions and, 611
preparation for depositions and, 430439, 534, 713, 763, 810, 811
representation of, 436, 531
Work product privilege. See also Privileged information
defined, 762
documents and, 762.1
expert witnesses and, 622A, 639A
Federal Rules of Civil Procedure 26(b) (3) and, 762
improper use, 440
objections and, 762, 762.1, 762.2
waiver of, 762.1
Written questions, depositions upon. See also Questioning of witnesses
cross-examination and, 960, 961
service of, 960
subpoenas and, 960

How To Prepare For Take and Use A Deposition

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HOW TO

Building Trial Notebooks

For ordering information, turn to the back of the book.

Copyright 1990 - 2008

First Edition, 5/90

Chapter 1 Who Should Be Deposed: When, Where and How

100 Depositions: The Myth and the Reality

Chapter 2 Procedures for Setting Up a Deposition

200 Procedures for Setting Up a Deposition

Chapter 3 Who Can and Should Attend a Deposition

300 Who Can and Should Attend a Deposition

Chapter 4 Preparing to Take or Defend a Liability or Damages Deposition

400 Preparing to Take or Defend a Liability Deposition

Chapter 5 Procedures for Taking and Defending a Deposition

500 Procedures for Taking and Defending a Deposition

Chapter 6 Techniques for Taking an Effective Deposition

600 Techniques for Taking an Effective Deposition

Chapter 6A Techniques for Deposing an Expert Witness

600A Techniques for Deposing an Expert Witness

Chapter 7 Making and Responding to Objections

700 Making and Responding to Objections

Chapter 8 Defending the Deposition

800 Defending the Deposition

Chapter 9 Special Deposition Situations

900 Special Deposition Situations

1000 Using the Deposition at Trial

Chapter 11 Depositions and Technology

1100 Depositions and Technology: Overview

Appendix A: Full Text of the Hague Convention on the Taking of Evidence

Who Should Be Deposed: When, Where and

100 Depositions: The Myth and the Reality

100 Depositions: The Myth and the Reality

100 Depositions: The Myth and the Reality

101 Who, When, Where and How?

110 Should You Take a Deposition?

111 Goals of Taking a Deposition

112 Alternatives to Taking a Deposition

Practice Tip: Mandatory Disclosures

C. Pretrial Disclosures: Rule 26(a)(3) contains mandatory pretrial disclosures, including:

120 Who Should Be Deposed?

121 Adverse Parties and Coparties

122 Independent Witnesses

Practice Tip: Factors in Deposing an Independent Witness

Practice Tip: Expert Witness Depositions

Practice Tip: Mandatory Expert Disclosures

124 Use of Rule 30(b)(6) Designation of Witnesses

Practice Tip: Rule 30(b)(6) Depositions

Practice Tip: Outside Inquiry During the Deposition

125 Limitations on Taking Depositions

130 When and Where Should Depositions Be Taken?

131 When Can Depositions Be Taken?

Practice Tip: Stay on Discovery

132 Priority of Depositions

133 Sequence of Deposing Witnesses

134 Strategy in Timing and Sequence of Depositions

135 Depositions for Use as Substantive Testimony

136 Where Should the Deposition Be Taken?

137 Locale in Which to Take the Deposition of a Nonparty

MOTION FOR LEAVE TO TAKE DEPOSITION

138 Locale in Which to Take the Deposition of a Party

Practice Tip: Paying for a Witness to Travel

Practice Tip: Deposing Witness Where Witness Works

138.1 Multi-Jurisdictional Practice

Dated this _ day of _____, 20_.