10,000 Depositions Later Podcast

You know how to assert a Fifth Amendment privilege in a deposition. But how to withdraw it, once the threat of criminal prosecution is gone? It's a dangerous minefield for the uninformed. In this episode, Jim Garrity explains the process, backed by both brand-new and enduring case law. Invaluable stuff, with a long list of supporting cites in the show notes for your research files.

SHOW NOTES:

United Healthcare Services, Inc. v. Mortazavi, et al., No. 3:21=cv=1547-L, 2026 WL 2076020 (N.D. Tex. July 16,, 2026) (order allowing defendant to withdraw prior assertion of Fifth Amendment rights, reopening discovery for the limited purpose of allowing defendant to testify fully in deposition and serve amended answers to interrogatories and request for admissions; excellent discussion of invocation and withdrawal of Fifth Amendment assertion)

Skillz Platform, Inc. v. Papaya Gaming, Ltd, et al., Case No. 24-cv-1646-DLC, 2026 WL 915251 (S.D.N.Y. Apr. 3, 2026) (in order to invoke the privilege, a witness must have “reasonable cause to apprehend danger from a direct answer” and have “reason to fear that any such answer might be used to incriminate him in future criminal proceedings;” “to be a “credible” threat of prosecution the fear of criminal prosecution may not be “imaginary or wholly speculative;” court refused to allow witnesses to testify where invocation was sought to be withdrawn three weeks )

In re Kowalsky, Case No. 24-19919-VFP, Adversarial Proceeding Case No. 24-1664, 2026 WL 2101871 (D. N.J. July 21, 2026) (in adversarial bankruptcy proceeding where sexual assault victim sought to bar debtor-defendant from discharging state-tort claim against him, court considered but declined to draw negative inference from debtor-defendant’s assertion of Fifth Amendment privilege when ruling on summary judgment motions)

Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5th Cir. 2012) (elaborating on the factors a court should consider in evaluating whether and under what circumstances party may withdraw its indication of the Fifth Amendment privilege against self-incrimination in a civil case, saying that generally, a litigant may withdraw the indication, even at a late stage in litigation, if (1) the litigant was not using the privilege in a tactical, abusive manner, AND (2) the opposing party would not experience undue prejudice as a result)

United States of America v. 650 Fifth Avenue and Related Properties, Case 1:08-cv-10934-LAP, CM/ECF Doc. 1684-6 (S.D.N.Y. May 15, 2017) (filed, jointly-submitted agreed jury instruction on the jury’s right to draw an adverse inference against individuals that asserted the Fifth Amendment; instruction based on Sand, Modern Federal Jury Instructions, Instr. 75-5, Libutti v. United States, 107 F.3d 110 (2d Cir. 1997).

In re 650 Fifth Ave. & Related Properties, 934 F.3d 147, 169-170 (2d Cir. 2019) (District Court should take a liberal view toward applications by civil litigants to withdraw their previously-about for the amendment privilege; when confronted with the parties request to withdraw its previous indication of its Fifth Amendment rights, threshold issues are whether the request is “timely” and whether its opponent suffered “undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment”)

United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 83-84 (2d Cir. 1995) (stating that when confronted with a parties request to withdraw its previous indication of the Fifth Amendment, threshold issues are whether the request is timely, will cause undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment, the nature of the proceeding, how and when the privilege was invoked, and the potential for harm or prejudice to opposing parties)

Spevak v. Klein, 385 U.S. 511, 515 (1967) (the Constitution limits “the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly;’” courts should seek out ways to permit as much testimony as possible to be presented in the civil litigation, despite the assertion of the privilege)

Skillz Platform, Inc. v. Papaya Gaming, Ltd. et al., Case 1:24-cv-01646-DLC, CM/ECF Doc. 1 (S.D.N.Y filed March 4, 2024) (Complaint detailing allegations of bot usage versus humans in online gaming platform)

In re Vrusho, 321 B.R. 607, 612 (Bankr. D.N.H. 2005) (stating that when a party to civil actions refuses to provide discovery invoking its Fifth Amendment privilege against self-incrimination, a negative inference may be drawn at the summary judgment stage as well as trial)

In re WorldCom, Inc. 377 B.R. 77, 109 (Bankr. S.D.N.Y. 2007) (saying that at summary judgment, the court is required to draw all reasonable inferences in favor of the non-moving party, despite the potential for the ultimate trier of fact to draw an adverse inference from the assertion of Fifth Amendment privileges)

In this episode, Jim Garrity explains the procedure for deposing current or former federal government employees where the federal government isn't a party to your litigation. These are commonly known as 'Touhy witnesses." And if they're important to your case, you'd better plan for their deposition very carefully. Garrity also discusses the importance of a strong backup plan, because many such deposition requests are denied by the employing agency. Important stuff to know! And great resources in the show notes, below.

SHOW NOTES

Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, 2026 WL 2042420, --- F. Supp. 3d --- (D. Ariz. July 13, 2026) (denying request for declaratory and injunctive relief against U.S. Department of Health and Human Services in APA action to force HHS to produce certain federally-employed treating physicians for deposition)

Complaint for Declaratory and Injunctive Relief [CM/ECF Doc. 1] Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., CM/ECF Doc. 1, No. CV-26-02379-PHX-KML, (D. Ariz. filed April 6, 2026) (alleging claim for violation of the Administrative Procedure Act, on the grounds of alleged arbitrary and capricious agency action, where federal agency refused to produce subpoenaed witnesses for deposition)

Motion for Preliminary Injunction [CM/ECF 12] in Support of Complaint for Declaratory and Injunctive Relief, Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. July 13, 2026) (motion seeking order setting aside HHS’ denial of Plaintiffs’ Touhy request as arbitrary, capricious, contrary to law, and in excess of delegated authority; requiring Defendants to authorize the depositions of Dr. Matthew Cusick and Dr. John Young within fourteen days, subject to reasonable limitations, including remote appearance, a limited duration, government counsel’s attendance, and restriction to nonprivileged factual testimony concerning Dr. Cusick and Dr. Young’s firsthand knowledge of Ms. Vincent’s care, including any device warnings and information available to Dr. Cusick; alternatively, remanding the matter to Defendants with instructions to reconsider Plaintiffs’ narrowed request within seven days under the governing regulation and IHS Delegation Memo and to provide a reasoned written decision addressing Plaintiffs’ need, unavailability, proposed limitations, and any specific disruption to IHS duties; ordering expedited production of the administrative record and expedited briefing as necessary to resolve this motion before the state-court trial; and granting such other relief as the Court deems just and proper)

Response in Opposition to Motion for Preliminary Injunction [CM/ECF Doc. 1], Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. Filed June 24, 2026)

Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774 (9th Cir. 1994) (treating request for depositions of current or former federal employees like any other discovery request)

https://oig.ssa.gov/touhy-requests/ (page for Touhy requests to Social Security Administration)

https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-2 (Health & Human Services Touhy Regulations)

28 C.F.R. § 16.21 (Department of Justice's Touhy regulations)

Covington, Ben, Closing The Touhy Gap: The APA, The FRCP, And Nonparty Discovery Against Federal Administrative Agencies, https://columbialawreview.org/content/closing-the-touhy-gap-the-apa-the-frcp-and-nonparty-discovery-against-federal-administrative-agencies/ (noting an apparent and significant difference in Touhy request successes depending on where the action was filed, not on the merits of the request)

How many times have you noticed an expert witness for deposition, only to be told you've got to pay their fee in advance, failing which, they say, they aren't coming. As Jim Garrity explains, it doesn't have to be that way. Listen in and learn why prepayment isn't required and how to properly avoid advance payment. After all, those prepayment demands are often excessive, don't explain how the fee was determined, and of course don't guarantee the expert will even qualify as such, much less offer admissible testimony. And we've got a wealth of research for you in the show notes.

SHOW NOTES

Evans v. Home Depot USA, Inc., Case no. 2:25-CV-451-SPC-KRH, 2026 WL 1837154 (M. D. Florida June 25, 2026) (plaintiff’s treating doctor, a non-retained expert, was set for one hour deposition, and demanded prepayment of $3,000 for the deposition; held, prepayment is generally not required, “so lack of prepaid fees would not justify refusing to attend the deposition after proper service of a valid subpoena;” further outlining the process to address a treating physician’s potential nonappearance at a deposition, asking whether the deposition was subject to the courts subpoena power, and if so, whether the defendant had issued and served the subpoena, noting that the court then need not intervene until (a) the physician seeks to quash the subpoena or fails to appear, and (b) the defendant moves to hold him in contempt for failing to appear to deposition)

Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“The pertinent rule thus teaches that once Dr. Seldes has actually “spent” time responding to Spirit's questions at the deposition, he may then bill Spirit for a “reasonable” fee for that amount of “time.” Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee. I will not predict in advance what reasonable hourly fee Dr. Seldes may choose to request, but should a dispute arise, I will of course defer to the persuasive authority of cases such as the Garnier decision cited above and the precedent on which it in turn relied. See id. at *3-*4 (describing a range of reasonable hourly rates below $500))

Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *3 (E.D.N.Y. Aug. 10, 2011) (“The rule and the case law makes it clear that the parties seeking court intervention to determine a reasonable fee for an expert deposition should do so retrospectively—that is, after the deposition has taken place. The rule clearly contemplates that a court order will be issued subsequent to the deposition, as it requires a court to order payment of a “reasonable fee for time spent in responding to discovery”)

Tennant v. Handi-House Mfg. Co., Case No. 3:16-cv-1276-J-25MCR, 2017 WL 11105252 (M. D. Fla. Nov. 20, 2017) (Defendant moved for, among other things, order deferring payment for deposition of plaintiff’s treating physician, who canceled the deposition because he did not receive the $3,300 payment he demanded for his two-hour deposition; held, Defendant’s request to defer deposition fees of the treating physician granted, with the court “finding that prepayment of expert witness deposition fees is inappropriate under the Federal Rules of Civil Procedure;” noting that Federal Rule of Civil Procedure 26(b)(4)(E) “does not require the prepayment of expert deposition fees; further noting that the parties agreed that the issues presented are governed by the expert fee rules, implying that a treating physician may qualify as an expert under the circumstances); Court also noted that Fed. R. Civ. P. 26(b)(4)(E)(i) says that unless manifest injustice would result, the court must require that the party seeking discovery pay the expert a reasonable fee for “time spent” in responding to discovery; court noted that the deposition had not yet taken place, and so seemed to emphasize that it was premature to determine the reasonableness of payment because the provision talks about “time spent” and the doctor had not yet been deposed”)

Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025) (Bank filed Motion to Defer Payments to Experts or to Determine Reasonableness of Expert Charges, where defendants demanded that the bank pay an invoice from TASA Group in the amount of $10,325.29 in advance of the banking expert’s testimony, failing which the witness would not appear; bank argued that the court should defer reimbursement obligation pending the outcome of the case, in pending submission of supporting data, arguing that the Committee Notes to the 1970 amendments to Rule 26 say that the court may issue an order to pay fees as a condition of discovery, or it may delay the order until after discovery is completed.; Court noted that “other courts have denied request for advance payment because Rule 26 (small B) (4) (E) does not require it,” citing cases from Wisconsin and California for the proposition that, unlike ordinary witness fees, no rule requires that an opposing expert deposition fees be tendered to the witness in advance)

Regions’ Motion to Defer on Payment of Experts, or alternatively, to Determine Reasonableness of Kaplan Parties’ Expert Charges and Supporting Memorandum of Law (CM/ECF Doc. 435) Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025)

Defendant Marvin I. Kaplan’s Motion for Approval of Expert Witness Fees and Expenses (CM/ECF Doc. 436), Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025)

Parkland Venture, LLC v. City of Muskego, No. 09-C-0972, 2010 WL 4723411 (E. D. Wisconsin November 15, 2010) denying plaintiff’s motion requiring the defendants to pay reasonable fees to the plaintiff’s experts in advance of taking their depositions; court noted that while rule 26(b)(4)(C) provides in relevant part that in less manifest justice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent responding to discovery, rule does not say that experts fees must be paid in advance of the deposition absent agreement to do so, and pointing out that unlike ordinary witness fees, no rule requires that an opposing expert’s deposition fees be tendered to the witness in advance)

Kramer et al. v. Hartford Insurance Co. of the Midwest, Case No. 8:12-cv-01824-T-17AEP, 2013 WL 12155927 (M. D. Florida April 30, 2013) (court granted Defendant’s Motion to Compel Deposition Testimony of Dennis James, an expert, finding “that prepayment of expert witness fees, including Mr. James’ expert witness in this action, is inappropriate under the Federal Rules of Civil Procedure. The court noted that while Rule 26(b)(4)(E)(i) says that in less manifest injustice would result, the court must require that a party seeking discovery pay the expert a reasonable fee for “time spent” [emphasis added], the Advisory Committee Notes (1970 Amendment) to Rule 26(b)(4) authorize a court to require the payment of fees and expenses as a condition of discovery, and also to delay the order until after discovery is completed. Thus, the court ordered the deposition to proceed but set a payment deadline for his fees within 50 days of the date of his deposition. The court emphasized that - while rule 26(b)(4)(E)(i) “is silent as to exactly when an expert will be paid after responding to discovery, the Court finds that a degree of reasonableness is inherent in the Federal Rules of Civil Procedure. In the circumstances of this case, a payment deadline of 50 days was reasonable.)

Harris v. Costco Wholesale Corp., 226 F.R.D. 675, 676–77 (S.D. Cal. 2005) (plaintiff’s counsel abruptly terminated defense deposition of plaintiff’s expert because Defendant would not pay expert witness fee at that time; court, rejecting the manner of termination is improper, said of Rule Fed.R.Civ.P. 26(b)(4)(C) that while experts must be paid absent manifest injustice, “The rule does not state, however, that the expert's fees must be paid in advance of the deposition absent agreement to do so. To the contrary, “[u]nlike ordinary witness fees, no rule requires that an opposing expert's deposition fees be tendered to the witness in advance… Because there is no rule allowing a party to terminate a deposition for the failure to pay opposing expert witness fees in advance, Plaintiff's counsel was wrong in doing so in the instant case)

Conte v. Newsday, Inc., No. CV 06–4859 (JFB) (ETB), 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (ruling that a motion seeking prepayment for an expert’s deposition was premature because the Rule “clearly contemplates that a court order will be issued subsequent to the deposition;” further saying “Nor, as discussed above, does the rule entitle plaintiff to payment in advance, citing Rule 26(b)(4)(E), which entitles an expert to a reasonable fee for “time spent” responding to discovery); citing Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“[The expert] therefore may not insist on advance payment ....”). Rather, if the parties cannot agree to reasonable reimbursement for plaintiff's experts following their depositions, either party may apply to the Court for such a determination;” “Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee.”)

Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (citing Broushet v. Target Corp., ––– F.R.D. ––––, 2011 WL 1750753, at *1 (E.D.N.Y. Mar.3, 2011), and saying “Courts consider the following factors in determining whether a requested expert fee is reasonable: (1) the witness' area of expertise; (2) the education and training that is required to provide the expert insight that is sought; (3) the prevailing rates for other comparably respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the cost of living in the particular geographic area; (6) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26; (7) the fee actually being charged to the party who retained him; and (8) fees traditionally charged by the expert on related matters”)

Ratliff v. Baan Co., N.V., No. 1:99–CV–2455–WBH, 2003 WL 25774909, at *1 (N.D. Ga. Nov. 5, 2003) (concluding that after the expert’s deposition, the expert can submit a bill to be paid for the deposition)

Woodward v. Provident Life & Accident Ins. Co., No. Civ. A. 97–2062, 1998 WL 158744, at *3 (E.D. La. Mar. 30, 1998) (denying the motion to set an expert’s fee because the motion requests a flat fee to be paid in advance of the deposition without reference to “time spent” as enunciated in the Rule)

Burdette v. Steadfast Commons II, LLC, No. 2:11–980– RSM, 2012 WL 3762515, at *4–*6 (W.D. Wash. Aug. 29, 2013) (allowing prepayment of expert fees because the parties apparently did not dispute paying the fee in advance)

Federal Rule of Civil Procedure 26(b)(4)(E) (payment to experts)

Federal Rule of Civil Procedure 26(c) (protective orders to avoid undue burden or expense)

What to do when an organization resists your efforts to conduct a Fed. R. Civ. P. 30(b)(6) deposition by claiming it not only doesn't currently have information on the topics, but that it never had any? As Jim urges you to do in this episode, take the deposition and force the entity's designee to say it entirely lacks knowledge on the topics. Why? Because the absence of knowledge is itself a discoverable fact.And showing that an entity took no steps to become informed on critical matters can be powerful proof of indifference, negligence, or omission. Don't miss this one!

SHOW NOTES:

Order Overruling Defendant’s Objection To Magistrate Judge Vatti’s Order Dated February 5, 2026, LaBroad v. Costco Wholesale Corporation, et al., Case No. 3:24-cv-1102 (KAD), 2026 WL 1746249 (ruling that magistrate judge correctly determined “that the purported nonexistence of any materials regarding [defendant’s training on parking lot safety] is, itself, a relevant fact on which [Plaintiff] is entitled to develop evidence via Rule 30(b)(6)”)

Hepco Data LLC v. Hepco Medical LLC, 2020 WL 1870320, No. 2D19-2134 (2d DCA April 15, 2020) (certiorari granted, quashing order blocking depositions, because petitioners established through filed proffer that depositions were relevant; held, “litigants would never be able to take a nonparty deposition if all the non-party had to do to get out of it is to say that he or she had nothing to say; representations of opponent that discovery isn’t relevant need not be relied on)

John v. Core Brace, LLC 2021 WL 329460, No. 4:20-CV-00071-BLW (D. Idaho Jan. 29, 2021) (citing Apple. Inc., 282 F.R.D. at 263 for proposition that “A claimed lack of knowledge, by itself, is insufficient to preclude a deposition,” omitting additional citations)

United States of America v. Newman, 2021 WL 1026019, No. 19-1868 (RJL) ( D. D. C. Mar. 17, 2021) (sarcastically noting government’s proposed stipulation that certain evidence had not moved from its location during relevant time was an unconvincing “attempt to stipulate itself out of [having to respond to] discovery”)

Klorczyk v. Sears, Roebuck & Co., No. 3:13-CV-257 (HBF), 2015 WL 1600299, at *4-5 (D. Conn. Apr. 9, 2015) (holding that a "we-don't-know" response can be binding on the corporation at trial and prohibit it from offering evidence on those points; if a designee genuinely lacks knowledge, the designee must still be prepared to testify concerning the corporation's efforts to obtain the information and why it lacks sufficient knowledge)

QBE Insurance Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012) (establishing that the lack of knowledge answer is itself an answer which will bind the corporation at trial; lack of knowledge is insufficient grounds to preclude a Rule 30(b)(6) deposition; “The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).

In this episode, we feature a brand-new deposition-related ruling that continues to build on the post-COVID pandemic rulings holding that in-person depositions remain the default and that parties seeking to force a remote-video deposition must satisfy the formidable good-cause burden. It's a great decision for your research bank, as are the others we've provided in the show notes below.

And here's a bulletin for you. As Jim explains here, research in the field of behavioral psychology shows us there's a powerful psychological reason for insisting that your deponent appear in person - and it isn't that you can personally gauge their demeanor. Don't miss this one!

SHOW NOTES

Groskreutz v. Agropur, Inc., No. 25-CV-1153, 2026 WL 1694341 (E.D. Wis. June 11, 2026) (in-person deposition required because of need for counsel to observe body language and because plaintiff failed to show good cause for remote video deposition)

Eletson Holdings, Inc., et al. v. Levona Holdings, Ltd., and Apargo Limited, et al., Case No. 1:23-CV-07331-LJL (S.D.N.Y. July 16, 2025), CM/ECF Doc. 505 (order requiring in-person deposition)

Simoni v. United Airlines, Inc., No. 1:21-CV-01267 (N. D. Ill. Aug. 25, 2023), CM/ECF Doc. 66 (order requiring in-person deposition)

Crutchfield v. Experien Information Solutions, Inc., et al., Case No. 1:25-CV-05697 (N. D. Ill. October 16, 2025), CM/ECF Doc. 44 (order requiring in-person deposition)

Fed. R. Civ. P. 30(b)(4) (“By Remote Means.The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions)

Fed. R. Civ. P. 26(c)(1)(b) and (c) (authorizing court to determine manner, time, and place of deposition or other discovery)

Bond & Depaulo, Accuracy of Deception Judgments, Personality and Social Psychology Review, Vol 10, Issue 3 Aug. 2006, https://journals.sagepub.com/doi/10.1207/s15327957pspr1003_2

Have you ever had a queasy feeling, as an examining lawyer is explaining the so-called ground rules for the deposition with your witness, that something about the instructions was amiss? But you weren't quite sure what to say - and didn't really know whether or how to object? Instructions like, "Can we agree that if you answer a question, it means you understood it?", and "Will you agree to limit your testimony to actual facts you personally know to be true, and not answer based on speculation or opinion?" can box your client in, cause them to omit important information, and do grave damage at later evidentiary hearings or trials. In this episode, Jim Garrity explains how these kinds of instructions may be improper and how to articulate your objections. It's a definite don't-miss.

In this episode, Jim talks about the value of "second-order" examinations - asking deponents not only what they know, but what others know (and what others know that still others know, which is a form of third-order knowledge). It's an incredibly valuable tool for ensuring you fully understand the actors, documents, and events in your cases. Garrity explains why witnesses will talk more freely about what others know than about what they themselves know, and wraps up with practice tips for litigators who are either taking - or defending against - second-order knowledge examinations.

As always, thanks for listening!

In this final episode of our cross-examination series, Jim Garrity turns to the Reid Technique, the interrogation system developed in the 1940s for American law enforcement. Though the method has drawn serious criticism and been linked to false confessions, many of its individual components quietly appear in depositions, administrative hearings, and arbitrations every day, often deployed by lawyers who have never heard the name John Reid.

We break the technique into three "movements" civil litigators will recognize: the non-accusatory, warm opening that triggers reciprocity; confrontation and theme development, where a sympathetic narrative conceals a damaging concession; and the compound question that forces a false binary. Along the way, we cover how to prepare witnesses to recognize tonal shifts, resist softened mischaracterizations, and reject false either/or options. Finally, Jim explains how taking attorneys can ethically deploy these tools themselves.

In this third installment of our series on examination techniques, Jim Garrity dives into the so-called Reptile Method, developed by jury consultant David Ball and plaintiff’s attorney Don Keenan, and explained in their 2009 book Reptile: The 2009 Manual of the Plaintiff’s Revolution. It's long been a controversial approach because, some say, it's a disguised version of Golden Rule arguments that are generally forbidden in most jurisdictions. But whether you’re on the plaintiff side looking to deploy it or the defense side looking to neutralize it, you need to understand how the three-stage sequence works, and where it’s vulnerable.

SHOW NOTES

https://columbialawreview.org/content/shadow-tort-law-lessons-from-the-reptile/ (Columbia University law review article on "The Reptile" method)

https://lewisbrisbois.com/insights/clientalerts/the-reptile-theory-in-practice (defense firm blog on the Reptile Theory)

https://imslegal.com/articles/reptile-brain-strategy-why-use-it-how-counter-it (jury consulting firm article on the Reptile Method)

In this second episode in a series on different cross-examination methods, Jim Garrity spotlights Irving Younger's famed Ten Commandments of Cross-Examination. It's one of the earliest formal systems for conducting an effective cross. As Jim explains, there isn't a single "best way" to question or cross-examine witnesses. The path to world-class examination styles is being aware of the different approaches, understanding them, experimenting with them, and even possibly combining elements from several to develop your own style.

In this episode, and over the next few, Jim Garrity analyzes some of the better-known techniques or methods of conducting deposition cross-examinations. He begins with the Pozner-Dodd method, based on the book Cross-Examination: Science and Techniques, by Larry Pozner and Roger J. Dodd. As Jim explains, there isn't a single "best way" to question or cross-examine witnesses. The path to world-class examination styles is being aware of the different approaches, understanding them, experimenting with each, and even possibly combining elements from several to develop your own style.

SHOW NOTES:

Pozner, Larry and Dodd, Roger J., Cross-Examination: Science and Techniques, 3d. Ed.

https://www.amazon.com/Cross-Examination-Science-Techniques-Larry-Pozner/dp/1632843919/ref=sr_1_4?crid=2OP2T6EBDBNI3&dib=eyJ2IjoiMSJ9.o49yLDTFRzsh1lO1WhQd4xBgkEuhYLH3obvuBC2GIdpGyzn1i0dg1lEzyMEYoFcB.NPgrs8W1727PEigEc3OXABbQt85juirYS59s5B12ids&dib_tag=se&keywords=pozner+dodd&qid=1772489570&sprefix=pozner+dod%2Caps%2C227&sr=8-4

In this episode, Jim Garrity - the leading expert in the country on deposition strategies and tactics - rolls out another spectacular deposition strategy you won't find anywhere else. It's the application of the PACE Method to your deposition scheduling. It will change how you draft your deposition notices forever.

PACE - an acronym for Primary, Alternate, Contingency, and Emergency - was devised by the U.S. Military to ensure that if the primary plan goes haywire, there is a Plan B: an immediate go-to backup. And a Plan C, and a Plan D. It sharply increases the odds of mission success because there are no debates or delays when one plan fails. Everyone switches to the next layer of redundancy.

Here, Garrity tells you how to apply PACE to deposition scheduling, so that when your primary plan for deposing a witness - say, an in-person deposition - cannot proceed, you (and all other participants) immediately switch to your alternate plans.

As always, thanks for listening to the number #1 podcast in the world devoted exclusively to deposition strategies and tactics for litigators handling civil, administrative, arbitrative, and criminal proceedings.

In this episode, Jim Garrity urges you once again (see Episode 7, Audiotaping Your Depositions) to independently audiorecord your depositions. Apart from all the prior, excellent reasons he discussed, there's a new one, and it stems from technical glitches that disrupt the reporter's audio and video feed in a remote deposition. Give this one a careful listen!

SHOW NOTES

McGillvary v Riez, et al., Case No. 22-6430-MAS-JBD, 2025 WL 2962775 (D. New. Jersey Oct. 17, 2025) (memorandum order on, among other things, a motion to suppress the transcript of the plainest deposition and to compel production of the audio recording of the deposition, based on allegations that the transcript contained numerous errors and omissions) 

A must-listen episode with actionable guidance for litigators and trial teams who want to keep depositions moving and the record clean. We break down the “you can answer” interjection: why it is usually unnecessary, how it inserts defending counsel into your Q-and-A, and how repetition disrupts tempo and shifts the witness from answering questions to seeking permission. You will get a ready-to-use preliminary instruction that tells the witness to answer after objections unless counsel clearly instructs “don’t answer” or the witness needs a rephrase. We also cover when to address opposing counsel on the record and how to frame the issue as coaching and delay. If the conduct escalates, we explain how Rule 30(d)(3)(A) supports suspending the deposition and seeking a protective order.

SHOW NOTES:

Sample preliminary instruction to minimize "You can answer" gatekeeping"

During this deposition, the lawyers may make objections from time to time. For example, you may hear one of the lawyers say objection, or object to the form. These objections are mainly for the court reporter and, if necessary, for the judge later. They’re not signals to you to stop or to wait for permission. The only time you may hesitate is if the objection you’ve heard is “don’t answer that question.” Otherwise, after objection, or if theres no objection, go ahead and answer the question that was asked, after you heard the objection. You should not turn to your lawyer after each question, or wait for your lawyer to say you can answer after each question. Just listen to the question, and if you understand it, answer it in your own words. The only time you should stop answering as if your lawyers objection is along the lines of don’t answer that question, or if you yourself don’t understand the question and need me to rephrase it. Otherwise, you should go ahead and answer the question.

They're baaaaack! In-person depositions, that is. In this episode, Jim Garrity discusses two brand-new court rulings that reflect a growing trend among judges to enforce noticed in-person depositions of parties and key witnesses. It's a subtle but striking shift away from remote depositions, which took root during the COVID pandemic. Jim discusses the rulings in detail, as well as an interesting observation by an Illinois federal judge about the behavioral psychology that favors face-to-face confrontations. Finally, Jim offers practical guidance on arguments to make for and against remote depositions in your cases, including the two most powerful arguments to make when seeking an order requiring a deponent to appear in person.

SHOW NOTES

James, et al. v. Thomas, Case No. 1:24-CV-00061-RGJ-LLK, 2025 WL 2945597 (W. D. Ky. Oct. 17, 2025) (denying motion for protective order sought by three plaintiffs - who reside in New York, New Jersey, and Florida - to avoid traveling to Kentucky for their depositions)

Crutchfield v. Experience Information Solutions, Inc., et al., Case No. 25-CV-5697, 2025 WL 293-8760 (N. D. Ill. Oct. 16, 2025) (denying motion for protective order, filed by Florida-based plaintiff, that sought to avoid an in-person deposition in Chicago)

When a 30(b)(6) representative is deposed, the testimony is that of the organization, not of the individual answering the questions. However, in the heat of battle, it can be challenging to remember this distinction. Questions in 30(b)(6) depos that use words like "you" - and answers that use words like "I" or "me" - can blur the roles and lead an examiner to see the testimony as also being that of the witness individually. But it isn't. Psychologists refer to this confusion as an "attribution error," meaning that we may attribute the testimony to the wrong source.

This confusion can be fatal to a claim if the representative is also a key witness individually and wasn't deposed separately. Today, Jim discusses a brand new court ruling where a federal judge dismissed a claim against an individual defendant (and key witness) who was only deposed as a 30(b)(6) deponent. The question there was, when a 30(b)(6) witness says “I,” who’s really speaking—the individual or the entity? Learn how that 30(b)(6) deposition in Ademi wasn't enough to survive summary judgment, and what every litigator must do to avoid the same trap. Essential listening for anyone taking or defending corporate rep depositions.

SHOW NOTES

Ademi, et al. v. Central Park Boathouse, LLC, and Dean Poll, individually, No. 22-cv-8535 (S.D.N.Y. Sept. 23, 2025) (summary judgment granted in favor of individual defendant where plaintiff’s counsel only deposed defendant in a 30(b)(6) capacity and, thus, had no testimony from the witness himself)

Fed. R. Civ. P. 30(b)(6) (designated representative rule)

King v. Pratt and Whitney, 161 F. R. D. 275 (S. D. Fla. Apr. 27, 1995) (rule governing representative depositions doesn’t limit scope of questions that can be asked, beyond topic list); Joseph v. Chronister, et al, 2019 WL 8014505, Case No. 8:16-cv-274-T-35CPT (M. D. Florida January 29, 2019) (scope of designated-representative deposition is not strictly confined to topics set forth in notice; further noting the twin benefit of this type of deposition, being that it limits the number of people within a corporation to be deposed, and prevents bandying); See Marksberry v. FCA US LLC, 2021 WL 2142655, No. 19-2724 (D. Kan. May 26, 2021) (lawyers may object to topics as “outside the scope” of that listed on the 30(b)(6) notice, and such objections have been held to be permissible, but the witness “must nevertheless answer the question because Fed. R. Civ. P. 26(b) - not the deposition notice defines the scope of discovery”).

In this episode, Jim Garrity uses a pending bar disciplinary proceeding against a Florida lawyer as a potent reminder of the consequences of failing to ensure that your conversations during breaks in remote (virtual) depositions are not heard by others. As always, he offers practical guidance to help you avoid this potentially career-ending mistake. Citations to the referenced case are in the show notes.

SHOW NOTES

Zoom community forum reporting audio feed despite activation of mute button (https://community.zoom.com/t5/Zoom-Meetings/Participant-on-mute-yet-I-can-still-hear-them/m-p/142674)

Excerpt from Zoom’s terms of service athttps://www.zoom.com/en/trust/terms/(You agree [that the software and services are provided “as is” and that Zoom makes no guarantee] . . . .that the services or software will...be...error free. . . . [Y]ou will be solely responsible for any damage to you resulting from the use of the services or software. The entire risk arising out of use or performance of the services or software remains with you”)

Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed February 1, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Respondent’s Response to Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed March 11, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Report of Referee, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed April 28, 2025); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Amended Initial Brief (attorney appealing Report & Recommendation of Referee), The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed September 15); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Today, Jim Garrity examines a critical issue in trial practice: whether an incomplete deposition—cut short when the deponent becomes unavailable—can be admitted at trial, particularly when the opposing party had no opportunity for cross-examination. Drawing on a new Sixth Circuit Court of Appeals decision and Rule 32 of the Federal Rules of Civil Procedure, Jim explores the court’s decision, the key factors trial lawyers should argue for or against exclusion, and the balancing test that should be used when essential testimony hangs in the balance. Discover practical strategies for both offering and opposing use of incomplete deposition transcripts in high-stakes litigation. Thanks for listening!

SHOW NOTES

Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)

This week’s roundup spotlights four brand-new deposition rulings from across the country. Two address when plaintiffs may appear remotely—what courts require, what constitutes good cause, and the practical showings that move the needle. The other two confront a quiet but consequential trial hazard: deposition testimony that’s read or played for the jury yet never placed into the record. (Many reporters pause their keyboards during read-ins, assuming the material is already transcribed—an easy oversight that can derail an appeal if the missing testimony is essential.) Join us for a concise tour of the standards, the pitfalls, and the simple steps to protect your record before it’s too late. It's another critical episode from the country's leading expert on depositions. Citations and parentheticals to every case discussed appear in our show notes. Have a great week!

SHOW NOTES

**Added after episode aired**

White v. Lozano, No. 13-24-00336-CV, 2025 WL 1788040, at *9 (Tex. App. June 30, 2025) (court reporter failed to transcribe the depositions or include the video recordings in the appellate record. This was error, but, because White's counsel did not object to the reporter's failure, he cannot now complain of it on appeal)

**Original Case List**

Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)North Carolina v. Johnson, No. COA24-451, 2025 WL 2408913 (N.C. Ct. App. Aug. 20, 2025) (court could not consider arguments in favor of reversal that were based on videotaped testimony played at trial but not placed into the trial record)

G.W. Aru LLC, et al. v. W.R. Grace & Co. No. CV JKB-22-2636, 2025 WL 2402194 (D. Md. Aug. 19, 2025) (court ordered parties to transcript deposition excerpts played at trial, and then file those excerpts by stipulation, where they had not been entered into the docket)

Shumaker v. Alarsi, et al., No. 1:23-CV-4-SA-DAS, 2025 WL 2418386 (N.D. Miss. Aug. 20, 2025) (rejecting motion for protective order, to allow plaintiffs to avoid 900-mile trip for in-person deposition, where the motion lacked any meaningful detail showing good cause for such an order)

Shah v. Fortive Corporation, et al., Case No. 1:22-cv-312 (S.D. Ohio Aug. 21, 2025) (rejecting plaintiff's request to appear remotely where travel to the forum of the litigation would require "40,000 miles of flight over 48 hours"; plaintiff failed to show distinct hardship or expense)

Are deposition expenses busting your budget? In this episode, Jim Garrity spotlights a clever strategy conceived by a southern California litigator to sharply cut the costs of deposition transcripts. It's yet another effort by trial lawyers to combat the insane costs of stenographic reporting, and one worth trying. The show notes point to seventeen relevant filings on this issue, four federal rules, and a website for a service that is actively helping lawyers cut deposition costs.

Like this podcast? Our production crew LOVES 5-star reviews. They're free, fast to leave, and provide us the kind of appreciative good vibes we crave. Would you mind taking ten seconds and clicking on the five-star rating? Thanks!

SHOW NOTES:

Note: All filings listed below are from the case Black v. City of San Diego, Case No. 21-cv-1990-RBM-JLB (S.D. Cal. Mar. 27, 2025)

Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A) (initial application by Plaintiff) PACER Doc. 153

Defendants’ Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 160.

Declaration Of Casey Stark In Support Of Plaintiffs Motion For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP 30(b)(3)(A), PACER DOC. 153-1

Defendant Tutterow’s Notice Of Joinder In Defendant City Of San Diego’s Opposition To Plaintiffs Ex Parte Application For Leave To Conduct Deposition By Video And Prepare Transcript Using Voice Recognition, PACER Doc. 162.

Defendants Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 164

Plaintiffs Reply To Opposition To Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A), PACER Doc. 165

Second Supplemental Declaration Of Casey Stark In Support Of Plaintiff Motion For Leave To Conduct Deposition. Etc., PACER Doc. 170

Defendants Second Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 171

Order (Magistrate Judge) Denying Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology, PACER Doc. 172

Plaintiff’s Notice Of Objection To Order Denying Application For Leave To Conduct Deposition, Etc. PACER Doc. 173 (appealing magistrate judge’s order to district judge)

Defendant’s Response To Plaintiff’s Objection To Magistrate’s Order Denying Claims Application For Leave, PACER Doc. 174

Plaintiffs Opposition To Defendants Response To Player’s Objection To Magistrate’s Order Denying Plaintiff’s Application, Etc., PACER Doc. 175

Order (District Judge) Overruling Plaintiff’s Objections, PACER Doc. 178

Order Granting Joint Motion For Protective Order, PACER Doc. 32 (providing that certain information was to remain confidential)

Modified Protective Order, PACER Doc. 156

Readback.legal (reporting agency dedicated to reducing deposition -related costs; interview of Readback’s Chief Legal Officer in podcast episode 87)

1993 Committee Note to Fed. R. Civ. P. 26 (noting that where a deposition isn't stenographically recorded, transcripts are often later prepared by counsels' own law firms

Fed. R. Civ. P. 30(b)(3)(a) (allowing lawyers to capture deposition testimony by stenographic means only, audio only, video only, or any combination of the three)

FRCP 26(a)(3)(A)(ii) and FRCP 32(c) (providing that if counsel chooses to record a deposition by video only and plan to present it at trial or hearing, they must provide a transcript of the testimony to the other parties and the court)

Readback.legal (innovative and budget-friendly service advertised as "certified, court-admissible deposition service built for legal professionals who need clarity, speed, and accuracy, without relying on outdated stenography")

In this episode, Jim Garrity argues for more frequent videotaping of depositions, especially those of parties and witnesses likely to be unavailable at trial. The reason? Unlike live witnesses - who are generally called once in trial - videotaped testimony can be played two or more times. This technique utilizes one of the most effective tools of persuasion ever invented, repetition, borrowed straight from Madison Avenue, where repetition is everything. Clips played during the trial, during closing, and sometimes in opening by consent or court order, allow you to essentially present the same witness and testimony multiple times. This kind of repetition isn't possible with live witnesses, and is far superior to readingdeposition transcripts to the jury. In a world where people are accustomed to getting their information through video, reading a transcript of testimony is likely to test your jurors' attention span (and patience). Garrity discusses a UCLA professor's "7-38-55 rule" to underscore the point. The gist of this rule is that when people communicate, only 7% of the message is conveyed through words, 38% through tone and voice, and a whopping 55% through body language. That's what makes the presentation of deposition testimony by video clips so powerful. Listen in!

SHOW NOTES

Smith, et al. v. City of Chicago, etc., Case No. 21-cv-1159, 2025 WL 1744919 (N. D. Ill. June 24, 2025) (denying use of video depo testimony in opening, but allowing it in closing argument that was admitted into evidence during trial, over objections by defendants that permitting video testimony during closing statements would be “unfairly prejudicial because it emphasizes testimony that is presented by video through repetition, and that opportunity does not exist for a live witness”)

Hynix Semiconductor Inc. v. Rambus Inc., No. C-05-00334 RMW, 2008 WL 190990, at *1 (N.D. Cal. Jan. 21, 2008) (denying use of video depo testimony in opening, but would consider allowing reading from transcript; “If the parties wish to read a portion of a deposition transcript in their opening statement, they are to exchange any excerpt with opposing counsel sufficiently in advance of opening statements so that the court can rule on any dispute over use”)

Doe v. City of San Diego, No. 12CV689-MMA (DHB), 2014 WL 11997809, at *6 (S.D. Cal. July 25, 2014) (collecting cases refusing to allow playing of videotaped deposition testimony during opening statements) (“See In re Ethicon, Inc., 2014 WL 505234, at *8 (S.D. W. Va. Feb. 5, 2014) (“[T]he use of video clips during opening statements is precluded as to all parties ....”) (quoting In re Bard, Inc., 2013 WL 3282926, at *8 (S.D. W. Va. June 27, 2013)); Carpenter v. Forest Meadows Owners Ass'n, 2011 WL 3207778, at *7 (“Video recordings of the deposition will not be permitted.”) (emphasis in original); Chopourian v. Catholic Healthcare W., No. 09–2972 KJM, 2011 WL 6396500, at *7 (E.D. Cal. Dec. 20, 2011) (denying the plaintiff's motion to use portions of videotaped depositions during opening statement); Hynix Semiconductor Inc. v. Rambus, Inc., 2008 WL 190990, at *1 (N.D. Cal. 2008) (“Neither side shall use any videotaped deposition testimony in its opening statement.”); but see Sadler v. Advanced Bionics, LLC, at *3 (W.D. Kent. April 1, 2013) (providing that the court “may” consider allowing the parties to utilize videotaped deposition testimony during opening statements); MBI Acquisition Partners, L.P. v. Chronicle Pub. Co., 2002 WL 32349903, at *2 (permitting party to play segments of video deposition in its opening statement))

Beem v. Providence Health & Servs., No. 10-CV-0037-TOR, 2012 WL 13018728, at *2 (E.D. Wash. Apr. 19, 2012) (rejecting request to play videotaped deposition during opening, and rejecting argument by plaintiff that, under Fed. R. Civ. P. 32(a)(3), she may use the deposition of an adverse party “for any purpose,” stating that “What Plaintiff proposes to do, is to introduce evidence during opening statement. The Court will not allow the showing of video deposition excerpts during opening statement. The motion is denied.”)

K.C. ex rel. Calaway v. Schucker, No. 02-2715-STA-CGC, 2013 WL 5972192, at *7 (W.D. Tenn. Nov. 8, 2013) (“there is no per se ban on the use of video excerpts of depositions in closing arguments”; also citing 88 C.J.S. Trial § 300 (2013) (“[T]here is no blanket prohibition against counsel playing selected portions of a videotaped deposition for a jury during closing argument, and trial courts have discretion to permit, or to refuse, the replaying of videotape segments in closing argument.”)

MBI Acquisition Partners, L.P. v. Chron. Pub. Co., No. 01-C-0177-C, 2002 WL 32349903, at *1 (W.D. Wis. Oct. 2, 2002) (allowing use of video depo excerpt in opening, stating, without further discussion, that “Defendants may use excerpts from the video deposition of David Straden during opening argument. Counsel are to advise plaintiff's counsel promptly of the particular excerpts they intend to show”)

Sadler v. Advanced Bionics, LLC, No. 3:11-CV-00450-TBR, 2013 WL 1340350, at *3 (W.D. Ky. Apr. 1, 2013) (preliminarily allowing use of videotaped deposition testimony in opening statements, saying If this testimony is otherwise admissible at trial and is not unnecessarily lengthy, the Court may consider allowing this procedure for both parties”)

Northfield Ins. Co. v. Royal Surplus Lines Ins. Co., No. SACV 03-0492-JVS, 2003 WL 25948971, at *3 (C.D. Cal. July 7, 2003) (subject to further objection and ruling before trial, “The Court is generally of the view that a party in opening statement may use any piece of evidence which the party in good faith believes will be ultimately received at trial. Rule 32(a)(2) of the Federal Rules of Civil Procedure permits the use of a party deposition “for any purpose”) you like the shoes I wore in high school

Smith v. I-Flow Corp., No. 09 C 3908, 2011 WL 12627557, at *4 (N.D. Ill. June 15, 2011) (“The Court denies I–Flow's request to bar use in opening statement of excerpts from video deposition testimony. The Court will expect plaintiffs to disclose by no later than noon on the Friday before the start of trial any such excerpts they intend to use in opening statements and will expect defendants to make reciprocal disclosures by no later than 5:00 p.m. on the Saturday before the start of trial.”)

Fed. R. Civ. P. 32(a)(3) (providing that "An adverse party may usefor any purposethe deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee...") (emphasis added)

Now that the pandemic is fading from our memories, courts are showing a renewed willingness to order plaintiffs to appear in person for their depositions, even when a plaintiff has relocated to distant places and will incur considerable expense and inconvenience if forced to travel. In this episode, Jim Garrity dissects a brand-new court ruling on the topic, explains in detail why the plaintiff in that case failed to win a protective order requiring her to travel 2,000 miles back to the litigation forum. Then he offers crucial tactical advices for both plaintiffs and defendants when fighting this battle.

SHOW NOTES

Order Denying Plaintiff's Motion for Protective Order, Krishmar-Junker v. Kingline Equipment, Inc., Case No. 23-0431-KD-B, 2025 WL 1710041 (S.D. Ala. June 18, 2025) (court refused to issue protective order where plaintiff, who moved cross-country since filing her lawsuit, claimed financial and medical hardships but failed to meet her burden of a particularized showing of harm to justify relief)

Traditionally, litigators seeking to understand an individual's or organization's devices - specifically, how they store, access, manage, and delete information - have either asked a deponent to testify from memory or arranged for a costly forensic inspection instead. In this episode, Jim spotlights a fantastic middle ground: requiring a deponent (individual or 30(b)(6) rep) to bring their devices to the deposition and demonstrate their functions and programs or apps during a videotaped examination. This technique was just approved by a federal judge in a pending class action against the ride-sharing company Uber. It's one all litigators should be using. As Jim says in the episode, devices are where information now lives. Lawyers should be more aggressive in their pursuit of discovery related to devices an individual or entity owns and how they access, store, manage, and delete data.

SHOW NOTES

IN RE: UBER TECHNOLOGIES, INC., PASSENGER SEXUAL ASSAULT LITIGATION, No. 23-MD-03084-CRB (LJC), 2025 WL 1393216 (N.D. Cal. May 14, 2025);SeeJoint Discovery Letter Brief on Plaintiff's 30(b)(6) deposition notice seeking device demonstration is Document 2957;Order Resolving Discovery Letter Regarding Rule 30(b)(6) Depositions is Document 2995.

Section 9.43, Physical Demonstrations By Deponents, p. 357-359, in the book 10,000 Depositions Later - The Premier Litigation Guide For Superior Deposition Practice: A User's Guide and Handbook on Deposition Tips, Tactics and Strategies for Civil, Administrative and Arbitrative Litigation, 4th Edition,615 pp., by Jim Garrity, Esq.,available on Amazon and just about everywhere else books are sold.

Today’s episode showcases four new deposition-related rulings, including one that makes a compelling case for using Rule 31 depositions by written questions; a second that underscores the need to proactively consider limiting deposition transcript distribution; a third that highlights rare exceptions to a party’s right to attend depositions; and a fourth which reinforces the basic principle that deposition subpoenas duces tecum cannot be used to shorten Rule 34’s 30-day document production timeline. Thanks for listening, and be sure to check out the book on which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice - A User's Guide and Handbook on Deposition Tips, Tactics & Strategies for Civil, Administrative, Arbitrative and Criminal Litigation.Available on Amazon and just about everywhere else books are sold.

SHOW NOTES

Kilmetis v. Wal-Mart Stores East, LP, No. 24-CV-04452 (JMW), 2025 WL 1332056 (E.D.N.Y. May 7, 2025) (Rule 31 depositions)

Hales v. Cook, et al., No. 1:24-cv45/ZCB, 2024 WL 5690279 (N. D. Fla. December 20, 2024) (on restricting distribution of deposition transcripts)

Rupard, et al. v. County of San Diego, et al., No. 23-CV-1357 CAB (BLM), 2025 WL 1265858 (S. D. Cal. April 30, 2025) (on excluding parties from depositions in their own cases)

Johnson v. Parks Floyd Investments, LLC, No. 2:23-cv-1063 SMD/KRS, 2025 WL 1191785 (D. New Mexico April 24, 2025) (on use of deposition subpoenas duces tecum to parties as a tool to circumvent and shorten the normal period for production of documents)

If you haven't already deeply integrated AI into your deposition practice, buckle up! In this episode, Jim Garrity identifies five major use cases for AI when preparing to take or defend depositions. Then he offers cutting-edge tips for preparing winning AI "prompts," which are the instructions you'll give AI programs so they'll give you the exact assistance you need. Incredible topic and incredible tips, all in just 23 minutes. Thanks for listening!

SHOW NOTES:

The three AI apps we use currently are:

ChatGPT.com

https://x.com/i/grok

Perplexity.ai

In this episode, Jim Garrity highlights three brand new deposition-related court rulings. The first presents the question of whether witnesses and their counsel can be prohibited from discussing the witnesses' testimony during recesses. The second addresses the propriety of asking foundational questions of privilege-bearing deponents to determine if the assertion of privilege is legitimate; the opinion explains what "foundational" questions are, gives examples, and details the procedure for deposing such witnesses and then presenting the issue to a court for decision. The third case in the spotlight highlights an avoidable problem when a lawyer seeks to depose an individual who has already testified in a 30(b)(6) capacity. Citations to the cases appear in today's show notes. Thanks for listening.

SHOW NOTES

Villareal v. Texas, Case No. 24-557, __ US __ (Apr. 7, 2025) agreeing to review ruling denying criminal defendant’s request to confer about his testimony with his counsel during overnight breaks) petition for writ of certiorari at https://www.supremecourt.gov/DocketPDF/24/24-557/331695/20241113121417971_cert%20petition%20Villarreal%20v%20Texas.pdf; Brief in Opposition at https://www.supremecourt.gov/DocketPDF/24/24-557/348537/20250225093718236_250219a%20BIO%20for%20efiling.pdf; Reply Brief at https://www.supremecourt.gov/DocketPDF/24/24-557/351275/20250305130135816_cert%20reply%2024-557%20Villarreal%20v%20Texas.pdf

Allergan, Inc. et al. v. Revance Therapeutics, Inc., No. 3:23-cv-00431, 2025 WL 1006372 (M. D. Tenn. Apr. 3, 2025) (outlining the procedure for questioning witnesses claiming privilege, and holding that foundational questions about the allegedly privileged communications must be allowed to determine whether a privilege exists)

In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case Number 22–MD–03047–YGR (PHK), 2025 WL 1009362 (N. D. Calif. Apr. 4, 2025) (denying request for deposition of a witness in an individual capacity, on basis that deposing party should have combined such a deposition with the 30(b)(6) deposition of the same person)

Our roundup episodes summarize brand-new, deposition-related court rulings from around the country. We cover four new rulings in this episode on crucial issues:

As always, thanks for listening! And remember - these episodes are always free and contain no advertising. What's the catch? Only that we'd ask you to leave us a 5-star rating wherever you download your podcasts. Those ratings are deeply motivating to, and deeply appreciated by, our research and production staff. And be sure to check out the book on which this podcast is based - 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Now in its 4th edition at 625 pages, available on Amazon and almost everywhere books are sold.

SHOW NOTES

LUV N' CARE v. LINDSEY LAURAIN, ET AL, No. CV 3:16-00777, 2025 WL 622334, at *8 (W.D. La. Feb. 26, 2025) (while courts cannot award costs not explicitly identified in 28 U.S.C. § 1920, courts do have discretion to deny award of otherwise recoverable costs where fairness or other considerations dictate)

NATHEN W. BARTON, Plaintiff, v. REAL INNOVATION INC. et al., Defendant., No. 3:24-CV-05194-DGE, 2025 WL 606167, at *1 (W.D. Wash. Feb. 25, 2025) See 36-page notice (Case 3:24-cv-05194-DGE Document 51-1 Filed 01/14/25 Page 1 of 36 (contains 503 actual questions, not topics)

MARK WRIGHT-AHERN, Plaintiff, v. THE CITY OF CLERMONT, Defendant., No. 5:24-CV-173-MMH-PRL, 2025 WL 605059, at *2 (M.D. Fla. Feb. 25, 2025) (rule of sequestration does not apply to depositions, absent particularized showing of specific facts warranting the relief; the correct procedure for seeking to exclude a person from deposition is to seek a protective order); see also Order (from same case, awarding fees and explaining sequestration concept in depositions), CM/ECF Document No. 31, filed Jan. 31, 2025)

UNITED STATES OF AMERICA, Plaintiff, v. The M/Y Amadea, a Motor Yacht Bearing Int'l Mar. Org. No. 1012531, Defendant., No. 23 CIV. 9304 (DEH), 2025 WL 754124, at *1 (S.D.N.Y. Mar. 10, 2025) (ordering witness to travel overseas to United States for in-person deposition, finding that while remote depositions are the new normal, there remains nothing unusual about insisting that a key witness appear in person)

In this episode, Jim Garrity spotlights a new ruling on a little-known but powerful tool: the use of depositions asaffidavits. As Garrity discusses, a deposition doesnotneed to meet the requirements of trial-oriented Fed. R. Civ. P. 32 (which requires a showing that the party against whom the deposition is offered had notice and a chance to examine the deposition) when it is offered in proceedings that allow testimony by affidavit, such as at summary judgment.

SHOW NOTES

Surety v. Co. v. Dwight A. Herald, et al., Case No. 1:23-cv-00086-GNS-HBB, 2025 WL 627523 (W.D. Ky. Feb. 26, 2025) (deposition/examination under oath of witness taken in underlying state-court personal injury could be used in federal declaratory judgment actions at summary judgment time, as deposition meets form of affidavit)

Diamonds Plus, Inc. v. Kolber, et al., 960 F. 2d 765 (8th Cir. 1992) (deposition need not be admissible at trial to be properly considered in opposition to motions for summary judgment; deposition inadmissible at trial because one of the defendants did not receive proper notice and did not attend the deposition was properly used to create issues of fact justifying denial of summary judgment)

Hoover v. Switlik Parachute Co., 663 F.2d 964, 966-67 (9th Cir. 1981) (“Rule 56 ... plainly allows consideration of “affidavits” and we find nothing which requires that term to be construed within the limitations of Rule 32(a).”).

First Gaston Bank of North Carolina v. City of Hickory, 691 S.E.2d 715 (Ct. App. N.C. 2010) (citing cases rejecting proposition that FRCP 32 limits use of depositions in proceedings where evidence in affidavit form is admissible; pointing out that to the extent a party objects that they didn’t have an opportunity to cross-examine a witness whose deposition from some other cases being offered, “the same objection can frequently be made as to affidavits filed in connection with motions for summary judgment”)

Tingey v. Radionics, 193 F. App'x 747, 765–66 (10th Cir. 2006) (reversing summary judgment where trial court, relying on FRCP 32, excluded from consideration in opposition to summary judgment a deposition that plaintiff took of physician in separate state proceeding, where defendant was not party to that proceeding and had not been given notice of deposition; depositions can be used as affidavits in proceedings where affidavits are admissible; to illustrate, “[p]arties may file affidavits in support of summary judgment without providing notice or an opportunity to cross-examine the affiant. See Fed.R.Civ.P. 56(c). The “remedy” for this non-confronted affidavit testimony is to file an opposing affidavit, not to complain that one was not present and permitted to cross-examine when the affidavit was signed. For this reason, the Ninth Circuit has permitted a party to introduce deposition testimony for summary judgment purposes against a party who was not present at the deposition, by construing the deposition as an affidavit. Hoover v. Switlik Parachute Co., 663 F.2d 964, 966–67 (9th Cir.1981)”)

Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 751 (11th Cir. 2002) (without analyzing scope and extent of application of FRCP 32, court broadly said that “Depositions are generally admissible provided that the party against whom they are admitted was present, represented, or reasonably noticed, Fed.R.Civ.P. 32(a), and are specifically allowed in consideration of summary judgment. Fed.R.Civ.P. 56(c). A deposition taken in a different proceeding is admissible if the party against whom it is offered was provided with an opportunity to examine the deponent. Fed.R.Evid. 804(b)(1).”)

Fed. R. Civ. P. 56(c)(1)(A) (explicitly allowing citation to depositions for or against summary judgment)

8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2142 (1970))) (as are at least as good as affidavits and should be usable whenever an affidavit would be permissible, even where the conditions or requirements for use at trial under rule 32 are not met) 

In this episode, Jim Garrity applies lessons from a well-known study - on the factors that influence people to cooperate with or resist perceived authority figures - to the deposition process. The lessons will help you better understand deponent perceptions that may be triggering their uncooperativeness. While some elements of the study were considered controversial, other mundane but noteworthy observations can help deter obstructive behavior by deponents.

In this episode, Jim Garrity talks about a tactic of some examining lawyers that should, but often doesn’t, draw objections that their questions are “argumentative.” So, what is an improper, argumentative question or examination? Here, we’re not talking about the questioner’s tone or demeanor, i.e., arguing in the classic sense of yelling and bickering with the deponent. We’re talking about questions where lawyers aren’t really asking a question designed to elicit facts but are instead injecting their own commentary or viewpoint, or injecting insults, taunts, wisecracks, or similar language. "Argumentative" objections are objections to the form, and must be timely made or are waived.

SHOW NOTES

People v. Pawar, No. G037097, 2007 WL 477949, at *2 (Cal. Ct. App. Feb. 15, 2007) (“[W]ere they lying” queries are improper if they are merely argumentative. (Chatman, supra, 38 Cal.4th at pp. 381, 384.) In Chatman, the prosecutor asked the defendant how the safe at a store was opened. (Id. at p. 379.) The defendant replied “he could not say; he never touched the safe,” eliciting the prosecutor's query, “ ‘Well, is the safe lying about you?’ “ (Ibid.) The Supreme Court held the question of whether an inanimate object was “lying” was argumentative , defining argumentative inquiry as “speech to the jury masquerading as a question” which “does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Id. at p. 384.))

Faile v. Zarich, No. HHDX04CV5015994S, 2008 WL 2967045, at *3 (Conn. Super. Ct. July 10, 2008) (Webster's. . . in the closest relevant definition, defines “argumentative” as “consisting of or characterized by argument: containing a process of reasoning: controversial”)

Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) (Steven Goode, et al., Texas Practice Series: Courtroom Handbook on Texas Evidence § 611 cmt. 12 (2012); see United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir.N.Y.2005) (defining argumentative as “summation-like remarks by counsel during the presentation of evidence”); accord Eddlemon v. State, 591 S.W.2d 847, 851 (Tex.Crim.App. [Panel Op.] 1979) (trial court did not abuse discretion in finding the question, “You don't believe your own offense report?” argumentative). In other words, an argumentative objection concerns whether counsel is attempting to “argue” the case, not whether the counsel is “arguing” with the witness”)

United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir. 2005) (“During the presentation of evidence one of the most commonly sustained objections is that a particular question is argumentative, Fed.R.Evid. 611(a) advisory committee's note to Subdivision (a) to 1972 Proposed Rules, and any summation-like remarks by counsel during the presentation of evidence are improper and subject as a routine matter to being stricken, Mauet & Wolfson, supra, at 30”)

Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) ("Many common law objections—including the objection of “argumentative”—are incorporated in the Texas Rules of Evidence. The common law argumentative objection is now governed by Tex.R. Evid. 611 which concerns the mode of interrogation and presentation. The argumentative objection is an objection commonly used, but not commonly understood. Pardee argues the objection should have been sustained because the State was “arguing” with the defendant. Argumentative, though, does not concern counsel's demeanor or tone. Professors Wellborn, Goode, and Sharlot explain the argumentative objection as follows: Counsel may not, in the guise of asking a question, make a jury argument or attempt to summarize, draw inferences from, or comment on the evidence. In addition, questions that ask a witness to testify as to his own credibility are improper.")

People v. Chatman, 38 Cal. 4th 344, 384, 133 P.3d 534, 563 (2006) The prosecutor's question about whether the safe was “lying” requires a different analysis. The question was argumentative. An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. The prosecutor's question whether “the safe [was] lying” is an example. An inanimate object cannot “lie.” Professor Wigmore has called cross-examination the “greatest legal engine ever invented for the discovery of truth.” (5 Wigmore on Evidence (Chadbourne rev. ed.1974) § 1367, p. 32.) The engine should be allowed to run, but it cannot be allowed to run amok. An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all. Defendant had already explained he had no explanation for the safe being open. Asking whether the safe was “lying” could add nothing to this testimony”)

People v. Imbach, No. E040190, 2008 WL 510482, at *7–8 (Cal. Ct. App. Feb. 27, 2008) ("The prosecutor asked, “You found that to be inappropriate but not your other son's addiction to child pornography?” When defendant objected that the question was argumentative, the trial court overruled that objection. Defendant asserted the second “argumentative” objection when defendant's mother said she did not know how to answer that question and the prosecutor asked, “Is that because you didn't want to know?” The trial court sustained the defendant's objection to this second question. Both questions are argumentative, because they both are speeches by the prosecutor masquerading as questions. (Chatman, supra, 38 Cal.4th at p. 384.) The trial court should have sustained both objections. However, we cannot say that by asking those two questions the prosecutor engaged in misconduct.")

People v. Peoples, 62 Cal. 4th 718, 793–94, 365 P.3d 230, 288 (2016) (“Defendant observes that the prosecutor asked numerous argumentative questions when cross-examining defense witnesses. To list a few examples, the prosecutor asked defense expert Dr. Lisak, “how many hours are you into them for?” He said to defense expert Dr. Buchsbaum, “Let's quit guessing for awhile and look at the facts.” He said to defense expert Dr. Wu, “It's a pain in the butt to get these test scores.” And he asked prosecution expert Dr. Mayberg, “Did you have a heart attack last night when you looked at the raw data?”)

People v. Burns, No. D081051, 2024 WL 2144151, at *15–17 (Cal. Ct. App. May 14, 2024), review denied (July 17, 2024) (excessive repetition of a question simply to make a point can cross line into improper argument”; “Burns makes a strong argument that the prosecutor's repetitive questioning regarding the drunk tank incident became argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) “An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Ibid.) Instead, it may be aimed at agitating or belittling the witness (People v. Lund (2021) 64 Cal.App.5th 1119, 1148), or designed to engage the witness in an argument (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236)”)

People v. Mazen, No. B300193, 2021 WL 164356, at *5 (Cal. Ct. App. Jan. 19, 2021) The court overruled defendant's argumentative objection to the following question: “Would [accidentally placing the car in neutral] been important information to tell [Morales]?” The court did not abuse its discretion when it overruled the objection. The question sought to elicit relevant testimony regarding defendant's theory that Mario was hit by accident (CALCRIM No. 510). (See People v. Chatman (2006) 38 Cal.4th 344, 384 [“[a]n argumentative question is a speech to the jury masquerading as a question” and does not seek to elicit relevant testimony].)”

People v. Singh, No. H042511, 2018 WL 1046260, at *28 (Cal. Ct. App. Feb. 26, 2018) (“Each question anticipated an answer and was answerable; none was “a speech to the jury masquerading as a question”)

People v. Basler, No. D068047, 2015 WL 9437926, at *23 (Cal. Ct. App. Dec. 23, 2015) ("Fung appears to identify three categories of objectionable questioning during his cross-examination by the prosecutor. The first category involves apparent sarcasm by the prosecutor. For example, after Fung provided additional details about his fight with another inmate while incarcerated, the prosecutor said, “Okay. You left that part out a couple of minutes ago; right?” Referencing the same fight, the prosecutor made light of Fung's claim of self-defense: “Did you have to defend yourself against him, too?” As another example, when Fung was discussing the extent of his injuries following the fight, the prosecutor said, “So, that's about how badly you were hurt? It looked like something you get by falling off a skateboard?” The court sustained objections to each of these questions, and a number of others, as argumentative." Also from Basler: "As we have noted, Fung contends the first two categories of questions were impermissibly argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even want an answer. The question may, indeed, be unanswerable.... An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (People v. Chatman (2006)”)

People v. Nanez, No. F064574, 2014 WL 1928307, at *14–15 (Cal. Ct. App. May 15, 2014) (citing examples of argumentative examination by prosecutor including (a) the prosecutor’s remark “Convenient” when a witness said they did not remember a particular fact, and (b) when prosecutor commented on witnesses testimony by saying “So that’s the lie you’re going with?”, and (c) when prosecutor asked witness “You wouldn’t tell us if you’re lying, of course, right?” and when witness said he would, prosecutor replied “There’s another lie,” causing court to strike prosecutor’s comment from the record)

People v. Strebe, No. D057947, 2011 WL 2555653, at *7 (Cal. Ct. App. June 28, 2011) (trial courses sustained objection to question as argumentative where prosecutor asked witness “Do you remember anything about that evening that might be detrimental to your case?” In essence arguing to jury that witness was lying and only selectively remembered favorable facts)

People v. Higgins, 119 Cal. Rptr. 3d 856, 873–74 (Ct. App. 2011), as modified (Jan. 21, 2011), as modified on denial of reh'g (Feb. 4, 2011) (guilty verdict reversed in part due to argumentative questions; among other jabs; in case where defendant explained his conduct as motived by depression due to death of his daughter’s friend, prosecutor asked, “You'd agree with me that it's pretty pathetic if you're using the memory of a dead 17–year–old kid as an excuse in this trial, wouldn't you? Would you agree with me? Is that the legacy that you want [the dead teen] to have?”; other examples of prosecutor’s argumentative questions included “Oh, the door was unlocked,” and “Isn't that convenient that all of a sudden, right after you've committed the crimes, that that's when you come to?”; further held, “The rule is well established that the prosecuting attorney may not interrogate witnesses solely ‘for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers”)

People v. Dixon, No. D047342, 2007 WL 2745207, at *10 (Cal. Ct. App. Sept. 21, 2007)  Dixon asked Hernandez who had taken the photographs near the time of the injury. Hernandez testified that the audio-visual person at his school had taken photographs of his injury. Dixon then asked, “Is it computer enhancement? Those could be computer enhanced-.” The prosecutor interrupted, “That's argumentative.” The court sustained the prosecutor's objection")

United States v. Browne, No. SACR 16-00139-CJC, 2017 WL 1496912, at *6 (C.D. Cal. Apr. 24, 2017) (For each witness, the Court did not end Defense counsel's cross-examination until it became excessively cumulative and argumentative, at which time the Court was well within its authority to restrain the questioning pursuant to Federal Rule of Evidence 611(a).”)

Beving v. Union Pac. R.R. Co., No. 3:18-CV-00040, 2020 WL 6051598, at *12 (S.D. Iowa Sept. 8, 2020) (Defendant may object to prejudicial or argumentative references to counsel at trial as permitted by the Federal Rules of Evidence. See Fed. Rs. Evid. 403, 611(a)(3).)

FRE 403: Argumentative questions may be viewed as unfairly prejudicial, misleading, or wasting time.

FRE 611(a)(3), Witnesses and Presenting Evidence ((a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

FRCP 30, Depositions, (d) Duration; Sanction; Motion to Terminate or Limit. (3) Motion to Terminate or Limit,(A) Grounds. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. 

Today Jim Garrity revisits the headaches caused by examining lawyers who frequently interrupt your deponents' answers. To combat this problem, Garrity offers you a six-pronged strategy for stopping this practice and/or creating a strong record that will allow your deponents to later add materially to their interrupted testimony, whether by errata sheet, affidavit, or live testimony. Courts are far more likely to allow that where you've used Garrity's strategies. (By the way, if you have a moment, would you send our production team a small "thank you" by leaving us a five-star rating wherever you listen to our podcast? It takes just 30 seconds - we timed it! - and it's deeply appreciated. Our crew devotes a great deal of time to research and production, and the podcast is not only free, but also uncluttered by pesky advertising. Thank you so much.)

SHOW NOTES

In re Injectafer Prod. Liab. Litig. ALL CASES, No. CV 19-276, 2022 WL 4280491  (E.D. Pa. Sept. 15, 2022) (“Defendants propose. . . changing “It would be one of the—yes” to “It would be one of the sources of information. Yes.” This change is not necessarily inconsistent with the original testimony because it appears that the deponent was cut off or otherwise stopped speaking in the middle of the sentence and is justified as making the answer more complete. See id. While finishing a thought is not necessarily a proper justification for an errata modification, here it appears to be justified and within the flexible scope of the Third Circuit's approach to Rule 30(e)")

Grey v.  Amex Assurance Company, 2002 WL 31242195, No. B152467 (Ct. App. Calif. Oct. 7, 2002) (reversing summary judgment in part because trial court abused discretion in failing to consider errata sheet containing “changes. . . made because the witness was interrupted before completing her answers;” further noting that the defendant “. . .took the risk that [the plaintiff’s] corrections would bring some of its undisputed facts into controversy”)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 512 (N.D. Ill. 2015) (denying, without prejudice, motion to strike errata sheet, as motion failed to specifically discuss many of the 67 changes defendant wanted stricken; noting that “The reason given for the vast majority of the 67 changes was that [Plaintiff] “did not finish” her answer during the deposition, though the transcript does not reflect that she was interrupted and prevented from doing so,” and outlining how various courts and commentators deal with the extent to which changes to testimony can be made on errata sheets)

Arce v. Chicago Transit Authority, F.R.D. 504, 512, fn. 5 (N.D. Ill. 2015) (noting that, if one looks back at the early origins of the rule on errata sheets, quoted in this opinion, it may be argued that the intent of the drafters was indeed to limit changes to clerical-level mistakes, not to allow substantive changes): "One commentator who examined the history of the rule dating back to the original Equity Rule 67, and the twin Equity Rules 50 and 51 that succeeded it, concluded that Rule 30 was never intended to allow for more than the correction of transcription errors: "Appeals to the plain language of Rule 30(e) are incomplete and misleading without reference to the Rule's transcriptive focus. Read in historical context, the Rule appears to be distinctly clerical, ill-equipped—and never intended—to embrace substantive changes. Although its wording has changed over time, Rule 30(e) has retained one modest but steady focus: the who, how, and what of accurate transcription. The Rule is meant to secure an accurate representation of what was said, leaving to another day (and frequently to the mechanisms of Rule 56) the question of the meaning and implication of the deposition content for purposes of material factual disputes. The common understanding of Rule 30(e) has moved far afield from that mild ambition, giving us the confusion and circuit split we know today. Read in light of its history, the Rule clearly embraces a transcriptive focus. Ruehlmann, Jr., supra, at 915. Rule 30(e)’s counterpart in Illinois state court, Supreme Court Rule 207(a), was amended to limit corrections to transcription errors because the “potential for testimonial abuse” had “become increasingly evident as witnesses submit[ted] lengthy errata sheets in which their testimony [was] drastically altered....” Ill. Sup. Ct. R. 207(a), Rules Committee Comment to Paragraph (a) (1995)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (citing Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 60 (1998), for its author’s argument that Rule 30(e) permits “opposing counsel, at her choosing, to introduce both versions to the jury”)

Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir.2000) (observing, as to changes in errata sheet, that what the witness “tried to do, whether or not honestly, was to change his deposition from what he said to what he meant;” quoting the common refrain that “a deposition is not a take home examination,” the court remarked that while this was a “questionable basis for altering a deposition.” the court would allow the change under Rule 30(e) since the rule expressly “authorizes ‘changes in form or substance’.”

Tchankpa v. Ascena Retail Group, Inc., No. 2:16-CV-895, 2018 WL 1472527 (S.D. Ohio Mar. 26, 2018) (refusing, based on Sixth Circuit’s strict interpretation of errata sheet changes, to allow “. . .impermissible substantive alterations to Tchankpa's testimony. . .”, including explanations stating “Incomplete; I was cut off,” allegedly because “defense counsel interrupted him;” “In this circuit, a deponent cannot make substantive changes to his deposition testimony under Rule 30(e) based on defense counsel's interruptions. . .”)

Hirsch v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) When a party makes changes to his deposition pursuant to Rule 30(e), the original answers remain part of the record. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[T]he rule requires that the original transcript be retained (it is implicit in the provision of that rule that any changes made by the deponent are to be appended to the transcript) so that the trier of fact can evaluate the honesty of the alteration.”); Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (“Subject to the rules of evidence, the jury is permitted to hear the original answer, the change, and the reasons for the change and decide – in the context of all the other evidence – whether to credit either answer and what weight to assign it.”); Coleman v. Southern Pacific Transportation Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998) (accepting the argument that “a change in a deposition statement does not eradicate the deponent's original answers”); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D. Ill. 1981) (“Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made.”). The reason for this is obvious: “[t]he Rule is less likely to be abused if the deponent knows that ... the original answers[,] as well as the changes and the reasons will be subject to examination by the trier of fact")

Hirsh v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) (court-ordered second deposition of plaintiff did not extend deadline for submitting errata sheet following delivery of transcript from first deposition; counsel claimed he “believed that the first deposition did not ‘count,’ because it was ordered [to] be redone, and therefore corrections were reserved”; errata sheet rejected as untimely)

Neutrion Dev. Corp. v. Sonosite, Inc., 410 F. Supp. 2d 529, 550 (S.D. Tex. 2006) (allowing and considering – without apparent challenge or concern – expert’s substantive changes to errata sheet, necessitated “. . . [because he] began to explain the knowledge that one of ordinary skill in the art would possess, but was interrupted by Neutrino's counsel”)

Trout v. FirstEnergy Generation Corp., 339 F. App'x 560, 565 (6th Cir. 2009) (noting argument made by defendant that plaintiff “. . . is not entitled to benefit from her corrected deposition testimony because her counsel did not rehabilitate her statements during the deposition,” meaning plaintiff’s counsel could and should have asked followup questions while the deposition was in progress)

Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., No. 1:11-CV-4483-SCJ-AJB, 2014 WL 11517837, at fn. 2 (N.D. Ga. Aug. 4, 2014) (Although Plaintiff's brief in response to Defendant's objections discusses a long day and interruptions by Defendant's counsel during the deposition, those reasons were not provided in the errata sheet. The Court also notes that if Defendant's counsel interrupted Plaintiff such that he could not elaborate much as he wished, Plaintiff's counsel had the opportunity afterwards to examine her client on those points and did not do so.”)

Fed. R. Civ. P. 30(e)(1)(B) (federal rule of civil procedure on errata sheets, which expressly contemplates possible changes in form or substance)

Fed. R. Civ. P. 30(c)(2) (requiring objections not just to evidentiary issues but to a party's conduct, to the manner of taking the deposition, and to any other aspect of the deposition)

Fed. R. Civ. P. 32(d)(3)(B)(i) (requiring objections toerrors or irregularities at an oral examination if they relate to the manner of taking the deposition, a party's conduct, or other matters that might have been corrected at that time)

Some examiners will mark a voluminous document as an exhibit and then declare that "we'll go off the record while the deponent reads it." But "going off the record" for this purpose is an unwise practice and is fraught with risks to both the examining and defending lawyer. Jim Garrity explains why.

In this episode, Jim talks about the habit of some deponents of qualifying their answers by using words like think, feel, believe, and presume. These words are known in academic and psychological circles as "linguistic hedges." They're common and harmless in social conversations. But in the unforgiving world of sworn testimony, they create a record suggesting witnesses don't know what they're talking about. Not only do hedges diminish the force of testimony, but they can render it entirely inadmissible. In the wrap-up, Jim provides specific practice strategies for impressing upon clients that the lax and incautious use of hedges can inflict grievous harm on their claims or defenses. He also explains how to train clients to avoid using hedges when testifying.

SHOW NOTES

Strategic Use Of (UN)certainty Expressions, Lorson, Cummins and Rohde, Frontiers in Communications, Mar. 18, 2021, https://www.frontiersin.org/journals/communication/articles/10.3389/fcomm.2021.635156/full

The Use of Hedging in Research Articles on Applied Linguistics, Livytska, I., Journal of Language and Cultural Education (July 2019), https://sciendo.com/article/10.2478/jolace-2019-0003

Hedging and Academic Writing: An Analysis of Lexical Hedges, Demir, C., Journal of Language and Linguistic Studies, 14(4) (2018), https://www.jlls.org/index.php/jlls/article/view/812

Linguistic Hedging In The Light Of Politeness Theory, Vlasyan, G., European Proceedings of Social and Behavioural Sciences (2018), https://www.europeanproceedings.com/article/10.15405/epsbs.2018.04.02.98

A Study of Hedges in Courtroom Oral Arguments from the Perspective of Contextual Adaption, Chen and Zhang, International Journal of Multidisciplinary Research and Publications, https://ijmrap.com/wp-content/uploads/2022/02/IJMRAP-V4N8P114Y22.pdf

Hedging in Courtroom Discourse, Lebedeva and Gribanova, http://ial-journal.org/en/node/53

Middleton v. May, et al., Third Report and Recommendation [CM/ECF Doc. 107], Sherrill, J., Case No. 4:08-cv-452-RH-WCS (N. D. Fla. Feb. 9, 2010) report and recommendation adopted, Order Granting Summary Judgment for Defendants, Hinkle, J., [Doc. 109] (“Plaintiff's statement as incorporated in doc. 93-3 is signed under penalty of perjury, although each material statement of fact is an equivocating statement beginning with "Upon information and belief . . . ." Such a statement is not sufficient as evidence and is inadmissible in its present form. A declaration expressing that statements are "true and correct to the best of my knowledge and belief" carries with it the plain implication that the affiant does not know whether the statements are true or not, and does not wish to be held accountable if they are not.6 While admittedly the phrase "best of my knowledge and belief" or "information and belief" is a part of common speech, it equivocates and, therefore, does not meet the requirements of Rule 56(e) that an affidavit "be made on personal knowledge" and "show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e)'s personal knowledge requirements prevents such statement "from raising genuine issues of fact sufficient to defeat summary judgment." Pace v. Capobiano, 283 F.3d 1275, 1278-79 (11th Cir. 2002). Accordingly, Plaintiff's statement of facts and declaration cannot be considered in response to Defendants' summary judgment motion”)

Have you ever been in a deposition and noticed something improper and prejudicial, but couldn't think of a precise objection to make? There might not be one. For example, many deponents now appear by remote video in unconventional settings - living rooms, hotel lobbies, or their cars - where others are present and may disrupt or influence the testimony. The rules' drafters couldn't possibly anticipate these new challenges. So, for misconduct that isn't squarely covered by a specific objection, Jim provides you with a single broad "super-objection" that will cover virtually any irregularities. This will help protect your right to exclude testimony, or the entire deposition, as needed. (As always, thank you for listening, and please take 30 seconds and leave us a 5-star review wherever you get your podcasts. It's a fast, free, and fantastic way to thank our production crew. We deeply appreciate it.)

SHOW NOTES

Ratliffe v. BRP U.S., INC., et al., No. 1:20-CV-00234-JAW, 2024 WL 4728898 (D. Me. Nov. 8, 2024) (order denying motion in limine to exclude deposition where witness’ mother assisted deponent while testifying; held, objections to alleged impropriety waived)

Fed. R. Civ. P. 30(d)(3)(A) (allows court relief where deposition is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party)

Fed. R. Civ. P. 32(d)(3)(B) (deeming objections waived if not made during the deposition where objection is to any irregularity in the way the deposition is being conducted)

Fed. R. Civ. P. 26(c) (allowing protective order permitting or forbidding discovery if necessary to ensure fair proceedings)

Fed. R. Evid. 403 (allowing exclusion of evidence on grounds of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence)

United States v. Simmons, 515 F. Supp. 3d 1359, 1364 (M.D. Ga. 2021) (“While “unreasonable” and “oppressive” are not defined under Rule 17, they have a common sense meaning, and courts finding a valid and specific privilege may quash subpoenas on that ground”)

Heartland Hotel Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. CV 07-2147, 2008 WL 11440623, at *8 (W.D. Ark. Aug. 5, 2008) (“Oppressive ” is defined in Webster's Third New International Dictionary as “unreasonably burdensome” and “unjustly severe, rigorous or harsh”)

Today Jim Garrity tackles the topic of narrative objections, which are objections that go beyond a simple "Form!" or "Objection!" and provide a concise explanation of the grounds for the objection. Some litigators see anything beyond a single word as a speaking objection or as coaching, but that's not so. Jim untangles the spaghetti in this episode.

(By the way, there are a total of 12 cases and rules listed in the show notes. If you don't see them all, click through to our podcast page, and you'll find them there. Some hosting sites truncate show notes to save space. And, if you have a moment, would you please leave us a 5-star rating wherever you're listening to us? It takes less than 30 seconds, but it's a huge incentive for us to put these episodes together. We offer critical expert insights in this podcast, as well as the research to back it up, and it's all free. The 5-star ratings are a great way to send us a thank you back. Thanks!)

SHOW NOTES

B.P. v. City of Johnson City, No. 2:23-CV-71-TRM-JEM, 2024 WL 3461408 (E.D. Tenn. July 18, 2024) (statement that pages were out of order or missing, following objection, wasn’t improper “speaking objection” but, rather, articulated basis for objection; court also found no basis to limit defending lawyers to word “objection” during deposition, as lawyer must state basis for it)

Dino Antolini, Plaintiff, v. Amy McCloskey, et al., Defendants., No. 1:19-CV-09038-GBD-SDA, Not Reported in Fed. Supp., 2021 WL 5411176, (S.D.N.Y. Nov. 19, 2021) (citing cases for proposition that objections should be made using the single word “Objection” unless the basis for the objection is requested; providing numerous examples of alleged speaking objections)

R.D. v. Shohola, Inc., No. 3:16-cv-01056, Not Reported in Fed. Supp., 2019 WL 6134731 (M.D. Pa. Nov. 19, 2019) (in context of pretrial rulings, court declined to grant motion in limine barring speaking objections, saying, “However, because “we deem the question of what constitutes an improper speaking objection, an inappropriate comment on excluded evidence, or an improper ad hominem exchange to be fact bound matters which cannot be determined wholly in the abstract, we will defer further rulings on these motions pending proper objections at trial”)

Fed. R. Civ. P. 30(c)(2) requiring objections to “be stated concisely in a non-argumentative and non-suggestive manner”)

Committee Notes to 1993 Amendments (stating that new paragraph (1) at the time provides that “that any objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner;” rule does not tell us how to make an objection, such as by word “objection”)

Brent v. Cramer, et al., No. CV JKB-22-1349, 2024 WL 3878145 (D. Md. Aug. 20, 2024), fn. 4 (providing examples of alleged speaking objections)

Christie v. Royal Caribbean Cruises, Ltd, No. 20-22349, 2021 WL 2940251 (S.D. Fla. July 13, 2021) (examples of speaking objections)

State Farm Mutual Automobile Insurance Company v. Dowdy, 445 F. Supp.2d 1289 (N. D. Oklahoma July 21, 2006)

In re Stratosphere Corporation Securities Litigation, 182 F. R. D. 614 (D. Nevada 1998) (“This Court can find no better or more succinct definition or description of what is and is not a valid deposition objection than that found in Rule 30(d)(1): “Any objection to evidence during the deposition shall be stated concisely and in a non-argumentative and non-suggestive manner”)

Mitnor v. Club Condominiums, et al., 339 F.R.D. 312, 317-318 (N.D. Fla. 2021) (describing some of the essential characteristics of an improper speaking objection)

Fed. R. Evid. 103 (providing that in order to preserve and objection, a party must timely object or move to strike and state the specific ground for the objection, and less it is apparent by context)

Fed. R. Civ. P. 32(d) (Waiver of Objections)

Today's roundup of new deposition-related cases focuses on four rulings. One offers a great strategy to exclude hostile deponents' deposition testimony, where they answer your opponents' questions but refuse to let you fully and fairly cross-examine them. A second touches on the age-old question of whether "Form!" or "Objection!" is enough or whether you must articulate the specific evidentiary basis. The third offers an idea for administering a slightly modified oath to immature deponents who might not understand the standard oath. The fourth looks at a novel approach one party took in noticing an individual witness with an attached, lengthy 30(b)(6) list of topics relating to matters that seemed better suited for a corporate representative.

Thanks for listening! And be sure to check out the book upon which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Available on Amazon and almost everywhere else books are sold. Now in it's fourth edition at 600 pages. It's a career-saving resource.

SHOW NOTES

Perrot v. Kelly, et al., Case No. 18-cv-10147, 2023 WL 11873009 (D. Mass. October 27, 2003) (reserving right to exclude deponent's testimony if witness continued to thwart plaintiff's opportunity to fully and fairly examine her, under FRE 804 relating to witness "unavailability"; court appears to equate refusal to give testimony with unavailability)

B.P., et al. v. City of Johnson City, et al., No. 2:23-cv-71-TRM-JEM, 2024 WL 3461408 (E. D. Tenn. July 18, 2024) (refusing to limit lawyer to word "Objection" during depositions, and stating that lawyers have obligation to state the specific basis for the objection and not limit it to "objection" or "form" alone; further declining to sanction lawyer for longer narrative objections about incomplete documents because they were not intended to coach witness as to a particular answer)

People v. Lopez, 550 P.3d 731 (Ct. App. Colo 2024) (affirming conviction of criminal defendant over objection that trial judge conducted modified administration of oath to 10-year old witness; finding that modified oath is appropriate for an immature witness who may not understand standard oath)

Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024) (rejecting plaintiffs' effort to depose individual by serving FRCP 30(b)(6)-style deposition notice with lengthy attached topic list)

See, 30(b)(6)-style Deposition Notice Served on Individual, PACER CM/ECF Doc. No. 135-1 (showing notice with attached topic list and list of documents to be brought by individual deponent) Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024)

In this episode, Jim Garrity discusses deposition protocol stipulations, which are agreements between the parties that establish the framework for noticing and conducting depositions. They're common in class-action and multi-district cases, but they're useful - and underutilized - in ordinary litigation as well. They can also be used to create internal deposition guidelines for law firms and legal organizations. Jim lists about three dozen common provisions in such agreements and offers practice tips on proposing and implementing them. Have a listen!

SHOW NOTES

Stipulation and Order Governing Protocol for Fact Depositions and Rule 30(b)(6)/PMQ Depositions [CM/ECF Doc. 742), In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case No. 4:22-md-03047-YGR (S. D. Cal. April 3, 2024) (36 pages)Protocol Governing Depositions, Dennis, et al. v. JPMorgan Chase & Co., et al., Case No. 1:16-cv-6496 (S. D. N. Y. June 23, 2020) [CM/ECF Doc. 419-1) (14 pages)

Stipulation And Order Regarding Remote Depositions [CM/ECF Doc. 108], FTC v. Tapestry, Inc., et al., Case No. 1:24-cv-03109 (S. D. N. Y. June 6, 2024) (15 pages)

Stipulation And [Proposed] Order Regarding Remote Depositions, In the Matter of Tapestry Inc., A Corp., & Capri Holdings Ltd., A Corp., Respondents., No. 9429, 2024 WL 3203213 (MSNET June 13, 2024) (related proceeding before Federal Trade Commission) (11 pages)

Deposition Protocol Order, In Re Terrorist Attacks on September 11, 2001, Case No. 1:03-md-01570-GBD-SN (S. D. N. Y. January 31, 2018) [CM/ECF Doc. 3894) (15 pages)

Fed. R. Civ. P. 29(a) (rule on discovery stipulations between parties)

Episode 22, FRCP 29(a) Stipulations: A Way to Save Time, Money & Headaches, 10,000 Depositions Later Podcast, released December 25, 2020 (30 minutes)

Our depo case digest episodes present a fast roundup of new deposition-related rulings nationwide. Today: (1) Two new rulings on relevance as a basis to instruct a witness not to answer a question, or to halt the deposition for purposes of seeking a protective order; (2) A ruling about a clever way to assure testimony is admissible when you use leading questions in deposing a witness considered "hostile" under rules of evidence; and (3) A case on excluding parties from depositions when their presence may traumatize deponents.

All cases mentioned in this episode are cited in the show notes, with helpful parentheticals. Can't see all the cases? Not all podcast sites allow lengthy show notes. Click through to our home page, where the full notes are always accessible. Thanks for listening!

SHOW NOTES:

Delgado v. Donald J. Trump for President, Inc., et al., No. 19-CV-11764 (AT) (KHP), 2024 WL 3219809, (S.D.N.Y. June 28, 2024) (order denying pro se plaintiff’s motion to compel certain answers that non-party deponent declined to answer following instruction by counsel based on relevance)

Keplar v. Google, LLC, 346 F.R.D. 41, 51 (N.D. Tex. Mar. 8 2024) (“if counsel’s questions go so far beyond the realm of possible revenue relevance where the deposition is being conducted in an abusive manner, i.e., in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party, then it would be permissive to instruct the deponent not to answer and move for a protective order")

Jenkins v. Miller, No. 2:12-CV-184, 2024 WL 3220349, at *2 (D. Vt. Jan. 2, 2024) While the Court cannot issue a general a ruling at this time, it acknowledges that Miller will likely be an important witness for all parties. The Court will therefore make itself available on January 18, 2024, the date on which the deposition is scheduled to take place, to issue rulings as necessary. Plaintiff's motion for leave to ask leading questions (ECF No. 745) is therefore denied at this time without prejudice, and may be renewed at the time of the deposition and/or thereafter as necessary.

Austin v. Fordham University, et al,No. 23 CIV. 4696 (JLR) (GS), 2024 WL 3161854, at *4 (S.D.N.Y. June 25, 2024) (“The Court grants Austin's motion for a protective order preventing Sweeney from attending Austin's deposition in person. However, Sweeney may be present in the same location where the deposition is taken (but in a different office) and permitted to see and hear the deposition in real time via a one-way remote video feed. Sweeney's counsel may consult with his client during normal breaks in the testimony and may also leave the deposition room when he deems it necessary to consult with his client during the deposition”)

Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L. Ed. 2d 443 (1984) (“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials. See generally Fed.Rule Evid. 103(c).”)

Fed.R.Evid. 611(c) (rule allowing the use of leading questions during what would otherwise be direct examination upon a showing the witness meets the test of hostility)

Fed. R. Civ. P. 26(b)(1) (general discovery rule on allowing discovery "regarding any nonprivileged matter that is relevant...") 

Fed. R. Civ. P. 26(c)(1) (rule on grounds for protective orders)

Fed. R. Civ. P. 30(d)(3)(A) (rule on terminating depositions for purposes of seeking protective orders)

As a result of listener requests, today we add a new kind of show—the Depo Digest episode—to our podcast. These new segments will supplement the regular single-topic deep dives for which we're known. The Depo Digest installments, in contrast, will quickly highlight three or four brand-new rulings of interest to you as a litigator. Jim Garrity explains that our team reviews more than 500 deposition-related rulings weekly. Not all justify a full episode by themselves, but many are still of real practical value. So we're passing these along to you in digest form, yet another powerful tool to help you stay at the top of your deposition game. We heard you, and we're acting on your excellent suggestion. Thanks!

SHOW NOTES

Burton v. United States of America, Case No. 1:18-CV-02039 (JHR) (SDA), 2024 WL 305-6940 (S. D. New York June 19, 2024) (finding that 2015 amendments to FRCP 30(b)(6), requiring conferral, can be read to require disclosure of corporate designees and their resumes prior to deposition to facilitate “the efficiency and productivity of the deposition”)

In re Chrysler Pacifica Fire Recall Products Liability Litigation MDL, No. 22-3040, 2024 WL 3048495 (E.D. Mich. June 18, 2024) (finding that routine inconvenience and expense of traveling to forum for deposition is not “good cause” justifying protective order allowing plaintiffs to appear for deposition by remote video)

Williams, et al. v. J.B. Hunt Transport, Inc., No. CV-20-01701 PSG, 2024 WL 2108841 (C.D. Calif. Apr. 30, 2024) (order rejecting taxability of court reporter convenience add-ons for litigation packages, logistics and processing, concierge tech support, and virtual primary participants)

According to current cognitive psychology and neuroscience understanding, our memories are multilayered constructs composed of personal experiences and information acquired from external sources. So, when questioning witnesses about their recollections, it's crucial to understand what those layers are made up of. Is it purely personal recollection? Does it include what they were told by others? Does it include what they were told when their lawyer prepped them for the deposition? Examining the underlying sources or layers of the deponent’s knowledge helps identify the individuals and documents that influenced and possibly biased what the witness says.

Be sure to click through to our home page if you don't see the complete list of cites in the show notes. And - please - leave us a 5-star review wherever you hear this podcast? It's a free, fast, and incredible way to thank our production team for the research and time spent producing this free resource for you. Our whole team thanks you!

SHOW NOTES

In re FirstEnergy Corp. Sec. Litig., No. 2:20-CV-03785-ALM-KAJ, 2024 WL 1984802, at *14 (S.D. Ohio May 6, 2024) (“Seemingly, FirstEnergy argues that all facts about the internal investigation are privileged or protected because, at some point, these facts were communicated by lawyers to various individuals. Time and again, courts have rejected this type of argument. While communications between attorneys and clients are privileged, facts are not. Humphreys, Hutcheson and Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) (citing Upjohn Co., 449 U.S. at 395). And facts do not become privileged or protected because they were provided to witnesses by attorneys or acquired in anticipation of litigation. See, e.g., Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D. Neb. 1989) (“There is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.”); United States v. BAE Sys. Tactical Vehicle Sys., LP, No. 15-12225, 2017 WL 1457493, at *5–6 (E.D. Mich. Apr. 25, 2017); Basulto v. Netflix, Inc., No. 22-21796, 2023 WL 3197655, at *2–3 (S.D. Fl. May 2, 2023) (“[F]act-oriented discovery is permitted even if the witness learned about the facts from her attorneys.”); Clear Cast Grp., Inc. v. Ritrama, Inc., No. 1:09-cv-169, 2011 WL 13334451, at *6 (N.D. Ohio Sept. 15, 2011). So too here. Facts related to the internal investigation are not shielded simply because they were funneled through attorneys to witnesses”)

Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278–79 (D. Neb. 1989) (citing Sedco Intern., S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 379, 74 L.Ed.2d 512 (1982) for the proposition that “No contention can be made that the attorney-client privilege precludes disclosure of factual information. The privilege does not protect facts communicated to an attorney. Upjohn Co. v. United States, 449 U.S. 383, 395–96, 101 S.Ct. 677, 685–86, 66 L.Ed.2d 584 (1981). Clients cannot refuse to disclose facts which their attorneys conveyed to them and which the attorneys obtained from independent sources. Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947); 8 J. Wigmore, Wigmore on Evidence § 2317 (McNaughton rev. 1961).

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008) (quoting In re Linerboard Antitrust Litig., 237 F.R.D. 373, 384 (E.D.Pa.2006) (“ ‘[T]here is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.’ ” (quoting Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D.Neb.1989))).)

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 215 (E.D. Pa. 2008) (“Contrary to State Farm's contention, the mere fact that counsel for State Farm may have provided such information to the witness in preparation for the Rule 30(b)(6) deposition does not convert the information into attorney work product. Were State Farm's logic followed to its full extent, anytime an attorney is involved in preparing a Rule 30(b)(6) witness, such preparation would be futile because the witness would inevitably be precluded from testifying to anything learned from the attorney. Were this the rule, every Rule 30(b)(6) deposition in which an attorney was involved in preparing the witness would be doomed from the start”)

Palmisano v. Paragon 28, Inc., No. 21-60447-CIV, 2021 WL 1686948, at *6 (S.D. Fla. Apr. 7, 2021) (“Thus, while the privilege applies when a questioner directly asks a deponent about discussions with counsel, the “attorney-client privilege simply does not extend to facts known to a party that are central to that party's claims, even if such facts came to be known through communications with counsel who had obtained knowledge of those facts through an investigation into the underlying dispute.”)

Thurmond v. Compaq Comput. Corp., 198 F.R.D. 475, 483 (E.D. Tex. 2000) (requiring disclosure of facts defendant “only learned through communications with counsel”)

Kansas Wastewater, Inc. v. Alliant Techsystems, Inc., 217 F.R.D. 525, 528, 532 n.3 (D. Kan. 2003) (“It is well established that a party may not withhold relevant facts from disclosure simply because they were communicated to, or learned from, the party's attorney.”).

Elizabeth Loftus, prominent figure in the study of human memory, particularly on malleability of human memory and misinformation effects. Loftus, E.F. (1975). Leading questions and the eyewitness report. Cognitive Psychology, 7, 560–572; Loftus, G.R. & Loftus, E.F. (1976). Human Memory: The Processing of Information. Hillsdale, NJ: Erlbaum Associates; Loftus, E.F. & Doyle, J. (1987). Eyewitness Testimony: Civil and Criminal. NY: Kluwer; Loftus, E.F.; Hoffman, H.G. (1989). Misinformation and memory: The creation of memory. Journal of Experimental Psychology: General, 118(1), 100–104.

Daniel Schacter, research on the “seven sins” of memory and the constructive nature of memory. Books include Searching for Memory: The Brain, the Mind, and the Past (1996); Forgotten ideas, neglected pioneers: Richard Semon and the story of memory. (2001); and The Seven Sins of Memory: How the Mind Forgets and Remembers (2001)

Charan Ranganath, Why We Remember: Unlocking Memory’s Power to Hold On to What Matters

In this episode, Jim tackles the problem of 30(b)(6) witnesses showing up with voluminous notes and documents to use in refreshing their memory about the topics to be addressed. Are these witnesses automatically required to give you those notes and materials ahead of time? If not, is there anything you can do to get them beforehand? And, what about getting copies of documents these and other deponents looked at before the deposition but didn't bring with? For the answers to these and other questions, listen in. And thanks for being a loyal listener of the podcast! We appreciate you!

SHOW NOTES

ChampionX LLC, f/k/a Windrock, Inc. v. Resonance Systems, Inc., et al., Case No. 3:21-CV-288-TAV-JE M (E. D. Tennessee Oct. 19, 2023) (providing that documents used during a deposition to refresh witnesses recollection must be produced to the adverse party while deposition is in progress, and need not be produced ahead of time, barring some other obligation)

Arrowood Indem. Co. The Lubrizol Corp. v. United States Fire Ins. Co., No. 1:10 CV 2871, 2015 WL 12734892, at *2 (N.D. Ohio Mar. 31, 2015) (“Fed. R. Evid. 612. Rule 612 applies to depositions and deposition testimony through Federal Rule of Civil Procedure 30(c)”)

Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) This rule is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c) (“Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence.”)

Antero Res. Corp. v. Tejas Tubular Prod., Inc., 516 F. Supp. 3d 752, 753 (S.D. Ohio 2021) (“Importantly, Rule 612 applies to deposition testimony”)

Antero Resources Corporation v. Tejas Tubular Products, Inc., 2021 WL363550, No. 2:19-CV-804 (S. D. Ohio Feb.2, 2021) (if witness uses documents for a testimonial purpose–as [the corporate representative did ]-any claim of work product protection over those documents is waived; further holding that, where conflict exists between the command of Fed. R. Evid. 612 to disclose materials used to refresh recollection, and protection provided by the attorney-client privilege, the weight of authority holds that privilege is waived).

United States v. Holden, 557 F.3d 698, 703–04 (6th Cir. 2009) (“Rule 612 does not apply where a witness refers to documents for purposes other than refreshing recollection”)

K & S Assocs., Inc. v. Am. Ass'n of Physicists in Med.,No. 3:09-1108,2012 WL 4364087, at *3 (M.D. Tenn. Sept. 21, 2012) (citing Nutramax Lab., Inc., 183 F.R.D. at 468, 473) (finding that documents were used for a “testimonial purpose” where the witness's review of them “unavoidably enhanced his recollection of events”)

Gilbert v. Atlantic Trust Co., N.A., 2005 WL8176938 (D. N.H. Nov. 17, 2005) (order denying motion to compel documents reviewed by deponent prior to deposition, under FRE 612, because of movant's failure to establish predicate during deposition)

FRE 612 - Writings Used to Refresh A Witness

Do you sometimes send multiple lawyers to depositions? If so, it's important to know how to maximize your odds of taxing each lawyer's fees when you prevail in the action and file your fee petition. As Jim Garrity says, it's easy to avoid traps, but it's also easy to step into them. In this episode he provides bright-line guidance for making your fee petition a successful one. Have a great week!

SHOW NOTES

Basic Principle

Gradisher v. Check Enf't Unit, Inc., No. 1:00-CV-401, 2003 WL 187416, at *4 (W.D. Mich. Jan. 22, 2003) (“There is no hard and fast rule allowing or preventing more than one attorney from attending a deposition, hearing, or trial on behalf of a prevailing party”)

Burden of Fee Applicant

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir. 1999) (“Thus, a fee applicant is entitled to recover for the hours of multiple attorneys if he satisfies his burden of showing that the time spent by those attorneys reflects the distinct contribution of each lawyer to the case and is the customary practice of multiple-lawyer litigation. But the fee applicant has the burden of showing that, and where there is an objection raising the point, it is not a make-believe burden”)

Burden of Party Opposing Fee Award

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (party opposing fee petition has burden also, and is obligated to provide specific and reasonably precise objections and proof in seeking to reduce fee aware due to a lack of billing judgment)

Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) (The Supreme Court rejected that position, reasoning that fee shifting statutes “favor[ ] treating a case as an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S. at 161–62, 110 S.Ct. at 2320. Nothing about the holding in Jean precludes a fee opponent from challenging a fee request on the basis that an excessive number of hours were billed on some discrete task within the case. Moreover, our decisions contemplate a task-by-task examination of the hours billed. See, e.g., Loranger, 10 F.3d at 782–83 (noting that 100 hours for the task of preparing a fee request in the case was excessive); Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir.1996) (disallowing redundant hours billed for the task of deposing witnesses).

Fees Not Reduced

Aquilino v. Univ. of Kansas, 109 F. Supp. 2d 1319, 1326 (D. Kan. 2000) (“With respect to the depositions of plaintiff and Dr. Linda Stone-Ferrier and the period of jury deliberations, the Court finds that plaintiff's decision to employ two attorneys was reasonable. Both attorneys were extensively involved in the case and their appearance at key depositions was reasonable”)

Clements v. Prudential Protective Servs., LLC, 100 F. Supp. 3d 604, 617 (E.D. Mich. 2015) (finding “nothing ‘duplicative’ with regard to having two lawyers represent [the p]laintiff” where the defendant objected to “two attorneys attending depositions”), aff'd, 659 F. App'x 820 (6th Cir. 2016))

Jones v. Federated Dep't Stores, Inc.,527 F. Supp. 912, 920 (S.D. Ohio 1981) (defendant’s protests in opposition to fee petition undermined by fact that they also had two attorneys present at depositions)

Wajcman v. Inv. Corp. of Palm Beach, No. 07-80912-CIV, 2009 WL 10668140, at *4 (S.D. Fla. Sept. 11, 2009) (“The law is clear in that where multiple attorneys perform work on a case, they may each be compensated, so long as the attorneys' efforts are not unreasonably duplicative. See Barnes, 168 F.3d at 432 (“[a]n award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation”)(quoting Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983)); Norman, 836 F.2d at 1301-1302 (observing that multiple attorneys may be compensated for their work on a case “if they are not unreasonably doing the same work and are being compensated for the distinct contribution of each lawyer”)(citing Johnson, supra)

Fees Reduced or Denied

Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir. 1996) (some fees disallowed for redundancy of work in deposition attended by two attorneys for same party; “Plaintiff has asserted that only one attorney prepared and conducted depositions of parties and witnesses, while both attorneys attended all of the depositions. Because a comparison of the two sets of time entries largely attests to this explanation, the court has subtracted half of each attorney's hours spent for mere attendance of depositions”)

Van Cleve v. Soc'y of St. Vincent De Paul, No. C03-1019, 2005 WL 1868876, at *4 (N.D. Iowa Apr. 4, 2005) (declining without explanation to award fees for two lawyers to attend depositions; saying that one lawyer prepared for the depositions, and then a second lawyer attended the depositions as well)

Baker v. Nat'l Seating Co., No. 3:05-CV-187, 2006 WL 8442688, at *2 (E.D. Tenn. Mar. 28, 2006) (reducing hours of plaintiffs’ lawyers where two very experienced attorneys attended depositions; rejecting arguments that two attorneys were needed to take an active part in formulating questions and making judgments about credibility of the deponents)

Gradisher v. Check Enf't Unit, Inc., No. 1:00-CV-401, 2003 WL 187416, at *4 (W.D. Mich. Jan. 22, 2003) (while case was class action, issues were not complex and litigation was not burdensome, so there was no need for two lawyers at depositions; held, fees for work of second lawyer reduced)

DaSilva v. Vozzcom, Inc., No. 08-80040-CIV, 2009 WL 10667450, at *7 (S.D. Fla. June 9, 2009) (“The law is clear in that where multiple attorneys perform work on a case, a firm may be compensated for work performed by separate attorneys so long as the attorney's efforts are not unreasonably duplicative”)

Schlosser v. Vrhabilis, No. 3:20-CV-190-TRM-JEM, 2024 WL 1600671, at *4 (E.D. Tenn. Feb. 1, 2024), report and recommendation adopted sub nom. Schlosser v. VRHabilis, LLC, No. 3:20-CV-190, 2024 WL 1071871 (E.D. Tenn. Mar. 12, 2024) (magistrate order recommending denial of fees for second attorney’s appearance at deposition, holding that plaintiff did not sufficiently explain why two attorneys was reasonable; mere fact both were “heavily involved” in case, and both needed to observe each witness, did not explain why attorneys could not review transcripts of deponents, or why attorneys needed to “observe each witness”)

Strong Trading Inc. v. Unique Designs, Inc., No. 221CV04206RGKPVC, 2022 WL 22715189, at *5 (C.D. Cal. Oct. 4, 2022) (denying taxability of hours for third lawyer’s work at a deposition where, although the attorney “needed to be there because she was responsible for handling documents and evidence in the trial was less than two weeks away,” the time entry for that attorney simply said “attendance,” and thus the timesheet did not indicate the lawyer was playing a critical role)

Jim Garrity's observation is that many litigators are still not using Zoom’s live-caption feature in depositions. This setting is perfect for clients and other participants who want to watch remote depositions, but can’t play audio without disrupting others. It’s also excellent for you or others on your team to ensure you asked the question you planned and got the answer you think you heard. Some great tips in this episode, as always. (And can we ask you a favor? Would you take an extra 18 seconds, go to the rating section wherever you get your podcast, and leave us a five star rating? We don't charge a dime for the tremendous research and production that goes into every single episode, so the only way you can give us a thumbs up is with a sweet 5-star rating. We know leaving ratings is a hassle, but it really means so much to our production team. Every new five-star rating we get energizes the whole crew.  It's actually more important than money because it validates our work, and let's us know that you like and are finding value in the episodes. Thanks!)

The court ruling in the spotlight today is a reminder that it's critically important to include evidentiary support when you seek a protective order - to relieve a party or witness of the obligation to travel for deposition - based on financial, medical or caregiver reasons. It also reminds us of the importance of providing your judge with the most recent case law, which is trending toward routinely allowing remote depositions in most situations. As always, Jim Garrity provides critical practice tips and insights on the issue. Have a great week!

Show Notes

Hosie v. Omni Hotels Management Corporation, Case No: 1:22-cv-00265-MR-WCM, 2024 WL 1685557 (W. D. N. C. Apr. 18, 2024) (finding insufficient record evidentiary support to warrant protective order relieving Plaintiff of obligation to travel for her deposition)

Henry v. Tacoma Police Department, et al., No. 3:22-cv-05523-LK, 2023 WL 5530201 (W.D. Wash. Aug. 28, 2023) (expressing view that remote depositions can be as effective or more effective than in person depositions for credibility determinations, in part because remote plaintiffs appearing by video do not need to wear masks)

In this episode we answer a listener who wanted to know how to correct a deposition transcript where the errors were caused by the interpreter, not by the court reporter. It's an important episode, because correcting interpreted deposition testimony requires planning before the deposition begins. As always, Jim Garrity provides invaluable practice tips and strategies. Thanks for listening!

SHOW NOTES

Fed.R.Civ.P. 30(e)(1) (providing framework for requesting review of, reviewing, and making changes in form or substance to transcripts).

https://www.njcourts.gov/sites/default/files/courts/transcript.pdf (New Jersey Courts guidance for reporters, noting that only interpreter’s English response, not the foreign language answer, will appear in transcript)

https://www.courtreportersboard.ca.gov/formspubs/best_interpreter.pdf (When the court reporter knows the foreign language being spoken and knows that the interpretation is incorrect, the court reporter is not to interrupt to correct the interpretation. It is the onus of the parties present to provide a check interpreter. The court reporter’s function is to capture the record, not create it)

Bai v. Williams, No. 2:20-CV-2042-KJD-NJK, 2023 WL 5101881, at *34 (D. Nev. Aug. 8, 2023) (jury instructed, in case where witness testified through an interpreter “that it would hear testimony in a language other than English and that the witness “will testify through the official court interpreter.” The court instructed that, “[a]lthough some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness's testimony. You must disregard any different meaning”)

In re: Takata Airbag Prod. Liab. Litig., No. 15-2599, 2016 WL 5844311, at *4 (S.D. Fla. Sept. 8, 2016), report and recommendation adopted sub nom. In re Takata Airbag Prod. Liab. Litig., No. 15-02599-MD, 2016 WL 5844338 (S.D. Fla. Sept. 21, 2016) (noting parties’ agreement agreed that objections to translations may be made for 60 days after the court reporter provides the final transcript)

Proposed Order Regarding Deposition Protocol, CM/ECF Document 1187-1, ECF p. 13, In re: Takata Airbag Prod. Liab. Litig., No. 1:15-2599, 2016 WL 5844311 (S.D. Fla. Sept. 8, 2016), report and recommendation adopted sub nom. In re Takata Airbag Prod. Liab. Litig., No. 15-02599-MD, 2016 WL 5844338 (S.D. Fla. Sept. 21, 2016) (sample deposition protocol that includes provisions on choosing interpreters and resolving disagreements, and proposing 60 days for objections to interpretation-related errors in transcript)

Allamon v. Acuity Specialty Prod., Inc., 877 F. Supp. 2d 498, 505 (E.D. Tex. 2012), aff'd, 534 F. App'x 248 (5th Cir. 2013) (finding no authority to support the argument that a court reporter may extend deadline for returning an errata, or that FRCP 30(e) contains any exceptions to its requirements)

Charges for deposition interpreters can easily double the cost of the deposition itself. So, who pays, and what's the underlying principle? What if the deponent speaks English but still demands an interpreter? Finally, can courts shift the cost (from one party to another) in some circumstances? All your questions will be answered, in just 19 minutes flat. Today's show notes, like those with every episode, contains a wealth of case citations on point. Check them out, and thanks for listening!

SHOW NOTES:

PayCargo, LLC v. Galbreath, 2021 WL 8895467 (S. D. Fla. Apr. 27, 2021) (party seeking discovery must pay cost of interpreter; denying motion to force deposition without interpreter, where some evidence suggested witness might need interpreter to understand certain highly technical questions)

Matter of Majestic Blue Fisheries, LLC, No. CV 11-00032, 2013 WL 12233715, at *2 (D. Guam June 21, 2013) (party who used interpreter hired by another party in back-to-back deposition must pay their pro rata share of interpreter’s bill, finding that party who needs discovery must pay costs associated with it, and because subsequent party used interpreter, they must pay their share since they also used services to take their depositions”)

Signify Holding B.V. v. TP-Link Rsch. Am. Corp., No. 21CV9472JGKKHP, 2022 WL 3656315, at *3 (S.D.N.Y. Aug. 25, 2022) (court orders defendant to pay for initial cost of interpreter where it designated a native Mandarin speaker; filings showed the witness dealt with plaintiff’s employees in English for years, done extensive business in English, and attested in English to court documents, such that it appeared the use of interpreter was more a convenience than a necessity)

Refco v. Afincomex & Banco Ganadero, No. 93 CIV. 2251 (PNL), 1993 WL 498074, at *1 (S.D.N.Y. Nov. 30, 1993) (defendant allowed to use interpreter during deposition of its principal, but must pay for interpreter based on undisputed evidence that the witness had advanced degrees from Harvard and Cambridge, passed securities licensing exams in English, was fluent in English and did business in English; court added that request for interpreter appeared to be in bad faith)

Stocks v. City of Aurora, No. 13-CV-01141-RBJ-CBS, 2016 WL 9735866, at *3 (D. Colo. May 17, 2016) (where prospective deponent seeks interpreter over objection of noticing party, deponent can seek protective order and, when a deponent requests an interpreter in advance of their deposition, the noticing party can avoid disputes simply by hiring the requested interpreter and later seeking reimbursement)

Passow v. M/V AFRICA GRAECA, No. CIV.A. 09-2550-KDE-S, 2009 WL 4723336, at *2 (E.D. La. Dec. 3, 2009) (order providing, without explanation or reasoning, that if interpreters were required of defense witnesses – all of whom spoke Greek or Tagalog - defendants must bear the costs)

Thompson v. Red Olive Co., No. 14-10620, 2015 WL 687351, at *1 (E.D. Mich. Feb. 18, 2015) (court resolved demand by defendant that noticing plaintiff hire an interpreter by allowing each party to hire, at their own expense, an interpreter if they wished to do so)

Simmons v. Garland, No. 21-CV-1728-SJB, 2024 WL 1468239 at *3 (E. D. N. Y. Mar. 20, 2024) (order denying motion to exclude expert testimony on grounds contemporaneous translation was inaccurate; movant failed to preserve right to review transcript before deposition ended)

Torres v. Rock & River Food, Inc., 2017 WL 4969914 (S.D.Fla.) (“The courts have held that when a deponent can communicate in English the deponent is not entitled to use an interpreter”)

Act II Jewelry, LLC v. Zhu, No. 2:09CV407, 2010 WL 11450509, at *2 (E.D. Va. Feb. 19, 2010) (approving use of interpreter who was clearly qualified to interpret Mandarin speaker’s testimony, even though not technically “certified” as one)

Walls v. Department of Children and Families, Case No. 98-1793-CIV-T-17(E) (unpublished order holding that deposition is not a judicial proceeding, and thus court has no obligation to pay for deposition interpreter; defendant must bear initial cost and may seek to tax expense if it prevails)

Goyette v. DCA Advert. Inc., No. 91 CIV 3518 (KC), 1991 WL 639599, at *1 (S.D.N.Y. Sept. 16, 1991) (use of interpreter disallowed for entirety of deposition, where native Japanese speakers were shown to be fluent in English in both personal and business settings, but would be allowed for help in understanding specific questions that might pose difficulty)

Malpico v. Newman Mach. Co., 107 F. Supp. 2d 712, 714 (W.D. Va. 2000) (plaintiff would not be allowed his own choice of interpreter during deposition conducted before magistrate judge, even though official interpreter did not speak plaintiff’s special dialect of Spanish; held, chosen interpreter could still sufficiently communicate with plaintiff, and court would allow plaintiff to have his own interpreter outside the deposition room to communicate with his lawyer)

Naqvi v. Oudensha America, Inc., Case No. 88-C-6966, 1991 WL 4435 (N. D. Ill 1991) (affirming magistrate’s ruling denying use of interpreter where native Japanese speaker managed office and employees in English, studied English in college)

Lopez–Gomez v. Jim's Place, LLC, 60 F. Supp. 3d. 853, 855 (W.D. Tenn. 2014) (where defendants sought to take the plaintiff's deposition and plaintiff's counsel persuasively demonstrated that his client required the services of an interpreter, defendants were required to bear the cost of that interpreter but could recover those costs pursuant to § 1920 if they later became the prevailing party)

Carbajal v. OMNI Hotels Mgmt. Corp., No. EDCV202485JWHKKX, 2021 WL 6618602, at *3 (C.D. Cal. Nov. 1, 2021) (order allowing additional time for deposition where interpreter was needed)

Mahe v. Cont'l Tire The Americas, LLC, No. EDCV 10-1744-DSF (OPx), 2012 WL 13014611, at *3 (C.D. Cal. Mar. 28, 2012) (finding good cause for an additional three hours of deposition due to consecutive interpretation and importance of the witness to the claims at issue despite alleged duplicative questioning)

Court Interpreters Act,28 U.S.C.A. § 1827 (West) (outlining circumstances where court can appoint an interpreter; not applicable generally to civil litigation between private parties, but useful for background to see how interpretation issues are addressed)

28 U.S.C.A. § 1920(6) (West) (allowing for taxation of interpreter costs)

Fed. R. Civ. P. 54(d)(1) (allowing recovery of costs, including interpreters)

Fed. R. Civ. P. 26(c)(1) (authorizing court to allocate expenses associated with discovery)

https://www.uscourts.gov/sites/default/files/guide_vol05.pdf (U. S. Courts guide on the use of interpreters)

In today's episode Jim Garrity answers a question that vexes many litigators relating to corporate representative depositions under Fed. R. Civ. P. 30(b)(6) when the lawyers sharply disagree on the propriety of the topics. Is is better to seek court relief before - or after - the 30(b)(6) deposition? And, assuming it's proper to seek a protective order either before or after, is one better than the other, and why?

Thanks for listening! Be sure to check out the show notes, which contain the research on which this episode is based, as well as citations to model motions for protective order and model responses in opposition.

Now - would you take a moment and leave a five-star review wherever you access this podcast? Those great ratings and comments are deeply appreciated by me and our production staff. Thank you so much.

SHOW NOTES

Agreed to Rule Before Depo

In re Deepwater Horizon BELO Cases, 3:21-cv-3287, 2023 WL 9229118 (N. D. Fla. Sept. 5, 2023) (court, acknowledging split in authority on whether protective order should be sought before or after 30(b)(6) deposition, agreed to rule on motion for protective order, in dispute over topics, before deposition, citing multitude of discovery disputes between parties already and length of time cases have been pending)

Florida v. United States, 342 F.R.D. 153 (N. D. Fla. 2022) (court agreed to rule on motion for protective order before 30(b)(6) deposition, saying that based on “the briefing and telephone hearing,” court had sufficient basis to rule on the motion; also collecting cases on split in thinking about when protective order should be sought)

Fed. Deposition Ins. Corp. v. Brudnicki, No. 5:12-cv-00396, 2013 WL 5814494, at *2 (N. D. Fla. Oct. 29, 2013) (court agreed to rule on dueling motion for protective order/motion to compel before 30(b)(6) deposition, but stating that disputes should be resolved and narrowed by the lawyers, and then presented to the court following the deposition if needed)

Miles v. United States, No. 3:14cv360, 2015 WL 11109793, at *2-3 (N.D. Fla. Oct. 19, 2015) (ruling on, but refusing to issue, advance protective order that would limit topics to be covered during Rule 30(b)(6) deposition)

Santos v. Bank of Am., N.A., No. 8:17-CV-2588, 2018 WL 3391330, at *1 (M.D. Fla. May 2, 2018) (issuing protective order to prevent inquiry into certain topics during Rule 30(b)(6) deposition)

EEOC v. Austal USA, LLC, No. CV 1:18-00416, 2019 WL 11201138, at *1 (S.D. Ala. July 1, 2019) (ruling on, but denying, protective order that would have limited topics for a Rule 30(b)(6) deposition)

Declined to Rule Before Deposition

Boukardougha v. Bank of Am., N.A., No. 6:22-CV-2002-WWB-RMN, 2023 WL 6280439, at *2 (M.D. Fla. Sept. 26, 2023) (Court declines to rule on topics prior to deposition, citing “the limited briefing before the Court” and “Defendant's belated filing,” and, further, finding that the court “cannot say that the topics in the deposition notice are wholly irrelevant to Plaintiff's claims or to claims that Plaintiff may bring against Defendant. Evidence is relevant if it has “any tendency” to make a fact of consequence “more or less probable”)

New World Network Ltd. v. M/V Norwegian Sea, No. 05-22916-CIV, 2007 WL 1068124, at*4 (S. D. Fla. Apr. 6, 2007)(denying in part motion seeking protective order before deposition, holding that 30(b)(6) depositions come with no special privilege for advanced court rulings on questions to be asked in a deposition, and that a protective order or motion to compel should be sought after the deposition takes place)

Other

King v. Pratt & Whitney, a Div. of United Techs. Corp., 161 F.R.D. 475, 476 (S.D. Fla. 1995), aff'd sub nom. King v. Pratt & Whitney, 213 F.3d 646 (11th Cir. 2000), and aff'd sub nom. King v. Pratt & Whitney, 213 F.3d 647 (11th Cir. 2000) (questions beyond the designated topics in a 30(b)(6) deposition may be posed to the designee, in which case the designee is no longer speaking for the entity but in a personal capacity)

Sample Motions for Protective Order

Defendant’s Emergency Motion for Protective Order [Doc. 642, filed Aug. 22, 2023],In re Deepwater Horizon BELO Cases, Case No. 3:19-cv-00963-MCR-HTC (N. D. Fla. Apr. 23, 2019) (excellent example of sample motion for protective order on 30(b)(6) notice)

Defendant’s Motion for Protective Order, [Doc. 57, filed July 1, 2022], State of Florida v. United States of America, Case No. 3:21-cv-01066-TKW-ZCB (N. D. Fla. Sept. 29, 2021) (same)

Sample Oppositions to Motions for Protective Order

Plaintiff’s Response in Opposition to Defendant’s Emergency Motion for Protective Order [Doc. 644, filed Aug. 30, 2023],In re Deepwater Horizon BELO Cases, Case No. 3:19-cv-00963-MCR-HTC (N. D. Fla. Apr. 23, 2019) (excellent example of sample opposition to preemptive motion for protective order on 30(b)(6) notice)

Plaintiff’s Response in Opposition to Motion for Protective Order [Doc. 59, filed July 7, 2022] State of Florida v. United States of America, Case No. 3:21-cv-01066-TKW-ZCB (N. D. Fla. Sept. 29, 2021) (same)

Fed. R. Civ. P. 26 (addressing motions for protective orders)

In this episode, Garrity points out an important but usually overlooked followup question to ask right after you ask deponents if they took medication that might affect their testimony. Care to guess? (Don't look at the case in the show notes. That's cheating!)

SHOW NOTES

Stanford v. C.R. Bard, Inc, et al., Case No. 121-cv-00576-DDD-SBP, 2023 WL 9024610 (D. Colo. Nov. 9, 2023) (summary judgment granted, and plaintiff’s affidavit stricken, where plaintiff sought to avoid unequivocal deposition testimony by claiming she had stopped taking medication the night before, and that doing so caused her to become distracted and thus misunderstand critical questions; defense counsel asked plaintiff “Have you taken any medication within the last 24 hours that might interfere with your testimony today, like making you sleepy or anything like that?”, but did not ask if she had refrained from doing so, or whether there were other conditions affecting her ability to testify)

*The following cases were added after this episode aired:

Mims v. Sanofi US Servs, Inc. No. 3:23CV24723-MCR-HTC, 2024 WL 1723515, at *4 (N.D. Fla. Feb. 23, 2024) ("Questions about what medications Mims has taken or is taking as well as questions about her health, however, are not protected by Florida's physician-patient privilege because Sanofi is not asking about any information Mims disclosed to her physicians")

Today, Jim Garrity talks about a powerful technique for increasing the persuasive impact of deposition testimony that must be read to the trier of fact when a deponent is unavailable. Done properly, according to some lawyers who've used the tactic, it can contribute to victory, without drawing the attention of an opponent.

And while you're here, would you mind taking just a few seconds and give this podcast a 5-star rating on whichever site you visited (e.g., Apple, Spotify, Google). Your positive ratings are a huge thank-you to the production team that helps prepare and produce each episode. It means more to them than we can possibly explain. Thanks!

SHOW NOTES

www.ActorsAtLaw.com (“Actors-at-Law provides trial attorneys with professional character actors as deposition readers at trial when witness is not available and a national movie/commercial casting director can help you with witness preparation and presentation skills in the courtroom or at mock trials")

The Florida Bar Journal, “Action! This Witness is Played by An Actor!”, by Jan Pudlow, Senior Editor, July 1, 2011; https://www.floridabar.org/the-florida-bar-news/action-this-witness-is-played-by-an-actor/

PrawfsBlog, July 11, 2011, Something New Under the Sun: Actors for Hire to Read Depositions, Baker, Thomas E.; https://prawfsblawg.blogs.com/prawfsblawg/2011/07/something-new-under-the-sun-actors-for-hire-to-read-depositions.html

Klapsa, Katherine Lee, Lawyers Bring Big-Screen Drama To The Courtroom: How Popular Culture’s Influence On The Law Has Created The Need For “Professional Witnesses” 18 Barry Law Rev. 355 (Spring 2013) (discussing the impact of movies and television on jury expectations to see powerful, compelling witnesses on the stand)

Siegel, David D., Federal Subpoena Practice Under The New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197 (Jan. 1992) (noting that when deponents are unavailable, “The questions and answers are read by others, sometimes even actors, with no opportunity to observe demeanor, etc., but the geographical restrictions on the civil subpoena have nevertheless made the deposition the main alternative [to live testimony]”)

Elfrink, Tim, Lincoln Road’s Actors at Law Hires Out Talent to Read Witness Testimony, Miami New Times Magazine (July 7, 2011); https://www.miaminewtimes.com/news/lincoln-roads-actors-at-law-hires-out-talent-to-read-witness-testimony-6381626.

Levy, Art, Courtroom Drama: Is It Ethical To Hire Actors To Portray Witnesses? Florida Trend Magazine (Jun. 14, 2011) (discussing tactic at length from business, legal and ethical perspectives); https://www.floridatrend.com/article/1856/courtroom-drama-is-it-ethical-to-hire-actors-to-portray-witnesses

Morris v. Bland, Case No. 5:12-cv-3177-RMG, 2015 WL 1290632 (D. S. Carolina Jan. 30, 2015) (Not reported in Fed. Supp.) (denying taxation of costs associated with the hiring of, and lodging for, a professional actor to read testimony, where deposed witness wound up testifying live; but adding, “The normal practice for reading a deposition of an absent witness is that the presenting counsel will read the deposition to the jury or have a colleague take the witness stand and read the part of the witness. In over 35 years as a trial litigator and trial judge, the Court has never seen or heard of a lawyer hiring an actor to read a deposition. If an actor was proposed to be used, the Court would have to carefully evaluate the request to prevent any distortion of the testimony by an over-dramatic reading. The Court finds the hiring of an actor to read a deposition in this matter was unnecessary and unreasonable and denies reimbursement for this cost”)

Browning v. Advoc. Health & Hosp. Corp., __ N.E. 3d __ (Ill. Ct. App. Sept. 15, 2023), 2023 WL 5988690 (affirming $49 million verdict where excerpts of deposition testimony of doctors were presented by a “reader,” and where the jury was instructed that the “testimony [was] previously taken under oath at a prior deposition. You are to treat that testimony as if the doctor was here;” in addressing dissenting judges’ criticism of the use of a reader, the court said that “The dissent implies that having an actor read a deposition at trial is unusual. The Illinois Rules of Evidence and the Illinois Rules of Professional Conduct of 2010 do not prohibit it, and the practice has been around for years. Even if we to assume prejudice, neither the defendants nor the dissent explain how that would have affected the outcome.”)

In our never-ending mission to ensure you're never caught off guard, no matter what the tactic, today we address the question whether multiple lawyers on behalf of the same party object during a deposition. As always, we discuss the best strategies when using (or defending against) this tactic, and we provide cases on point in the show notes. Have a great week!

SHOW NOTES

Webster v. Target Corporation, Case No. 2:22-cv-11293-MAG-CI, 2023 WL 6509097 (E. D. Mich. Oct. 5, 2023) (holding that there is no prohibition against multiple lawyers for the same party objecting while defending a deponent, but limiting parties to a single attorney during future depositions in the case)

Continental Casualty Company v. Compass Bank, Case No. CV-04-0766-CB-C, 2005 WL 8158673 (S. D. Ala. Dec. 7, 2005) (finding there is no flat prohibition against the practice of having multiple lawyers objecting on behalf of the same party during a deposition)

Fed. R. Evid. 611(a) (authorizing the trial judge to control the mode of examination and presentation of evidence at trial)

Fed. R. Civ. P. 30(d)(3)(A) (allowing for an oral motion to terminate or limit a deposition in progress where it is being conducted in bad faith or in a manner intended to annoy, oppress, or embarrass a party or deponent)

Fed. R. Civ. P. 26(c) (authorizing parties to seek protective orders limiting or otherwise prescribing the manner in which discovery may be conducted)

Why do some courts and lawyers instinctively react to examinations under oath (EUOs), also called sworn statements, as if they're "secret depositions?" When conducted properly, they clearly aren't. But the issue still arises from time to time. In this episode Garrity talks about two recent court rulings. One is from a Florida federal judge that rejected an effort to have the court treat EUOs and depositions as one and the same. The other, from South Carolina, sanctioned a defendant for taking an EUO that the court said in essence was the very deposition the court had forbidden. Garrity offers some fantastic thoughts and tips for conducting EUOs in a way that mnimizes the risk a court will confuse them with depositions, which are an intellectually and procedurally different animal.

SHOW NOTES

Fed. R. Civ. P. 30, Depositions by Oral Examination (main federal deposition rule, outlining the procedural requirements for an oral examination to constitute a deposition)

Order Denying Defendant’s Motion to Strike Sworn Statement, etc. Jett v. Del Toro, Case No. 5:22-cv-90-MW-MJF, Docket No. 46, (N. D. Fla. Sep. 21, 2023) (rejecting argument that a sworn statement taken with a court reporter under oath is a deposition; further, “The traditional practice of securing affidavits for use in support of summary judgment often involves a statement written by counsel specifically for that purpose, which is then presented to and signed by the affiant. This Court fails to see how an unedited transcription of the witness's own words, is not, if anything, substantially more reliable than the traditional alternative”)

Defendant’s Motion to Strike, etc., Jett v. Del Toro, Case No. 5:22-cv-90-MW-MJF, Docket No. 38, (N. D. Fla. filed August 11, 2023) (unsuccessfully arguing that sworn statements or EUO’s “are simply unnoticed depositions”)

Reed v. Aetna Casualty and Surety Company, Inc., 160 F.R.D. 572 (N.D. Ind. Mar. 29, 1995) (rejecting motion to strike statement of plaintiff conducted by plaintiff’s counsel under oath and before a court reporter; rejecting arguments that statement could not be considered because it wasn’t signed by the plaintiff, contained leading questions, and was taken without defendant having the opportunity to cross-examine the witness, saying defendant was in the same position it would have been if an affidavit by the witness had been filed, as the defendant would not have been able to cross-examine the affidavit, either)

Bozeman v. Orum, 422 F.3d 1265 (11th Cir. 2005) (rejecting argument that statement made under oath before court reporter was inadmissible for summary judgment purposes because it was neither signed nor taken in the presence of defendants lawyers to allow cross-examination; held, “We reject this argument. Sworn statements given before court reporters or at least as reliable as signed affidavits and are properly considered on summary judgment”)

Glenn v. 3M Co., 440 S.C. 34, 95, 890 S.E.2d 569, 602 (Ct. App. 2023), reh'g denied (Aug. 10, 2023) (sanctioning counsel for taking “sworn statement” of witness whose deposition court had prohibited, where statement was under oath, was “in the question-and-answer format typical of a deposition,” and taken before a reporter and at the same day and time as the proposed deposition the court has prohibited; held, “. . . Fisher Controls wholly disregarded this [c]ourt's order prohibiting Dr. Timothy Oury's deposition. Although Fisher Controls labeled the deposition a “sworn statement,” the statement is clearly a deposition submitted under a label which would not immediately invoke the [c]ourt's ire. The statement was transcribed by an official [c]ourt [r]eporter on the day and at the time that Fisher Controls had originally scheduled Dr. Oury's deposition—a deposition prohibited by an Order of Protection from this [c]ourt.”)

Defendant’s Memorandum in Opposition to Protective Order, Zorn v. Principal Life Insurance Company, No. 6:09-CV-00081-BAE-GRS, 2010 WL 4253299 (S.D.Ga. July 22, 2010) (“Plaintiff also asserts that because he underwent an examination under oath (EUO) during the claims process, he should somehow be exempt from a deposition in his own, subsequent lawsuit. Plaintiff cites no authority for this position, and the case law is to the contrary. See Kamin v. Central States Fire Ins. Co., 22 F.R.D. 220 (E.D.N.Y. 1958) (denying motion for protective order to preclude depositions on the grounds that EUOs had been taken); Oreman Sales, Inc. v. State Farm Fire & Casualty Co., 1991 WL 87936 (E.D. La. May 23, 1991) (same); Sentry Ins. v. Shivers, 164 F.R.D. 255, 256 (D. Kan. 1996) (“Taking a statement of a party, sworn or unsworn, pursuant to investigating a claim or potential lawsuit, does not equate with deposing him or her.”); Joe's Market Fish, Inc. v. Scottsdale Ins. Co., 1998 WL 851504 (N.D. Ill. Dec. 3, 1998) (“an examination under oath does not immunize an individual from a later deposition”); Jones v. State Farm Fire & Casualty Co., 129 F.R.D. 170 (N.D. Ind. Jan. 2, 1990)(“Undoubtedly State Farm now has information which was not available at the time of the examination under oath.”)St. Francis Hosp., Inc. v. Grp. Hosp. Serv., 598 P.2d 238, 240–41 (Okla. 1979) (saying a “[d]eposition has been defined by various jurisdictions as being confined to the written testimony of a witness given in the course of a judicial proceeding in advance of the trial or hearing, upon oral examination or in response to written interrogatories where an opportunity for cross-examination is given”)

Brooks v. Tate, No. 1:11-CV-01503 AWI, 2013 WL 4049053, at *1 (E.D. Cal. Aug. 7, 2013) (“By definition , “a ‘deposition’ is the examination under oath by ‘oral questions' of a party or deponent.” Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D.Cal.2008). A party who wants to depose a person by oral questions must give written notice to every other party, stating the time and place of the deposition. Fed.R.Civ.P. 30(b)(1). “Where a deponent is not a party to the action, he can be compelled to appear at a deposition examination only by issuance of a subpoena” pursuant to Rule 45. Cleveland v. Palmby, 75 F.R.D. 654, 656 (W.D.Okl.1977). “Unless the parties stipulate otherwise, a deposition must be conducted before an officer appointed or designated under Rule 28.” Fed.R.Civ.P. 30(b)(5)(A).”)

Paige v. Consumer Programs, Inc., 248 F.R.D. 272, 275 (C.D. Cal. 2008) (“Considering Rule 30 as a whole, and affording the words in that rule their plain meaning, as we must, see Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 540, 111 S.Ct. 922, 928, 112 L.Ed.2d 1140 (1991) (“ ‘We give the Federal Rules of Civil Procedure their plain meaning.’ ” (quoting Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123, 110 S.Ct. 456, 458, 107 L.Ed.2d 438 (1989))); Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir.2002) (“As a rule of construction, Federal Rules of Civil Procedure are given their plain meaning.”), it is clear that a deposition is the examination under oath by “oral questions” of a party or deponent. In other words, a party who merely appears for a deposition that does not take place has not “been deposed” since he has not been examined by oral questions”)

Chicago Coliseum Club v. Dempsey, 8 Pa. D. & C. 420, 420–21 (Com. Pl. 1926) (“The definition of a deposition will be found in 1 Bouvier's Law Dictionary, 848, as follows: “The testimony of a witness reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal, or according to the provisions of some statute law, to be used on the trial of some question of fact in a court of justice”)

The federal rules and their state equivalents do not authorize reporters to designate a method of recording. But one national court reporting conglomerate has just instructed its reporters to begin videotaping remote depositions as a matter of course, purportedly as "backup media." But given the absence of regulation regarding reporter backup recordings, what should you do to protect your deponents against the use, misuse or even sale of backup video recordings? (At least one reporting organization says backup media when made by a reporter at his or her own discretion "is the personal property of the CSR (certified shorthand reporter)." In this episode, Jim offers practice tips on handling situations where the reporter attempts to videotape your deposition without notice or consent.

SHOW NOTES

Online Pamphlet, "Best Practices for the Use of Backup Audio Media," Court Reporter's Board of California, approved March 1, 2015, https://www.courtreportersboard.ca.gov/formspubs/best_practice.pdf (discussing use and possible sale of court reporter backup recordings as a "value-added service," and stating that the recordings, absent law or court order, are the legal property of the reporter)

Maldonado v. Johnson, Case No. 3:22-cv-18229-TKW-ZCB, 2023 WL 5805583 (N. D. Fla. Jun. 6, 2023) ("A party may generally do what it wants with material obtained during the discovery process, as long as it wants to do something legal")

Fed. R. Civ. P. 30(b)(3)(B) (rule providing that objections to the "manner of taking the deposition" must be made on the record, but that the deposition shall nonetheless proceed subject to the objection)

In today's episode, Jim Garrity discusses the ongoing seismic shift in judicial views about remote video depositions, as reflected in a court ruling four days ago. There, a judge refused to order a plaintiff to travel to the jurisdiction for an in-person deposition. The judge's reasoning? The sharp improvement in technology has made video depositions the functional equivalent, and credibility assessments can be made just as well remotely as in person. Listen in for the details, and for practice tips on arguing for or against remote depositions of critical or party witnesses. Thanks for listening!

SHOW NOTES:

Henry v. Tacoma Police Department, et al., 2023 WL 5530201, case number 3:22-CV-0553-LK (W.D. Wash. Aug 28, 2023) (applying two-pronged test for determining whether deposition that be done remotely or in person, court granted pro se plaintiff’s request that defendant depose him remotely, rather than forcing plaintiff to travel 2,600 miles to Tacoma, Washington from Jonesboro, Georgia; rejecting defense argument that credibility assessment was reason enough to force an in-person deposition)

City of Tacoma's Response to Plaintiff's Motion for Remote Deposition/Protective Order, filed August 16, 2023), CM/ECF Doc. 70, Henry v. Tacoma Police Department, et al., Case No. 3:22-CV-0553-LK (W.D. Wash. filed Aug. 16, 2023) (defendant's memorandum in opposition to remote deposition)

Brower v. McDonald’s Corp., No. 2:19-CV-02099-GMN-BNW, 2021 WL 3573633 (D. Nev. May 28, 2021) (providing that “leave to permit remote depositions should generally be granted liberally;’ analyzing the suitability of remote deposition using a two-step procedure, saying that “first, the proponent must advance a legitimate reason for seeking a remote deposition; and (2) if the movant articulates a legitimate reason, then the burden shifts to the opposing party to make a particularized showing that conducting the deposition by remote means would be prejudicial")

Vargas v. Evergreen Professional Recoveries, Inc., Case No. 2:21–CV–00926–RSL–JRC, 2022 WL 856991 (W. D. Washington March 23, 2022) (applying two-step analysis articulated in Brower, above)

The Jury Trial Reinvented, Robertson, C. and Shammas, M. 9 Tex. A&M L. Rev. 109 (Fall 2021) (outlining concepts for trials presented entirely by video, with testimony edited based on objections Suppose that, instead of producing live trials, courts created high-quality videos capturing all aspects of a trial, including opening arguments, testimonial and documentary evidence, closing arguments, and the judge’s instructions.

Nate Raymond, Texas Tries a Pandemic First: A Jury Trial by Zoom, REUTERS (May 18, 2020, 6:19 AM), https://reut.rs/3hKVqCs [http://perma.cc/J3H6-6496].

Herbert B. Dixon, Jr., Pandemic Potpourri: The Legal Profession’s Rediscovery of Teleconferencing, 59 Judges’ J. 37, 38 (2020) (reporting on a misdemeanor criminal jury trial conducted virtually, where jury returned guilty verdict after deliberating in “private virtual room”)

Griffin v. Albanese Enterprise, Inc., Courtroom View Network, https://pages.cvn.com/duval-county-florida-remote-trial-program [https://perma.cc/ERD9-VMEL] (relating to what was believed to be the country’s first fully remote state court civil jury trial, with a binding verdict; jurors awarded plaintiff more than $300,000 for battery caused by bouncers in a nightclub; jury selection and all other key elements were conducted remotely)

Fed. R. Civ. P. 30(b)(4) (providing for remote depositions upon stipulation by the parties or by motion and court order)

In this episode, Jim covers the problem of opposing lawyers who provide little or no notice of their plan to videotape your client's depositions, and explains the procedure for dealing with this kind of ambush.

SHOW NOTES

Chawla v. Metro. Oral Surgery Associates, P.C., 2014 WL 4678023, Case No. 11-CV-6248 RRM VMS (E.D.N.Y. Sept. 19, 2014) (criticizing plaintiff’s complaint about one days’ notice by defense of intention to videotape deposition, where original notice was served more than a month earlier, calling videotaping a regular feature of the 21st century landscape)

In re Tri Harbor Holdings Corporation, et al. v. Sigmapharm Laboratories, LLC, 2022 WL 17185098 (D. N. J. Nov. 22, 2022) (denying plaintiff’s motion in limine to exclude videotape of expert witness deposition where communications between parties, albeit vague, appeared to contemplate videotaping, even if not clearly spelled out in formal notices)

Conforto v. Mabus, 2014 WL 3896079, Case No. 12-cv-1316-W BLM (S. D. Cal. Aug. 8, 2014) (rejecting objection to videotaping where notice merely said deposition “may also be recorded by videotape;” further rejecting doctor’s note purporting to declare it necessary to Plaintiff’s mental health that videotaping be avoided)

Jones, et al. v. Natural Essentials, Inc., 126 N.E. 3d 223 (Ct. App. Ohio Dec. 17, 2018) (imposing sanctions where party walked out rather than proceed with deposition, where notices said depositions would be recorded “stenographically and/or on video”)

Seubert v. FFE Transportation Services, Inc., 2012 WL 5471883, Case No. 4:11-cv-0165-AGF (E. D. Miss. Nov. 9, 2012) (deeming use of email to disclose addition of videotaping, a few days before a noticed stenographic deposition, was sufficient notice)

Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000) (reversing order denying plaintiff chance to reschedule deposition where plaintiff canceled first deposition upon objection by defense counsel that notice said deposition “may” be videotaped and was not definitive)

Rawcar Group, LLC, etc. v. Grace Medical, Inc., 2013 WL 12076572, Case No. 13-cv-1105-H (BLM) (S. C. Cal. Dec. 16, 2013) (granting motion to compel videotaped deposition where notice merely said “and may be videotaped;” criticizing defense counsel for argument that it was “entitled to know definitively” whether videotaping would occur; criticizing counsel for not being prepared where notice saying deposition ma be videotaped was served 18 days before deposition)

Schoolcraft v. City of New York, et al., 87 Fed. R. Serv. 3d 314 (S. D. N. Y. 2013) (denying award of expenses arising from cancellation of defendant’s deposition because of objection to lack of notice of videotaping; award under FRCP 37(d)(1)(A)(i) first requires proper notice of deposition, and notice that failed to disclose videotaping was not proper)

D'Amico Dry D.A.C., etc. v. Nikka Finance, Inc., 2018 WL 5116094, Case No. 18-0284-KD-MU (S. D. Ala. Oct. 19, 2010) (plaintiff  supplemented initial deposition notice to add videotaping weeks in advance of deposition; generic claims of harassment rejected)

Garcia v. Mako Surgical, Order Granting Defendant’s Motion to Strike Video Deposition,2014 WL 4206681 (S. D. Fla. Aug. 25, 2014), Case No. 13-cv-61361-CIV (granting defendant’s motion to strike/forbid use of videotape of CEO’s deposition where neither original, amended, or second amended notice failed to alert defense that deposition would be videotaped)

Woods v. G. B. Cooley Hospital Service District, et al., 2009 WL 151078, Case No. 07-CV-0926 (W. D. La. Jan. 24, 2009) (order granting motion in limine excluding videotape of deposition where defense counsel provided a months’ notice of deposition but, even during morning of depositions, failed to disclose intent to videotape one of plaintiffs’ depositions later that day)

Fed. R. Civ. P. 30(b)(3)(A, (B) (requiring proper prior notice of intent to videotape)

Can you issue a trial subpoena under Fed. R. Civ. P. 45 (or its state equivalents) not to a named person, but instead to a 30(b)(6)-style "Corporate Representative" and attach a list of topics? In this episode, Jim Garrity outlines the leading cases on point and discusses the arguments pro and con. The Show Notes below include a list of the cases upon which this episode is based, as well as a cite to an actual subpoena issued in this manner and the Motion to Quash that the subpoena triggered. (REMINDER: If you don't see all the cases, click through to the page that hosts our podcast. Not all sites allow lengthy show notes, but you'll always find the complete Show Notes on our home page.)

SHOW NOTES

Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM, 2023 WL 4686245, at *2 (M.D. Fla. July 21, 2023) (containing thorough analysis of issue, concluding “These procedures in Rule 30(b)(6) are applicable to depositions and do not apply to trial-witness subpoenas. Concluding otherwise would allow Rule 30 to expand the meaning of Rule 45 without any textual support for doing so. Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015).)

Defendant’s Motion To Quash Plaintiff’s Subpoena To Appear And Testify At A Hearing Or Trial In A Civil Action. CM/ECF Doc. 153 (on Pacer.gov), Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM (M.D. Fla. July 21, 2023)

[Example] Subpoena to Appear and Testify at A Trial or Hearing in a Civil Action (directed to “Corporate Representatives of [Defendant] with the most knowledge concerning the matters identified in the attached Exhibit “A” c/o [Counsel for Defendant],” Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM, 2023 WL 4686245, at *2 (M.D. Fla. July 21, 2023), CM/ECF Doc. 153-1 (attaching FRCP 30(b)(6)-style topic list as Exhibit A to rule 45 subpoena)

Bd. of Regents Univ. of Texas Sys. v. Bos. Sci. Corp., No. CV 18-392-GBW, 2023 WL 346243, at *2 (D. Del. Jan. 20, 2023) (“Out-of-Circuit caselaw, while more on point, has been inconsistent. In 1987, the Ninth Circuit held that a district court did not abuse its discretion when the court quashed a subpoena under Rule 45 directed towards a corporation because it had “discovered no authority ... for the proposition that the Rule 30 standards [that permit subpoenas upon a corporation] should govern Rule 45 subpoenas of witnesses.” Donoghue v. Orange Cnty., 848 F.2d 926, 932 (9th Cir. 1987). In 2013, a California district court distinguished the Ninth Circuit's ruling as having “emphasized a trial court's discretion” and as coming prior to 1991 amendments to Rule 45. See HTCCorp.v.Tech.PropertiesLtd., 2013 WL 12166376, at *2 & n.9 (N.D. Cal. Sept. 20, 2013). That case relied, in part, seeid., on a 2013 case, Conyers, in which a district court also required a corporate party to “comply with [a Rule 45] subpoena by producing its corporate representative at trial[,]” Conyers v. Balboa Ins. Co., 2013 WL 2450108, at *2 (M.D. Fla. June 5, 2013). However, the Sixth Circuit, in 2015, appeared to reject the Conyers decision and stated that a party which seeks to have a corporate representative testify at trial has two options: “subpoena a corporate witness who either ‘resides, is employed, or regularly transacts business in person’ in [the state]” or “take[ ] a deposition of a corporate officer during discovery for its use at trial.” Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015) (quoting Fed.R.Civ.P. 45(c)(1)(B)). The Sixth Circuit, however, held that the “subpoena failed several aspects” of Rule 45, and concluded that “the district court did not abuse its discretion in enforcing [Rule 45] as written.” Id. at 552–53")

Hill v. Nat'l R. R. Passenger Corp., No. CIV. A. 88-5277, 1989 WL 87621, at *1 (E.D. La. July 28, 1989) (“Rule 30(b)(6) specifically applies to the deposition of a corporation. Rule 45 of the Federal Rules of Civil Procedure provides the proper procedure by which a person may be compelled to testify at a trial. There is no provision allowing the use of the 30(b)(6)-type designation of areas of inquiry or allowing service on a corporation through an agent for service of process in order to compel a particular person, who may be a corporate employee outside the subpoena power of the court, to testify at the trial. Further, plaintiff has not pointed the Court to any specific authority allowing such a procedure nor has the Court found any authority supporting the plaintiff's position. Accordingly, for the above and foregoing reasons, IT IS ORDERED that the motion of Amtrak to quash the subpoena directed to the National Railroad Passenger Corporation be hereby GRANTED and the subpoena is hereby QUASHED.”)

Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015) (finding that rules must be enforced as written, and rejecting what it called an effort to take a 30(b)(6) deposition in the middle of trial; held“Hill tries to avoid these conclusions by urging us to “temper[ ]” the “technical” Rules by interpreting them “through the lens of common sense.” Appellant Br. 24. But these rules were not made to be “tempered”; they were made to be “technical”—from the specific amount of fees tendered, to the court issuing the subpoena, to the geographic scope of the request. It is not surprising, then, that Hill can point to only one case that supports his position, Conyers v. Balboa Ins. Co., No. 8:12–CV–30–T–33EAJ, 2013 WL 2450108, at *1 (M.D.Fla. June 5, 2013) (using Rule 30 to expand Rule 45). Even if that case persuaded us that the Rules should be modified by judicial fiat, the district court did not abuse its discretion in enforcing them as written”)

Smith v. Royal Caribbean Cruises, Ltd., 302 F.R.D. 688, 694 (S.D. Fla. 2014) (“Here, the use of a Rule 30(b)(6) notice upon unnamed Defendant corporative representatives, for designated testimony at trial, is both improper and ultimately unnecessary. Defendant must have a corporate representative at trial and certainly Plaintiff can call on that representative as a witness in his case in chief. By doing so, Plaintiff can obtain the testimony he now seeks through this notice. But what he cannot do is use a discovery device—a Rule 30(b)(6) notice—under the guise of a trial subpoena. The discovery period in the case is over and has been over since December 2013.”)

Conyers v. Balboa Ins. Co., No. 8:12-CV-30-T-33EAJ, 2013 WL 2450108, at *2 (M.D. Fla. June 5, 2013) (“Thus, upon due consideration of the parties' arguments and the Court's evaluation of Rule 45, the Court determines that Balboa must comply with the subpoena by producing its corporate representative at trial and should promptly identify this individual so that Plaintiffs may pay the relevant fees associated with the corporate representative's travel and attendance at trial”)

Williams v. Asplundh Tree Expert Co., No. 3:05CV479J33MCR, 2006 WL 2598758, at *3 (M.D. Fla. Sept. 11, 2006) (“As such, the Court holds that the corporate representative should be considered a “party” regardless of whether he/she is an officer of the company and should be produced even if he/she resides outside the 100 mile limit.”)

Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Americas, 262 F.R.D. 293, 303 (S.D.N.Y. 2009) (“A different outcome is necessitated, however, for the subpoenas served on the corporate parties themselves. The Bondholders' objection to these subpoenas was raised only in vague terms in their moving papers and not fully addressed until reply briefing and subsequent letters to the Court.7 Regardless of whether this argument was raised in a timely manner (see infra n. 9) there is no basis under the 100–mile rule to quash the subpoenas seeking testimony of the Bondholders' corporate representatives. The Bondholders, as parties to this action, affirmatively have taken advantage of the benefits of this forum, and the Court has the power to require these parties to produce corporate representatives to testify on their behalf at trial.”)

HTC Corp. v. Tech. Properties Ltd., No. 5:08-CV-00882-PSG, 2013 WL 12166376, at *2 (N.D. Cal. Sept. 20, 2013) (noting defendant’s argument that “. . . Conyers v. Balboa Ins. Co., a recent case from the Middle District of Florida [is] persuasive authority that this court should deny a motion to quash a trial subpoena directed at an unnamed corporate representative;” concluding that “Rule 45 has indeed undergone both substantive and cosmetic revision since that opinion issued in 1987.9 Having reviewed Conyers as well as other more recent decisions addressing a subpoena seeking corporate testimony on listed topics from a third party located within the state of the court, the court finds that such a subpoena may be appropriately served without running afoul of the limits of Rule 45”)

In this episode, Jim Garrity steps up to the plate to take a swing at a controversial tactic: using a request for production to demand an opponent turn over, free, copies of transcripts of depositions taken in the pending case. Is it forbidden by Fed. R. Civ. P. 34 and its state analogues? Is it fair to court reporters and opposing counsels? Does fairness have a role if it's permitted by rule? Get the lowdown, practice tips, and supporting authorities in the Show Notes below. Thanks for listening!

SHOW NOTES

Collazo v. Safelite Fulfillment, Inc., etc., Case No. 8:22-cv-01137-SDM-MRM (M.D. Fla. filed May 16, 2022); Time-Sensitive Motion to Compel at Doc. 35; Text Order at Docket Entry 37 (through Docket Report menu item)

Bahr v. NCL (Bahamas) Ltd., No. 19-CV-22973, 2022 WL 293255, at *3 (S.D. Fla. Feb. 1, 2022) (“The duty to supplement continues after the close of discovery. See In re BankAtlantic BanCorp, Inc., No. 07-61542-CIV, 2010 WL 3294342, at *5 (S.D. Fla. Aug. 20, 2010) (citing Rodriguez v. IBP, Inc., 243 F.3d 1221, 1230 (10th Cir. 2001) (the duty to supplement extends beyond the close of discovery, until the filing of a notice of appeal);  Klonski v. Mahlab, 156 F.3d 255, 267-68 (1st Cir. 1998) (the duty to supplement extends beyond the close of discovery and into trial); Hunyh v. J.P. Morgan Chase & Co., No. CIV 06–0001–PHX–RCB, 2008 WL 2789532 at *24-25 (D. Ariz. Jul. 17, 2008) (Rule 26 requires supplementation after discovery closes), Locascio v. Jacobs, No. 8:05-CV-416-T-24EAJ, 2006 WL 1540290 at *1 (M.D. Fla. May 30, 2006) (the duty to supplement under Rule 26(e) supersedes the parties’ agreement to stop supplementing thirty (30) days prior to trial, and the duty to supplement discovery responses continues, at least, until trial)).

Express Freight Sys. Inc. v. YMB Enterprises Inc., No. 20 CV 186 (ARR)(LB), 2022 WL 2467176, at *6 (E.D.N.Y. Mar. 29, 2022), adopted, 623 F. Supp. 3d 39 (E.D.N.Y. 2022) (interpreting FRCP 30(f)(3) as dispositive of the issue; “On its face, nothing in the Rule undermines Rule 30(f)(3) which, as stated earlier, requires that parties pay for their own copies of transcripts. See Fed. R. Civ. P. 30(f)(3) (“When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party of the deponent.”); see also Steven S. Gensler & Lumen N. Mulligan, Practice Commentary Rule 26 (Feb. 2022).)

Express Freight Sys. Inc. v. YMB Enterprises Inc., No. 20 CV 186 (ARR)(LB), 2022 WL 2467176, at *6 (E.D.N.Y. Mar. 29, 2022), adopted, 623 F. Supp. 3d 39 (E.D.N.Y. 2022) (“Defendant's argument that plaintiff is required to provide a copy of the Mendlovic deposition is peculiar. If defendant is correct, and an opposing party can be required under the Federal Rules of Civil Procedure to provide free deposition transcripts during the discovery phase, why would a party ever bother purchasing its own copy of a transcript? “)

Fed. R. Civ. P. 32(c) Form of Presentation (“Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers, but may provide the court with the testimony in nontranscript form as well. On any party's request, deposition testimony offered in a jury trial for any purpose other than impeachment must be presented in nontranscript form, if available, unless the court for good cause orders otherwise”)

Music With Mar, LLC v. Mr. Froggy’s Friends, Inc., 2020 WL 10403366, at *1 (M.D. Fla. 2020) (order in jurisdiction where parties must file entire transcripts, saying “a party relying on a deposition transcript to support a motion for summary judgment must file the transcript in its entirety (condensed version is fine) with exhibits”)

In re BankAtlantic BanCorp, Inc., No. 07-61542-CIV, 2010 WL 3294342, at *6 (S.D. Fla. Aug. 20, 2010) (rejecting defense argument that it had no obligation to supplement discovery responses as to documents it did not have when discovery closed; “It is unquestioned that Plaintiffs requested the OTC documents and the SEC transcripts well before the close of discovery. It is also unquestioned that Defendants provided to Plaintiffs all of these documents and transcripts which were in Defendants' possession at the close of discovery. At the end of discovery, Defendants' production of the OTC documents and SEC transcripts was incomplete. Thus, as the remaining OTC documents and SEC transcripts became available for production, Defendants had a duty to produce them”)

Fed. R. Civ. P. 30(f)(3) (“…When paid reasonable charges, the officer must furnish a copy of the transcript or recording to any party or the deponent”)

Schroer v. United States, 250 F.R.D. 531, 535 (D. Colo. 2008) (held, in response to pro se plaintiff’s demand for transcripts, that “Contrary to the assertions of the plaintiff in support of his Motion, it is unusual for a party to attempt to compel the production of deposition transcripts from another party by means of a request for production of documents under Rule 34. I find that Rule 34, concerning the production of documents and tangible things, is not an appropriate mechanism to obtain a copy of the transcript of a deposition taken in the same action)

Vickers v. Jp Morgan Chase N.A., No. SA-12-CA-31-XR, 2013 WL 12134153, at *12 (W.D. Tex. Feb. 22, 2013) (citing the Schroer case, but without independent analysis, stating that “If plaintiff is seeking transcripts of depositions taken in this case, plaintiff has not demonstrated she may obtain them through a discovery request.”)

Friend v. Taylor L. PLLC, No. 4:17-CV-29-TLS-JPK, 2022 WL 2915710, at *1 (N.D. Ind. July 25, 2022) (The Court adopts that reasoning here and denies the Plaintiff's request. Rule 30 governs depositions and provides the means for a party to obtain a deposition transcript—i.e., the court reporter will provide a copy of a transcript once paid a reasonable charge. See Fed. R. Civ. P. 30(f)(3). While Rule 26(b)(3)(C) requires parties to hand over previous statements in certain instances, applying it in the way requested by the Plaintiff would cut court reporters out of the payments they have earned and are entitled to under Rule 30(f)(3). This understanding is also consistent with “[t]he general rule ... that a party must obtain copies of deposition transcripts directly from the court reporter upon the payment of a reasonable charge, and not from opposing counsel or the court.” Schroerv.UnitedStates, 250 F.R.D. 531, 537 (D. Colo. 2008); see Watson v. Ohio Ambulance Solutions, LLC, No. 1:20-cv-802, 2022 WL 2133739, at *3 (S.D. Ohio June 14, 2022) (“Courts have consistently held that a party is not required to provide an opposing party with a free copy of a deposition transcript.”). Thus, the Plaintiff can obtain a copy of the transcript from the court reporter”)

Schroer v. United States, 250 F.R.D. 531, 537 (D. Colo. 2008) (“The extenuating circumstances which might justify relief from the general rule that a party must obtain deposition transcripts from the court reporter upon the payment of a reasonable charge might include the inability of the party to pay the amount charged, even if reasonable; an unreasonable charge by the reporter; abusive conduct on the part of the opposing party in taking an unreasonably large number of depositions or unreasonably expanding the length of those depositions by prolonged examination; and the like. See generally Caldwell v. Wheeler, 89 F.R.D. at 147–48”)

In this episode, Jim Garrity talks about a new federal appellate decision that affirmed severe sanctions against a party whose lone designated 30(b)(6) representative largely read from lengthy, lawyer-scripted statements, and who was often unable to answer questions without regurgitating the prewritten information. The “scripts” ran hundreds of pages, and the witness sometimes read from them for as much as 45 minutes at a time. Memory aids or notes are an acceptable testimonial aid for 30(b)(6) witnesses – who are often called on to testify about matters for which they have no personal knowledge – but Garrity says there’s a better way to prepare and present 30(b)(6) testimony in cases involving multiple parties, complex claims and defenses, or both. (As always, the Show Notes contain pertinent cases on the topic.). Thanks for listening!

SHOW NOTES

Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468, --- F.4th ---- 2023 WL 3939432 (11th Cir. June 12, 2023)

Plaintiff’s Response in Opposition to Defendants’ Consolidated Motion for Rule 37 Sanctions, CM/ECF Doc. 404, Consumer Financial Protection Bureau v. Brown, et al., Case No. 1:18-cv-0859-RWS (N.D. Ga. June 2, 2017)

Order Imposing Sanctions, Consumer Financial Protection Bureau v. Brown, et al., Case No. 1:18-cv-0859-RWS (N.D. Ga. Aug. 25, 2017)

Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11th Cir. June 12, 2023) (issued August 25, 2017)

Brief of Appellee Electronic Merchant Systems, etc., Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11th Cir. filed May 13, 2022) (CM/ECF Doc. 60)

Brief of Appellee Global Payments, Inc., Consumer Financial Protection Bureau v. Brown, et al., Case No. 21-14468 (11th Cir. filed May 13, 2022) (CM/ECF Doc. 61)

Wausau Underwriters Insurance Company v. DanFoss LLC, 310 F.R.D. 683 (S. D. Fla. 2015) (a 30(b)(6) designee’s reliance on an outline is appropriate, especially since the outline was attached as an exhibit to the deposition)

GlobalTap, LLC v. Peterson Manufacturing Corporation, Inc., 2021 WL 3292261, No. 1:18-CV-05383 (N. D. Ill. July 29, 2021) (criticizing designee’s excuse for failing to be properly prepared, saying the witness had no reason to believe he could not bring documents, notes, or other aids, to the deposition)

Healthier Choice Flooring, LLC v. CCA Global Partners, Inc., 2013 WL 1210190, at *8 (N. D. Ga. Jan, 2013) (finding 30(b)(6) designee's request to see prepared written response before responding to questions should not be construed as refusal to answer, saying "It is not unreasonable or unusual for a corporate designee to be provided with written information in order to satisfy the duty of the corporation to produce information in order to satisfy the duty of the corporation to produce a knowledgeable witness in response to the topics noticed for deposition pursuant to Fed. R. Civ. P. 30(b)(6)").

In this episode, Jim reviews the force-multiplier capabilities of CaseText's new AI-powered software known as Co-Counsel, introduced just 90 days ago. One of its features is "Prepare for a Deposition," which allows litigators to generate a theoretically-unlimited number of deposition topics and questions. Our initial take? It could be a phenomenal and cost-effective tool in your deposition practice. We took a seven-day test run of the software (link below) and now report the results and many creative uses it offers. (Please note that, as with all our reviews of third-party products, we do not accept compensation of any kind from vendors, have no relationship with them, and do not provide them notice of the review.)

SHOW NOTES

https://casetext.com/research-trial/ (Link for free trial of CaseText.com's Co-Counsel AI-assisted legal software)

Many courts have held that a lawyer who makes a technically-improper objection waives the objection. This often arises in jurisdictions where a form objection must include the legal basis (e.g., "Form, compound"). But since a defective objection could be cured during the deposition upon notice, must the examining lawyer object to the objection to lock in the waiver? Fed. R. Civ. P. 32(d)(3)(B) says objections to any errors or irregularities during a deposition are waived unless a timely objection is made. What to do? In this episode, Jim Garrity addresses this nuance in the rules and, as always, offers practical tips.

SHOW NOTES

Kasparov v. Ambit Texas, LLC, et al., 2017 WL 4842350 at *9, Case No. 3:16-cv-3206-G-BN (N. D. Texas Oct. 26, 2017)(“That Defendants’ counsel did not address Plaintiff’s counsel’s “form” objections at or during the deposition does not necessarily mean that Defendants have waived any waiver of the objections….”)

Defendant’s Reply Brief in Support of Motion for Summary Judgment EbinNew York, Inc. v. SIC Enterprise, Inc., et al., Case No. 1:19-cv-01017-PKC-TAM, CM/ECF Doc. 138 (E. D. N. Y. Oct. 18, 2022) (citingKasparov,above, a position that just because defense counsel did not address defective form objections at or during the deposition, it does not mean that defense counsel “waived any waiver of the objections”)

Joint Status Report, etc.,Kasparov v. Ambit Texas, LLC, et al., Case No. 3:16-cv-03206-S, CM/ECF Doc. 172 (N. D. Tex. Oct. 9, 2017) (listing, on pp. 22-25, and pp. 43-45, examples of conflicting case law on whether the specific legal basis for a form objection must be stated)

Sec. Nat. Bank of Sioux City, Iowa v. Abbott Lab'ys, 299 F.R.D. 595 (N.D. Iowa 2014), rev'd sub nom.Sec. Nat. Bank of Sioux City, IA v. Day, 800 F.3d 936 (8th Cir. 2015) (imposing sanctions for, among other things, “excessive” and “astounding” form objections”)

Animal Legal Defense Fund v. Lucas, etc., 2020 WL 7027609, Case No. 2019-40 (W. D. Penn. Nov. 30, 2020) (“By way of example only, ALDF represents that counsel for Farmers Inn made 565 objections during the deposition of Sally Zellonis, 187. during Born’s deposition, and 170 during Buzard’s deposition")

Fed. R. Civ. P. 30(c)(2) (providing that objections to any aspect of a deposition must be timely made during the deposition)

Fed. R. Civ. P. 32(d)(3)(B) (providing that objections not made to errors or irregularities during deposition are waived if the error or irregularity could have been cured and if not timely made during the deposition itself) 

In this episode, Jim Garrity discusses a brand new court ruling where a judge held that requests to review a transcript before it's finalized must be made before the deposition is completed, failing which the request is untimely, even if made immediately after the deposition concludes. The order says defense counsel claimed to make the "read request" after the reporter announced "We're off the record" but while the reporter and all counsel were still logged in on a Zoom link. Even so, the court said, that's too late. Garrity talks about the significance of the ruling, and offers practice tips in the event you inadvertently miss your chance to make a timely request for review.

SHOW NOTES

Cypress Property and Casualty Insurance Company v. Jallad & R Investments, LLC, 2023 WL 3021075, No. 3:21-cv-1478-L (N. D. Tex. Apr. 20, 2023) (request for review copy of transcript before finalization untimely where not made before deposition concluded, even if made immediately afterwards)

EBC, Inc. v. Clark Bldg. Sys., Inc., 618 F.3d 253, 266 (3d Cir. 2010) (In a case involving a different Fed. R. Civ. P. 30(e)(1) errata sheet-related deadline, court suggested judge has some discretion in forgiving the missed deadline, saying, “Note, however, the phrasing of the rule—it provides that a party or deponent “must be allowed 30 days” to submit errata (the rule formerly stated that the party or deponent “shall have 30 days”). Fed.R.Civ.P. 30(e)(1). The natural language of the rule, then, does not preclude courts from allowing more time upon a prior request or forgiving minor untimeliness after the fact. Instead, the rule grants courts discretion to do so under appropriate circumstances. While courts retain the authority to enforce the amendment window strictly, we leave the matter to their sound discretion to determine if and when extension of the time limit is appropriate.”)

Fed. R. Civ. P. 30(e)(1) (requiring request for review copy to be made before deposition concludes)

In this episode, Jim Garrity discusses the “good cause” standard for seeking a protective order limiting the use of deposition transcripts and recordings beyond the pending case. Some judges continue to misapply the applicable standard for such protective orders. Garrity talks about one such ruling, just issued, that once again applied an outdated and legally erroneous standard. Given the ease with which deposition transcripts and recordings can be instantly posted online - and in light of the fact that many parties and foes do exactly that - Garrity argues that you should actively and routinely consider the use of a protective order to limit the non-judicial circulation and use of deposition testimony.

SHOW NOTES

AFT Michigan v. Project Veritas, et al., 2023 WL 2890152, Case No,. CV-

In this episode, Jim Garrity tackles the frequent problem of repetitive questions in depositions, and answers the questions "How many of the same questions is too many? What factors should I consider in deciding whether the repetition has transitioned into harassment? And at that point, what do I do?" As always, Jim offers practice tips, identifies the legal grounds for "asked and answered" objections and for instructing deponents not to answer repetitious questions. And don't forget the show notes, full of great cases to illustrate the point.

SHOW NOTES

Siefert, et al. v. Hamilton County Board of Commissioners, 2023 WL 2456853, No. 1:17-cv-511 (S. D. Ohio Mar. 10, 2023) (court declined to reopen deposition, despite numerous instructions by defense lawyer not to answer questions on grounds of “asked and answered,” where it appeared that, by and large, deponent provided the information sought; noting that defense did not, however, comply with the rule relating to instructions not to answer based on harassment by then terminating the deposition or seeking a protective order; similar questions asked approximately two dozen times)

Charles v. People, 2014 WL 2803991, 60 V.I. 823 (S. Ct. V.I. June 20, 2014) (noting judge’s admonishment to defense lawyer with jury present that “. . .if you are going to ask the same questions five, six, seven, eight, nine times, move on to new territory”)

Tajonera v. Black Elk Energy Offshore Operations LLC, 2015 WL 915273, No. CIV-A- 13-0366 (E. D. La. Mar. 3, 2015) (noting repetition of question 7 times, argument with witness and other behavior, declaring it a violation of both the federal rules and a prior order entered in that case that “that during depositions, counsel shall not engage in harassing or repetitive questioning”)

Schenk v. Smith, 1991 WL 71927, 9-90-13, 9-90-14 (Ct. App. Ohio May 6, 1991) (afforming judgment on appeal, finding no error in trial court’s instruction to counsel to desist from further questions on a given topic “since the question had been asked and answered four times. It is within the trial court’s discretion to exclude relevant evidence if its probative value is substantially outweighed by undue delay or needless presentation of cumulative evidence”)

Neighbour v. Matusavage, 25 A.2d 868 (Ct. Err. & App. N.J. 1942) (affirming judgment on appeal in case where trial court directed a witness not to answer and advised counsel that he had so ruled because the same question had been asked and answered 2 or 3 yellow times already, but noting that “the record shows that in fact the same question in slightly varied form had been asked and answered by this witness no less than a dozen times;” observing that “how many times a witness may be asked for the identical information irrespective of contradictory answers is within the sound discretion of the trial court”)

Martinez v. Greiner, 2001 WL 910772, No. 01-cv-2911 (S. D. N. Y. Aug. 13, 2001) (noting court’s observation that multiple defense counsel appeared to ask the same questions 12 to 15 times)

Nolan v. Weil-McLain, 2005 WL 724041, No. 01-L-117 (Ill. Cir. Ct. Mar. 21, 2005) (noting in passing in opinion that a specific question, followed by substantially the same answer, was asked and answered several times throughout a deposition as different defense counsel questioned the deponent)

Zeleny v. Newsom, No. 17-CV-07357-RS (TSH), 2020 WL 6585793, at *4 (N.D. Cal. Nov. 10, 2020) (“The asked-and-answered objection is additionally problematic because it is a speaking objection and therefore also violates Rule 30(c)(2)’s separate prohibition on argumentative and suggestive objections. There is nothing wrong with asking a question multiple times during a deposition. Sometimes the witness didn't answer it, or answered only part of it, or the answer is implausible, or the answer builds in caveats that a slight rephrasing of the question might expose, or asking essentially the same question from different angles or in slightly different ways yields different answers. Unless repeated questioning crosses the line into harassment, it can be an effective technique of cross-examination. Objecting “asked and answered” is a way of coaching the witness because it is not actually objectionable to ask a question multiple times. Saying “asked and answered” can be a way of telling the witness not to change his testimony from what he said before. Also, as every lawyer knows, when the defending attorney objects “asked and answered,” often the question really wasn't answered, so the objection becomes a suggestion to the witness to continue refusing to answer the question, which is what happened here. Defense counsel's instruction not to answer based on his “asked and answered” objection is overruled. Zeleny may depose Bertini further on those questions and on any reasonable follow up questions”)

Fairweather v. Friendly's Ice Cream, LLC, No. 2:13-CV-00111-JAW, 2015 WL 339626, at *4 (D. Me. Jan. 23, 2015) (“The defense makes the odd statement that an objection based on a question having been “asked and answered” is “not a viable objection under any Rule of Evidence and it therefore must be overruled.” Def.'s Objection s at 10. Defense counsel is wrong. Rule 403 of the Rules of Evidence allows a trial court to exclude relevant evidence if its “probative value is substantially outweighed by a danger of ... wasting time[ ] or needlessly presenting cumulative evidence.” FED.R.EVID. 403. The traditional objection that a question has been asked and answered is a shorthand way of making a Rule 403 time wasting and cumulative evidence objection. If a question has already been asked and answered, to ask it again and demand an answer would be to “wast[e] time [and] needlessly present[ ] cumulative evidence.” Id.”)

Mashiri v. Ocwen Loan Servicing, LLC, No. 12cv2838- L (MDD), 2014 WL 4608718, at *2 (S.D. Cal. Sept. 15, 2014) (“If counsel for Plaintiff believed that counsel for Defendant was asking the same question repeatedly in bad faith or to unreasonably annoy, embarrass or oppress Plaintiff, counsel’s option was to move to terminate or limit the deposition under Rule 30(d)(3). Plaintiff's current motion to terminate the deposition is untimely for that purpose as Rule 30(d)(3) requires the motion be made during the deposition.”)

Plaintiff John Doe’s Reply To Non-Party Jane Roe’s Response To Plaintiff John Doe’s Emergency Motions To Hold Non-Party Jane Roe In Contempt Of Court And To Compel Roe’s Deposition, Doe V. Texas Christian University, No. 4:22-CV-00297-O (N. D. Tex. Filed Nov. 17, 2022) (arguing that termination of deposition was improper because terminating counsel did not timely move to terminate the deposition and did not use the language of the rule in terminating, saying instead, “And we will likewise reserve our rights to seek redress because counsel continued to ask the witness questions in a means designed to upset her and harass her and embarrass her, and nonetheless continued pressing that means, and we consider it improper and we’ll raise that issue with the court and – if and when relief is sought”)

Fed. R. Evid. 403 (basis of "asked and answered" objection; allowing exclusion of relevant evidence if there is a risk of needlessly presenting cumulative evidence)

Cf., Episode 38, 10,000 Depositions Later Podcast (addressing related topic of whether multiple lawyers representing one party can question deponent in deposition)

In this episode, Jim explains why you'd be well-served to download and use OpenAI's ChatGPT software in your deposition practice, both beforehand and on the fly during depositions. He also offers numerous examples to help you understand how this stunning advance in artificial intelligence can sharpen your skills, whether taking or defending.

In this episode, Jim Garrity and the publisher announce a $5,000 book giveaway - of the newly-release 4th edition of 10,000 Depositions Later - exclusively for our podcast listeners. Garrity explains how to score your free copy of the $70 book in this short episode.

Ever run into deponents who pretend they don't understand even the simplest questions? Of course you have. (Who hasn't?) Today, Jim Garrity explains why you might not want to continue rewording questions for such slippery deponents, instead using their sham "confusion" against them to attack their credibility (or even to seek sanctions).

SHOW NOTES

Skyline Advanced Tech. Servs. v. Shafer, No. 18-CV-06641-CRB-RMI, 2020 WL 13093877, at *4 (N. D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N. D. Cal. July 30, 2020) (“Shafer responded to a strikingly large number of questions posed to her by stating that she did not understand the question (some of which were so clear and simply phrased that it strains credulity to imagine that she in fact did not understand the question”; further recommending dismissal as a sanction because “Shafer's willful destruction of evidence combined with her unfortunate behavior at her deposition have effectively frustrated the public's interest in the expeditious resolution of this case, as well as the court's need to effectively manage its docket, thus, these factors weigh in favor of granting the requested sanction of dismissal”)

Donelson v. Hardy, 931 F.3d 565, 568 (7th Cir. 2019) (affirming dismissal of lawsuit based in part on plaintiff’s unjustified claims that he did not understand deposition questions; court described Donelson's responses as “evasive and argumentative answers” enhanced by “dishonesty and false obtuseness”)

Mewborn v. Abbott Lab'ys, No. CV-188732-DSF-PLAX, 2019 WL 8060095, at *1 (C. D. Cal. Oct. 7, 2019) (Additionally, plaintiff, “[a]ided by and taking cues from her attorney, ... repeatedly pretended not to understand simple questions, refused to provide straightforward responses, and/or feigned an inability to read documents throughout her deposition”)

Xiaobin Song v. Ming Ying Wu, No. B-202427, 2008 WL 4140833, at *4 (Cal. Ct. App. Sept. 9, 2008) (describing as credibility issue defendant’s prior claim that she did not understand English, while in trial answering questions even before they were interpreted, even though questions sometimes contained sophisticated English terms)

Johnson & Johnston Assocs., Inc. v. R.E. Serv. Co., No. C 97-04382 CRB`, 1998 WL 908925, at *5 (N.D. Cal. Dec. 23, 1998), rev'd, 285 F.3d 1046 (Fed. Cir. 2002) (describing at “litigation misconduct” differences in the witnesses answers - and ability to understand simple questions - in deposition and then at trial, and listing many examples)

Vagenos v. LDG Fin. Servs., LLC, No. 09-CV-2672 (BMC), 2010 WL 1608877, at *2 (E.D.N.Y. Apr. 15, 2010) (rejecting claim deponent’s credibility should be questioned where examiner used technical terms that were likely confusing to the deponent; “This often-confusing line of inquiry at his deposition, in which plaintiff was ultimately entirely forthcoming about his past indiscretions, is not probative of his character for veracity”)

Skyline Advanced Tech. Servs. v. Shafer, No. 18CV06641CRBRMI, 2020 WL 13093877, at *6 (N.D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N.D. Cal. July 30, 2020) (“Shafer's response in opposition to Skyline's motion contains a surprisingly candid concession (which is surprising in light of the fact that she took such care to be remarkably evasive and highly uncooperative during her deposition)”)

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence; (b) Scope of Cross-Examination (which provides in part that “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility”)

Fed. R. Civ. P. 32 (“Using Depositions in Court Proceedings (a) Using Depositions. (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence”)

In this episode, Jim Garrity addresses the risk of instant privilege loss - attorney-client, work-product, or any other privilege - in depositions, absent immediate objection and an instruction not to answer (and an immediate demand for return of privileged documents, if applicable). He discusses a decision where a court found that a plaintiff waived the attorney-client privilege by answering just three questions over two minutes, because there had been no objection or instruction not to answer by the plaintiff's counsel.

By the way, have you checked out the 4th edition of Jim Garrity's blockbuster practice handbook on depositions? It's now out! 615 pages, detailed table of contents, and cover to cover with expert practice tips and insights, backed up by thousands of on-point citations to court rulings on deposition-related topics. Available on Amazon and just about everywhere else. Look for 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. It's the ultimate user's guide and handbook on deposition tips, tactics & strategies for civil, administrative, and arbitrative proceedings.

SHOW NOTES

Luna Gaming-San Diego, LLC v. Dorsey & Whitney, LLP, et al., 2010 WL 275083, No. 06-cv-2804 BTM (WMc) (S.D. Cal. Jan. 13, 2010) (finding waiver of privilege in deposition, in absence of objection, to three questions and two minute discussion about a privileged document)

Neuberger Berman Real Est. Income Fund, Inc. v. Lola Brown Tr. No. 1B, 230 F.R.D. 398 (D. Md. 2005) (colorable good faith assertion of privilege, even if ultimately rejected by the court, is different from an improper objection, because the privilege objection must be made to avoid waiver, because it implicates substantive rights of the party apart from the litigation, and because it serves to prevent depositions from becoming tools for abuse)

ADDED AFTER EPISODE AIRED:

LifeBio, Inc. v. Eva Garland Consulting, LLC, No. 2:21-CV-722, 2023 WL 3258586, at *9 (S.D. Ohio May 4, 2023) (finding privilege waiver where, among other things, plaintiff's counsel allowed use of privileged document by opposing counsel in deposition; held, "..counsel waited over 300 days . . . after Defendant used the documents in a fully briefed summary judgment motion to attempt to clawback the documents, “long after the proverbial cat was out of the bag.” [Citations omitted.] Put simply, nothing about Plaintiff's attempts to rectify this situation was attentive, diligent, or even “reasonable.” Fed. R. Evid. 502(b)(3). Nor were they “prompt[ ]....”)

How often are lawyers, deponents, and other participants surreptitiously recording depositions, including conversations during breaks that are meant to be private or privileged? Jim Garrity reports on this troubling conduct and surmises that it happens a lot more than many realize. As always, Garrity offers practice tips at the end of the episode, and our research on the topic appears in the show notes below. Thanks for listening!

SHOW NOTES

Defendant’s Second Motion for Terminating Sanctions (filed Sept. 29, 2020), Plaintiffs’ Opposition to Defendant’s Second Motion for Terminating Sanctions (Redacted) (filed Jan. 28, 2021), and Findings of Fact, Conclusions of Law, and Order Denying Defendant’s Second Motion for Terminating Sanctions and Granting Alternative Relief, Winters v. Dennis, Case No. A-15-723886-C, Dept. XI (Dist. Ct. Nevada July 26, 2021)Andrew C. v. Karcher, et al., 2006 WL 2664267, Case No. B184495 (Ct. App. Cal. Sept. 18, 2006) (sanctions imposed in form of $6,000 fine and order barring use of deposition transcript, where lawyer alleged arranged for second camera and a microphone to capture testimony and conversations of opposing counsel and his client)

Picard v. Guilford House, LLC, No. X03CV106016061S, 2014 WL 1876595 (Conn. Super. Ct. Apr. 3, 2014) (order staying case, imposing fines, and expressing an intention to refer plaintiff’s counsel to the bar following allegations that lawyer left her iPhone on, in record mode, during all breaks during the deposition, allegedly picking up privileged conversations between a key defense witness and defense lawyers; rejecting arguments of privilege in the recording or an absence of privacy expectations by those who were recorded.)

Knopf v. Esposito, 2018 WL 1226023, Case No. 17-cv-5833 (DLC) (S. D. N. Y. Mar. 5, 2018) (sanctions imposed after attorney video recorded deposition despite denying five times on the record that he was not recording)

Brockmeier v. Solano Cnty. Sheriff's Dep't, No. CIV S-05-2090 MCEEFB, 2010 WL 148179 (E.D. Cal. Jan. 12, 2010) (noting, without ruling on it, that defendant’s efforts to depose the pro se plaintiff were disrupted when “…counsel for defendants became aware Plaintiff was apparently surreptitiously recording the deposition and conversations in the room during breaks by way of an audio recording device in her purse…”)

Fluckiger v. Hawkins, No. 1:11-CV-00120-DAK, 2012 WL 6569485 (D. Utah Dec. 17, 2012) (where plaintiff admitted to secretly recording his depositions on a personal audio or video recorder, counsel was ordered to review the tapes and certify whether they had been altered in any way)

Hylton v. Anytime Towing, No. 11CV1039 JLS WMC, 2012 WL 3562398 (S.D. Cal. Aug. 17, 2012) (ordering pro se plaintiff to attend a second deposition and “to destroy the unauthorized computer recording he made of the first deposition,” finding that the plaintiff “secretly recorded the deposition proceedings on his laptop computer, including off-the-record sidebars between defense counsel”)

In this episode, Jim Garrity discusses a new summary judgment ruling against a company based in part on testimony by its 30(b)(6) designee that was outside the scope of the designee's topics. The ruling highlights the risk of choosing designees who possess personal knowledge well beyond the topics about which they will testify. Garrity offers practice tips for litigators on both sides of this issue - for those who select, prepare, and defend 30(b)(6) designees, and for those who schedule and depose them. The citation for the ruling appears in the show notes below. Thanks for listening!

SHOW NOTES

Order Granting Summary Judgment and Denying as Moot Other Outstanding Motions, MSP Recovery Claims Series, LLC, et al. v. Tower Hill Prime Insurance Company, et al., 2022 WL 17839537, Case No. 1:20-cv-262-AW-HTC (N.D. Fla. Dec. 20, 2022) (citing plaintiffs’ 30(b)(6) designee’s off-topic admission in granting defense motion for summary judgment)

In this episode Jim Garrity tackles the propriety of a question often heard in depositions when the deponent has just contradicted the testimony of another witness: "Are you calling them a liar?" Is this objectionable? If so, what's the objection? If it's objectionable and you don't object, is it per se reversible error? Is there a better way to ask the question? So many questions, so little time. But Jim answers them all and more, in just 13 1/2 minutes. (And speaking of time, do you have time to leave a 5-star rating for our podcast wherever you listen to our show? It takes no more than ten seconds, and our entire team will be forever grateful. Those 5-star ratings are like Kobe beef to the crew. Thanks!)

SHOW NOTES

Merritt v. Arizona, No. 21-15833, 2022 WL 3369529, at *2 (9th Cir. Aug. 16, 2022)g. “[T]he prohibition on improper vouching based on evidence outside the record extends to civil trials")

Easter v. Mills, 239 Or. App. 209, 213, 243 P.3d 1212, 1214 (2010) (“The Oregon Supreme Court has recently reviewed and elaborated on its decisions on this subject. In State v. Lupoli, 348 Or. 346, 357, 234 P.3d 117 (2010), the court stated:“This court has long held that one witness may not give an opinion on whether he or she believes another witness is telling the truth. * * * Applying that principle is a straightforward matter when one witness states directly that he or she believes another witness, or that the other witness is honest or truthful. However, statements that fall short of such overt vouching also may be impermissible”)

United States v. Pereira, 848 F.3d 17, 22 (1st Cir. 2017) (“In United States v. DeSimone, 699 F.3d 113 (1st Cir. 2012), this court clarified that although [i]t is improper for an attorney to ask a witness whether another witness lied on the stand[,] ... [i]t is not improper to ask one witness whether another was “wrong” or “mistaken,” since such questions do not force a witness to choose between conceding the point or branding another witness as a liar. There is no error in simply asking a witness if he agreed with or disputed another witness's testimony”)

Broyles v. Cantor Fitzgerald & Co., No. CV 3:10-857 JJB-CBW, 2017 WL 3946261, at *3 (M.D. La. Aug. 21, 2017), report and recommendation adopted, No. CV 10-857-JJB-CBW, 2017 WL 3928939 (M.D. La. Sept. 7, 2017) (order adopting magistrate’s report recommending the granting of motion in limine to exclude testimony as to one witnesse’ opinion of another’s testimony); see also Defendants’ Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony (CM/ECF Doc. 588), Defendants’ Memorandum In Support Of Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony (Doc. 588-1), Joseph N. Broyles, et al. v. Cantor Fitzgerald & Co., et al., Civil Action No.: Case 3:10-cv-00854-SDD-CBW Document 588 (M. D. La. filed May 13, 2016), Consolidated With: Civil Action No. 3-10-Cv-00857-JJB-SCR; CM/ECF Doc. 672 (Plaintiff’s Memorandum In Opposition To S&Y Parties’ Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony)

United States v. Rivera, 780 F.3d 1084, 1096–97 (11th Cir. 2015) (“As to the propriety of questions by a prosecutor that prod a defendant to accuse another witness of lying, we have held that such questions are not proper. United States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir.2011). . . .Of course, the fact that a prosecutor should not ask a testifying defendant whether another witness was lying does not mean that the prosecutor will be prohibited from pinning down a defendant's testimony by focusing the latter on conflicts between his account of a certain event and another witness's testimony on that point. Indeed, in Schmitz, we cited with approval the Third Circuit's observation that “it is often necessary on cross-examination to focus a witness on the differences and similarities between his testimony and that of another witness. This is permissible provided he is not asked to testify as to the veracity of the other witness”)

United States v. Schmitz, 634 F.3d 1247, 1268–70 (11th Cir. 2011) (“We hold that it is improper to ask a testifying defendant whether another witness is lying”)

Southern Union Co. v. Sw. Gas Corp., 281 F. Supp. 2d 1117, 1127 (D. Ariz. 2003) (propriety of such a question may depend on the context in which the question is asked, citing cases for proposition that ‘were they lying’ questions may not always be improper, and that the balance may shift in favor of admitting lay opinion as the distance increases between the opinion and the ultimate issues)

Easter v. Mills, 239 Or. App. 209, 214–15, 243 P.3d 1212, 1215 (2010) The question at issue here, and the answer it elicited, were not of the same sort found to be objectionable in those cases. Here, A.H.'s mother was not asked whether she believed that A.H. was telling the truth (nor did her answer reveal whether she believed that A.H. was telling the truth). Rather, she was asked if she knew of any motive A.H. would have to lie. Admittedly, this line of questioning may skate close to the edge of what is permissible, given the real danger that it might elicit a response that includes a comment on the credibility of a witness, even if the question does not specifically call for such a response. Here, however, the response did not contain the mother's opinion as to whether A.H. was telling the truth. Moreover, as the state notes, the defense theory of the case was that A.H. had a motive to lie about the abuse, because she was angry with petitioner and petitioner's daughter. In that circumstance, questions of A.H.'s mother concerning whether she knew if her daughter had such a motive were permissible. Her response to the challenged question merely was that she did not know of any motive that her daughter had to fabricate the allegation of abuse. We conclude that the post-conviction court correctly determined that the question and answer at issue here were permissible”)

Com. v. Baran, No. 1804251, 2006 WL 2560317, at *16 (Mass. Super. June 16, 2006), aff'd, 74 Mass. App. Ct. 256, 905 N.E.2d 1122 (2009) (vacating criminal convictions in part based on prejudicial vouching; “Moreover, the issue concerning the vouching of credibility is not limited to experts: “[I]t is a fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.’ Commonwealth v. Montanino, 409 Mass. 500, 504, 567 N.E.2d 1212 (1991). To violate this principle, testimony supporting a witness's credibility “need not be direct. The question is whether the witness's testimony had the same effect as if [the witness] had directed his comments specifically to [another witness's] credibility”)

Schmitz v. City of Wilsonville, No. CV-96-1306-ST, 1999 WL 778586, at *4–6 (D. Or. Sept. 17, 1999) (declining to extend vouching to civil cases; but finding no plain error from comments and denying motion for new trial)

Sneed v. Burress, 500 S.W.3d 791, 795 (Ky. 2016) “(It is equally impermissible for an attorney to phrase her remarks so as to indicate that a witness is lying based on the evidence presented. Of course, pointing out inconsistencies in a witness's statements and other evidence—and drawing reasonable inferences therefrom—is entirely permissible to the extent that it otherwise comports with our rules of practice and procedure. However, counsel is not permitted to make affirmative conclusions as to the credibility of a witness. Determining witness credibility “is within the exclusive province of the jury.” Id. (citation omitted).”) Also held can be considered harmless error based on circumstsances, but remanded for retrial)

State v. Bell, 283 Conn. 748, 779–80, 931 A.2d 198, 218 (2007) The other claimed improprieties in the present case, however, involve a variation on the classic type of Singh violation in which a defendant is asked whether another witness is lying, instead asking the defendant whether a witness' testimony was “true,” “right” or “accurate” and whether the defendant agreed with certain statements of other witnesses. Although these questions did not ask the defendant overtly to say whether a witness was wrong or mistaken, effectively, they essentially asked the same improper question, only phrased in the positive rather than in the negative. See United States v. Freitag, 230 F.3d 1019, 1024 (7th Cir.2000) (asking defendant if testimony of other witnesses is true is improper because it “invades the province of the jury; indeed asking if testimony is true implies that if it is not, it is a lie, which is a credibility question for the jury to decide”); see also United States v. Sanchez–Lima, 161 F.3d 545, 548 (9th Cir.1998) (reversible error when one government witness permitted to testify, over defense objection, that another government witness was telling truth, because determination of witness credibility is for jury and such testimony constituted bolstering by inadmissible evidence)

Hunter v. State, 397 Md. 580, 591, 919 A.2d 63, 69 (2007) (“We agreed with the trial court that this line of questioning was impermissible because the attorney was effectively asking the witness to say “whether the witness who gave [the statement] [ ] testified falsely.... [O]ne witness cannot be asked to characterize the testimony of another Missouri, K. & T.R. Co. v. Lycan, 57 Kan. 635, 47 P. 526, 528 [ (1897) ] ), since that is exclusively the function of the jury.” Id. at 314–15, 171 A. at 55. Thus, as early as 1934, we held that “were-they-lying” questions are impermissible in civil cases.”; reversing judgment and ordering new trial)

Eggleston v. Com., No. 2010-CA-002291-MR, 2012 WL 6061711, at *2 (Ky. Ct. App. Dec. 7, 2012)In Moss, our Supreme Court reaffirmed the longstanding rule that it is improper to require a witness to comment upon the credibility of another witness: With few exceptions, it is improper to require a witness to comment on the credibility of another witness. A witness's opinion about the truth of the testimony of another witness is not permitted. Neither expert nor lay witnesses may testify that another witness or a defendant is lying or faking. That determination is within the exclusive province of the jury")

State v. Airhart-Bryon, 13 Wash. App. 2d 1003, review denied, 196 Wash. 2d 1018, 474 P.3d 1052 (2020) (“Airhart also cites Boehning to argue prosecutors commit flagrant misconduct as a matter of law whenever they ask one witness if another is lying. Boehning generally supports this proposition. 127 Wn. App. at 525, 111 P.3d 899. However, our Supreme Court’s longstanding requirement is that allegations of prosecutorial misconduct be evaluated “ ‘in the context of the entire record and the circumstances at trial.’ ” See, e.g., Thorgerson, 172 Wn.2d at 442, 258 P.3d 43 (quoting Magers, 164 Wn.2d at 191, 189 P.3d 126). Here, we look to the context of the entire record to conclude there was no incurable misconduct”)

Montgomery Cnty. Dep't of Health & Hum. Servs. v. P.F, 137 Md. App. 243, 268, 768 A.2d 112, 126 (2001) (“The second reason assigned by the Bohnert Court was that a social worker's opinion regarding the credibility of the child invades the fact finder's role in assessing credibility and resolving disputed facts. Citing well-established limitations on the role of witnesses, the Bohnert Court held that the social worker's opinion constituted an improper “vouching” for the credibility of the alleged victim. In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury.... It is also error [in civil cases] for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying....”, (citing Bohnert v. State, 312 Md. 266, 277, 539 A.2d 657, 662 (1988)It is also error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Thompson v. Phosphate Works, 178 Md. 305, 317-319, 13 A.2d 328 (1940); American Stores v. Herman, 166 Md. 312, 314-315, 171 A. 54 (1934). The Court of Special Appeals said in Mutyambizi v. State, 33 Md.App. 55, 61, 363 A.2d 511 (1976), cert. denied, 279 Md. 684 (1977): Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, and questions to that effect are improper, either on direct or cross-examination.”)

Draper v. Rosario, 836 F.3d 1072, 1084 (9th Cir. 2016) (“The current version of the Model Rules similarly states that, in both civil and criminal trials, a lawyer shall not “state a personal opinion as to ... the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” Model Rules of Prof'l Conduct R. 3.4(e) (2015). In sum, our prior case law indicates that attorneys may not rely on evidence outside the record during closing argument and that prosecutors may not vouch for witnesses’ credibility. We now make clear that the prohibition on improper vouching based on evidence outside the record extends to civil trials”)

Shuang Ying Nancy Zhang v. A-Z Realty & Inv. Corp., et al., No. EDCV 19-887-KK, 2022 WL 17361983, at *2 (C.D. Cal. Aug. 24, 2022) (“In addition, “counsel in a civil trial may not rely on evidence outside the record during closing argument")

Fed. R. Evid. 608. A Witness's Character for Truthfulness or Untruthfulness.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence)

Rule 602. Need for Personal Knowledge. (A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

Rule 701. Opinion Testimony by Lay Witnesses (If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702)

ADDED AFTER EPISODE AIRED:

People v. Lopez, 550 P.3d 731 (Colo. Ct. App. March 14, 2024) ((a witness may not testify that another witness, including a child victim, told the truth on a particular occasion)

In this episode, Jim Garrity continues his advocacy for litigators’ active management of every facet of their depositions, this time focusing on two sorely-neglected components of video depositions: background and lighting. Today he talks about ways to gain control of these two elements. He also tells you where we buy our backgrounds and portable lighting, and offers to send you images showing how we set up the lights, and the before-and-after look of the lights on a sample deponent.

SHOW NOTES

In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2020 WL 6687777, at *12 (S.D. Fla. Nov. 11, 2020) (detailed order establishing deposition protocols in class action case and specifying that depositions “. . .will be conducted in a neutral setting, against a solid background, with only such lighting as is required for accurate video recording”)

Fed. R. Civ. P. 30(c)(2) (requiring that objections to any aspect of a deposition, which would include background and lighting, must be noted on the record, but that the examination still proceeds subject to the objection)

ADDED SINCE PUBLICATION OF EPISODE 109

Vazquez Diaz v. Commonwealth, 487 Mass. 336, 361,167 N.E.3d 822, 846 (2021) ("...participants, notwithstanding published guidance to the contrary, will appear in suboptimal lighting, which will make their facial expressions harder to see, or in cluttered environments, which will complicate the effort to identify the emotional valence of their expressions. Videoconferencing may also provide less audio information than in-person courtroom speech does, impairing decision-makers' ability to discern the emotions conveyed by the sound of the voice")

In this episode, Jim Garrity alerts you to a federal decision where the judge catalogued thirty-two factors that courts should consider in resolving disputes about where depositions should take place. It's an excellent decision to have in your arsenal. To this list, Garrity lists several more common location-related things to consider.

SHOW NOTES:

DeepGulf, Inc. v. Moszkowski, 330 F.R.D. 600 (N. D. Fla. Jan. 30, 2019) (listing 32 factors judges should consider when resolving disputes about where depositions should take place)

If you're like most litigators, you now regularly issue subpoenas that command the deponent to appear “Via Zoom Videoconference,” or something similar. In this episode, Jim Garrity explains why doing that - rather than listing a physical location for the deposition - may render your subpoena fatally defective and unenforceable.

SHOW NOTES

Order Denying Plaintiffs Motion to Compel General Dynamics’ Compliance with Subpoena, Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 53), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (denying motion to compel compliance with subpoena in part because subpoena failed to command attendance at a specified “place of compliance; instead, it merely listed the place as “VIA ZOOM VIDEO CONFERENCE”)

Frobe v. UPMC St. Margaret, No. 2:20cv00957-CRE, 2021 U.S. Dist. LEXIS 129924, at *3 (W.D. Pa. July 13, 2021) (“ ‘Zoom Videoconferencing’ is not a ‘Place;’ rather, it is a method of taking the deposition;” court required subpoenaing party to modify subpoena to have place of deposition changed to within 100 miles of deponent's home or place of employment, whichever was more convenient to deponent)

Russell v. Maman, No. 18-CV-06691-RS (AGT), 2021 WL 3212646, at *2 (N.D. Cal. July 29, 2021) (declining to enforce subpoena that listed place as “Via Zoom;’ court could not determine with certainty that it had jurisdiction because it could not tell from subpoena that it was the district where compliance with the subpoena was required)

Opposition to Plaintiffs Motion to Compel General Dynamics Compliance with Subpoena, etc., Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 38), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (excellent memorandum in opposition to enforcement of subpoena that failed to specify “place” of deposition and instead listed the place as “VIA ZOOM VIDEO CONFERENCE”)

CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 709 (N.D. Tex. 2017) (“Under Rule 45, then, the place of compliance must be a physical “place” subject to “geographical limits” and capable of being measured according to mileage;” provision of email address, where subpoenaed documents are to be produced, was insufficient)

Fed. R. Civ. P. 45(c)(1)(A) (providing generally that place listed in subpoena for compliance must be within 100 miles of the witness’ residence, place of employment, or where the witness regularly transacts business)

Fed. R. Civ. P. 45(a)(1)(A)(iii) (imposing requirement that subpoena state the specified time and place for compliance)

**The following authorities were added after Episode 107 was aired:

Chen v. Federal Bureau of Investigation, et al., No. 22-MC-0074 (CRC), 2022 WL 17851618, at *3 (D.D.C. Oct. 18, 2022) (rejecting argument that non-party remote deposition subpoena was unenforceable because it did not specify a physical location)

Hawkins, et al. v. CUNA Mutual Group, etc., No. CIV-22-536-SLP, 2022 WL 19001967, at *2 (W.D. Okla. Nov. 21, 2022) (denying motion to quash Zoom deposition subpoena of Wisconsin lawyer, without prejudice to refile in Wisconsin, nothing that motion must be filed where deponent will testify if location is not in same district where action is pending)

In this episode, Jim Garrity offers up a clever idea for turning your skills in choosing 30(b)(6) designees into a deposition superpower. On the flip side, Garrity shares ideas on how to use this same principle to gain compliance from organizations that resist and delay your efforts to set corporate representative depositions. As always, the research on which this episode is based appears in the show notes below. Last point: Do you have 60 seconds to leave us a 5-star review, wherever you get your podcast episodes? These episodes are ad-free, so the only way you can really say thanks is to leave us a high rating. It literally takes less than a minute, and seeing great scores is such a huge thrill for our production and research staff. We really do appreciate you! Thank you again, and have a great week!

SHOW NOTES

The Deutsche Bank Entities’ Memorandum in Opposition to Plaintiffs’ Motion to Compel, etc. (ECF Doc. 351); Order on Plaintiffs’ Motion to Compel, etc. (ECF Doc. 364), In re Enron Corporation Securities Derivative & “ERISA” Litigation, Case No. 4:02-md-01446, Civil Action No. H-03-1276, Consol. Lead Civil Action No. H-01-3624 (S.D. Tex. Oct. 3, 2005)

Ierardi v. Lorillard, Inc., 1991 WL 158911, Case No. CIV-A 90-7049 (E. D. Pa. Aug. 13, 1991) (discussing use of former employee as corporate designee)

Sunbeam Corp. v. Black & Decker (U.S.) Inc., 151 F.R.D. 11 (D. Rhode Island 1993) (plaintiff Sunbeam designated a professor to testify as 30(b)(6) representative in patent infringement litigation, where topics included potential prior art known to Sunbeam, the criteria employed by Sunbeam in determining the scope of each of the claims of the patent in suit, and the meaning of certain patent terms)

Universal City Studios, Inc. v. Corley, 2000 WL 621120, No. 00-CIV-277 (S.D.N.Y. May 12, 2000) (where defendant opted to proceed with deposition under rule 30(b)(6), it would not be heard to complain when plaintiff designated someone who was not an officer, director, or managing agent of plaintiff)

Phillips v. American Honda Motor Co., Inc., et al., 2005 WL 1527685 (S. D. Ala. June 27, 2005) (denying motion for sanctions where multiple defendants all relied on the same single corporate designee, who not only did not work for any corporate defendants, but who did not speak English)

Guinnane v. Dobbins, 2020 WL 4734897 at *4-5 (D. Mont. Aug. 14, 2020) (“Second, Rule 30(b)(6) does not provide a mechanism by which a party can simply refuse to produce or prepare its designee on noticed topics”)

Fed. R. Civ. P. 30(b)(6) (allowing entity to designate, without limitation, “other persons who consent to testify on its behalf")

Today's we cover a fascinating topic: What to do when your party opponents assert a Fifth Amendment or similar privilege in their deposition? Unlike diamonds, privileges aren't necessarily forever. Your opponent can later drop, withdraw, or waive an assertion of privilege. And many litigants do, indeed, try to gain unfair advantage by eleventh-hour waivers, surprising adversaries with previously-shielded information. In this episode, Jim Garrity outlines the problem, and identifies six specific steps to take – in order – to stop this kind of misconduct.  As always, our show notes contain the research on which this episode is based. Note that some podcast sites don’t display lengthy show notes.  If you can’t see all fifteen citations in this episode’s notes, click through to our home page for the full list. Thanks!

SHOW NOTES

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, No. 3:18-CV-1506 (S.D. Cal. 2020) (individual defendant in securities fraud case produced no documents at deposition as required, and walked out after 1 hour 45 minutes, during most of which he allegedly refused to answer many questions, launched into profanity-laced tirades, and continuously invoking the Fifth Amendment; held, Plaintiff may re-depose defendant, and “the Court cautions Defendant Fellner that if he invokes the Fifth Amendment privilege with respect to topics on which he later attempts to present argument or testimony, the court may prevent him from doing so, or may issue other evidentiary sanctions such as giving an adverse jury instruction that the jury’s that the jurors may consider his implication of the privilege during his deposition in assessing his credibility”)

Keating v. OTS, 45 F.3d 322, 324 (9th Cir. 1995) (“A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege”)

Sheindlin & Orr, The Adverse Inference Instruction After Revised Rule 37 (E): An Evidence-Based Proposal, 83 Fordham L. Rev. Issue 3 (2014) (discussing the history and implications of adverse inference jury instructions)

Order Granting Plaintiff’s Motion for Summary Judgment, SEC v. Premier Holding Corporation, 2020 WL 8099514. No.: SACV 18-00813 (C. D. California Nov. 30, 2020) (“As a preliminary matter, the SEC asserts that Letcavage should be precluded from offering testimony and other evidence in opposition to its motion for summary judgment because he asserted his Fifth Amendment privilege and refused to answer all substantive questions in his deposition; The Court agrees - while Letcavage certainly has the right to assert the privilege, he “cannot have it both ways. By hiding behind the protection of the Fifth Amendment as to his contentions, he gives up his right to prove them”), citing SEC v. Benson, 657 F. Supp. 1122, 1129 (S.D.N.Y. 1987)

Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 912 (9th Cir. 2008) (trial judge must balance the hardships caused to each party in considering adverse inference instruction, recognizing that there is a tension between one party's Fifth Amendment right and the other party's right to a fair proceeding; decisions when to allow the adverse inference and not to allow it must be determined on a “case-by-case basis under the microscope of the circumstances of that particular civil litigation”)

SEC v. Cutting, 2022 WL 4536816, No. 2:21-cv-00103 (D. Idaho Sept. 28, 2022) (Court grants plaintiff SEC’s motion to preclude defendant, in opposing the SEC’s motion for summary judgment, from introducing evidence, denials, and defenses that he previously withheld by invoking his Fifth Amendment privilege during deposition; “Cutting now attempts to speak on these very matters for which he previously invoked the privilege. ‘But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions” and then tossed aside to support a party's assertions’ ”), citing In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991)

United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 640 (9th Cir. 2012) (holding a court may strike the testimony of a witness in a civil proceeding to avoid a witness's improper use of the Fifth Amendment privilege against selfincrimination as a sword as well as a shield) (collecting cases). “The purpose of this rule is to protect the integrity and truth-seeking function of the judicial system from the distortions that could occur if a witness could testify and then use the Fifth Amendment privilege to prevent any adversarial testing of the truth of that testimony.” $133,420.00 in U.S. Currency, 672 F.3d at 640. “By striking testimony that a party shields from crossexamination, a court can respect the witness's constitutional privilege against self-incrimination while still preventing the witness from using the privilege to mutilate the truth a party offers to tell.” Id. (quoting Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988) (quoting Brown v. United States, 356 U.S. 148, 156 (1958)) (internal quotation marks omitted)

United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 85 (2d Cir. 1995) (if litigant in civil proceeding seeks to waive Fifth Amendment privilege only at the “eleventh hour,” and such waiver “appears to be part of a manipulative, ‘cat-and-mouse approach’ to the litigation,” a trial court may bar the litigant “from testifying later about matters previously hidden from discovery through an invocation of the privilege”)

In re 650 Fifth Ave. & Related Properties, No. 08 CIV. 10934 (KBF), 2013 WL 12335766 (S.D.N.Y. Sept. 6, 2013) (order approving adverse inference instruction based on defendant’s assertion of Fifth Amendment privilege and deposition), and  Joint Proposed Requests to Charge, US v. 650 Fifth Avenue and Related Properties, No. 1:08-cv-10934-LAP (PACER Document 1684-6), filed May 5, 2017

Sand, Modern Federal Jury Instructions, Instr. 75-5 (adverse inference instruction)

Libutti v. United States, 107 F.3d 110 (2d Cir. 1997) (pertinent to adverse inference instruction)

Pinnock v. Mercy Medical Center, 180 A.D.3d 1086 (App. Div. New York 2020) (declining to impose sanctions, including preclusion of evidence and adverse inference about assertion of Fifth Amendment privilege, where defendant physician was facing pending criminal charges at the time of his deposition)

Fed. R. Civ. P. 37(b)(2)(i)-(vii) (authorizing sanctions for failure to permit discovery, including but not limited to an order deeming facts as admitted, prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence)

ClearOne Communications, Inc. v. Chiang, 679 F. Supp.2d 1248 (D. Utah 2009) (adverse inference instruction about dishonesty read to jury just before witness took stand, where court had previously found that the witness had not given truthful answers on some topics during his deposition)

Card Technology Corporation v. DataCard, Inc., 249 F.R.D. 567 (D. Minnesota 2008) (following refusal of plaintiff’s currently-employed senior official to appear for deposition, the court deemed some facts admitted, and forbid the witness, if he appeared at trial, from testifying about certain topics that would have been explored in deposition)

ADDED AFTER EPISODE AIRED:

Munger, etc. v. Intel Corporation, No. 3:22-CV-00263-HZ, 2023 WL 3260034, at *3 (D. Ore. May 3, 2023) ("The Court finds Cloud may not invoke the Fifth Amendment privilege as a shield to oppose depositions while discarding it for the limited purpose of making statements to oppose summary judgment. The Court, therefore, grants Plaintiff's requests to strike Cloud's Declaration in support of her Surreponse to Plaintiff's Motion for Summary Judgment")

Parker v. State Farm Mut. Ins. Co., No. 3:23-CV-00139, 2024 WL 1855426, at *3 (S.D. Tex. Apr. 29, 2024) ("As already discussed, the law is clear: State Farm is entitled to argue, and the jury is free to draw, negative inferences from Parker's invocation of the Fifth Amendment" in deposition)

In this episode, Jim Garrity addresses the problem caused by litigators who repeatedly interrupt your deponents’ answers, potentially resulting in a transcript full of half answers. It's a common and serious headache for defending lawyers, and you can only fix the problem one of two ways - either during the deposition, or through an errata sheet.  Garrity explains the pluses and minuses of using an errata sheet to complete interrupted answers, and tells you what courts have to say about that approach.  He then offers practical tips for addressing repeated interruptions during the deposition itself, and identifies four steps to fix the problem.  As always we've got supporting research in the case notes, with parentheticals that allow you to quickly scan the holdings or significance of each decisions. (Remember that if you don't see the full text of the show notes, just click through to our home page for the full list). Thanks for listening!

SHOW NOTES

***(Added after release of episode) In re Injectafer Prod. Liab. Litig. ALL CASES, No. CV 19-276, 2022 WL 4280491  (E.D. Pa. Sept. 15, 2022) (“Defendants propose. . . changing “It would be one of the—yes” to “It would be one of the sources of information. Yes.” This change is not necessarily inconsistent with the original testimony because it appears that the deponent was cut off or otherwise stopped speaking in the middle of the sentence and is justified as making the answer more complete. See id. While finishing a thought is not necessarily a proper justification for an errata modification, here it appears to be justified and within the flexible scope of the Third Circuit's approach to Rule 30(e)")

Grey v.  Amex Assurance Company, 2002 WL 31242195, No. B152467 (Ct. App. Calif. Oct. 7, 2002) (reversing summary judgment in part because trial court abused discretion in failing to consider errata sheet containing “changes. . . made because the witness was interrupted before completing her answers;” further noting that the defendant “. . .took the risk that [the plaintiff’s] corrections would bring some of its undisputed facts into controversy”)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 512 (N.D. Ill. 2015) (denying, without prejudice, motion to strike errata sheet, as motion failed to specifically discuss many of the 67 changes defendant wanted stricken; noting that “The reason given for the vast majority of the 67 changes was that [Plaintiff] “did not finish” her answer during the deposition, though the transcript does not reflect that she was interrupted and prevented from doing so,” and outlining how various courts and commentators deal with the extent to which changes to testimony can be made on errata sheets)

Arce v. Chicago Transit Authority, F.R.D. 504, 512, fn. 5 (N.D. Ill. 2015) (noting that, if one looks back at the early origins of the rule on errata sheets, quoted in this opinion, it may be argued that the intent of the drafters was indeed to limit changes to clerical-level mistakes, not to allow substantive changes): "One commentator who examined the history of the rule dating back to the original Equity Rule 67, and the twin Equity Rules 50 and 51 that succeeded it, concluded that Rule 30 was never intended to allow for more than the correction of transcription errors: "Appeals to the plain language of Rule 30(e) are incomplete and misleading without reference to the Rule's transcriptive focus. Read in historical context, the Rule appears to be distinctly clerical, ill-equipped—and never intended—to embrace substantive changes. Although its wording has changed over time, Rule 30(e) has retained one modest but steady focus: the who, how, and what of accurate transcription. The Rule is meant to secure an accurate representation of what was said, leaving to another day (and frequently to the mechanisms of Rule 56) the question of the meaning and implication of the deposition content for purposes of material factual disputes. The common understanding of Rule 30(e) has moved far afield from that mild ambition, giving us the confusion and circuit split we know today. Read in light of its history, the Rule clearly embraces a transcriptive focus. Ruehlmann, Jr., supra, at 915. Rule 30(e)’s counterpart in Illinois state court, Supreme Court Rule 207(a), was amended to limit corrections to transcription errors because the “potential for testimonial abuse” had “become increasingly evident as witnesses submit[ted] lengthy errata sheets in which their testimony [was] drastically altered....” Ill. Sup. Ct. R. 207(a), Rules Committee Comment to Paragraph (a) (1995)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (citing Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 60 (1998), for its author’s argument that Rule 30(e) permits “opposing counsel, at her choosing, to introduce both versions to the jury”)

Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir.2000) (observing, as to changes in errata sheet, that what the witness “tried to do, whether or not honestly, was to change his deposition from what he said to what he meant;” quoting the common refrain that “a deposition is not a take home examination,” the court remarked that while this was a “questionable basis for altering a deposition.” the court would allow the change under Rule 30(e) since the rule expressly “authorizes ‘changes in form or substance’.”

Tchankpa v. Ascena Retail Group, Inc., No. 2:16-CV-895, 2018 WL 1472527 (S.D. Ohio Mar. 26, 2018) (refusing, based on Sixth Circuit’s strict interpretation of errata sheet changes, to allow “. . .impermissible substantive alterations to Tchankpa's testimony. . .”, including explanations stating “Incomplete; I was cut off,” allegedly because “defense counsel interrupted him;” “In this circuit, a deponent cannot make substantive changes to his deposition testimony under Rule 30(e) based on defense counsel's interruptions. . .”)

Hirsch v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) When a party makes changes to his deposition pursuant to Rule 30(e), the original answers remain part of the record. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[T]he rule requires that the original transcript be retained (it is implicit in the provision of that rule that any changes made by the deponent are to be appended to the transcript) so that the trier of fact can evaluate the honesty of the alteration.”); Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (“Subject to the rules of evidence, the jury is permitted to hear the original answer, the change, and the reasons for the change and decide – in the context of all the other evidence – whether to credit either answer and what weight to assign it.”); Coleman v. Southern Pacific Transportation Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998) (accepting the argument that “a change in a deposition statement does not eradicate the deponent's original answers”); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D. Ill. 1981) (“Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made.”). The reason for this is obvious: “[t]he Rule is less likely to be abused if the deponent knows that ... the original answers[,] as well as the changes and the reasons will be subject to examination by the trier of fact")

Hirsh v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) (court-ordered second deposition of plaintiff did not extend deadline for submitting errata sheet following delivery of transcript from first deposition; counsel claimed he “believed that the first deposition did not ‘count,’ because it was ordered [to] be redone, and therefore corrections were reserved”; errata sheet rejected as untimely)

Neutrion Dev. Corp. v. Sonosite, Inc., 410 F. Supp. 2d 529, 550 (S.D. Tex. 2006) (allowing and considering – without apparent challenge or concern – expert’s substantive changes to errata sheet, necessitated “. . . [because he] began to explain the knowledge that one of ordinary skill in the art would possess, but was interrupted by Neutrino's counsel”)

Trout v. FirstEnergy Generation Corp., 339 F. App'x 560, 565 (6th Cir. 2009) (noting argument made by defendant that plaintiff “. . . is not entitled to benefit from her corrected deposition testimony because her counsel did not rehabilitate her statements during the deposition,” meaning plaintiff’s counsel could and should have asked followup questions while the deposition was in progress)

Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., No. 1:11-CV-4483-SCJ-AJB, 2014 WL 11517837, at fn. 2 (N.D. Ga. Aug. 4, 2014) (Although Plaintiff's brief in response to Defendant's objections discusses a long day and interruptions by Defendant's counsel during the deposition, those reasons were not provided in the errata sheet. The Court also notes that if Defendant's counsel interrupted Plaintiff such that he could not elaborate much as he wished, Plaintiff's counsel had the opportunity afterwards to examine her client on those points and did not do so.”)

Fed. R. Civ. P. 30(e)(1)(B) (federal rule of civil procedure on errata sheets, which expressly contemplates possible changes in form or substance)

 In this episode, Jim Garrity spotlights a 107-page ruling, issued just three days ago, that offers a sharp reminder about the consequences to deponents who claim memory failure and who then follow up, at summary judgment time, with affidavits or errata sheets containing fantastically-improved recollections of key details. Garrity also discusses another brand-new ruling, likewise issued three days ago, that makes the same point. As always, he offers practical tips and insights - here, to help you avoid the fate suffered by litigants in those cases, which was to have their post-deposition affidavits, errata sheets, and declarations stricken.

As always, the case citations that are mentioned in the episodes or that support the topic appear below in the show notes.

Don't forget to check out the book on which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d Ed. (470 pages), available everywhere you get your books

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SHOW NOTES

Luman v. Diaz, et al., 2022 WL 4001063, No. H-19-4920 (S. D. Tex. Sept. 1, 2022) (rejecting key portions of defendant’s declaration on summary judgment, where declaration appeared to be sham effort to fill in purported memory gaps of defendant at deposition; further rejecting purported defense expert report, which attempted to offer substantive testimony about defendant’s motive that defendant himself could not remember during deposition)

King v. Kings County Sheriff’s Office, 2022 WL 3999485, No. 1:20-CV-00943 (E. D. Calif. Sept. 1, 2022) (rejecting errata sheet from plaintiff’s expert, where entries changed some answers from yes to no, no to yes, added new information, and qualified prior answers)

Sinclair Wyoming Refining Company v. A & B Builders, Ltd, 989 F. 3d 747 (10th Cir. 2021) (rejecting changes to errata sheet, in part because (a) deponent could have been crossed-examined by his own lawyer to correct error during deposition and wasn’t, (b) witness did not appear confused in giving original answers during deposition, and (c) it did not matter, at the end of the day, whether the corrected testimony aligns with objectively-correct information or subjective evidence - what matters is what the deponent testified he or she believed was true)

https://en.wikipedia.org/wiki/Gordian_Knot

There's definitely a right and a wrong way to terminate or suspend a deposition in progress on the grounds it is being conducted in bad faith, or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. In this episode, Jim Garrity spotlights a new court ruling imposing sanctions against a party who failed to do it correctly. As always, Garrity offers you practical guidance, here about exactly how to suspend or terminate a deposition and seek court relief in a way that complies with the governing rule.

(While you're here, can we ask you a small favor? Our production staff deeply appreciates 5-star ratings, and positive comments, on the various sites that host our podcast. Since the podcast is free, would you mind taking 60 seconds of your time, navigating to wherever you get your podcast, and leaving the crew a 5-star rating? It makes all the difference in the world to them, and it's a super motivator to bring you the best possible episodes - always with supporting research you can use - at no charge whatsoever. Thank you so much!)

SHOW NOTES

Fed. R. Civ. P. 30(d)(3)(A) (providing only grounds under the rules for interrupting, terminating, or limiting a deposition in progress)

Daniels v. Dixon, et al., 2022 WL 3574443, No. 8:21-CV-00223-CJC (C. D. Cal. July 12, 2022) (defendant law enforcement officer and counsel walked out of deposition after fifty minutes alleging, among other things, that plaintiff was disrespectful in conducting his deposition; held, “Because Defendant has failed to move for an early termination [under Fed. R. Civ. P. 30(d)(3)], Defendant remains obligated to complete the deposition,” and was ordered to pay $2,031 in costs associated with the terminated deposition)

Coulter v. Paul Lawrence Dunbar Community Center, et al., 2020 WL 13469775, No. 16-CV-0125 (W. D. Penn. Feb. 27, 2020) (granting defense motion for sanctions where plaintiff walked out of deposition without properly suspending and then seeking court order relating to alleged defense harassment)

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, at *7 (S. D. Cal., 2020) (“Most significantly, a further deposition is warranted because of Defendant Fellner's decision to leave the deposition after less than two hours had elapsed, without moving for a protective order under Rule 30(d)(3) or otherwise alerting the Court that he was choosing to terminate the deposition. That decision not only “impede[d]” the deposition; it torpedoed it.”)

Omeprazole Patent Litigation, 227 F.R.D. 227, 230 (S. D. N. Y. 2005) (“It is not the prerogative of counsel, but of the court, to rule on objections.... [I]f the plaintiff's attorney believed that the examination was being conducted in bad faith ... or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied immediately to the ex parte judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d).”

*Added after this episode first aired:

Boulder Falcon, LLC v. Brown, No. 222CV00042JNPJCB, 2023 WL 2662187, at *12 (D. Utah Mar. 28, 2023) ("Fed. R. Civ. P. 30(d)(3)(A) provides: “At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” Although the term “bad faith” can have many meanings depending upon the context in which it is used, one of its common connotations is to do something for an “improper purpose.” Bad faith and improper purpose include unnecessarily increasing the costs of litigation. Further, bad faith can arise when the examining attorney lacks a basis for asking questions that allege adverse facts.")

In this episode, Jim Garrity talks about dealing with document requests included within a Notice of Deposition Duces Tecum, and how to determine (a) the due date for service of your responses and objections to those document requests, regardless of the actual upcoming deposition date, and (b) the due date for the actual production of responsive documents. As always, we genuinely appreciate your listenership. If you have a moment, would you please add a five-star rating wherever you get your podcast? It takes just a second, but it's the #1 way to thank our production staff for these free, actionable, practice- oriented episodes. Thanks!

SHOW NOTES

Fed. R. Civ. P. 30(b)(2) authorizing deposition notice to include document requests for production ("at the deposition”)

Fed. R. Civ. P. 34(b)(2)(A) (providing that responses to document requests are due within 30 days after being served)

Gilbert v. E.I. Dupont De Nemours & Co., No. 3:15CV00988 (AWT), 2016 WL 3211682, at *3 (D. Conn. June 9, 2016) (“Rule 30, which allows the deposing party to request that documents be produced at the time of the deposition, does indeed incorporate Rule 34. Rule 34, in turn, states that the party to whom the request is directed must respond in writing within 30 days after being served. The Court has found nothing to indicate that the 30-day limitation is not applicable to document requests incorporated into deposition notices.”)

RM Dean Farms v. Helena Chem. Co., No. 2:11CV00105 JLH, 2012 WL 169889, at *2 (E.D. Ark. Jan. 19, 2012) (Rule 34, in turn, provides that the party to whom a document request is directed “must respond in writing within 30 days after being served.” Fed.R.Civ.P. 34(b)(2)(A). Thus, a party has 30 days within which to respond to a document request, even if the request is included in a notice of deposition, unless the time is shortened by stipulation or court order. Orleman v. JumpKing, Inc., No. Civ. A.99–2522–CM, 2000 WL 1114849, *9 (D.Kan. July 11, 2000))

Olmstead v. Fentress Cnty., Tennessee, No. 2:16-CV-00046, 2018 WL 6198428, at *4 (M.D. Tenn. Nov. 28, 2018), citing Schultz v. Olympic Med. Ctr., No. C07-5377 FDB, 2008 WL 3977523, at *2 (W.D. Wash. Aug. 22, 2008) (“It is well settled that Fed.R.Civ.P. 30(b)(2) provides that any deposition notice which is served on a party deponent and which requests documents to be produced at the deposition must comply with the thirty-day notice requirement set forth in Fed.R.Civ.P. 34.”)

Oldershaw v. Davita Healthcare Partners, Inc., 2017 WL 11688074, No. 15-CV-01964-MSK-NYW (D. Colorado April 13, 2017) (rule says that document request that is part and parcel of a notice of taking deposition requires production of documents at the deposition)

Sandler v. LC. System, Inc. Opinion and Order Granting Defendant’s Motions for Protective Order2:13-cv-13000-MOB-MCM (S. D. Mich. May 8, 2014) (granting protective order against embedded document request where defendant argued, among other things, that it had produced some documents prior to the deposition date)

Richardson v. Rock City Mech. Co., LLC, No. CV 3-09-0092, 2010 WL 711830, at *4 (M.D. Tenn. Feb. 24, 2010) (Except for concerns about legibility of copies (which should have been addressed earlier), it is not clear to the Court why originals are necessary, citing Fed. R. Evid. 1003)

In this episode, Jim Garrity explains how to seek an order limiting the duration of an upcoming deposition, including the rules you'll rely on and the arguments you'l make (for or against, depending). Occasionally, it's obvious that certain deponents - high-level officials, spouses, children, or privilege-bearing witnesses, to name just a few - have limited knowledge or involvement. If so, a deposition spanning a full day or more simply cannot serve a legitimate purpose. That's when it's time to seek a court order in advance, limiting the length of the deposition. As always, supporting cases are in the show notes below.

And be sure to check out the book upon which this podcast is based,10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d. Edition, available just about everywhere books are sold. And if you don't mind, would you take a moment and leave our production crew a five-star rating wherever you get your podcast? This podcast requires tremendous time, energy, and research resources, and is completely free. For that reason, the best way to say thank you is with a great rating. Our staff is thrilled every time we see a new 5-star rating show up. As always, thank you!

SHOW NOTES:

Forte Capital Partners, LLC v. Harris Kramer, LLP, 2008 WL 4924724, No. C 07-1237 SBA (N. D. Cal. Nov. 14 2008) (“There is nothing in the Federal Rules of Civil Procedure or case law that legitimizes taking the full seven hours to depose a person when there is no purpose”)

Iron Hawk Technologies, Inc. V. Dropbox, Inc., No. 2:18-CV-01481-DDP-JE M (C. D. Cal. Mar. 20, 2019) (order time-limiting deposition of Dropbox CEO to three hours, in response Dropbox’s motion protective order)

Van Den Eng v. The Coleman Co., Inc., 2005 WL 3776352, No. 05-MC-109-WEB-DWB (D. Kan. Oct. 21, 2005) (rejecting defense demand to block deposition of former CEO, but limiting deposition to four hours; while evidence is weak that former CEO has relevant knowledge, “as a general, a party seeking discovery may test and asserted lack of knowledge”)

Speed RMG Partners, LLC v. Arctic Cat Sales, Inc., 2021 WL 5087280, No. 20-CV-609 (NEB/LIB) (D. Minn. Jun. 14, 2021) (rejecting defense request to time-limit 30(b)(6) deposition to 3.5 hours, saying there had not been a sufficient showing that topics of proposed corporate designee deposition were adequately addressed by prior fact witnesses)

Higginbotham v. KCS International, Inc., 202 F.R.D. 444 (D. Maryland 2001) (in response to plaintiff’s counsel’s alleged intransigence as to duration of deposition, defense counsel “could and should have filed a motion to modify the subpoena and to limit the duration of the deposition”)

Fed. R. Civ. P. 26(b)(2)(A) (authorizing court to limit duration of depositions)

Fed. R. Civ. P. 26(c)(1) (authorizing courts to impose limits on discovery, including depositions)

Fed. R. Civ. P. 45(d)(1) (authorizing courts to issue orders limiting undue burdens caused by subpoenas)

Fed. R. Civ. P. 45(d)(3) (3) (authorizing courts to modify subpoenas to avoid undue burden)

In this episode, Jim Garrity answers a frequent question he gets about Fed. R. Civ. P. 30's seven-hour time limit, namely, "The noticing lawyer questioned the witness for the full seven hours, so wasn't I still entitled to conduct my cross examination?" As always, he concludes the episode with excellent practice tips, here arguments to use when you need more time, and points to make when you're opposing such a request. Thanks for listening!

SHOW NOTES:

Tankersley v. MGM Resorts International and Bellagio LLC, 2022 WL 1395457, No. 22-cv-0 200995-RFP-DJA (D. Nev. Apr. 18, 2022) (discussing factors to consider in allowing more time for cross-examination where noticing party consumes most or all the seven hours allowed under FRCP 30(d)(1); held, plaintiff's lawyer allowed to reopen plaintiff's deposition and conduct four hours of follow-up after defense used all but 35 minutes of the default duration)

Alabama Aircraft Industries, Inc. v. .Boeing Company, 2015 WL 10090631, No. 2:11-CV-03577-RDP (N. D. Ala. Dec. 22, 2015) ( allowing Plaintiff, after deposition in which defendant conducted 5 1/2 hours of examination, and where plaintiff was only able to conduct 55 minutes of cross-examination before witness departed, to continue examination as part of original deposition for one and 1/2 hours)

In this episode, Jim Garrity explains the pitfalls in defending against – or in asking - the common wrap-up question “Have you now told me everything that supports your claims?” (or defenses, as applicable). A deponent who is unprepared for this question is likely to foreclose any opportunity to add additional information. On the other hand, a lawyer who asks this question at the very end of a deposition may open a Pandora's box that cannot be closed. Garrity addresses the situation, as always, from both sides, and offers practice tips to avoid problems.

Supporting cases in the show notes, as always.

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SHOW NOTES

Ziehm v. RadioShack Corporation, 2010 WL 2079550, No. 09-69-P (D. Maine May 22, 2010) (portions of plaintiff’s affidavit struck as contradicting deposition testimony, where plaintiff was specifically asked whether they had disclosed everything on a particular topic during the deposition)

Beckel v. Walmart Associates, Inc., 301 F.3d 621 (7th Cir. 2002) (statements in employee’s affidavit in opposition to summary judgment could not be credited because it was consistent with deposition testimony given in response to questions whether the plaintiff “remembered anything else” that had been said, to which she said “No”)

Owens v. TelePerformance USA, 2009 WL 3719411, No. 04 C 3645 (N. D. Illinois November 4, 2009) (portions of affidavit stricken where plaintiff attempted to add additional, new information despite having answered “Yes” in deposition when asked “Have you now told me everything that you felt was unfair or discriminatory?” and “And you’ve told me everything that was said to you at the time?”) 

In this episode, Jim Garrity discusses a question he got from a lawyer whose corporate opponent refused to make the CEO available for deposition under the "apex doctrine." Garrity explains the advice he gave, which was to immediately notice a designated-representative deposition under Fed. R. Civ. P. 30(b)(6). He also discusses the value of designated-representative depositions in arbitration, where - because of sharp restrictions on the number of depositions that can be taken - many witnesses will similarly be off-limits.

In this episode, Jim Garrity highlights a June 17, 2022 court ruling where Fed. R. Civ. P. 56(d) was in play. This rule allows you to ask a court to defer ruling on a prematurely-filed summary judgment motion, in order to allow you more time to complete depositions for use in opposing the motion. Here, Garrity dives deep into the rule, and into the winning and losing ways to draft or oppose FRCP 56(d) motions. Our Lessons from the Front Lines episodes spotlight brand-new deposition-related court rulings from around the country. So it's important to bear in mind that the rulings highlighted in these kinds of episodes are subject to revision, challenge, appeal, modification, or withdrawal. Thank you as always for listening.

SHOW NOTES

Fed. R. Civ. P. 56(d)

Koeppel v. Hartford Accident & Indemnity Co., 2022 WL 2191670 (E. D. La. June 17, 2022) (court declined to reconsider summary judgment motion because upcoming depositions would provide the missing proof where plaintiff’s counsel did not ask the court to defer ruling on summary judgment prior to the ruling)

Ocean Garden Products Inc. v. Blessings Incorporated 2020 WL 3545564, Case No. CV-18-322-TUC-RM (D. Ariz. 2020) (Rule 56(d) motion granted based on showing where good cause shown; excellent example of superior Rule 56(d) motion at Doc. 386 on Pacer.gov)

Patrick v. PHH Mortgage Corp., 2014 WL 713272, 998 F. Supp. 478 (N.D. W. Va. 2014) (Rule 56(d) motion denied where motion made only vague claims about what it would get and from whom)

Bunio Victory Packaging, L.P., 2020 WL 5203446 (E.D. Cal. 2020) (rule 56(d) motion granted in case where pro se plaintiff made legitimate showing)

Intervarsity Christian Fellowship/USA v. The University of Iowa, 2019 WL 9575232, Case No. 3:18-cv-80S-MRS-BJ (S. D. Iowa 2019) (Rule 56(d) motion granted where movant made good-faith showing of need for discovery, and where summary judgment motion was filed very early)

Papineau v. Brake Supply Company, Inc., 2020 WL 6704586, Case No., 4:18-CV-168-JHM (W.D. Ky 2020) (Rule 56(d) motion denied where factors weighed against holding dispositive motion in abeyance, being (a) when movant learned of issue needing more discovery, (b) whether the desired discovery would change potential ruling, (c) how long discovery has been open, (d) whether movant was diligent or dilatory, and (e) whether party filing dispositive motion was responsive to discovery requests)

N.K. Collins, LLC v. Williams Grant & Sons, Inc., 472 F. Supp. 3d 806 (D. Haw. 2020) (Rule 56(d) motion granted)

Hodgin v. UTC Fire & Security Americas Corp, Inc., 2018 WL 1308605, 885 F.3d 243 (4th. Cir. 2018) (affirming denial of 56(d) motion and grant of summary judgment; question on 56(d) motion isn’t whether discovery remained open but whether party seeking to defer ruling had reasonable opportunity to conduct essential discovery)

Federal Housing Finance Agency v. Las Vegas Development Group, LLC, 2021 WL 5359593, Case. No. 20-15658 (9th Cir. 2021) (affirming grant of summary judgment and denial of 56(d) motion where movant’s papers offered no reason to believe additional discovery would uncover evidence contradicting hundreds of pages of records and declarations proving key points)

Avery v. E & M Services, LLC, 2020 WL 4606840, No. 1:18-CV-00258 (D. N. Dakota 2020) (summary judgment denied without prejudice to allow parties to conduct more discovery)

Cimontubo – Tubagens e Soldadura, LDA v. Petroleos de Venezuela, S.A., 2022 WL 2155285, No. 21-875-CV (2d Cir. 2022) (affirming grant of summary judgment and denying 56(d) motion; while due process requires an opportunity to present every available defense, defendant already had opportunity and may not have timely asked for more time)

Junk v. Board of Governors of Federal Reserve System, 2022 WL 363776, Case No. 19-3125-CV (2d. Cir. 2022) (affirming summary judgment and denying 56(d) motion, saying movant didn’t meet applicable standards)

Cline v. Dart Transit Company, 804 Fed. Appx. 307 (6th Cir. 2020) (reversing summary judgment and denial of 56(d) motion where trial judge limited discovery period to 90 days and allowed plaintiff a single deposition)

Smith v. OSF Healthcare System, 933 F. 3d 859 (7th Cir. 2019) (reversing denial of 56(d) motion and grant of summary judgment where movant demonstrated good cause to warrant deferral of ruling on dispositive motion)

Laborers’ Pension Fund v. Midwest Brickpaving, Inc., 2020 WL 264752 (N. D. Ill. 2020) (denying 56(d) motion, in part asserting that six months was more than ample discovery period, given facts of case; court expressed disdain for filing of combination summary judgment response and 56(d) motion)

Huff v. United States, 2021 WL 2533443, Case No. 3:20-CV-00942-MAB (S.D. Ill. 2021) (granting motion to defer ruling on summary judgment)

Furrion Property Holding Limited v. Way Interglobal Network, LLC, 2021 WL 4263757, Case No. 3:19-CV-566-PPS-MGG (N.D. Ind. 2021)

Stroh Die Cast LLC v. StoneRidge Control Devices, Inc., 2022 WL 179338 (W. D. Wisc. 2022) (rejecting 56(d) motion, filed as combination document with opposition to summary judgment, as filed too late)

In this episode, Jim Garrity offers critical tips for preparing deponents who suffer from severe speech impediments. If left unaddressed, much of the deponent's testimony will be lost. It doesn't need to be that way, and Garrity offers a host of valuable practice tips to help litigators on both sides of this issue. This episode is based on the 13 reported court decisions in the show notes below. (And one more thing? Would you please go to our podcast, wherever you download it, and leave us a 5-star rating right now? That's a huge way to send us a thumbs-up for the insights and research we provide free in every episode. It means a lot to us, and won't take more than 30 seconds. Thanks in advance from our entire production team.)

SHOW NOTES

Smith v. State, 957 A. 2d 2 (S. Ct. Delaware 2008) (sexual battery conviction affirmed where victim, suffering from cerebral palsy, testified before trial with mother as interpreter, and at trial with assistance from expert speech pathologist who had worked with victim for six years); see also State v. Smith, 2019 WL 6194130 (Superior Court Delaware 2019) (petition for post-conviction relief denied where no evidence that use of interpreter rendered testimony inaccurate)

Reed v. State, 287 S.E.2d 205 (Ga. 1982) (court allowed court reporter to function as “interpreter” for criminal defendant with speech impediment, and also instructed jury to raise hands if they did not understand defendant; conviction affirmed)

State v. Holmes, 2012 WL 4086169 (Superior Ct. Delaware Aug. 22, 2012) (eyewitness to shooting suffered from expressive aphasia, and could not verbally articulate his answers, but could point and nod his head; held, this was sufficient to credit the testimony is reliable)

State Farm Life Ins. Co v. Smith, 66 Ill. 2d 591 (Supreme Ct. Ill. 1977) (dissent sharply criticizing majority opinion for apparently discounting the qualitative value of an eyewitness’s testimony because of a severe speech impediment, seemingly equating the impediment with confusion and unreliability)

In re Matter of Cohen, 2011 WL 2610663 (S. Ct. N. J. 2011) (courts decision to allow deponent to have his speech pathologist aid during deposition in translation of his testimony was harmless error, over objections that pathologist was not truly neutral and might interpret, rather than translate; excellent extended discussion of issue)

Trammell v. State, 53 Ala. App. 246 (Ct. Crim. App. 1974) (criminal conviction affirmed despite objection that sole eyewitness to fatal stabbing had suffered a stroke, causing trial judge to allow witness to be interrogated by leading questions, with answers given mostly by negative or affirmative nods of the head)

People v. Seel, 68 Ill. App. 3d 996 (App. Ct. Ill. 1979) (failure of defense counsel to adapt to speech limitations of key witness was as likely an explanation for contradictions in the witnesses testimony as possible dishonesty, saying that usual verbal pyrotechnics do not work with speech-impaired witnesses)

McGee v. State, 383 So.2d 200 (Ct. Crim. App. Ala. 1979) (conviction affirmed where repeated references to “unintelligible testimony in trial transcript left appeals court unable to say that error was committed at trial)

Gissendaner v. State, 54 Ala. App. 535 (Ct. Crim. App. Ala. 1975) (conviction reversed where state attempted to bolster testimony of speech-impaired witness out of concern that jury would discount witness’ testimony)

Kissic v. State, 594 So.2d 227 (Ct. Crim. App. Ala. 1991) (conviction affirmed despite argument that trial court should not have allowed testimony from witness who speech impediment allegedly made testimony unintelligible and misleading; held, evidentiary objection was made only after testimony had concluded, and was thus waived)

Parker v. State, 172 Ga. App. 540 (Ct. App. Ga. 1984) (conviction affirmed despite objections that prosecution was allowed to lead one of its witnesses, in light of witnesses testimony that he suffered from speech impediment)

EFFYIS, Inc. v. Hottolink, Inc., 2020 WL 13157804 (E.D. Mich. June 10, 2020) (court allowed taxability of “check translator” retained to verify the translation of documents)

http://www.voiceitt.com (example of speech-assistive devices “for people with non-standard speech”)

http://www.aphasia.com (Lingraphica device website)

In this episode, Jim Garrity discusses a brainstorming meeting he had with the podcast staff about show topics for the coming year. One member suggested he develop a "top five list" of things that litigators should be doing, but aren't. Bad idea! As Garrity explains in the episode, there is no single list of things all trial lawyers should do. Effective deposition plans are highly individualized. So one-size-fits-all checklists for litigators, applied mechanically, foster the very opposite of truly brilliant deposition practice. Garrity uses this episode instead to talk about five things that immediately came to mind, and that brand-new lawyers might give thought to, when building their own toolkit of deposition skills.

In this episode, Jim Garrity explores the psychological impact of seating arrangements, and how various seating configurations affect the way witnesses and deponents perceive you. As he explains, some seating arrangements are intuitively collaborative in nature, and give off friendly, cooperative vibes. Others, the research shows, can create negative energy from the outset. As always, he ends with practical guidance and insights on the best places to sit - vis-a-vis your subjects - for depositions and witness interviews.

SHOW NOTES

Sommers, Robert, Studies in Personal Space, Sociometry Journal,March 1959, American Sociological Association https://faculty.buffalostate.edu/hennesda/sommer%20personal%20space.pdf

Zhu, Rui and Argo, Jennifer,Exploring the Impact of Various Shaped Seating Arrangements on Persuasion,Journal of Consumer Research, Vol. 40, No. 2 (Aug. 2013), Oxford University Press

Morris, Juliann, The Effects of Seating Arrangements on Small Group Leadership Emergence, Vol. 16 (2018), University of Hawaii at Hilo Press

Van Edwards, Vanessa, Learn the Psychology of Conference Table Seating According to Science, Mar. 13, 2019, published on Medium.com

Russell, J. Curtis and Baron, Reuben M., Seating Arrangement and Social Influence: Moderated by Reinforcement Meaning and Internal-External Control, pub. In Social Psychology Quarterly,  Mar. 1980, Vol. 43, No. 1.

Lattimore, Karlson Lajuan, The Effect of Seating Orientation and a Spatial Barrier on Students’ Experience of Person-Centered Counseling, Graduate Thesis (Aug. 2013), Cornell University

Maximize the Impact of Seating Formations (undated), published on www.westsidetoastmasters.com.

In this episode, Jim Garrity ponder the issue whether you're immediately entitled to obtain notes taken by a deponent while testifying or, to go a step further, the notes of non-attorney witnesses observing the depositions of others. As always, Garrity offers practice tip for those seeking such notes and those opposing their production. Cases mentioned in the show are listed below.

And one more thing? Would you consider leaving us a 5-star rating, a positive review, wherever you get your podcasts? Our production staff work their tails off, and seeing a new rating is a great way to say thank you for their efforts. We appreciate it!

SHOW NOTES

Knowledge A-Z, Inc., 2007 WL 4553347, No. 1:05-CV-1019-RLY-WTL (S. D. Ind. Dec. 19, 2007) (corporate president took notes during his individual deposition and while testifying as corporate representative, at the conclusion of which counsel for defendant demanded the notes; held, whether plaintiff’s assertion of attorney-client privilege is correct or not, “the notes clearly are protected by the work product privilege,” and “Accordingly, they are not discoverable and the motion to compel is denied”)

Brown v. Northrup Grumman Corp., 2013 WL 3816659, Case No. CV-12-1488(JS)(ETB) (E.D.N.Y. 2013) (plaintiff sought to obtain handwritten notes taking by representative of corporate defendant during plaintiff’s deposition; held, notes were protected by attorney work-product doctrine, even if witness testified he was taking them of his own volition, where he took them for the purpose of sharing his observations with defense counsel and, further, partial production of notes did not constitute waiver of complete set of notes)

Milwaukee Concrete Studios, Ltd., v. Greeley Ornamental Concrete Products, Inc., 140 F.R.D. 373 (E.D. Wisc. December 9, 1991) (notes taken by employees of plaintiff during other witnesses depositions were not discoverable in were protected by the attorney-client privilege because they were preparing materials on behalf of their employer)

Moore v Kingsbrook Jewish Medical Center, 2012 WL 107800, Case Nos. 11-CV-3552 and 11-CV-3624 (E. D. N. Y. March 30, 2012) (pro se deponent’s notes, taken during her deposition, were protected by work-product privilege just the same as if she had a lawyer taking notes during her deposition for her)

Jones v. Bank of America, N.A., 2015 WL 180916, Case No. 3:14-CV-11531 (S. D. W. Va. April 21, 2015) (30(b)(6) deponent brought handwritten notes of previous interviews with defense employees to deposition, answered questions about them, and read portions of her notes into the record; held, assertion of attorney-client privilege, in the complete absence of objections during the deposition, resulted in waiver and were unavailing to avoid production)

Valvoline Instant Oil Change Franchising, et al., v. RFG Oil, Inc., 2014 WL 12026073 (S. D. Cal. May 20, 2014) (deponent’s limited use during deposition of timeline prepared at direction of counsel resulted in partial waiver, but only to those portions of the timeline that the witness actually reviewed and testified from during deposition; Rule 612’s provisions that allow for the disclosure of documents used to refresh memory for the purpose of testifying requires careful analysis based on the extent to which documents were consulted and relied upon, balanced against the unnecessarily broad waiver of privilege)

Flores v. Wall, 2012 WL 4471106, Case No. 11-69-m (D. Rhode Island Sept. 6, 2012) (“The practice of deponents referring to notes during their depositions is not uncommon”) 

In this episode, Jim talks about the problems associated with taking document-intensive depositions of remote video deponents who are participating on their cellphones. As always, Jim offers specific practice pointers for solving the problem. Have a great week!

In this episode, Jim Garrity explains what constitutes improper coaching during depositions, and offers a wide range of examples. As always, cases mentioned in the episode appear below in the show notes. Thanks for listening! And if you haven't checked out the book on which this podcast is based, you can find it on Amazon and just about everywhere else. Look for 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Now in its third edition at 450 pages, in both print and electronic formats.

SHOW NOTES

In re Neurotin Antitrust Litigation, 2011 WL 253434, Case No. 02-1390(FSH) (D. N. J. Jan. 25, 2011) (frequently-cited case cataloging examples of improper deposition coaching)

Freidman v. Fayenson, 983 N.Y.S.2d 203 (Supreme Ct. N.Y. Dec. 4, 2013) (comments such as “if you understand the question you can answer,” and “If you recall,” are improper coaching)

Sokn v. Fieldcrest Community Unit School District, 2014 WL 201534 (U.S.D.C. Ill. Jan 17, 2014) (defense counsel improperly directed deponent to cut off answer, and then improperly objected when plaintiff’s counsel tried to get the witness to finish answer; held, it is clear defense counsel was trying to impede plaintiff's counsel from getting complete response from the witness, which is sanctionable misconduct)

Big Top USA, Inc. v. Wittern Group, 183 F.R.D. 331 (U.S.D.C. Mass. Nov. 20, 1998) (dismissing case as sanction for numerous discovery violations, and providing examples of improper coaching during deposition)

ADDED AFTER EPISODE AIRED:

In the Matter of Rosin, 212 N.Y.S. 3d 633 (N. Y. S. S. Ct., App. Div. June 11, 2024) (lawyer publicly reprimanded for coaching deponent during remote deposition)

In this episode, Jim Garrity discusses an April 18, 2022, opinion from a federal appellate court, about a dispute between the parties over the accuracy of the stenographic transcript of the plaintiff's deposition. Despite the arguments made at the trial level about errors in the transcript, neither the parties nor the trial judges apparently obtained the audio of the deposition and made it a part of the record. That prompted the appellate court to vacate the summary judgment ruling and send the case back to the trial judge, with instructions for the court and parties to listen to the audio and report back to the Eleventh Circuit. As you know, Garrity has long advocated that litigators independently audiotape their depositions. This case perfectly proves his point.

Our Lessons from the Front Line episodes are based on brand-new deposition-related court rulings from around the country. Because the rulings discussed in these episodes are in fact newly-issued, listeners should bear in mind that the rulings are subject to appeal, challenge, modification or withdrawal. The case discussed in this episode is still pending.

SHOW NOTES:

Reed v. Pediatric Services of America, Inc., Case No. 21-10159 (11th Cir. April 18, 2022) (vacating summary judgment and remanding for trial court to evaluate, based on audio recording of deposition, the accuracy of the stenographic transcript)

Reed v. Pediatric Services of America, Inc., Case No. 4:20-cv-00064-HLM-WEJ, CM/ECF Doc. 47 (N. D. Ga. October 15, 2020) (order rejecting pro se plaintiff's motion challenging accuracy of deposition transcript)

Reed v. Pediatric Services of America, Inc., Case No. 4:20-cv-00064-HLM-WEJ, CM/ECF Doc. 71 (N. D. Ga. December 17, 2020) (order granting summary judgment)

Today Jim Garrity offers up 14 different, caselaw-supported, arguments to protect your client from being taxed with an opponent's videographer costs following an adverse case outcome. Many lawyers take for granted that the taxation of videographer charges is just as inevitable as for stenographic transcripts. That just isn't so. Listen for more. And remember our show notes contain all the cases mentioned in the episode. Today there are 18 cases in the list. If you can't see them all, click through to our show's home page. Thanks for listening!

SHOW NOTES:

Hemingway Villa Condominium Owners Association, Inc. v. Scottsdale Insurance Company, 2021 WL 7540794, Case No. 1:20-CV-24365-KMM (S. D. Fla. November 22, 2021) (citing FRCP 54(d) and 28 U.S.C. 1920 as authority for taxation of costs, and reciting fact that costs for deposition transcripts are taxable as long as the transcripts were necessarily obtained for use in the case; noting that not all deposition costs, however, are recoverable, including shipping and handling, expedited delivery of transcripts, exhibit costs, or condensed transcripts)

Farmer v. Arabian American Oil Co., 379 U.S. 227, 235 (1964), disapproved on other grounds by Crawford Fitting Co v. J. T. Gibbons, Inc., 482 U. S. 437, 442-43 (1987) (while prevailing party is ordinarily entitled to recover costs, a district court does not have unfettered discretion to award any and every cost that the wing party incurred in pursuit of their case)

Alvarez v. Lakeland Area Mass Transit District, 2020 WL 13119059, Case No. 8:19-CV-01044-33 SPF (M. D. Florida October 2, 2020) (detailing basic standards for taxability of deposition related costs; rejecting taxability of costs for “E – litigation package,” exhibits, scanning, hyperlinking, and shipping and handling;” further rejecting taxability of videographer charges without an explanation from the prevailing party on why the videography was necessary)

Bostick v. State Farm Mut. Auto. Ins. Co., No. 8:16-CV-1400-T-33AAS, 2018 WL 1474712 (M.D. Fla. Mar. 8, 2018), report and recommendation adopted, No. 8:16-CV-1400-T-33AAS, 2018 WL 1461741 (M.D. Fla. Mar. 23, 2018) (video deposition costs may not be awarded under Section 1920(2) without an explanation from the prevailing party on why the video deposition was necessary, citing Morrison v. Reichhold Chem., Inc., 97 F.3d 460, 465–66 (11th Cir. 1996)

Walter v. Wal-Mart Stores, Inc. 2011 WL 13394675 (N. D. Indiana November 4, 2011) (while videography expenses associated with the deposition or of a qualifying type for taxability, the costs may only be taxed if the deposition recordings were necessarily obtained for use in the case; the proper inquiry is whether the deposition was “reasonably necessary” to the case at the time it was taken, not whether it was used in a motion or in court)

Harris Brumfield, Trustee, et al. v. IBG LLC, et al., 2022 WL 972277 (N. D. Illinois March 31, 2022) (court resolve dispute over taxability of videotaping depositions by declining to award costs as to those individuals who resided within the Court’s subpoena jurisdiction at the time of their depositions and at the time of trial, and thus were available for in-person testimony)

Cascades Computer Innovation, LLC v. Samsung Elecs. Co., No. 11 C 4574, 2016 WL 612792, at (N.D. Ill. Feb. 16, 2016) (“A prevailing party may recover costs for both a paper transcript and a video recording of a deposition, but only when it was "reasonable and necessary" for counsel to obtain both,” citing. See Little v. Mitsubishi Motors N. Am., Inc., 514 F.3d 699, 702 (7th Cir. 2008) )

Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (“… unless Champion demonstrates that both costs were “necessarily obtained for use in the case,” 28 U.S.C. § 1920(2), only its transcription costs are recoverable. See Tilton, 115 F.3d at 1478 (adopting similar standard and stating that the district court must find an independent, legitimate use for both the transcription and the video recording before both sets of costs can be recovered under 28 U.S.C. § 1920(2))

Trading Techs. Int'l, Inc. v. eSpeed, Inc., 750 F. Supp. 2d 962, 977 (N.D. Ill. 2010) (“After evaluating the necessity of each video deposition on a case-by-case basis, we find that both stenographic transcription and video-recording was only reasonably necessary for the depositions of witnesses living abroad whom TT disclosed as potential witnesses for trial”)

Morrison v. Reichhold Chemicals, Inc., 97 F.3d 460 (11th Cir. 1996) (costs of both videography and stenography recoverable where party opposing bill of costs did not object to the duplicative methods of capturing testimony at the time the deposition was noticed)

Cherry v. Champion Int'l Corp., 186 F.3d 442, 446–47 (4th Cir. 1999) (“The discretion conferred by Rule 54(d)(1), while only defined in the rule as a general reservation, “unless the court otherwise directs,” has been defined more specifically by courts: “only misconduct by the prevailing party worthy of a penalty ... or the losing party's inability to pay will suffice to justify denying costs.” Congregation of The Passion, Holy Cross Province v. Touche, Ross & Co., 854 F.2d 219, 222(7th Cir.1988) (citations omitted); see also Schwarz v. Folloder, 767 F.2d 125, 131 (5th Cir.1985) (describing the denial of costs as “in the nature of a penalty” (internal quotation marks and citation omitted)); Serna v. Manzano, 616 F.2d 1165, 1167 (10th Cir.1980) (same). We have recognized additional factors to justify denying an award of costs, such as their excessiveness in a particular case, the limited value of the prevailing party's victory, or the closeness and difficulty of the issues decided. See Teague, 35 F.3d at 996. Although the losing party's good faith in pursuing an action is a “virtual prerequisite” to receiving relief from the normal operation of Rule 54(d)(1), that party's good faith, standing alone, is an insufficient basis for refusing to assess costs against that party. See id. With these principles in hand, we turn to the district court's denial of costs in this case”)

Cherry v. Champion Int'l Corp., 186 F.3d 442, 449 (4th Cir. 1999) (“Champion asserts that videotaping Cherry's deposition was necessary to enhance its chances of effectively impeaching Cherry at trial. While that may be so, § 1920(2), read in conjunction with Rule 30(b)(2), requires more. The concept of necessity for use in the case connotes something more than convenience or duplication to ensure alternative methods for presenting materials at trial. See Fogleman v. ARAMCO (Arabian American Oil Co.), 920 F.2d 278, 285 (5th Cir.1991) (stating that deposition costs reasonably incurred for trial preparation or for use at trial, “rather than for the mere convenience of counsel,” constitute taxable costs under 28 U.S.C. § 1920(2)). While there surely are circumstances when both a videotape and a transcript of a deposition may be necessary, Champion has not made the showing why either a transcript or a videotape would not have been sufficient for the need it identified. We cannot conclude that the district court abused its discretion in concluding, based upon the circumstances of this case, that it would deny both the cost to videotape and the cost to transcribe Cherry's deposition testimony. Accordingly, we will allow only transcription costs”)

Thomasson v. GC Services Limited Partnership, 2007 WL 3203037, Case No. 05-cv-0940-LAB-CAB (S. D. California October 29, 2007) (argument of inability to pay costs, as way to avoid taxation, should be based on substantial documentation of a genuine inability to pay, citing McGill v. Faulkner, 18 F.3d 456, 459 (7th Cir. 1994))

Teter v. Project Veritas, et al., 2022 WL 989229 (W. D. North Carolina March 31, 2022) (providing examples of when videography is necessary and reasonable above and beyond stenography, saying that videography was taxable where the deponent demonstrated physical gestures and answered questions by pointing to visual exhibits, whereas videography would not be taxed on the grounds of unnecessary expense where the sole purpose was to play video clips for impeachment purposes at trial, since the stenographic transcript would serve that function just as well)

Craftsman Limousine, Inc., et al. v. Ford Motor Company, et al., 579 F.3d 894 (8th Cir. 2009) (while 28 USC 1920 doesn’t explicitly refer to taxability of videotaping, video depositions are allowed by rule, implicitly authorizing taxation of such costs)

Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1477 (10th Cir. 1997) (28 USC 1920 implicitly permits taxation of costs of video deposition)

St. Francis Medical Center, et al. v. C. R. Bard, Inc., 2010 WL 1980328 (E. D. Missouri May 18, 2010) (court declined to tax video costs against losing plaintiff where some witnesses were noticed by plaintiff, not defendant, and such witnesses were defendant’s own employees or experts; the implication being that the duplicative method of recording that the noticing plaintiff did not choose, and which were of employees or experts or consultants of defendant, were not “necessarily obtained for use in the case,” especially where such were not cited by Defendant in its summary judgment motion; court also declined to tax text/video synchronization expenses)

Kriegel v. St. Thomas Beach Resorts, Inc., 1981 WL 704985, Case No. 78 – 362 (D. Virgin Islands Feb. 26, 1981) (example of outdated decision saying that videotape depositions cannot be taxed as costs absent agreement by the parties or advance court order)

Today, Jim Garrity interviews the chief legal officer of a company that offers commodity-priced transcripts with all the bells and whistles of the most expensive traditional court reporters. In the episode, the CLO, Dean Whalen, walks through the easy ABCs of using his company for reporting services. Here's a blurb from the company's website to give you a flavor for what you'll hear in the interview: "Active Reporting replaces all the annoying add-on fees with all the rich services litigators need to perform their best for a low, flat fee based on the duration of the proceeding. View the transcript as it comes together during the proceeding and get a rough copy one hour after the proceeding, all included. Need a certified transcript? How does one business day sound? No rush fee - it's standard. Need technical support or help with displaying exhibits? All included."

You've heard Jim rail on about the costs of conducting depositions. He has one of the heaviest civil (and deposition) practices in the country, and his firm pays eye-popping bills every week. This episode shows there are legitimate, outstanding options for litigators who, like Jim, are completely over the excessive fees charged by legacy reporting services.

And if you've got an extra 20 or 30 seconds, please leave us a five-star review wherever you get your podcast downloads. Our podcast staff invests a great deal of time each week in episode development and research, and those "thank-you's" in the form of a quick five-star rating really fires them up!

No, we can't explain it here! You'll have to listen to find out. It's our way of thanking listeners for making this the top podcast in the country on civil pretrial deposition strategies and tactics!

In this episode, Jim Garrity tackles the question whether you can bluff a dishonest deponent - for the purpose of encouraging the witness to be truthful - by implying you have evidence that actually doesn't exist? This episode discusses a decision that confronted this precise question. A lawyer placed cassette tapes on a table in front of a deponent during the examination. The tapes were suggestively labeled to imply that the tapes contained recordings of the witness' conversations, although they contained nothing of the kind. Learn more by listening to the episode. As always, email us with questions, comments, or show ideas at DepositionPodcast@JimGarrityLaw.com.

SHOW NOTES:

Cincinnati Bar Association v. Statzer, 800 N.E.2d 1117 (Ohio 2003) (disciplinary action initiated against trial lawyer who used props at deposition to incentive potentially-dishonest witness to be truthful)

Green, Bruce, Deceitful Silence, 33 No. 2 LITIG 24 (2007) (discussing the use of trickery in litigation)

Disciplinary Counsel v. Brockler, 48 N.E.3d 557 (Ohio 2016) (prosecutor suspended from practice for one year, based on his creation of a bogus Facebook page, which he allegedly used to communicate with a defendant's alibi witness; the goal was to see if he could create sufficient dissension between the witness and the defendant to cause her to recant her support)

*Added after first airing of this episode:

Boulder Falcon, LLC v. Brown, No. 222CV00042JNPJCB, 2023 WL 2662187, at *17 (D. Utah Mar. 28, 2023) ("Second, asking Mr. Vitek questions asserting adverse facts that Mr. Cohan knew or clearly should have known were false is hardly fair under any sense of that word")

Matter of Rena, 225 A.D.3d 1055, 206 N.Y.S.3d 817 (2024) ("In January 2023, respondent was suspended from practice for a 90-day term by the Supreme Court of Florida upon respondent's consent and her admission that, in the context of her representation of a criminal defendant, she had used an altered photo pack in her deposition of a child witness in violation of Florida law")

In this episode, Jim Garrity addresses one of the most widely-held misconceptions about deposition practice. He also provides practice tips when an opposing lawyer "invokes the rule" and demands that one or more of your attendees leave the deposition room, to prevent them from hearing a deponent's testimony. Garrity also shares tips from the opposite viewpoint - what to do when you're the lawyer who wants attendees excluded. As always, we've included case citations below to decisions on the topic covered in this episode. Thanks for listening! (Questions? Topics you'd like to suggest Jim cover? Email us at depositionpodcast@jimgarritylaw.com).

SHOW NOTES

Panama City Beach Condos, Limited Partnership, etc., 2009 WL 10674351 (N. D. Florida February 3, 2009) (sanctions imposed against lawyer who frivolously argued that FRE 615 applied to depositions and required exclusion of certain people from deposition room)

BCI Communications Systems, Inc. v. Bell Atlanticom Systems, Inc., et al., 112 F.R.D. 154 (N. D. Alabama September 16, 1986) (defendants not entitled as of right to invoke rule of sequestration in oral civil depositions, where only reason asserted for protective order was garden or boilerplate variety, such as risks of collusion or fabrication)

Hamon Contractors, Inc. v. District Court of First Judicial District, 877 P. 2d 884 (Colo. 1994) (holding that state court evidence rule 615 does not apply to depositions, and that general rule authorizing protective orders was proper mechanism to seek exclusion of persons from depositions)

Rocha v. Unknown Parties, et al., 2020 WL 6063295 (D. Arizona October 14, 2020) (rejecting application of rule of sequestration based on generic arguments that three police officers would coordinate their testimony if they sit in on each other’s depositions)

Brown v. U. S. Department of Veterans Affairs, et al., 2019 WL 13137937, Case No. 18-cv-54-PB (D. New Hampshire April 16, 2019) (plaintiff allowed to have person present in deposition to provide “moral support,” although person could not participate in any way in the deposition)

Howlett v. Chiropractic Center, P. C. 460 P.2d 942 (Sup. Ct. Montana March 31, 2020) (holding that state rule of evidence 615 did not apply to depositions, and also noting that plaintiff did not seek to have rule of sequestration applied to perpetuation deposition)

Huber Baking Co v. Frank C. Sparks Co, et al., 81 A.2d 132 (Superior Court of Del. April 24, 1951) (motion for protective order seasonably made on day of deposition where movant had no reason to believe multiple people would attempt to sit in on deposition)

Smith v. Southern Baptist Hospital of Florida, Inc., etc. et al., 564 So.2d 1115 (Fla. 1st DCA 1990) (rule of sequestration applies at trial, not to depositions, and can only be accomplished in depositions through rule authorizing protective order to protect against annoyance, embarrassment, oppression, or expense; held, nonparty doctor could sit in and observe deposition)

Federal Rule of Evidence 615 (sequestration rule)

Federal Rule of Civil Procedure 30(c)(1) (specifically excluding rule of sequestration from application to depositions)

Federal Rule of Civil Procedure 26(c)(1)(E) (authorizing court to designate who may, and may not, attend depositions in a given case)

As you know, our Lessons from the Front Lines episodes spotlight brand-new court rulings from around the country on deposition-related topics. Today's case in the spotlight raises an issue we covered last year in Episode #49 - whether a lawyer can properly ask deponents during depositions to search their cell phones for information (assuming the deponent was not subpoenaed to bring the information or device). In this episode, Jim Garrity tells you exactly what questions the lawyer asked, what the deponent said in response, and what led the judge to issue a public reprimand because of the lawyer's conduct. Garrity also explains how the lawyer could have easily avoided running afoul of governing rules, and wraps up by asking you four questions to ponder about your own experience with similar issues in deposition.

SHOW NOTES:

Lafferty, et al. v. Alex Jones, et al., 2022 WL 490381, Sup. Ct. Case No. Xo6UWYCV186046436S (Sup. Ct Connecticut January 28, 2022) (lawyer publicly reprimanded for questions and comments posed to unrepresented, nonparty deponent about whether witness was willing or obligated to search his cell phone during the deposition)

In this episode - the first in a new series this year on testimonial privileges that can impede your efforts to depose witnesses - Jim Garrity explains the "legislative privilege," applicable to legislators and others who engage in legislative functions. It's not the same as "legislative immunity," and as with all privileges, there are ways to depose witnesses who can assert it. In this episode, there are fifteen cases cited in the show notes. If you can't see all fourteen, click through to our home page. (Some podcast sites don't accommodate longer show notes.) Thanks!

(NOTE: We add new cases to show notes when appropriate. These notes contain one or more new decisions issued after the episode was first aired. Scroll to bottom for newest decisions.)

SHOW NOTES:

Bogan v. Scott-Harris, 520 3U. S. 44, 53 (1972) (focus of the analysis is on the nature of the accused act; held, ordinance in question was legislative, because it reflected a discretionary, policymaking decision implicating the budget priorities of the city and the services the city provides to its constituents)

McKnight v. Brown, et al., 2022 WL 488607, Case No. 120-cv-03678-PAB-SKC (S. D. Colo. Feb. 17, 2022) (plaintiff may not assert otherwise-valid Fifth Amendment privilege to avoid answering any deposition questions, such as background questions, questions concerning his criminal convictions (if any) consistent with Fed. R. Evid. 609; and questions regarding his damages and injuries claimed in the case)

Bannum, Inc v. City of Beaumont, Texas, 236 F. Supp. 2d 633 (E. D. Texas December 12, 2002) (granting motion for protective order as to city clerk, city council, and planning and zoning commission, because discretionary decision on the issue - where a halfway house should best be placed - was a policy decision implicating the interests of the city as a whole)

Bryan v. City of Madison, 213 F. 3D 267, 274 (5th Circuit 2000) (concluding that actions involving a decision to rezone a property were entitled to legislative immunity)

Singleton V. Merrill, 2021 WL 5979516, Case No. 2:21-cv-1291-AMM, and 2:21- CV-1530 -AMM (immunity and privileges lost when legislators actively participated in litigation pertaining to legislation they helped draft)

Gross v. Winter, 1989 WL 54866 (D.C. Circuit May 26, 1989) (District of Columbia Council member not entitled to absolute legislative immunity, because termination of legislative researcher was administrative, not legislative act)

Rateree, et al. v. Rockett, et al., 852 F.2d 946 (7th Cir. 1988) (actions of city commissioners in approving budget decision to eliminate jobs were “legislative actions,” rather than administrative actions, and thus commissioners were entitled to absolute immunity)

Forrester v. White, 108 S.Ct. 538 (1988) (termination of probation officer did not give rise to absolute immunity from suit)

Page v. Virginia State Board of Elections, 15 F. Supp. 3d 657 (E. D. Virginia 2014) (legislative privilege did not apply to independently-contracted legislative consultant retained by a political party)

Rodriguez v. Pataki, 280 F. Supp. 89 (S. D. N.Y. 2003) (collecting cases on the contours of the concept of legislative immunity and privilege; immunity and privilege are distinct concepts; privilege not always absolute)

Marylanders for Fair Representation, Inc. v. Schaefer, 144 F.R.D. 292 (D. Maryland 1992) (mixing concepts of immunity and privilege, referring to protection for legislators as “testimonial legislative immunity”)

Trammel v. United States, 445 U.S. 40, 50 (1980) (discussing the impact of privileges on litigation, and observing that testimonial privileges should be very narrowly construed)

Florida Association of Rehabilitation Facilities, Inc. v. State of Florida, Department of Health and Rehabilitation, 164 F.R.D. 257 (N. D. Fla. 1995) (analyzing differences between legislative immunity and testimonial privileges)

E. E. O. C. v. Washington Suburban Sanitary Commission, 631 F. 3d 174 ( 4th Circuit 2011) (employment in personnel decisions by legislators are generally administrative acts and not protected by legislative immunity and privilege)

Hicks v. Mount Airy-Surrey County Airport Authority, 2015 WL 8484453 (M. D. North Carolina 2015) (termination and nonrenewal of leases at airport was not legislative in nature because the decisions affect specific individuals rather than involving the formulation of broad policy or the adoption of perspective, legislative-type rules that affect the general policy affecting the larger population) 

**League of United Latin American Citizens, et al. v. Eddie Bernice Johnson, et al., No. EP21-CV-00259-DCG-JES-JVB, 2022 WL 1570858 (W.D. Tex. May 18, 2022) ( rejecting effort by Texas legislators to avoid deposition through invocation of legislative privilege; excellent discussion of the doctrine's contours)

ADDED AFTER EPISODE WAS AIRED:

In re Georgia Senate Bill 202, No. 1:21-MI-55555-JPB, 2023 WL 3137982, at *2 (N.D. Ga. Apr. 27, 2023) (extended discussion of legislative privilege)

Pernell v. Fla. Bd. of Governors of State University, No. 23-10616, 2023 WL 7125049, at *2 (11th Cir. Oct. 30, 2023) ("common-law privilege protects state legislators from “deterrents to the uninhibited discharge of their legislative duty” for the purpose of “the public good.” Tenney v. Brandhove, 341 U.S. 367, 377, 71 S.Ct. 783, 95 L.Ed. 1019 (1951). Although the core of the privilege is a state legislator's immunity from civil suit for acts related to legislative proceedings, see id. at 379, 71 S.Ct. 783, we have explained that this “privilege extends to discovery requests” because “complying with such requests detracts from the performance of official duties.”)

In this episode, Jim Garrity stresses the importance of systematically asking deponents to catalogue their prior testimonial experience in any form or forum. A witness' prior testimony can be an intelligence goldmine. No company Garrity knows of maintains (or at least admits to maintaining) a readily-available record of where, when and on what its current and former employees have testified. So the best source - unfiltered by opposing lawyers - are witnesses in their depositions. Garrity shares the question he asks witnesses for this purpose, for creating a record under oath of the existence of relevant transcripts or affidavits that can then be subpoenaed, obtained through a request for production, or through FOIA.

SHOW NOTES:

Boyd v. Youth Opportunity Investments, LLC, 2022 WL 332380, Case No. 3:20-cv-321-TAV-DCP (E. E. Tennessee February 3, 2022) (order directing parties to confer about exactly what deposition testimony Plaintiff wanted from another case, and directing Defendant to produce transcripts from that case that did not contain statutorily-protected material about minors at a facility Defendant managed)

Umfress v. City of Memphis, 2018 WL 11396506, Case No. 2:17-cv-02568-SHL-TMP (W. D. Tennessee Sept. 7, 2018) (court compelled city to produce relevant deposition transcripts from related or prior litigation notwithstanding protective order applicable to those transcripts)

Rogue v. CoreLogic Credco, LLC, 2020 WL 1907558, Case No. 1:19-cv-00260-BLW  (D. Idaho April 16, 2020 (company order to redact and produce transcript from prior similar proceeding that was allegedly subject to protective order in prior pursuit)

Bayer Healthcare Pharmaceuticals, Inc., et al. v. River’s Edge Pharmaceuticals LLC, et al., 2014 WL 11517823, Case No. 1:11-cv-1634-RLV-ECS (N. D. Georgia June 25, 2014) (order clarifying that Plaintiff was to produce transcripts from depositions in another case)

In this episode, Jim Garrity does a deep dive into Fed. R. Civ. P. 27 (and its state equivalents, because virtually all U.S. states and territories have a similar rule). Rule 27 allows you to take depositions before a lawsuit has been filed - and also when a judgment has been entered and the case is on appeal - in order to perpetuate/preserve testimony. But the rule actually allows so much more. In fact, Garrity says its name, "Depositions To Perpetuate Testimony," would be more accurate if it were renamed "Discovery to Perpetuate Evidence." Listen in for a great explanation how the rule works, and some fantastic practice tips. As always, the cases upon which this episode is based are listed in the show notes, with full case names, citations, and parentheticals. There are 17 cases in the show notes today. If you don't see them all, the site where you get your podcasts may not allow extended notes. Click through to our podcast homepage if that happens, or email us at DepositionPodcast@JimGarrityLaw.com. And if you have a minute, would you please leave us a five-star rating wherever you get your podcast? Our production staff would so deeply appreciate it. Thanks!

SHOW NOTES

In Re Carl David Jones, 2022 WL 102962, Case No. 7:21-mc-00001-BP (N. D. Texas January 11, 2022) (Role 27 petition rejected where sole purpose was to determine whether a claim existed)

Qin v. Deslongchamps, 539 F. Supp. 3d 943, Case No. 21-MC-16 (E.D. Wis. 2021) (petition denied where sole evident purpose was to determine whether diversity jurisdiction existed that would allow federal court to hear case; “[t]he federal courts have held that Rule 27 can only be used to prevent known testimony from being lost, not as a discovery tool to assist in preparing a complaint”)

Freeman v. Equifax, Inc., No. 221-CV-01137-APG-NJK, 2022 WL 195006 (D. Nev. Jan. 20, 2022) (offering examples that might justify perpetuation of testimony, saying “Such circumstances might derive in a particular case where a witness is gravely ill, elderly, or likely to leave the country for a prolonged period.”)

Naswood v. Banks, No. ED-CV-091675-SVW-DTB, 2013 WL 12470383, at *6 (C.D. Cal. Mar. 19, 2013), report and recommendation adopted, No. ED-CV-091675-SVW-DTB, 2014 WL 12962026 (C.D. Cal. July 2, 2014) (inmate filed petition to preserve camera and/or videotaped evidence while exhausting his administrative remedies under the Prison Litigation Reform Act; further, “[a]lthough Fed. R. Civ. P. 27 is entitled, “Depositions to Perpetuate Testimony,” Rule 27 permits a moving party to seek “orders like those authorized by Rules 34 and 35.” See Fed. R. Civ. P. 27(a)(3); see also Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961) (“[A] party may, in a proper case, proceed under Rule 27 for an order under Rule 34 without taking a deposition at all ....”)

In re Highland Cap. Mgmt., L.P., No. 19-34054-SGJ11, 2022 WL 38310 (Bankr. N.D. Tex. Jan. 4, 2022) (FRCP applies to bankruptcy cases, pursuant to Fed. R. Bankr. Pro. 7027”)

Willis v. PCN Fin. Servs. Grp., Inc., No. 220-CV-01833-DSC-LPL, 2021 WL 6054563 (W.D. Pa. Oct. 27, 2021), report and recommendation adopted sub nom. In re Willis, No. 2:20-CV-1833, 2021 WL 6051558 (W.D. Pa. Dec. 21, 2021) (“Authorizing Petitioner's discovery of the financial information may permit Petitioner to manufacture a cause of action. “[I]t is well settled that Rule 27(a) is not a method of discovery to determine whether a cause of action exists, and if so, against whom action should be instituted.” Id. “Courts generally agree that to allow Rule 27 to be used for the purpose of discovery before an action is commenced to enable a person to fish for some ground for bringing suit would be an abuse of the rule”)

Petition of Ingersoll-Rand Co., 30 5F. R. D. 122 (S. D. New York April 20, 1964) (court denied petition where expectation that action will be filed is hypothetical)

In Re Matzinger Exploration Co., 1995 WL 258279, Case No. 95-525 (E. D. Louisiana April 28, 1995) (court allows limited written discovery prior to perpetuation deposition, finding that because requires “… The District Court to address the interests of justice, [the rule] clearly authorizes the court to issue orders incidental to the perpetuation deposition that are necessary to ensure that the goal of presenting a failure or delay of justice is achieved”)

In re Agent Orange Product Liability Litigation, 96 F. R. D. 587, 588 (E. D. N. Y. 1983) (allowing party adverse to petition to conduct written discovery prior to perpetuation deposition)

In the Matter of Isaac Sims, 389 F. 2d 148 (5th Cir. 1967) (Rule 27 petition justified in part because of key witness’ imminent departure to Peru)

Hawthorn v. Selke, et al., 2016 WL 6462110, Case No. 3:16-cv-246 (S. D. Ohio October 31, 2016 (Rule 27 petition dismissed pursuant to FRCP 12(b)(6) where petitioner merely appeared to seek general discovery, and where there was no extraordinary risk of the loss or spoilation of evidence)

In Matter of Petition of Legg Mason Investment Counsel & Trust Company, N.A., 2011 WL 1533165 (S. D. New York April 19, 2011) (court granted petition where action could be filed by date certain and key witness was 87 years old)

United Heritage Property & Casualty Company, 2018 WL 2437538 ( D. Oregon May 30, 2018) (where insurance carrier sought cell phone records, but counsel conceded he did not know when or how such records would be destroyed, Rule 27 petition would be denied and dismissed)

Martin v. Reynolds Metals Corp. 297 F 2d 49 (9th 1961) (possible loss of proof by company that expected to be accused of causing harm to cattle ranching operations justified Rule 27 petition, where deceased cattle possibly affected by contamination were being discarded, and where contamination in the soil and water might degrade prior to the filing of a lawsuit)

In Re Petition of Elaine Chao, Secretary of Labor, United States Department of Labor, 2008 WL 4471802, No. 08-mc-56-JSS (N. D. Iowa October 2, 2008) (Rule 27 Petition granted where key witnesses were undocumented immigrants who were about to be deported)

Melohn v. Stern, 2021 WL 1178132 No. 20-cv-05536 (PMH) (S. D. New York March 29, 2021) (Rule 27 petition denied where, among other things, petitioner acknowledged wanting to conduct discovery in order to gather information to meet heightened pleading standard for RICO claims)

Washington Mutual, Inc. v. United States of America, 2008 WL 11506727, No. Co6-1550-JCC (W. E. Washington October 10, 2008) (Rule 27 petition granted where testimony of 74-year-old witness may be lost “in the three years that are likely to pass before the appeal is finally resolved”)