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Litigation and Procedure

Discovery: Depositions

Litigation and Procedure

Discovery: Depositions

Depositions - Key TermsDepositions - Key Terms

DepositionDeposition

A discovery device permitting a A discovery device permitting a party’s attorney to question a party’s attorney to question a witness or party spontaneously and witness or party spontaneously and under oath before trial, and to under oath before trial, and to record the testimony.record the testimony.

DeponentDeponent

A witness or party giving testimony A witness or party giving testimony under oath and recorded before under oath and recorded before trial.trial.

Purposes of DepositionsPurposes of Depositions

Discover informationDiscover information

Evaluate witness and attorneyEvaluate witness and attorney

Impeach trial testimony (FRCP Impeach trial testimony (FRCP 32)32)

Preserve evidence (testimony)Preserve evidence (testimony)

Scope of DepositionsScope of Depositions

Persons other than parties can Persons other than parties can be deposedbe deposed

Conducted in accordance with Conducted in accordance with FRCP 30(c)FRCP 30(c)

Same scope as other discovery Same scope as other discovery devices [FRCP 26(b)]devices [FRCP 26(b)]

Types of DepositionsTypes of Depositions

1.1. Depositions on Oral Examination [FRCP 30]Depositions on Oral Examination [FRCP 30]

2.2. Depositions on Written Examination [FRCP Depositions on Written Examination [FRCP 31]31]– Direct and cross questions are read to deponent who Direct and cross questions are read to deponent who

orally answers in the presence of a person authorized to orally answers in the presence of a person authorized to administer oaths (e.g. a Notary Public)administer oaths (e.g. a Notary Public)

– Lower cost method used to gain information on Lower cost method used to gain information on noncontroversial matters or documents from nonpartiesnoncontroversial matters or documents from nonparties

3.3. Depositions Before Action is Filed [FRCP 27]Depositions Before Action is Filed [FRCP 27]– Used to preserve testimony that may be unavailable Used to preserve testimony that may be unavailable

later (e.g. when a witness or party is gravely ill, or when later (e.g. when a witness or party is gravely ill, or when a witness will be out of the country for a long time)a witness will be out of the country for a long time)

– Requires court permission, and is subject to strict Requires court permission, and is subject to strict requirementsrequirements

Procedure for DepositionsProcedure for Depositions1.1. Time and place setTime and place set

2.2. Person to administer oath and record testimonyPerson to administer oath and record testimony

3.3. Notice sent to partiesNotice sent to parties

4.4. Witness subpoenaedWitness subpoenaed

5.5. Other parties may attend and ask questionsOther parties may attend and ask questions

6.6. Officer swears in witnessOfficer swears in witness

7.7. Requesting attorney asks questionsRequesting attorney asks questions

8.8. Opponent may cross-examineOpponent may cross-examine

9.9. All questions and answers are recordedAll questions and answers are recorded

10.10. Record is reviewed by witness and changes proposed in writingRecord is reviewed by witness and changes proposed in writing

11.11. Record is certified [Rule 30(f)]Record is certified [Rule 30(f)]

Preliminary TasksPreliminary Tasks

1.1. Determine Whom to Depose – organize Determine Whom to Depose – organize information to identify:information to identify:

a.a. Potential DeponentsPotential Deponents

b.b. Designated Corporate or Agency Designated Corporate or Agency DeponentsDeponents

c.c. Expert WitnessesExpert Witnesses

2.2. Conduct Preliminary Interview(s)Conduct Preliminary Interview(s)

Coordinate the DepositionCoordinate the Deposition

1.1. Check time since service of summons and Check time since service of summons and complaint (30 days).complaint (30 days).

2.2. Schedule mutually available time for taking Schedule mutually available time for taking deposition.deposition.

3.3. Select and reserve suitable site well in advance.Select and reserve suitable site well in advance.

4.4. Arrange for court reporter and/or method for taking Arrange for court reporter and/or method for taking deposition.deposition.

5.5. Arrange for Oath Officer.Arrange for Oath Officer.

Coordinate the DepositionCoordinate the Deposition(cont’d)(cont’d)

6.6. Prepare and serve Notice of Deposition on each Prepare and serve Notice of Deposition on each party and court reporter party and court reporter [FRCP 30(b)(1)] (Exhibit [FRCP 30(b)(1)] (Exhibit 8:1).8:1).

a.a. Time, place, name of attorney conducting Time, place, name of attorney conducting examination.examination.

b.b. Name and address of each person to be Name and address of each person to be deposed or a general description of person.deposed or a general description of person.

c.c. Description of matters to be covered if Description of matters to be covered if business, association or agency.business, association or agency.

d.d. Designate documents or other tangible things Designate documents or other tangible things to be brought.to be brought.

Coordinate the DepositionCoordinate the Deposition(cont’d)(cont’d)

7.7. Execute Certificate of Service.Execute Certificate of Service.

8.8. In case of cancellation or rescheduling, notify all In case of cancellation or rescheduling, notify all participants by letter.participants by letter.

9.9. Obtain Subpoena and/or Subpoena duces tecumObtain Subpoena and/or Subpoena duces tecum

Subpoenas - Key TermsSubpoenas - Key Terms

SubpoenaSubpoena

A document pursuant to a court order A document pursuant to a court order that commands a person to appear to that commands a person to appear to testify.testify.

Subpoena duces tecum Subpoena duces tecum (Exhibit 8:2)(Exhibit 8:2)

A document pursuant to a court order A document pursuant to a court order that commands a person to appear that commands a person to appear with certain documents or tangible with certain documents or tangible things.things.

Subpoena ChecklistSubpoena ChecklistI. Provide Clerk of Court with copy of Notice to Take

Deposition and proof of service on partiesA. Federal: issued by Clerk in district where deposition is

taken or by the Attorney

B. State: sometimes where action is pending

II. Usually, clerk will sign in blank, leaving Paralegal to fill in information [FRCP 45]A. Name of issuing court and court where action is pending

B. Title and docket number of action

C. Name of Attorney

D. Witness’s name and address with directions for witness to attend and give testimony

E. Date, time, and place for deposition

F. Designation of documents needed, if pertinent, including Attorney’s declaration that they are necessary

G. Text of FRCP 45(c) and (d)

Subpoena Checklist Subpoena Checklist (cont’d)(cont’d)

III. Attach witness and mileage fees, if necessary [28 U.S.C. § 1821] [FRCP 45(a)(2)].

IV. Serve subpoena personally.A. Warn witness, with your attorney’s approval

B. Federal: person 18 years old who is not a party

C. States: sheriff, special bailiff, person of legal age (check local rules)

D. Paralegals, professional servers

E. Personally hand subpoena to deponent

F. Explain subpoena and what is expected

G. Acknowledge service

V. Objections served on deposing attorney within 14 days of service of subpoena or on or before deposition if scheduled less than 14 days from service. That attorney must seek court order to have subpoena complied with [FRCP 45(c)(3)(A)].

Prepare for DepositionPrepare for Deposition

1.1. Draft Questions or an Examination Outline Draft Questions or an Examination Outline (Exhibit (Exhibit

8:4)8:4)..

2.2. Gather and Prepare Documents and Exhibits.Gather and Prepare Documents and Exhibits.

3.3. Set up Witness Files.Set up Witness Files.

4.4. Assist in the Preparation of the Client or Witness Assist in the Preparation of the Client or Witness for Testimony. for Testimony. (Exhibit 8:5 – Letter to Client Regarding (Exhibit 8:5 – Letter to Client Regarding Deposition)Deposition)

Attend and Review the DepositionAttend and Review the Deposition

At Deposition:At Deposition:

1.1. Listen carefully.Listen carefully.

2.2. Take notes. Take notes. – informationinformation– objectionsobjections– effectiveness of witness and opposing counseleffectiveness of witness and opposing counsel

3.3. Retrieve information and documents.Retrieve information and documents.

4.4. Research law.Research law.

5.5. Make phone calls.Make phone calls.

Attend and Review the DepositionAttend and Review the Deposition(cont’d)(cont’d)

After Deposition:After Deposition:

1.1. Compare notes with attorney and draft Compare notes with attorney and draft summary.summary.

2.2. Check to see that witness signs transcript.Check to see that witness signs transcript.

3.3. Verify certification.Verify certification.

– That witness was swornThat witness was sworn

– That deposition is a true record [FRCP 30(f)]That deposition is a true record [FRCP 30(f)]

4.4. File deposition with the court.File deposition with the court.

5.5. Review transcript.Review transcript.

– Note questions omitted.Note questions omitted.

– Note inconsistencies.Note inconsistencies.

– Note inaccuracies in the reporting.Note inaccuracies in the reporting.

Digest Depositions and Other Digest Depositions and Other DocumentsDocuments

A.A. PurposesPurposes1.1. Condense large amounts of materialCondense large amounts of material2.2. Index testimony and topicsIndex testimony and topics3.3. Facilitate questioning and cross-examination of witness at Facilitate questioning and cross-examination of witness at

trialtrial4.4. Lay foundation for production of admissions for discoveryLay foundation for production of admissions for discovery5.5. Identify items for follow-up investigation or discoveryIdentify items for follow-up investigation or discovery6.6. Verify key or disputed factsVerify key or disputed facts7.7. Reveal inconsistencies in evidence or testimonyReveal inconsistencies in evidence or testimony8.8. Review for trial or additional depositionsReview for trial or additional depositions9.9. Support summary judgment and other motionsSupport summary judgment and other motions10.10. Include relevant facts or testimony in briefsInclude relevant facts or testimony in briefs11.11. Cross-reference topics, witnesses, evidenceCross-reference topics, witnesses, evidence12.12. Bring new attorneys or paralegals up to speed on a caseBring new attorneys or paralegals up to speed on a case13.13. Inform clientInform client14.14. Prepare correspondence, settlement brochures, and Prepare correspondence, settlement brochures, and

material relevant to pretrial and other hearingsmaterial relevant to pretrial and other hearings

Digest Depositions and Other Digest Depositions and Other Documents Documents (cont’d)(cont’d)

B.B. Types of Deposition Digests and IndexesTypes of Deposition Digests and Indexes

1.1. Chronological – organized in the order that Chronological – organized in the order that matters were raised (Exhibit 8:6)matters were raised (Exhibit 8:6)

2.2. Topical – organized by topics and subtopics Topical – organized by topics and subtopics (Exhibit 8:7)(Exhibit 8:7)

3.3. Narrative – summarizes testimony and can be Narrative – summarizes testimony and can be organized by topic, witness or other categories organized by topic, witness or other categories (Exhibit 8:8)(Exhibit 8:8)

Techniques for Digesting A DepositionTechniques for Digesting A Deposition

1.1. Study the file for issues, legal theories, etc.Study the file for issues, legal theories, etc.

2.2. Ask the attorney for an outline of questions used at Ask the attorney for an outline of questions used at the deposition, suggestions for topics, guidance on the deposition, suggestions for topics, guidance on type of digest, indices, detail, for mat, time frame, type of digest, indices, detail, for mat, time frame, cost, issues, etc.cost, issues, etc.

3.3. Skim the entire deposition for scope.Skim the entire deposition for scope.

4.4. Draft a topical outline in the order that items are Draft a topical outline in the order that items are raised in the deposition.raised in the deposition.

5.5. Schedule blocks of time so you will not lose Schedule blocks of time so you will not lose continuity in the deposition.continuity in the deposition.

6.6. Use computer editing if possible (e.g., Use computer editing if possible (e.g., Summation Summation iBlaze, ConcordanceiBlaze, Concordance))

7.7. Be concise.Be concise.

Techniques for Digesting A DepositionTechniques for Digesting A Deposition(cont’d)(cont’d)

8.8. Use abbreviations and short forms if they are clear.Use abbreviations and short forms if they are clear.

9.9. Be accurate; avoid distortion or interpretation.Be accurate; avoid distortion or interpretation.

10.10. Use subheadings and write in short paragraphs.Use subheadings and write in short paragraphs.

11.11. Use page and line number references in margins.Use page and line number references in margins.

12.12. Use sheet or slip method of recording.Use sheet or slip method of recording.

13.13. Use paraphrase or ellipsis summary.Use paraphrase or ellipsis summary.

14.14. Include accurate references to dates, exhibits, Include accurate references to dates, exhibits, court reporter’s notes on witness’s behavior, court reporter’s notes on witness’s behavior, objections, admissions, stipulations, document objections, admissions, stipulations, document requests, and notes on witness effectiveness.requests, and notes on witness effectiveness.

AssignmentAssignment

Create a Digest of the Deposition of Richard Hart (Handout) using the Chronological Digest format (Exhibit 8:7)

Use the following Topics in your Digest:– Personal Data– Education– Military Service– Employment– Driving Record– Working Time– Condition of Driver/Driving Time/Safety Rules– Condition of Vehicle– Weather Conditions– Road Conditions– Speed

End ofDiscovery: Depositions

End ofDiscovery: Depositions