Inquisition : A deposition exhibition (an introduction to the Mechanics of Deposition Practice)

1. Inquisition:A deposition exhibition (an introduction to the Mechanics of Deposition Practice) Group 9 (Long Live Group 9)

2. Purposes of the Deposition “The truth will set you free, but first it will make you miserable.”  President James A. Garfield, Esq. • Depositions can be a valuable discovery tool. • They can also be burdensome and expensive. • Depositions can be used for several purposes (in furtherance of the case strategy), including to: • Obtain information / preview trial testimony • Set up / foreclose a dispositive motion • Facilitate the parties’ willingness to engage in ADR • Get ammo to cross-examine, impeach, eliminate witnesses

3. Individual / Entity Depositions “Everything in war is simple. But even the simplest thing is difficult.” Carl Von Clausewitz (On War) • Fed. R. Civ. P. 30(a) depositions • Individual capacity • “I don’t know.” “I don’t remember.” • Fed. R. Civ. P. 30(b)(6) depositions • 30(b)(6) notice topics • Designation of one or more witnesses • Consequences of failure to designate and prepare • Hybrids

4. Good Deposition Questions • Prior to the deposition, provide the court reporter with a list of key names and terms. • At the beginning of the deposition, provide the witness with clear instructions/admonitions. • Use short, clear, self-contained questions in plain English. • How will the transcript read? • Solicit unambiguous answers. • Exceptions: • Where you don’t know how to ask • Where you have a talker (let them run, then get your soundbites later)

5. Good Deposition Answers • Listen • Pause • Answer truthfully and completely • Don’t volunteer • Don’t argue (or act crazy) • Don’t fill in gaps/speculate • Do ask, if you have questions • Do follow (your) counsel’s instructions • Do remember to protect privilege and legal work product

6. Working with Exhibits • Selection and arrangement • Marking (Ex. #, Bates #) • Copies for opposing counsel and the witness • Strategy for prior exhaustion of testimony • Strategy for sequencing • Laying the foundation • Use to identify unknown documents

7. Deposition Objections • Who can object? • What objections are proper during the deposition? • Objections to “form”: to give the questioner the opportunity to cure (Fed. R. Civ. P. 30(c)(2) and 32(d)(3)(B) ; The NITA Handbook) • Substantive objections: reserved / improper • How to make them (depending on jurisdiction)? • Tactical considerations

8. Dealing with Obstreperous Counsel “I thoroughly disapprove of duels. If a man should challenge me, I would take him kindly and forgivingly by the hand and lead him to a quiet place … and kill him.”  Mark Twain • Improper objections (frivolous, speaking, coaching) • Improper “clarifications” (of the examiner, court reporter, witness) • Improper tone / argument / interruptions / distractions • How to deal with interference? • Prepare (videotape, stipulations) • Make the record • Ignore the defending counsel • Intimidate within the rules • Punish the witness • Opportunities to self-govern • In extremes: call the Court (but…)

9. Instructions Not to Answer • Who can instruct? Based on?... • Attorney-Client Privilege • Communications with counsel • Legal Work Product • Includes document compilations (Fed. R. Evid. 612 exception) • Protective orders / other court limitations • To protect the witness from abuse, oppression, harassment, bad faith • File an “immediate” (complete or adjourn?) motion for protective order (Fed. R. Civ. P. 30(c)(2) and 30(d)(3)) • “Are you going to follow your attorney’s advice?” • “Could you have answered the question?”

10. Your Turn? “A lawyer is the shrewdest distance between two points.”  Robert Van Fossen, Esq. • Whether/when to “cross-examine” your own witness: • To correct glaringly inaccurate/misleading testimony • To rehabilitate the witness or prevent later impeachment • To avert a dispositive motion or, in the case of an expert, a motion to strike/exclude. (Self-serving declarations generally cannot overcome deposition testimony.) • To clarify testimony that the transcript errata may not solve. • Better to keep your powder dry?

11. Formalities / Ending the Deposition “Only the dead have seen the end of war.”  Plato • Is it really over? (Fed. R. Civ. P. 30(d)’s qualified 1 day/7 hour limit) • “The usual stipulations?” • Implementing protective order designations • Reserving the Fed. R. Civ. P. 30(e) right to read and sign • Provide an opportunity to change/clarify/supplement • State on the record that the deposition is to be continued (or is concluded)

12. Video Vignettes • Examples of The Good, the Bad, and the Ugly in deposition practice

13. Excelsior! Brought to you by Group 9: • Your humble servants (and undisputed champions of IP Law Jeopardy)

14. RoboStir vs. RotoSHIRR • 2003: Billy and Jane (secret lovers) founded RoboStirLLC • 2005: RoboStir LLC obtained US TM in “ROBOSTIR” • 2006: RoboStir LLC obtained US Patent in RoboStirdevice (Jane and Billy named inventors). • RoboStirClaim 1: An automatic stirring device for stirring foodstuffs in a pan, the device comprising: a motor; a drive shaft coupled to the motor; a vertically disposed stirrer; and a means for connecting the stirrer to the drive shaft in a manner so that the stirrer revolves around the inside of the pan in an orbital gyroscopic motion. • 2006-2010: RoboStiris a HUGE success. • Jan. 2010: Jane and Billy break up (over inventorship issues and Jane’s wine consumption). Jane leaves Billy and RoboStirLLC, forever.

15. RoboStirvs. RotoSHIRR • Mar. 2010: Jane started RotoSHIRR LLC, based on her new RotoSHIRR device (shirr=cooking term). RotoSHIRR = automatic stirring device that stirs as it oscillates laterally (like RoboStir) and pulses horizontally (mixing in all directions). Jane’s orders are HUGE. • Apr. 2010: Jane files: US Patent and TM apps in “ROTOSHIRR”. • Aug. 2011: Billy/RoboStiris furious and wants to litigate Jane /RotoSHIRR into bankruptcy so she will be miserable and can no longer drink wine.  RoboStirfiled suit in fed. ct. and hired Arnold (partner at “Huge, Large, Expensive, LLP”, known as the “IP-Terminator” of litigation).Jane/RotoSHIRR hired “Small, Little, Cheap, LLP” because her bartender used them once.  • Today: Deposition of Jane (Alina) by Arnold/RoboStir (David), as the examining attorney. Jane’s attorney was just sent to federal prison so the firm sent an eager junior associate: Dirk Murdock (Matt), as the defending attorney.  He brings Allison (Sangmi), a Rule 9 intern.