Litigation and Procedure Discovery: Depositions

1. Litigation and Procedure Discovery: Depositions

2. Depositions - Key Terms • Deposition A discovery device permitting a party’s attorney to question a witness or party spontaneously and under oath before trial, and to record the testimony. • Deponent A witness or party giving testimony under oath and recorded before trial.

3. Purposes of Depositions • Discover information • Evaluate witness and attorney • Impeach trial testimony (FRCP 32) • Preserve evidence (testimony)

4. Scope of Depositions • Persons other than parties can be deposed • Conducted in accordance with FRCP 30(c) • Same scope as other discovery devices [FRCP 26(b)]

5. Types of Depositions • Depositions on Oral Examination [FRCP 30] • Depositions on Written Examination [FRCP 31] • Direct and cross questions are read to deponent who orally answers in the presence of a person authorized to administer oaths (e.g. a Notary Public) • Lower cost method used to gain information on noncontroversial matters or documents from nonparties • Depositions Before Action is Filed [FRCP 27] • Used to preserve testimony that may be unavailable 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) • Requires court permission, and is subject to strict requirements

6. Procedure for Depositions • Time and place set • Person to administer oath and record testimony • Notice sent to parties • Witness subpoenaed • Other parties may attend and ask questions • Officer swears in witness • Requesting attorney asks questions • Opponent may cross-examine • All questions and answers are recorded • Record is reviewed by witness and changes proposed in writing • Record is certified [Rule 30(f)]

7. Preliminary Tasks • Determine Whom to Depose – organize information to identify: • Potential Deponents • Designated Corporate or Agency Deponents • Expert Witnesses • Conduct Preliminary Interview(s)

8. Coordinate the Deposition • Check time since service of summons and complaint (30 days). • Schedule mutually available time for taking deposition. • Select and reserve suitable site well in advance. • Arrange for court reporter and/or method for taking deposition. • Arrange for Oath Officer.

9. Coordinate the Deposition(cont’d) • Prepare and serve Notice of Deposition on each party and court reporter [FRCP 30(b)(1)] (Exhibit 8:1). • Time, place, name of attorney conducting examination. • Name and address of each person to be deposed or a general description of person. • Description of matters to be covered if business, association or agency. • Designate documents or other tangible things to be brought.

10. Coordinate the Deposition(cont’d) • Execute Certificate of Service. • In case of cancellation or rescheduling, notify all participants by letter. • Obtain Subpoena and/or Subpoena duces tecum

11. Subpoenas - Key Terms • Subpoena A document pursuant to a court order that commands a person to appear to testify. • Subpoena duces tecum (Exhibit 8:2) A document pursuant to a court order that commands a person to appear with certain documents or tangible things.

12. Subpoena Checklist • Provide Clerk of Court with copy of Notice to Take Deposition and proof of service on parties • Federal: issued by Clerk in district where deposition is taken or by the Attorney • State: sometimes where action is pending • Usually, clerk will sign in blank, leaving Paralegal to fill in information [FRCP 45] • Name of issuing court and court where action is pending • Title and docket number of action • Name of Attorney • Witness’s name and address with directions for witness to attend and give testimony • Date, time, and place for deposition • Designation of documents needed, if pertinent, including Attorney’s declaration that they are necessary • Text of FRCP 45(c) and (d)

13. Subpoena Checklist (cont’d) • Attach witness and mileage fees, if necessary [28 U.S.C. § 1821] [FRCP 45(a)(2)]. • Serve subpoena personally. • Warn witness, with your attorney’s approval • Federal: person 18 years old who is not a party • States: sheriff, special bailiff, person of legal age (check local rules) • Paralegals, professional servers • Personally hand subpoena to deponent • Explain subpoena and what is expected • Acknowledge service • 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)].

14. Prepare for Deposition • Draft Questions or an Examination Outline (Exhibit 8:4). • Gather and Prepare Documents and Exhibits. • Set up Witness Files. • Assist in the Preparation of the Client or Witness for Testimony. (Exhibit 8:5 – Letter to Client Regarding Deposition)

15. Attend and Review the Deposition At Deposition: • Listen carefully. • Take notes. • information • objections • effectiveness of witness and opposing counsel • Retrieve information and documents. • Research law. • Make phone calls.

16. Attend and Review the Deposition(cont’d) After Deposition: • Compare notes with attorney and draft summary. • Check to see that witness signs transcript. • Verify certification. • That witness was sworn • That deposition is a true record [FRCP 30(f)] • File deposition with the court. • Review transcript. • Note questions omitted. • Note inconsistencies. • Note inaccuracies in the reporting.

17. Digest Depositions and Other Documents • Purposes • Condense large amounts of material • Index testimony and topics • Facilitate questioning and cross-examination of witness at trial • Lay foundation for production of admissions for discovery • Identify items for follow-up investigation or discovery • Verify key or disputed facts • Reveal inconsistencies in evidence or testimony • Review for trial or additional depositions • Support summary judgment and other motions • Include relevant facts or testimony in briefs • Cross-reference topics, witnesses, evidence • Bring new attorneys or paralegals up to speed on a case • Inform client • Prepare correspondence, settlement brochures, and material relevant to pretrial and other hearings

18. Digest Depositions and Other Documents (cont’d) • Types of Deposition Digests and Indexes • Chronological – organized in the order that matters were raised (Exhibit 8:6) • Topical – organized by topics and subtopics (Exhibit 8:7) • Narrative – summarizes testimony and can be organized by topic, witness or other categories (Exhibit 8:8)

19. Techniques for Digesting A Deposition • Study the file for issues, legal theories, etc. • Ask the attorney for an outline of questions used at the deposition, suggestions for topics, guidance on type of digest, indices, detail, for­mat, time frame, cost, issues, etc. • Skim the entire deposition for scope. • Draft a topical outline in the order that items are raised in the deposition. • Schedule blocks of time so you will not lose continuity in the deposition. • Use computer editing if possible (e.g., Summation iBlaze, Concordance) • Be concise.

20. Techniques for Digesting A Deposition(cont’d) Use abbreviations and short forms if they are clear. Be accurate; avoid distortion or interpretation. Use subheadings and write in short paragraphs. Use page and line number references in margins. Use sheet or slip method of recording. Use paraphrase or ellipsis summary. Include accurate references to dates, exhibits, court reporter’s notes on witness’s behavior, objections, admissions, stipulations, document requests, and notes on witness effectiveness.

21. Assignment • 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

22. End of Discovery: Depositions