From
the August 2001 Update
Chapter 1 Who Should
Be Deposed: When, Where and How
§100 Depositions: The Myth and the Reality
§101 Who, When, Where and How?
§110 Should You Take a Deposition?
§111 Goals of Taking a Deposition
§112 Disadvantages of a Deposition
§113 Alternatives to Taking a Deposition
§120 Who Should Be Deposed?
§121 Adverse Parties and Coparties
§122 Independent Witnesses
§123 Expert Witnesses
§124 Use of Rule 30(b)(6) Designation of Witnesses
§125 Limitations on Taking Depositions
§126 Deposing Opposing Counsel
§130 When and Where Should Depositions Be Taken?
§131 When Can Depositions Be Taken?
§131.1 Taking Depositions
When a Motion to Dismiss for Lack of Personal Jurisdiction Has Been Filed
§132 Priority of Depositions
§133 Sequence of Deposing Witnesses
§134 Strategy of Timing and Sequence of Depositions
§135 Depositions for Use as Substantive Testimony
§136 Where Should the Deposition Be Taken?
§137 Locale in Which to Take the Deposition of a
Nonparty
Sample: Motion for Leave to
Take Deposition More Than 100 Miles from Witness’s Residence, Place of Business, or
Transaction of Business
§138 Locale in Which to Take the Deposition of a
Party
§139 Selecting a Specific Location for the
Deposition
§140 What Type of Deposition Should Be Taken?
§141 Video Depositions
§142 Telephone Depositions
§143 Audio Depositions
§144 Videoconference Depositions
§144.1 How Video Conference
Technology Works
§144.2 Specific Uses for
Video Conference Depositions
§150 Opposing the Time, Place or Taking of a Deposition
§151 Opposing the Date of the Deposition
Sample: Motion Opposing Date of Deposition
§152 Opposing the Location of the Deposition
Sample: Motion Opposing Location of Deposition
§152.1 Party Witnesses
§152.2 Nonparty Witnesses
§153 Opposing the Taking of the Depositions of
Particular Deponents
§153.1 Corporate Officers
Sample: Motion Opposing
Deposition of Corporate Officer
§153.2 Expert Witnesses
§153.3 Nonparty Involuntary
Experts
§153.4 Attorneys
§154 Objecting to a Rule 30(b)(6) Deposition
Sample: Motion Objecting to Rule 30(b)(6)
Deposition
§155 Opposing the Type of Deposition
§156 Opposing the Video Deposition
§157 Staying Discovery
§160 Suggested Source Materials
Chapter 2 Procedures For
Setting Up a Deposition
§200 Procedures For Setting Up a Deposition
§210 Setting Up the Deposition of a Party
Sample: Notice of Deposition
§211 Noticing the Deposition of an Officer, Director
or Managing Agent of a Party
Sample: Notice of Deposition
of Officer, Director or Managing Agent of a Party
§211.1 Opposing the Taking
of a Deposition of an Officer, Director or Managing Agent of a Party
§212 Noticing a Deposition Pursuant to Rule 30(b)(6)
§212.1 Opposing Depositions
Under Rule 30(b)(6)
Sample: Motion for
Protective Order as to Rule 30(b)(6) Subject Matter Designations
§213 Requesting Production of Documents from a Party
Deponent
§213.1 Objecting to a Notice
of Deposition Requesting Production of Documents
§213.2 Responding to a
Request for Production of Documents in a Notice of Deposition
§214 Checklist for Setting Up the Deposition of a
Party
§220 Setting Up the Deposition of a Nonparty
§221 Using a Subpoena Duces Tecum to Compel
Production of Evidence or to Permit Inspection
Sample: Motion for Relief
with Respect to Subpoena Duces Tecum
Sample: Subpoena Duces Tecum
§222 Serving a Subpoena
Sample: Acceptance of Service
§223 Failure to Serve a Subpoena
§224 Subpoenaing a Nonparty Under Rule 30(b)(6)
§225 Checklist for Setting Up the Deposition of a
Nonparty
§230 Miscellaneous Deposition Situations
§231 Setting Up an Audio or Videotaped Deposition
Sample: Notice of Intent to Record Deposition
by Videotape/Audiotape
Sample: Stipulation for a
Videotaped Deposition
Sample: Order for Recording
Deposition on Oral Examination by Videotape
§232 Setting Up a Telephone Deposition
§233 Setting Up “Foreign” Depositions
§234 Using an Interpreter
Sample: Order Appointing Interpreter
§240 Costs of the Deposition
§241 Costs of Expert Witnesses
§242 Attorneys’ Fees and Expenses of
Depositions
§243 Witness Costs and Expenses
§250 The Court Reporter
§251 Using Computerized Deposition Transcripts
§260 Stipulations with the Opposing Attorney and Nonparty Witnesses
Sample: Stipulation Pursuant to Rule 29 for Taking a Deposition
§270 Discovery Conferences
Sample: Discovery Conference Order
§280 Suggested Source Materials
Chapter 3 Who Can and Should
Attend a Deposition
§300 Who Can and Should Attend a Deposition
§310 Who Can Attend a Deposition
§320 Rules Governing the Exclusion of Spectators from a Deposition
§321 Rule 26(c) Motions to Exclude Spectators from
Attending a Deposition
Sample: Motion Under Rule
26(c) to Exclude Spectators from Attending a Deposition
§322 Rule 615 as Parallel Authority for Excluding
Spectators from a Deposition
§323 Rule 29 Stipulations to Exclude Spectators from
Attending a Deposition
§330 Excluding Parties and Other Individuals from Attending a
Deposition
§331 Excluding Parties from a Deposition
§332 Excluding the Public and Press from a
Deposition
§333 Excluding Spectators to Protect Confidential
Information and Trade Secrets
§334 Excluding Spectators in Antitrust Actions
Brought by the Government
§335 Excluding a Corporate Party’s
Representative from Depositions
§340 Procedures for Obtaining a Protective Order
Sample: Motion for Order Excluding Witnesses from Depositions
§350 Who Should Attend the Deposition
§360 Suggested Source Materials
Chapter 4 Preparing to Take
or Defend a Liability Deposition
§400 Preparing to Take or Defend a Liability Deposition
§410 Preparing to Take a Deposition
§411 Defining the Key Areas for Examination
§412 Reviewing Key Pleadings and Applicable Law
§413 Reviewing Prior Discovery and all Factual
Information at Your Disposal
§414 Preparing a Chronology of Key Fact Events, a
Cast of Characters, and Witness Files
§415 Discussing the Upcoming Deposition with Your
Client and Cooperative Witnesses
§416 Discussing the Upcoming Deposition with
Opposing Counsel
§417 Defining Your Objectives
§418 Preparing Exhibits for the Deposition
§419 Consideration of Opposing Counsel
§420 Preparing to Defend a Deposition
§421 Procedural Issues
§422 Preparing Yourself to Defend the Deposition
§423 Preparing to Assert Privilege
§430 Preparing Your Witness to Be Deposed
§431 Introducing Your Witness to the Deposition
Process
§432 Techniques for Preparing Your Witness to Answer
Deposition Questions
§432.1 Homework for the
Witness’s Preparation
§432.2 Emphasize the Form of
the Answer to the Question
§433 Using a Checklist for Witness Preparation
§434 Refreshing Your Witness’s Recollection
§435 Conducting a Practice Examination
§436 Representing the Witness
§436.1 Representing the
Corporate Employee
§437 Timing
§438 Preparing the Problem Witness
§438.1 Avoiding the Dangers
of Assumed Facts
§438.2 Handling the
Untrustworthy Witness
§439 Preparing for the Video Deposition
§440 Hints for Handling the Tricky Examiner and Tricky Questions
§441 Examples of Tricky or Objectionable Questions
§450 Preparing Specific Witnesses for their Depositions
§451 Preparing a Party to be Deposed
§452 Preparing a Friendly Nonparty to be Deposed
§453 Preparing a Corporate Officer to be Deposed
§454 Preparing a Deponent Designated Under Rule
30(b)(6) to be Deposed
§455 Preparing to Defend the Deposition of an
Uncooperative Witness
§456 Preparing an Expert Witness to be Deposed
§460 Suggested Source Materials
§470 Deposition Outlines
§471 Preparing Your Deposition Examination
§472 Order of the Deposition Proceedings
§473 Sample Outlines
§473.1 Outline for Deposing
the Plaintiff—Automobile Case
§473.2 Outline for Deposing
the Defendant—Automobile Case
§473.3 Outline for Treating
Physician—Personal Injury Case
§473.4 Outline for Deposing
the Defendant Physician—Medical Malpractice Case
§473.5 Outline for Deposing
the Defendant’s Design Engineer—Product Liability Case
Chapter 5 Procedures for
Taking and Defending a Deposition
§500 Procedures for Taking and Defending a Deposition
§510 Setting the Stage for the Deposition
§511 The First Moments
§512 Objecting to Persons Present
§513 Proceeding when Counsel for Deponent is Not
Present
§514 Working with the Reporter
§515 Using Exhibits
§516 Video and Audio Depositions
§516.1 Procedures for Audio
Visual Depositions Under the Uniform Audio Visual Deposition Act
§517 Telephone Deopositions
§518 Discovery Deposition vs. Deposition for Use at
Trial
§520 Beginning the Deposition
§521 The Oath
§522 Stipulations and Orders
§530 Introductory Examination
§531 Explaining the Deposition Process
§532 Identifying Documents Produced by the Witness
§533 Discovering Impediments to Answering Questions
§534 Asking About the Witness’s Preparation for
the Deposition
§534.1 Strategic
Considerations Affecting Scope
§535 Rule 30(b)(6) Witnesses
§540 Procedures During the Deposition
§541 Going Off the Record
§542 Recesses
§542.1 Recesses under Rule
30(d) and Rule 37(a)(1)
§543 Length of Deposition Days
§544 Using an Interpreter
§545 Obtaining Court Orders During the Course of the
Deposition
§546 Marking and Identifying Exhibits
§550 Concluding Your Examination
§551 Cross-Examination and Redirect Examination
§552 Post-Deposition Matters
§553 Arrangements for the Exhibits
§554 Closing the Deposition
§560 Finalizing the Deposition
§561 Corrections and Signature
§561.1 Correction Sheets
Sample: Correction
Sheet
§561.2 Corrections to a Rule
30(b)(6) Deposition
§561.3 Corrections by the
Deposing Attorney
§561.4 Sample: Motion to
Redepose Witness Concerning Deposition Corrections
§562 Certification and Filing
§563 Indexing
Sample: Issues/Subject
Deposition Summary
§564 Supplemental Answers
§565 Protective Orders
§566 Index to Deposition Videotape
Sample: Index to Deposition Videotape
§570 Suggested Source Materials
Chapter 6 Techniques for
Taking an Effective Deposition
§600 Techniques for Taking an Effective Deposition
§610 Techniques for Questioning the Witness
§611 General Techniques for the Substantive
Examination
§612 Obtaining a Broad Picture of the Witness’s
Knowledge
§613 Pinning Down the Witness
§614 Summarizing the Witness’s Testimony
§615 Special Situations
§615.1 The Evasive or
Argumentative Witness
§615.2 The Forgetful Witness
§615.3 The Talkative Witness
§615.4 The Neutral Witness
§615.5 Language Difficulties
§616 Questioning About Exhibits
§620 Your Demeanor During the Taking of the Deposition
§621 The Witness’s Demeanor
§630 Dealing with the Defending Attorney
§631 Dealing with Objections
§632 Dealing with Narrow Objections
§633 Dealing with Instructions Not to Answer the
Question
§634 Dealing with an Obnoxious Defending Attorney
§635 Motions to Compel Answers
Sample: Motion to Compel Answers at Deposition
§636 Examination Upon Assertion of Attorney-Client
Privilege
§637 Conferences with Client: Coaching or
Interrupting the Witness
§638 Examination of Witness Upon Assertion of the
Work Product Privilege
§640 Concluding the Deposition
§650 Suggested Source Materials
Chapter 6A Techniques for
Deposing an Expert Witness
§600A Techniques for Deposing an Expert Witness
§610A Legal Research of Issues
§620A Written Discovery of Expert Witness Opinions
§621A Expert Witness Document Discovery
§622A Expert Work Product
§623A The Expert’s Preservation of Evidence
§630A General Outline of Expert Deposition
§631A Qualifications under Federal Rule of Evidence
702
§632A Impeachment of Qualifications
§633A The Expert’s Understanding of Case
Related Facts
§634A Differing Factual Assumptions
§635A Basis for Each Opinion of the Expert
§636A Scientific, Technical or Specialized Knowledge
under Federal Rule of Evidence 702
§637A Authoritative Treatises
§638A Expert Opinions
§640A Form Deposition Outlines
§641A Outline for Deposing Product Liability Expert
§642A Outline for Deposing Medical Negligence
Defense Expert
Chapter 7 Making and
Responding to Objections
§700 Making and Responding to Objections
§710 Scope of Examination: Relevance to the Subject Matter
§711 Court Imposed Limits on the Allowable Scope of
Discovery
§712 Inquiry into Insurance Coverage
§713 Inquiry into Preparation for the Deposition
§714 Inquiry into Matters of Credibility
§715 Rule 30(b)(6) Scope of Examination
§720 Objecting to the Deposition Procedure
§721 Objecting to Notice and Qualifications of the
Reporter
§722 Objecting to Completion and Return of the
Deposition
§723 Objecting to Requests for Production of
Documents
§730 Objecting to Improper Questions
§731 Objections that Are Waived if Not Made
§732 Objections that Need Not be Made Before Trial
§733 Objections to Summaries of Evidence
§734 Objections to Hypothetical Questions
§734.1 Objections to
Questions Eliciting Expert Testimony Prior to Disclosure
§740 Instructing a Witness Not to Answer the Question
§741 Techniques for Dealing with Instructions Not to
Answer
Sample: Motion to Compel Answers at Deposition
and for Sanctions
§742 Instructing a Witness Not to Answer as a Bar to
Testimony at Trial
§743 Certifying Questions for the Court
§750 Objecting to Questions Beyond the Scope of Discovery
§751 Objections to Embarrassing or Harassing
Questions
§752 Objections by the Attorney for the Nonparty
Witness
§753 Objections by Multiple Attorneys
§754 Objections by the Examining Attorney
§755 Objections to Questions Outside the Scope of
the Rule 30(b)(6) Designated Subject Matters
§760 Objections Based Upon Privilege
§761 Attorney-Client Privilege
§761.1 Was the Purpose of
the Communications to Obtain Legal Advice?
§761.2 Were the
Communications Kept Confidential?
§761.3 Has the Privilege
Been Waived?
§761.4 Tactics for Dealing
with Assertion of Privilege
§762 Work Product Privilege
§762.1 Documents Reviewed
Prior to Deposition
§762.2 Practical
Considerations Regarding Work Product Objections
§763 Privilege Against Self-Incrimination
§764 Discussions with the Witness in Preparation for
Deposition
§765 Other Objections Based on Privilege
§766 Contesting an Asserted Privilege
§770 Scope of Examination of Expert Witnesses
§771 Examination of a Party as an Expert Witness
§772 Scope of Expert Witness and Consultant’s
Privileged Knowledge
§780 Checklist of Objections
§781 Form of Objection and the Response
§790 Suggested Source Materials
Chapter 8 Defending the
Deposition
§800 Defending the Deposition
§810 Final Preparation for the Deposition
§811 Reviewing Your Objectives in Defending the
Deposition
§820 Preliminary Matters at the Deposition
§821 Before the Deposition Begins
§822 Audio and Video Depositions
§823 Stipulations and Orders
§824 Handling Requests for Documents at the
Deposition
§830 Conduct of the Deposition
§831 Making Objections
§831.1 Objection Strategy
§832 Demeanor
§832.1 Your Demeanor
§832.2 Your Witness’s
§832.3 Your Opponent’s
§833 Recesses and Conferences
§834 Duration of Depositions and Length of the
Deposition Day
§835 Actions During the Course of the Deposition
§835.1 Objections, Motions
to Strike, Instructions Not to Answer
§835.2 Clarification of
Questions and Answers
§835.3 Conferences with the
Witness and Recesses
§835.4 Defending the Witness
§835.5 Maintaining a Clear
Record
Sample: Motion for
Order Terminating Deposition for Bad Faith
§840 Dealing With Problem Witnesses
§841 The Talkative Witness
§842 The Argumentative Witness
§843 The Forgetful Witness
§844 Language Difficulties
§845 Correcting Inaccurate Testimony
§850 Cross-Examining the Witness
§860 Concluding the Deposition
§870 Post-Deposition Matters
§880 Suggested Source Materials
Chapter 9 Special Deposition
Situations
§900 Special Deposition Situations
§910 Depositions Before Commencement of Civil Action or Pending Appeal
Sample: Petition to Perpetuate Testimony
§911 Procedural Requirements for Depositions Taken
Prior to Commencement of an Action
Sample: Notice of Deposition to Perpetuate
Testimony
§912 Depositions Pending Appeal
Sample: Motion to Perpetuate Testimony Pending
Appeal
§913 Use of Rule 27 Depositions
§914 Other Perpetuation of Testimony
§920 Out-of-District Depositions
§921 Out-of-District Depositions of Parties
§922 Out-of-District Depositions of Nonparties
§923 Local Rules Governing Out-of-District
Depositions
§924 Practical Considerations
§925 Out-of-State Depositions—State Court Civil
Actions
Sample: Commission to Deposition Officer
§925.1 Obtaining Process
§925.2 Procedures Necessary
in Forum
§930 Depositions in Foreign Countries
§931 Foreign Depositions by Stipulation
§932 The Law of the Foreign Jurisdiction
§933 Subpoena of United States Citizens Abroad
§934 The Reporter
§940 Depositions in Foreign Civil Actions
§950 Depositions of Government Officers and Employees
§960 Depositions Upon Written Questions
§961 Cross-Examination of Witnesses by Written
Interrogatories
§970 Appeal of Discovery Orders
§980 Depositions in Arbitration Proceedings
§981 Procedures for Deposing in Arbitration
§990 Suggested Source Materials
Chapter 10 Using the
Deposition at Trial
§1000 Using the Deposition at Trial
§1010 What Depositions May Be Used at Trial
§1011 Using a Deposition Taken in the Same Civil
Action in Which It Is Sought to Be Used
§1011.1 Using a Deposition
Taken Prior to the Substitution of Parties
§1011.2 Using a Deposition
Taken Prior to the Joinder of Additional Parties
§1011.3 Using a Deposition
When a Subsequent Deposition of the Deponent Has Been Taken
§1011.4 Using a Corrected
Deposition
§1011.5 Using an Unsigned
Deposition
§1011.6 Using a Deposition
not Fulfilling the Procedural Requirements
§1012 Using a Deposition Taken in Another Proceeding
§1012.1 Using a Deposition
Taken in an Earlier Civil Action Involving the Same Parties and Subject Matter, as
Permitted by Rule 32(a)
§1012.2 Using for
Nonsubstantive Purposes a Deposition Taken in Another Proceedings as Permitted by the
Federal Rules of Evidence
§1012.3 Using as Substantive
Evidence a Deposition Taken in Other Proceedings as Permitted by the Federal Rules of
Evidence
§1012.4 Using a Deposition
Taken in a Foreign Civil Action
§1012.5 Using a Deposition
Taken in an Administrative Proceeding
§1012.6 Using a Deposition
Taken in a Foreign Country
§1020 Purposes for Which a Deposition May be Used at Trial
§1021 Using the Deposition of an Adverse Party
§1021.1 Determining Whether
a Deponent Is an Adverse Party
§1021.2 Using the Deposition
of Adverse Party for any Purpose
§1021.3 Using the Deposition
of an Adverse Party to Impeach or Contradict the Adverse Party’s Testimony
§1021.4 Using the Deposition
of an Adverse Party as Substantive Evidence
§1021.5 Using the Deposition
of an Adverse Party to Refresh His Recollection
§1022 Using the Deposition of a Nonadverse Party
§1022.1 Using the Deposition
of a Nonadverse Party as Substantive Evidence—The Unavailable Witness
§1022.2 Using the Deposition
of a Nonadverse Party Witness to Impeach or Contradict
§1022.3 Using the Deposition
to Refresh the Recollection of a Nonparty Witness
§1023 Catchall Provision Allowing Use of
Deponent’s Deposition
§1024 Using a Party’s Own Deposition
§1030 Procedure for Introducing Deposition Testimony as Substantive
Evidence
§1031 Designation of Deposition Testimony to Be
Introduced
§1032 Publishing Designated Portions of the
Deposition and Ruling on Objections
§1032.1 Using
Summaries of Deposition Testimony
§1033 Video Depositions
§1034 Using the Deposition of the Witness Who Is
Unavailable
§1035 Laying the Foundation for Using the Deposition
of an Unavailable Witness
§1036 Procedure for Using the Deposition to Refresh
Recollection
§1040 Objecting to the Admissibility of Deposition Testimony as
Substantive Evidence
§1041 Technical Objections Relating to the Taking,
Transcribing, and Completion of a Deposition
§1042 Testimonial Objections
§1043 Other Objections to Admissibility
§1050 Tactics in Using Depositions at Trial
§1051 Tactical Considerations in Using the
Deposition for Impeachment
§1051.1 Laying the
Foundation for Impeachment With the Witness’s Deposition
§1051.2 Impeaching the
Inconsistent Testimony
§1051.3 Other Methods of
Impeachment
§1052 Tactics in Using the Deposition to Refresh the
Witness’s Recollection
§1053 Tactics in Using the Original or Corrected
Transcript
§1054 Introducing Additional Parts of the Deposition
§1060 Checklist of Matters to Cover with the Court Concerning Using
Depositions at Trial
§1070 Suggested Source Materials
Chapter 11 Using Computers in
the Deposition Process
§1100 Using Computers in Litigation: An Overview
§1101 Using a Computer to Prepare For or Defend a
Deposition
§1110 Using Database Programs and Imaging Systems to Organize Documents
and Deposition Exhibits
§1111 Using Document and Exhibit Database Forms
Sample: Database Form to Organize Documents
§1112 Searching the Database
Sample: Search Report
§1113 Creating an Event Chronology
Sample: Chronology Database Form
§1114 Database Programs to Consider
§1114.1 Legal-Specific
Databases
§1114.2 Flat-File Database
Programs
§1114.3 Relational Database
Programs
§1115 Using Imaging Systems to Retrieve Documents
§1120 Using Full-Text Search Programs to Review Deposition Transcripts
Sample: Search Request
§1121 Testimony From Other Depositions
Sample: Report Showing Relevant Testimony
§1122 Expert Witness Testimony
§1123 Full-Text Search Programs to Consider
§1123.1 Legal Programs
§1123.2 Nonlegal Programs
§1130 Using Outlining Software to Prepare for a Deposition
Sample: Expanded Outline
Sample: Collapsed Outline
§1131 Outlining Programs to Consider
§1140 Using a Computer During the Deposition
§1141 Using a Notebook PC to Take Notes During the
Examination
Sample: Deposition Notes
Using Outliner Program
Sample: Exhibit List
§1142 Using a Database During the Deposition
§1143 Using Deposition Search Programs During the
Deposition
§1144 Real-Time Transcription of the Deposition
§1150 Using a Computer After the Deposition
§1151 Using a Computer to Review Transcript
Testimony
§1152 Using a PC to Search the Deposition Transcript
§1153 Using a Computer to Annotate the Deposition
Sample: Issue Report
§1154 Using a Computer to Excerpt Portions of the
Transcript
Sample: Report of Excerpted Testimony
§1155 Using a Computer to Summarize the Deposition
Sample: Summary Report
§1155.1 Using Outlining
Software to Summarize a Deposition
Sample: Outliner
Deposition Summary
§1155.2 Using a Database
Program to Create a Deposition Summary
Sample: Database Form
for Outlining Deposition
Sample: Database
Summary
Sample: Database Report
for Multiple Witnesses
§1160 Using a Computer at Trial
§1170 Suggested Source Materials
Appendix A: Full Text of the Hague
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters
Table of Cases
Index |
