• Episode 134 - Deposition Interpreters Redux: Correcting Inaccurate Interpretations

    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!


    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)

    E134 - 7m - Apr 10, 2024
  • Episode 133 - Who Pays the Initial Cost of a Deposition Interpreter?

    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!


    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)

    E133 - 19m - Apr 5, 2024
  • Episode 132: Pre- or Post-Deposition? Deciding When To Seek A Protective Order For Objectionable 30(b)(6) Topics

    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.


    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)


    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)

    E132 - 18m - Feb 1, 2024
  • Episode 131 -The Question to Ask after “Did You Take Any Medications That May Affect Your Testimony Today?"

    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!)


    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)

    E131 - 11m - Jan 4, 2024
  • Episode 130 - Choosing An "Actor" To Read Deposition Testimony in Evidentiary Hearings and Trials

    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!


    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.”)

    E130 - 18m - Nov 24, 2023
  • Episode 129 -Lessons from the Front Lines: Can Multiple Lawyers Representing the Same Party Each Object During a Deposition?

    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!


    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)

    E129 - 16m - Oct 15, 2023
  • Episode 128 - Convincing a Court that an EUO is Not a Deposition

    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.


    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”)

    E128 - 25m - Oct 5, 2023
  • Episode 127 -Handling Court Reporters Seeking to Videotape Your Remote Depositions For “Backup Purposes”

    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.


    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)

    E127 - 23m - Sep 15, 2023
  • Episode 126 - The Increasingly Poor Odds of Forcing Even Parties to Travel for In-Person Depositions

    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!


    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)

    E126 - 30m - Sep 2, 2023
  • Episode 125 - Handling An Opponents' Last-Minute Notice They're Videotaping Your Client's Deposition

    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.


    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)

    18m - Aug 25, 2023
  • Episode 124 -Can You Issue a 30(b)(6)-Style Trial Subpoena, Addressed Simply to “Corporate Representative with Knowledge On (Listed Topics)"?

    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.)


    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 HTC Corp. v. Tech. Properties Ltd., 2013 WL 12166376, at *2 & n.9 (N.D. Cal. Sept. 20, 2013). That case relied, in part, see id., 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”)

    E124 - 12m - Aug 8, 2023
  • Episode 123 - Lessons from the Front Lines: Free Transcripts Courtesy of Your Opponent? Maybe. Here's How.

    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!


    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.” Schroer v. United States, 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”)

    E123 - 31m - Aug 2, 2023
  • Episode 122 - Lessons from the Front Lines: The Overuse of An Underused 30(b)(6) Technique Leads to Severe Sanctions

    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!


    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)").

    E122 - 17m - Jun 21, 2023
  • Episode 121 - A Review of CaseText's New AI-Powered Deposition Prep Software

    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.)


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

    E121 - 26m - May 20, 2023
  • Episode 120 - Must You Object to An Improper Objection?

    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.


    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 Ebin New 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) (citing Kasparov, 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) 

    E117 - 15m - May 17, 2023
  • Episode 119 -Lessons from the Front Lines: The (Very) Fine Line Between Reserving the Right to Read – And Waiving It

    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.


    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)

    E121 - 13m - Apr 30, 2023
  • Episode 118 -The (Relatively) Low Bar for Limiting the Non-Judicial Use of Deposition Transcripts & Recordings

    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.


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

    E118 - 17m - Apr 22, 2023
  • Episode 117 - Asked and Answered: How Many Times is Too Many?

    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.


    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)

    E117 - 28m - Apr 12, 2023
  • Episode 116 - ChatGPT and Depositions

    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.

    E116 - 15m - Mar 19, 2023
  • Episode 115 - Announcing Our 4th Edition Book Giveaway ($5,000 total value!)

    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.

    E115 - 8m - Mar 9, 2023
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