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.

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.

Ever run into deponents who pretend they don't understand even the simplest questions? Of course you have. (Who hasn't?) Today, Jim Garrity explains why you might not want to continue rewording questions for such slippery deponents, instead using their sham "confusion" against them to attack their credibility (or even to seek sanctions).

SHOW NOTES

Skyline Advanced Tech. Servs. v. Shafer, No. 18-CV-06641-CRB-RMI, 2020 WL 13093877, at *4 (N. D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N. D. Cal. July 30, 2020) (“Shafer responded to a strikingly large number of questions posed to her by stating that she did not understand the question (some of which were so clear and simply phrased that it strains credulity to imagine that she in fact did not understand the question”; further recommending dismissal as a sanction because “Shafer's willful destruction of evidence combined with her unfortunate behavior at her deposition have effectively frustrated the public's interest in the expeditious resolution of this case, as well as the court's need to effectively manage its docket, thus, these factors weigh in favor of granting the requested sanction of dismissal”)

Donelson v. Hardy, 931 F.3d 565, 568 (7th Cir. 2019) (affirming dismissal of lawsuit based in part on plaintiff’s unjustified claims that he did not understand deposition questions; court described Donelson's responses as “evasive and argumentative answers” enhanced by “dishonesty and false obtuseness”)

Mewborn v. Abbott Lab'ys, No. CV-188732-DSF-PLAX, 2019 WL 8060095, at *1 (C. D. Cal. Oct. 7, 2019) (Additionally, plaintiff, “[a]ided by and taking cues from her attorney, ... repeatedly pretended not to understand simple questions, refused to provide straightforward responses, and/or feigned an inability to read documents throughout her deposition”)

Xiaobin Song v. Ming Ying Wu, No. B-202427, 2008 WL 4140833, at *4 (Cal. Ct. App. Sept. 9, 2008) (describing as credibility issue defendant’s prior claim that she did not understand English, while in trial answering questions even before they were interpreted, even though questions sometimes contained sophisticated English terms)

Johnson & Johnston Assocs., Inc. v. R.E. Serv. Co., No. C 97-04382 CRB`, 1998 WL 908925, at *5 (N.D. Cal. Dec. 23, 1998), rev'd, 285 F.3d 1046 (Fed. Cir. 2002) (describing at “litigation misconduct” differences in the witnesses answers - and ability to understand simple questions - in deposition and then at trial, and listing many examples)

Vagenos v. LDG Fin. Servs., LLC, No. 09-CV-2672 (BMC), 2010 WL 1608877, at *2 (E.D.N.Y. Apr. 15, 2010) (rejecting claim deponent’s credibility should be questioned where examiner used technical terms that were likely confusing to the deponent; “This often-confusing line of inquiry at his deposition, in which plaintiff was ultimately entirely forthcoming about his past indiscretions, is not probative of his character for veracity^”)

Skyline Advanced Tech. Servs. v. Shafer, No. 18CV06641CRBRMI, 2020 WL 13093877, at *6 (N.D. Cal. July 14, 2020), report and recommendation adopted, No. 18-CV-06641-CRB, 2020 WL 13093878 (N.D. Cal. July 30, 2020) (“Shafer's response in opposition to Skyline's motion contains a surprisingly candid concession (which is surprising in light of the fact that she took such care to be remarkably evasive and highly uncooperative during her deposition)”)

Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence; (b) Scope of Cross-Examination (which provides in part that “Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness's credibility”)

Fed. R. Civ. P. 32 (“Using Depositions in Court Proceedings (a) Using Depositions. (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence”)

In this episode, Jim Garrity addresses the risk of instant privilege loss - attorney-client, work-product, or any other privilege - in depositions, absent immediate objection and an instruction not to answer (and an immediate demand for return of privileged documents, if applicable). He discusses a decision where a court found that a plaintiff waived the attorney-client privilege by answering just three questions over two minutes, because there had been no objection or instruction not to answer by the plaintiff's counsel.

By the way, have you checked out the 4th edition of Jim Garrity's blockbuster practice handbook on depositions? It's now out! 615 pages, detailed table of contents, and cover to cover with expert practice tips and insights, backed up by thousands of on-point citations to court rulings on deposition-related topics. Available on Amazon and just about everywhere else. Look for 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. It's the ultimate user's guide and handbook on deposition tips, tactics & strategies for civil, administrative, and arbitrative proceedings.

SHOW NOTES

Luna Gaming-San Diego, LLC v. Dorsey & Whitney, LLP, et al., 2010 WL 275083, No. 06-cv-2804 BTM (WMc) (S.D. Cal. Jan. 13, 2010) (finding waiver of privilege in deposition, in absence of objection, to three questions and two minute discussion about a privileged document)

Neuberger Berman Real Est. Income Fund, Inc. v. Lola Brown Tr. No. 1B, 230 F.R.D. 398 (D. Md. 2005) (colorable good faith assertion of privilege, even if ultimately rejected by the court, is different from an improper objection, because the privilege objection must be made to avoid waiver, because it implicates substantive rights of the party apart from the litigation, and because it serves to prevent depositions from becoming tools for abuse)

How often are lawyers, deponents, and other participants surreptitiously recording depositions, including conversations during breaks that are meant to be private or privileged? Jim Garrity reports on this troubling conduct and surmises that it happens a lot more than many realize. As always, Garrity offers practice tips at the end of the episode, and our research on the topic appears in the show notes below. Thanks for listening!

SHOW NOTES

Defendant’s Second Motion for Terminating Sanctions (filed Sept. 29, 2020), Plaintiffs’ Opposition to Defendant’s Second Motion for Terminating Sanctions (Redacted) (filed Jan. 28, 2021), and Findings of Fact, Conclusions of Law, and Order Denying Defendant’s Second Motion for Terminating Sanctions and Granting Alternative Relief, Winters v. Dennis, Case No. A-15-723886-C, Dept. XI (Dist. Ct. Nevada July 26, 2021)Andrew C. v. Karcher, et al., 2006 WL 2664267, Case No. B184495 (Ct. App. Cal. Sept. 18, 2006) (sanctions imposed in form of $6,000 fine and order barring use of deposition transcript, where lawyer alleged arranged for second camera and a microphone to capture testimony and conversations of opposing counsel and his client)

Picard v. Guilford House, LLC, No. X03CV106016061S, 2014 WL 1876595 (Conn. Super. Ct. Apr. 3, 2014) (order staying case, imposing fines, and expressing an intention to refer plaintiff’s counsel to the bar following allegations that lawyer left her iPhone on, in record mode, during all breaks during the deposition, allegedly picking up privileged conversations between a key defense witness and defense lawyers; rejecting arguments of privilege in the recording or an absence of privacy expectations by those who were recorded.)

Knopf v. Esposito, 2018 WL 1226023, Case No. 17-cv-5833 (DLC) (S. D. N. Y. Mar. 5, 2018) (sanctions imposed after attorney video recorded deposition despite denying five times on the record that he was not recording)

Brockmeier v. Solano Cnty. Sheriff's Dep't, No. CIV S-05-2090 MCEEFB, 2010 WL 148179 (E.D. Cal. Jan. 12, 2010) (noting, without ruling on it, that defendant’s efforts to depose the pro se plaintiff were disrupted when “…counsel for defendants became aware Plaintiff was apparently surreptitiously recording the deposition and conversations in the room during breaks by way of an audio recording device in her purse…”)

Fluckiger v. Hawkins, No. 1:11-CV-00120-DAK, 2012 WL 6569485 (D. Utah Dec. 17, 2012) (where plaintiff admitted to secretly recording his depositions on a personal audio or video recorder, counsel was ordered to review the tapes and certify whether they had been altered in any way)

Hylton v. Anytime Towing, No. 11CV1039 JLS WMC, 2012 WL 3562398 (S.D. Cal. Aug. 17, 2012) (ordering pro se plaintiff to attend a second deposition and “to destroy the unauthorized computer recording he made of the first deposition,” finding that the plaintiff “secretly recorded the deposition proceedings on his laptop computer, including off-the-record sidebars between defense counsel”)

In this episode, Jim Garrity discusses a new summary judgment ruling against a company based in part on testimony by its 30(b)(6) designee that was outside the scope of the designee's topics. The ruling highlights the risk of choosing designees who possess personal knowledge well beyond the topics about which they will testify. Garrity offers practice tips for litigators on both sides of this issue - for those who select, prepare, and defend 30(b)(6) designees, and for those who schedule and depose them. The citation for the ruling appears in the show notes below. Thanks for listening!

SHOW NOTES

Order Granting Summary Judgment and Denying as Moot Other Outstanding Motions, MSP Recovery Claims Series, LLC, et al. v. Tower Hill Prime Insurance Company, et al., 2022 WL 17839537, Case No. 1:20-cv-262-AW-HTC (N.D. Fla. Dec. 20, 2022) (citing plaintiffs’ 30(b)(6) designee’s off-topic admission in granting defense motion for summary judgment)

In this episode Jim Garrity tackles the propriety of a question often heard in depositions when the deponent has just contradicted the testimony of another witness: "Are you calling them a liar?" Is this objectionable? If so, what's the objection? If it's objectionable and you don't object, is it per se reversible error? Is there a better way to ask the question? So many questions, so little time. But Jim answers them all and more, in just 13 1/2 minutes. (And speaking of time, do you have time to leave a 5-star rating for our podcast wherever you listen to our show? It takes no more than ten seconds, and our entire team will be forever grateful. Those 5-star ratings are like Kobe beef to the crew. Thanks!)

SHOW NOTES

Merritt v. Arizona, No. 21-15833, 2022 WL 3369529, at *2 (9th Cir. Aug. 16, 2022)g. “[T]he prohibition on improper vouching based on evidence outside the record extends to civil trials")

Easter v. Mills, 239 Or. App. 209, 213, 243 P.3d 1212, 1214 (2010) (“The Oregon Supreme Court has recently reviewed and elaborated on its decisions on this subject. In State v. Lupoli, 348 Or. 346, 357, 234 P.3d 117 (2010), the court stated:“This court has long held that one witness may not give an opinion on whether he or she believes another witness is telling the truth. * * * Applying that principle is a straightforward matter when one witness states directly that he or she believes another witness, or that the other witness is honest or truthful. However, statements that fall short of such overt vouching also may be impermissible”)

United States v. Pereira, 848 F.3d 17, 22 (1st Cir. 2017) (“In United States v. DeSimone, 699 F.3d 113 (1st Cir. 2012), this court clarified that although [i]t is improper for an attorney to ask a witness whether another witness lied on the stand[,] ... [i]t is not improper to ask one witness whether another was “wrong” or “mistaken,” since such questions do not force a witness to choose between conceding the point or branding another witness as a liar. There is no error in simply asking a witness if he agreed with or disputed another witness's testimony”)

Broyles v. Cantor Fitzgerald & Co., No. CV 3:10-857 JJB-CBW, 2017 WL 3946261, at *3 (M.D. La. Aug. 21, 2017), report and recommendation adopted, No. CV 10-857-JJB-CBW, 2017 WL 3928939 (M.D. La. Sept. 7, 2017) (order adopting magistrate’s report recommending the granting of motion in limine to exclude testimony as to one witnesse’ opinion of another’s testimony); see also Defendants’ Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony (CM/ECF Doc. 588), Defendants’ Memorandum In Support Of Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony (Doc. 588-1), Joseph N. Broyles, et al. v. Cantor Fitzgerald & Co., et al., Civil Action No.: Case 3:10-cv-00854-SDD-CBW Document 588 (M. D. La. filed May 13, 2016), Consolidated With: Civil Action No. 3-10-Cv-00857-JJB-SCR; CM/ECF Doc. 672 (Plaintiff’s Memorandum In Opposition To S&Y Parties’ Motion In Limine To Exclude Evidence As To One Witness’ Opinion Of Another Witness’ Testimony)

United States v. Rivera, 780 F.3d 1084, 1096–97 (11th Cir. 2015) (“As to the propriety of questions by a prosecutor that prod a defendant to accuse another witness of lying, we have held that such questions are not proper. United States v. Schmitz, 634 F.3d 1247, 1268 (11th Cir.2011). . . .Of course, the fact that a prosecutor should not ask a testifying defendant whether another witness was lying does not mean that the prosecutor will be prohibited from pinning down a defendant's testimony by focusing the latter on conflicts between his account of a certain event and another witness's testimony on that point. Indeed, in Schmitz, we cited with approval the Third Circuit's observation that “it is often necessary on cross-examination to focus a witness on the differences and similarities between his testimony and that of another witness. This is permissible provided he is not asked to testify as to the veracity of the other witness”)

United States v. Schmitz, 634 F.3d 1247, 1268–70 (11th Cir. 2011) (“We hold that it is improper to ask a testifying defendant whether another witness is lying”)

Southern Union Co. v. Sw. Gas Corp., 281 F. Supp. 2d 1117, 1127 (D. Ariz. 2003) (propriety of such a question may depend on the context in which the question is asked, citing cases for proposition that ‘were they lying’ questions may not always be improper, and that the balance may shift in favor of admitting lay opinion as the distance increases between the opinion and the ultimate issues)

Easter v. Mills, 239 Or. App. 209, 214–15, 243 P.3d 1212, 1215 (2010) The question at issue here, and the answer it elicited, were not of the same sort found to be objectionable in those cases. Here, A.H.'s mother was not asked whether she believed that A.H. was telling the truth (nor did her answer reveal whether she believed that A.H. was telling the truth). Rather, she was asked if she knew of any motive A.H. would have to lie. Admittedly, this line of questioning may skate close to the edge of what is permissible, given the real danger that it might elicit a response that includes a comment on the credibility of a witness, even if the question does not specifically call for such a response. Here, however, the response did not contain the mother's opinion as to whether A.H. was telling the truth. Moreover, as the state notes, the defense theory of the case was that A.H. had a motive to lie about the abuse, because she was angry with petitioner and petitioner's daughter. In that circumstance, questions of A.H.'s mother concerning whether she knew if her daughter had such a motive were permissible. Her response to the challenged question merely was that she did not know of any motive that her daughter had to fabricate the allegation of abuse. We conclude that the post-conviction court correctly determined that the question and answer at issue here were permissible”)

Com. v. Baran, No. 1804251, 2006 WL 2560317, at *16 (Mass. Super. June 16, 2006), aff'd, 74 Mass. App. Ct. 256, 905 N.E.2d 1122 (2009) (vacating criminal convictions in part based on prejudicial vouching; “Moreover, the issue concerning the vouching of credibility is not limited to experts: “[I]t is a fundamental principle that ‘a witness cannot be asked to assess the credibility of his testimony or that of other witnesses.’ Commonwealth v. Montanino, 409 Mass. 500, 504, 567 N.E.2d 1212 (1991). To violate this principle, testimony supporting a witness's credibility “need not be direct. The question is whether the witness's testimony had the same effect as if [the witness] had directed his comments specifically to [another witness's] credibility”)

Schmitz v. City of Wilsonville, No. CV-96-1306-ST, 1999 WL 778586, at *4–6 (D. Or. Sept. 17, 1999) (declining to extend vouching to civil cases; but finding no plain error from comments and denying motion for new trial)

Sneed v. Burress, 500 S.W.3d 791, 795 (Ky. 2016) “(It is equally impermissible for an attorney to phrase her remarks so as to indicate that a witness is lying based on the evidence presented. Of course, pointing out inconsistencies in a witness's statements and other evidence—and drawing reasonable inferences therefrom—is entirely permissible to the extent that it otherwise comports with our rules of practice and procedure. However, counsel is not permitted to make affirmative conclusions as to the credibility of a witness. Determining witness credibility “is within the exclusive province of the jury.” Id. (citation omitted).”) Also held can be considered harmless error based on circumstsances, but remanded for retrial)

State v. Bell, 283 Conn. 748, 779–80, 931 A.2d 198, 218 (2007) The other claimed improprieties in the present case, however, involve a variation on the classic type of Singh violation in which a defendant is asked whether another witness is lying, instead asking the defendant whether a witness' testimony was “true,” “right” or “accurate” and whether the defendant agreed with certain statements of other witnesses. Although these questions did not ask the defendant overtly to say whether a witness was wrong or mistaken, effectively, they essentially asked the same improper question, only phrased in the positive rather than in the negative. See United States v. Freitag, 230 F.3d 1019, 1024 (7th Cir.2000) (asking defendant if testimony of other witnesses is true is improper because it “invades the province of the jury; indeed asking if testimony is true implies that if it is not, it is a lie, which is a credibility question for the jury to decide”); see also United States v. Sanchez–Lima, 161 F.3d 545, 548 (9th Cir.1998) (reversible error when one government witness permitted to testify, over defense objection, that another government witness was telling truth, because determination of witness credibility is for jury and such testimony constituted bolstering by inadmissible evidence)

Hunter v. State, 397 Md. 580, 591, 919 A.2d 63, 69 (2007) (“We agreed with the trial court that this line of questioning was impermissible because the attorney was effectively asking the witness to say “whether the witness who gave [the statement] [ ] testified falsely.... [O]ne witness cannot be asked to characterize the testimony of another Missouri, K. & T.R. Co. v. Lycan, 57 Kan. 635, 47 P. 526, 528 [ (1897) ] ), since that is exclusively the function of the jury.” Id. at 314–15, 171 A. at 55. Thus, as early as 1934, we held that “were-they-lying” questions are impermissible in civil cases.”; reversing judgment and ordering new trial)

Eggleston v. Com., No. 2010-CA-002291-MR, 2012 WL 6061711, at *2 (Ky. Ct. App. Dec. 7, 2012)In Moss, our Supreme Court reaffirmed the longstanding rule that it is improper to require a witness to comment upon the credibility of another witness: With few exceptions, it is improper to require a witness to comment on the credibility of another witness. A witness's opinion about the truth of the testimony of another witness is not permitted. Neither expert nor lay witnesses may testify that another witness or a defendant is lying or faking. That determination is within the exclusive province of the jury")

State v. Airhart-Bryon, 13 Wash. App. 2d 1003, review denied, 196 Wash. 2d 1018, 474 P.3d 1052 (2020) (“Airhart also cites Boehning to argue prosecutors commit flagrant misconduct as a matter of law whenever they ask one witness if another is lying. Boehning generally supports this proposition. 127 Wn. App. at 525, 111 P.3d 899. However, our Supreme Court’s longstanding requirement is that allegations of prosecutorial misconduct be evaluated “ ‘in the context of the entire record and the circumstances at trial.’ ” See, e.g., Thorgerson, 172 Wn.2d at 442, 258 P.3d 43 (quoting Magers, 164 Wn.2d at 191, 189 P.3d 126). Here, we look to the context of the entire record to conclude there was no incurable misconduct”)

Montgomery Cnty. Dep't of Health & Hum. Servs. v. P.F, 137 Md. App. 243, 268, 768 A.2d 112, 126 (2001) (“The second reason assigned by the Bohnert Court was that a social worker's opinion regarding the credibility of the child invades the fact finder's role in assessing credibility and resolving disputed facts. Citing well-established limitations on the role of witnesses, the Bohnert Court held that the social worker's opinion constituted an improper “vouching” for the credibility of the alleged victim. In a criminal case tried before a jury, a fundamental principle is that the credibility of a witness and the weight to be accorded the witness' testimony are solely within the province of the jury.... It is also error [in civil cases] for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying....”, (citing Bohnert v. State, 312 Md. 266, 277, 539 A.2d 657, 662 (1988)It is also error for the court to permit to go to the jury a statement, belief, or opinion of another person to the effect that a witness is telling the truth or lying. Thompson v. Phosphate Works, 178 Md. 305, 317-319, 13 A.2d 328 (1940); American Stores v. Herman, 166 Md. 312, 314-315, 171 A. 54 (1934). The Court of Special Appeals said in Mutyambizi v. State, 33 Md.App. 55, 61, 363 A.2d 511 (1976), cert. denied, 279 Md. 684 (1977): Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, and questions to that effect are improper, either on direct or cross-examination.”)

Draper v. Rosario, 836 F.3d 1072, 1084 (9th Cir. 2016) (“The current version of the Model Rules similarly states that, in both civil and criminal trials, a lawyer shall not “state a personal opinion as to ... the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.” Model Rules of Prof'l Conduct R. 3.4(e) (2015). In sum, our prior case law indicates that attorneys may not rely on evidence outside the record during closing argument and that prosecutors may not vouch for witnesses’ credibility. We now make clear that the prohibition on improper vouching based on evidence outside the record extends to civil trials”)

Shuang Ying Nancy Zhang v. A-Z Realty & Inv. Corp., et al., No. EDCV 19-887-KK, 2022 WL 17361983, at *2 (C.D. Cal. Aug. 24, 2022) (“In addition, “counsel in a civil trial may not rely on evidence outside the record during closing argument")

Fed. R. Evid. 608. A Witness's Character for Truthfulness or Untruthfulness.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons (The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence)

Rule 602. Need for Personal Knowledge. (A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.

Rule 701. Opinion Testimony by Lay Witnesses (If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness's perception; (b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702)

In this episode, Jim Garrity continues his advocacy for litigators’ active management of every facet of their depositions, this time focusing on two sorely-neglected components of video depositions: background and lighting. Today he talks about ways to gain control of these two elements. He also tells you where we buy our backgrounds and portable lighting, and offers to send you images showing how we set up the lights, and the before-and-after look of the lights on a sample deponent.

SHOW NOTES

In re Zantac (Ranitidine) Prod. Liab. Litig., No. 20-MD-2924, 2020 WL 6687777, at *12 (S.D. Fla. Nov. 11, 2020) (detailed order establishing deposition protocols in class action case and specifying that depositions “. . .will be conducted in a neutral setting, against a solid background, with only such lighting as is required for accurate video recording”)

Fed. R. Civ. P. 30(c)(2) (requiring that objections to any aspect of a deposition, which would include background and lighting, must be noted on the record, but that the examination still proceeds subject to the objection)

ADDED SINCE PUBLICATION OF EPISODE 109

Vazquez Diaz v. Commonwealth, 487 Mass. 336, 361,167 N.E.3d 822, 846 (2021) ("...participants, notwithstanding published guidance to the contrary, will appear in suboptimal lighting, which will make their facial expressions harder to see, or in cluttered environments, which will complicate the effort to identify the emotional valence of their expressions. Videoconferencing may also provide less audio information than in-person courtroom speech does, impairing decision-makers' ability to discern the emotions conveyed by the sound of the voice")

In this episode, Jim Garrity alerts you to a federal decision where the judge catalogued thirty-two factors that courts should consider in resolving disputes about where depositions should take place. It's an excellent decision to have in your arsenal. To this list, Garrity lists several more common location-related things to consider.

SHOW NOTES:

DeepGulf, Inc. v. Moszkowski, 330 F.R.D. 600 (N. D. Fla. Jan. 30, 2019) (listing 32 factors judges should consider when resolving disputes about where depositions should take place)

If you're like most litigators, you now regularly issue subpoenas that command the deponent to appear “Via Zoom Videoconference,” or something similar. In this episode, Jim Garrity explains why doing that - rather than listing a physical location for the deposition - may render your subpoena fatally defective and unenforceable.

SHOW NOTES

Order Denying Plaintiffs Motion to Compel General Dynamics’ Compliance with Subpoena, Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 53), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (denying motion to compel compliance with subpoena in part because subpoena failed to command attendance at a specified “place of compliance; instead, it merely listed the place as “VIA ZOOM VIDEO CONFERENCE”)

Frobe v. UPMC St. Margaret, No. 2:20cv00957-CRE, 2021 U.S. Dist. LEXIS 129924, at *3 (W.D. Pa. July 13, 2021) (“ ‘Zoom Videoconferencing’ is not a ‘Place;’ rather, it is a method of taking the deposition;” court required subpoenaing party to modify subpoena to have place of deposition changed to within 100 miles of deponent's home or place of employment, whichever was more convenient to deponent)

Russell v. Maman, No. 18-CV-06691-RS (AGT), 2021 WL 3212646, at *2 (N.D. Cal. July 29, 2021) (declining to enforce subpoena that listed place as “Via Zoom;’ court could not determine with certainty that it had jurisdiction because it could not tell from subpoena that it was the district where compliance with the subpoena was required)

Opposition to Plaintiffs Motion to Compel General Dynamics Compliance with Subpoena, etc., Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-MDD (Pacer Doc. 38), 2022 WL 2820667 (S.D. Cal. July 18, 2022) (excellent memorandum in opposition to enforcement of subpoena that failed to specify “place” of deposition and instead listed the place as “VIA ZOOM VIDEO CONFERENCE”)

CSS, Inc. v. Herrington, 354 F. Supp. 3d 702, 709 (N.D. Tex. 2017) (“Under Rule 45, then, the place of compliance must be a physical “place” subject to “geographical limits” and capable of being measured according to mileage;” provision of email address, where subpoenaed documents are to be produced, was insufficient)

Fed. R. Civ. P. 45(c)(1)(A) (providing generally that place listed in subpoena for compliance must be within 100 miles of the witness’ residence, place of employment, or where the witness regularly transacts business)

Fed. R. Civ. P. 45(a)(1)(A)(iii) (imposing requirement that subpoena state the specified time and place for compliance)

**The following authorities were added after Episode 107 was aired:

Chen v. Federal Bureau of Investigation, et al., No. 22-MC-0074 (CRC), 2022 WL 17851618, at *3 (D.D.C. Oct. 18, 2022) (rejecting argument that non-party remote deposition subpoena was unenforceable because it did not specify a physical location)

Hawkins, et al. v. CUNA Mutual Group, etc., No. CIV-22-536-SLP, 2022 WL 19001967, at *2 (W.D. Okla. Nov. 21, 2022) (denying motion to quash Zoom deposition subpoena of Wisconsin lawyer, without prejudice to refile in Wisconsin, nothing that motion must be filed where deponent will testify if location is not in same district where action is pending)

In this episode, Jim Garrity offers up a clever idea for turning your skills in choosing 30(b)(6) designees into a deposition superpower. On the flip side, Garrity shares ideas on how to use this same principle to gain compliance from organizations that resist and delay your efforts to set corporate representative depositions. As always, the research on which this episode is based appears in the show notes below. Last point: Do you have 60 seconds to leave us a 5-star review, wherever you get your podcast episodes? These episodes are ad-free, so the only way you can really say thanks is to leave us a high rating. It literally takes less than a minute, and seeing great scores is such a huge thrill for our production and research staff. We really do appreciate you! Thank you again, and have a great week!

SHOW NOTES

The Deutsche Bank Entities’ Memorandum in Opposition to Plaintiffs’ Motion to Compel, etc. (ECF Doc. 351); Order on Plaintiffs’ Motion to Compel, etc. (ECF Doc. 364), In re Enron Corporation Securities Derivative & “ERISA” Litigation, Case No. 4:02-md-01446, Civil Action No. H-03-1276, Consol. Lead Civil Action No. H-01-3624 (S.D. Tex. Oct. 3, 2005)

Ierardi v. Lorillard, Inc., 1991 WL 158911, Case No. CIV-A 90-7049 (E. D. Pa. Aug. 13, 1991) (discussing use of former employee as corporate designee)

Sunbeam Corp. v. Black & Decker (U.S.) Inc., 151 F.R.D. 11 (D. Rhode Island 1993) (plaintiff Sunbeam designated a professor to testify as 30(b)(6) representative in patent infringement litigation, where topics included potential prior art known to Sunbeam, the criteria employed by Sunbeam in determining the scope of each of the claims of the patent in suit, and the meaning of certain patent terms)

Universal City Studios, Inc. v. Corley, 2000 WL 621120, No. 00-CIV-277 (S.D.N.Y. May 12, 2000) (where defendant opted to proceed with deposition under rule 30(b)(6), it would not be heard to complain when plaintiff designated someone who was not an officer, director, or managing agent of plaintiff)

Phillips v. American Honda Motor Co., Inc., et al., 2005 WL 1527685 (S. D. Ala. June 27, 2005) (denying motion for sanctions where multiple defendants all relied on the same single corporate designee, who not only did not work for any corporate defendants, but who did not speak English)

Guinnane v. Dobbins, 2020 WL 4734897 at *4-5 (D. Mont. Aug. 14, 2020) (“Second, Rule 30(b)(6) does not provide a mechanism by which a party can simply refuse to produce or prepare its designee on noticed topics”)

Fed. R. Civ. P. 30(b)(6) (allowing entity to designate, without limitation, “other persons who consent to testify on its behalf")

Today's we cover a fascinating topic: What to do when your party opponents assert a Fifth Amendment or similar privilege in their deposition? Unlike diamonds, privileges aren't necessarily forever. Your opponent can later drop, withdraw, or waive an assertion of privilege. And many litigants do, indeed, try to gain unfair advantage by eleventh-hour waivers, surprising adversaries with previously-shielded information. In this episode, Jim Garrity outlines the problem, and identifies six specific steps to take – in order – to stop this kind of misconduct.  As always, our show notes contain the research on which this episode is based. Note that some podcast sites don’t display lengthy show notes.  If you can’t see all fifteen citations in this episode’s notes, click through to our home page for the full list. Thanks!

SHOW NOTES

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, No. 3:18-CV-1506 (S.D. Cal. 2020) (individual defendant in securities fraud case produced no documents at deposition as required, and walked out after 1 hour 45 minutes, during most of which he allegedly refused to answer many questions, launched into profanity-laced tirades, and continuously invoking the Fifth Amendment; held, Plaintiff may re-depose defendant, and “the Court cautions Defendant Fellner that if he invokes the Fifth Amendment privilege with respect to topics on which he later attempts to present argument or testimony, the court may prevent him from doing so, or may issue other evidentiary sanctions such as giving an adverse jury instruction that the jury’s that the jurors may consider his implication of the privilege during his deposition in assessing his credibility”)

Keating v. OTS, 45 F.3d 322, 324 (9^th Cir. 1995) (“A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege”)

Sheindlin & Orr, The Adverse Inference Instruction After Revised Rule 37 (E): An Evidence-Based Proposal, 83 Fordham L. Rev. Issue 3 (2014) (discussing the history and implications of adverse inference jury instructions)

Order Granting Plaintiff’s Motion for Summary Judgment, SEC v. Premier Holding Corporation, 2020 WL 8099514. No.: SACV 18-00813 (C. D. California Nov. 30, 2020) (“As a preliminary matter, the SEC asserts that Letcavage should be precluded from offering testimony and other evidence in opposition to its motion for summary judgment because he asserted his Fifth Amendment privilege and refused to answer all substantive questions in his deposition; The Court agrees - while Letcavage certainly has the right to assert the privilege, he “cannot have it both ways. By hiding behind the protection of the Fifth Amendment as to his contentions, he gives up his right to prove them”), citing SEC v. Benson, 657 F. Supp. 1122, 1129 (S.D.N.Y. 1987)

Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 912 (9th Cir. 2008) (trial judge must balance the hardships caused to each party in considering adverse inference instruction, recognizing that there is a tension between one party's Fifth Amendment right and the other party's right to a fair proceeding; decisions when to allow the adverse inference and not to allow it must be determined on a “case-by-case basis under the microscope of the circumstances of that particular civil litigation”)

SEC v. Cutting, 2022 WL 4536816, No. 2:21-cv-00103 (D. Idaho Sept. 28, 2022) (Court grants plaintiff SEC’s motion to preclude defendant, in opposing the SEC’s motion for summary judgment, from introducing evidence, denials, and defenses that he previously withheld by invoking his Fifth Amendment privilege during deposition; “Cutting now attempts to speak on these very matters for which he previously invoked the privilege. ‘But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions” and then tossed aside to support a party's assertions’ ”), citing In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991)

United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 640 (9th Cir. 2012) (holding a court may strike the testimony of a witness in a civil proceeding to avoid a witness's improper use of the Fifth Amendment privilege against selfincrimination as a sword as well as a shield) (collecting cases). “The purpose of this rule is to protect the integrity and truth-seeking function of the judicial system from the distortions that could occur if a witness could testify and then use the Fifth Amendment privilege to prevent any adversarial testing of the truth of that testimony.” $133,420.00 in U.S. Currency, 672 F.3d at 640. “By striking testimony that a party shields from crossexamination, a court can respect the witness's constitutional privilege against self-incrimination while still preventing the witness from using the privilege to mutilate the truth a party offers to tell.” Id. (quoting Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988) (quoting Brown v. United States, 356 U.S. 148, 156 (1958)) (internal quotation marks omitted)

United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 85 (2d Cir. 1995) (if litigant in civil proceeding seeks to waive Fifth Amendment privilege only at the “eleventh hour,” and such waiver “appears to be part of a manipulative, ‘cat-and-mouse approach’ to the litigation,” a trial court may bar the litigant “from testifying later about matters previously hidden from discovery through an invocation of the privilege”)

In re 650 Fifth Ave. & Related Properties, No. 08 CIV. 10934 (KBF), 2013 WL 12335766 (S.D.N.Y. Sept. 6, 2013) (order approving adverse inference instruction based on defendant’s assertion of Fifth Amendment privilege and deposition), and  Joint Proposed Requests to Charge, US v. 650 Fifth Avenue and Related Properties, No. 1:08-cv-10934-LAP (PACER Document 1684-6), filed May 5, 2017

Sand, Modern Federal Jury Instructions, Instr. 75-5 (adverse inference instruction)

Libutti v. United States, 107 F.3d 110 (2d Cir. 1997) (pertinent to adverse inference instruction)

Pinnock v. Mercy Medical Center, 180 A.D.3d 1086 (App. Div. New York 2020) (declining to impose sanctions, including preclusion of evidence and adverse inference about assertion of Fifth Amendment privilege, where defendant physician was facing pending criminal charges at the time of his deposition)

Fed. R. Civ. P. 37(b)(2)(i)-(vii) (authorizing sanctions for failure to permit discovery, including but not limited to an order deeming facts as admitted, prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence)

ClearOne Communications, Inc. v. Chiang, 679 F. Supp.2d 1248 (D. Utah 2009) (adverse inference instruction about dishonesty read to jury just before witness took stand, where court had previously found that the witness had not given truthful answers on some topics during his deposition)

Card Technology Corporation v. DataCard, Inc., 249 F.R.D. 567 (D. Minnesota 2008) (following refusal of plaintiff’s currently-employed senior official to appear for deposition, the court deemed some facts admitted, and forbid the witness, if he appeared at trial, from testifying about certain topics that would have been explored in deposition)

In this episode, Jim Garrity addresses the problem caused by litigators who repeatedly interrupt your deponents’ answers, potentially resulting in a transcript full of half answers. It's a common and serious headache for defending lawyers, and you can only fix the problem one of two ways - either during the deposition, or through an errata sheet.  Garrity explains the pluses and minuses of using an errata sheet to complete interrupted answers, and tells you what courts have to say about that approach.  He then offers practical tips for addressing repeated interruptions during the deposition itself, and identifies four steps to fix the problem.  As always we've got supporting research in the case notes, with parentheticals that allow you to quickly scan the holdings or significance of each decisions. (Remember that if you don't see the full text of the show notes, just click through to our home page for the full list). Thanks for listening!

SHOW NOTES

***(Added after release of episode) In re Injectafer Prod. Liab. Litig. ALL CASES, No. CV 19-276, 2022 WL 4280491  (E.D. Pa. Sept. 15, 2022) (“Defendants propose. . . changing “It would be one of the—yes” to “It would be one of the sources of information. Yes.” This change is not necessarily inconsistent with the original testimony because it appears that the deponent was cut off or otherwise stopped speaking in the middle of the sentence and is justified as making the answer more complete. See id. While finishing a thought is not necessarily a proper justification for an errata modification, here it appears to be justified and within the flexible scope of the Third Circuit's approach to Rule 30(e)")

Grey v.  Amex Assurance Company, 2002 WL 31242195, No. B152467 (Ct. App. Calif. Oct. 7, 2002) (reversing summary judgment in part because trial court abused discretion in failing to consider errata sheet containing “changes. . . made because the witness was interrupted before completing her answers;” further noting that the defendant “. . .took the risk that [the plaintiff’s] corrections would bring some of its undisputed facts into controversy”)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 512 (N.D. Ill. 2015) (denying, without prejudice, motion to strike errata sheet, as motion failed to specifically discuss many of the 67 changes defendant wanted stricken; noting that “The reason given for the vast majority of the 67 changes was that [Plaintiff] “did not finish” her answer during the deposition, though the transcript does not reflect that she was interrupted and prevented from doing so,” and outlining how various courts and commentators deal with the extent to which changes to testimony can be made on errata sheets)

Arce v. Chicago Transit Authority, F.R.D. 504, 512, fn. 5 (N.D. Ill. 2015) (noting that, if one looks back at the early origins of the rule on errata sheets, quoted in this opinion, it may be argued that the intent of the drafters was indeed to limit changes to clerical-level mistakes, not to allow substantive changes): "One commentator who examined the history of the rule dating back to the original Equity Rule 67, and the twin Equity Rules 50 and 51 that succeeded it, concluded that Rule 30 was never intended to allow for more than the correction of transcription errors: "Appeals to the plain language of Rule 30(e) are incomplete and misleading without reference to the Rule's transcriptive focus. Read in historical context, the Rule appears to be distinctly clerical, ill-equipped—and never intended—to embrace substantive changes. Although its wording has changed over time, Rule 30(e) has retained one modest but steady focus: the who, how, and what of accurate transcription. The Rule is meant to secure an accurate representation of what was said, leaving to another day (and frequently to the mechanisms of Rule 56) the question of the meaning and implication of the deposition content for purposes of material factual disputes. The common understanding of Rule 30(e) has moved far afield from that mild ambition, giving us the confusion and circuit split we know today. Read in light of its history, the Rule clearly embraces a transcriptive focus. Ruehlmann, Jr., supra, at 915. Rule 30(e)’s counterpart in Illinois state court, Supreme Court Rule 207(a), was amended to limit corrections to transcription errors because the “potential for testimonial abuse” had “become increasingly evident as witnesses submit[ted] lengthy errata sheets in which their testimony [was] drastically altered....” Ill. Sup. Ct. R. 207(a), Rules Committee Comment to Paragraph (a) (1995)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (citing Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 60 (1998), for its author’s argument that Rule 30(e) permits “opposing counsel, at her choosing, to introduce both versions to the jury”)

Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir.2000) (observing, as to changes in errata sheet, that what the witness “tried to do, whether or not honestly, was to change his deposition from what he said to what he meant;” quoting the common refrain that “a deposition is not a take home examination,” the court remarked that while this was a “questionable basis for altering a deposition.” the court would allow the change under Rule 30(e) since the rule expressly “authorizes ‘changes in form or substance’.”

Tchankpa v. Ascena Retail Group, Inc., No. 2:16-CV-895, 2018 WL 1472527 (S.D. Ohio Mar. 26, 2018) (refusing, based on Sixth Circuit’s strict interpretation of errata sheet changes, to allow “. . .impermissible substantive alterations to Tchankpa's testimony. . .”, including explanations stating “Incomplete; I was cut off,” allegedly because “defense counsel interrupted him;” “In this circuit, a deponent cannot make substantive changes to his deposition testimony under Rule 30(e) based on defense counsel's interruptions. . .”)

Hirsch v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) When a party makes changes to his deposition pursuant to Rule 30(e), the original answers remain part of the record. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[T]he rule requires that the original transcript be retained (it is implicit in the provision of that rule that any changes made by the deponent are to be appended to the transcript) so that the trier of fact can evaluate the honesty of the alteration.”); Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (“Subject to the rules of evidence, the jury is permitted to hear the original answer, the change, and the reasons for the change and decide – in the context of all the other evidence – whether to credit either answer and what weight to assign it.”); Coleman v. Southern Pacific Transportation Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998) (accepting the argument that “a change in a deposition statement does not eradicate the deponent's original answers”); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D. Ill. 1981) (“Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made.”). The reason for this is obvious: “[t]he Rule is less likely to be abused if the deponent knows that ... the original answers[,] as well as the changes and the reasons will be subject to examination by the trier of fact")

Hirsh v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) (court-ordered second deposition of plaintiff did not extend deadline for submitting errata sheet following delivery of transcript from first deposition; counsel claimed he “believed that the first deposition did not ‘count,’ because it was ordered [to] be redone, and therefore corrections were reserved”; errata sheet rejected as untimely)

Neutrion Dev. Corp. v. Sonosite, Inc., 410 F. Supp. 2d 529, 550 (S.D. Tex. 2006) (allowing and considering – without apparent challenge or concern – expert’s substantive changes to errata sheet, necessitated “. . . [because he] began to explain the knowledge that one of ordinary skill in the art would possess, but was interrupted by Neutrino's counsel”)

Trout v. FirstEnergy Generation Corp., 339 F. App'x 560, 565 (6th Cir. 2009) (noting argument made by defendant that plaintiff “. . . is not entitled to benefit from her corrected deposition testimony because her counsel did not rehabilitate her statements during the deposition,” meaning plaintiff’s counsel could and should have asked followup questions while the deposition was in progress)

Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., No. 1:11-CV-4483-SCJ-AJB, 2014 WL 11517837, at fn. 2 (N.D. Ga. Aug. 4, 2014) (Although Plaintiff's brief in response to Defendant's objections discusses a long day and interruptions by Defendant's counsel during the deposition, those reasons were not provided in the errata sheet. The Court also notes that if Defendant's counsel interrupted Plaintiff such that he could not elaborate much as he wished, Plaintiff's counsel had the opportunity afterwards to examine her client on those points and did not do so.”)

Fed. R. Civ. P. 30(e)(1)(B) (federal rule of civil procedure on errata sheets, which expressly contemplates possible changes in form or substance)

 In this episode, Jim Garrity spotlights a 107-page ruling, issued just three days ago, that offers a sharp reminder about the consequences to deponents who claim memory failure and who then follow up, at summary judgment time, with affidavits or errata sheets containing fantastically-improved recollections of key details. Garrity also discusses another brand-new ruling, likewise issued three days ago, that makes the same point. As always, he offers practical tips and insights - here, to help you avoid the fate suffered by litigants in those cases, which was to have their post-deposition affidavits, errata sheets, and declarations stricken.

As always, the case citations that are mentioned in the episodes or that support the topic appear below in the show notes.

Don't forget to check out the book on which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d Ed. (470 pages), available everywhere you get your books

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SHOW NOTES

Luman v. Diaz, et al., 2022 WL 4001063, No. H-19-4920 (S. D. Tex. Sept. 1, 2022) (rejecting key portions of defendant’s declaration on summary judgment, where declaration appeared to be sham effort to fill in purported memory gaps of defendant at deposition; further rejecting purported defense expert report, which attempted to offer substantive testimony about defendant’s motive that defendant himself could not remember during deposition)

King v. Kings County Sheriff’s Office, 2022 WL 3999485, No. 1:20-CV-00943 (E. D. Calif. Sept. 1, 2022) (rejecting errata sheet from plaintiff’s expert, where entries changed some answers from yes to no, no to yes, added new information, and qualified prior answers)

Sinclair Wyoming Refining Company v. A & B Builders, Ltd, 989 F. 3d 747 (10^th Cir. 2021) (rejecting changes to errata sheet, in part because (a) deponent could have been crossed-examined by his own lawyer to correct error during deposition and wasn’t, (b) witness did not appear confused in giving original answers during deposition, and (c) it did not matter, at the end of the day, whether the corrected testimony aligns with objectively-correct information or subjective evidence - what matters is what the deponent testified he or she believed was true)

https://en.wikipedia.org/wiki/Gordian_Knot

There's definitely a right and a wrong way to terminate or suspend a deposition in progress on the grounds it is being conducted in bad faith, or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. In this episode, Jim Garrity spotlights a new court ruling imposing sanctions against a party who failed to do it correctly. As always, Garrity offers you practical guidance, here about exactly how to suspend or terminate a deposition and seek court relief in a way that complies with the governing rule.

(While you're here, can we ask you a small favor? Our production staff deeply appreciates 5-star ratings, and positive comments, on the various sites that host our podcast. Since the podcast is free, would you mind taking 60 seconds of your time, navigating to wherever you get your podcast, and leaving the crew a 5-star rating? It makes all the difference in the world to them, and it's a super motivator to bring you the best possible episodes - always with supporting research you can use - at no charge whatsoever. Thank you so much!)

SHOW NOTES

Fed. R. Civ. P. 30(d)(3)(A) (providing only grounds under the rules for interrupting, terminating, or limiting a deposition in progress)

Daniels v. Dixon, et al., 2022 WL 3574443, No. 8:21-CV-00223-CJC (C. D. Cal. July 12, 2022) (defendant law enforcement officer and counsel walked out of deposition after fifty minutes alleging, among other things, that plaintiff was disrespectful in conducting his deposition; held, “Because Defendant has failed to move for an early termination [under Fed. R. Civ. P. 30(d)(3)], Defendant remains obligated to complete the deposition,” and was ordered to pay $2,031 in costs associated with the terminated deposition)

Coulter v. Paul Lawrence Dunbar Community Center, et al., 2020 WL 13469775, No. 16-CV-0125 (W. D. Penn. Feb. 27, 2020) (granting defense motion for sanctions where plaintiff walked out of deposition without properly suspending and then seeking court order relating to alleged defense harassment)

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, at *7 (S. D. Cal., 2020) (“Most significantly, a further deposition is warranted because of Defendant Fellner's decision to leave the deposition after less than two hours had elapsed, without moving for a protective order under Rule 30(d)(3) or otherwise alerting the Court that he was choosing to terminate the deposition. That decision not only “impede[d]” the deposition; it torpedoed it.”)

Omeprazole Patent Litigation, 227 F.R.D. 227, 230 (S. D. N. Y. 2005) (“It is not the prerogative of counsel, but of the court, to rule on objections.... [I]f the plaintiff's attorney believed that the examination was being conducted in bad faith ... or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied immediately to the ex parte judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d).”

In this episode, Jim Garrity talks about dealing with document requests included within a Notice of Deposition Duces Tecum, and how to determine (a) the due date for service of your responses and objections to those document requests, regardless of the actual upcoming deposition date, and (b) the due date for the actual production of responsive documents. As always, we genuinely appreciate your listenership. If you have a moment, would you please add a five-star rating wherever you get your podcast? It takes just a second, but it's the #1 way to thank our production staff for these free, actionable, practice- oriented episodes. Thanks!

SHOW NOTES

Fed. R. Civ. P. 30(b)(2) authorizing deposition notice to include document requests for production ("at the deposition”)

Fed. R. Civ. P. 34(b)(2)(A) (providing that responses to document requests are due within 30 days after being served)

Gilbert v. E.I. Dupont De Nemours & Co., No. 3:15CV00988 (AWT), 2016 WL 3211682, at *3 (D. Conn. June 9, 2016) (“Rule 30, which allows the deposing party to request that documents be produced at the time of the deposition, does indeed incorporate Rule 34. Rule 34, in turn, states that the party to whom the request is directed must respond in writing within 30 days after being served. The Court has found nothing to indicate that the 30-day limitation is not applicable to document requests incorporated into deposition notices.”)

RM Dean Farms v. Helena Chem. Co., No. 2:11CV00105 JLH, 2012 WL 169889, at *2 (E.D. Ark. Jan. 19, 2012) (Rule 34, in turn, provides that the party to whom a document request is directed “must respond in writing within 30 days after being served.” Fed.R.Civ.P. 34(b)(2)(A). Thus, a party has 30 days within which to respond to a document request, even if the request is included in a notice of deposition, unless the time is shortened by stipulation or court order. Orleman v. JumpKing, Inc., No. Civ. A.99–2522–CM, 2000 WL 1114849, *9 (D.Kan. July 11, 2000))

Olmstead v. Fentress Cnty., Tennessee, No. 2:16-CV-00046, 2018 WL 6198428, at *4 (M.D. Tenn. Nov. 28, 2018), citing Schultz v. Olympic Med. Ctr., No. C07-5377 FDB, 2008 WL 3977523, at *2 (W.D. Wash. Aug. 22, 2008) (“It is well settled that Fed.R.Civ.P. 30(b)(2) provides that any deposition notice which is served on a party deponent and which requests documents to be produced at the deposition must comply with the thirty-day notice requirement set forth in Fed.R.Civ.P. 34.”)

Oldershaw v. Davita Healthcare Partners, Inc., 2017 WL 11688074, No. 15-CV-01964-MSK-NYW (D. Colorado April 13, 2017) (rule says that document request that is part and parcel of a notice of taking deposition requires production of documents at the deposition)

Sandler v. LC. System, Inc. Opinion and Order Granting Defendant’s Motions for Protective Order 2:13-cv-13000-MOB-MCM (S. D. Mich. May 8, 2014) (granting protective order against embedded document request where defendant argued, among other things, that it had produced some documents prior to the deposition date)

Richardson v. Rock City Mech. Co., LLC, No. CV 3-09-0092, 2010 WL 711830, at *4 (M.D. Tenn. Feb. 24, 2010) (Except for concerns about legibility of copies (which should have been addressed earlier), it is not clear to the Court why originals are necessary, citing Fed. R. Evid. 1003)

In this episode, Jim Garrity explains how to seek an order limiting the duration of an upcoming deposition, including the rules you'll rely on and the arguments you'l make (for or against, depending). Occasionally, it's obvious that certain deponents - high-level officials, spouses, children, or privilege-bearing witnesses, to name just a few - have limited knowledge or involvement. If so, a deposition spanning a full day or more simply cannot serve a legitimate purpose. That's when it's time to seek a court order in advance, limiting the length of the deposition. As always, supporting cases are in the show notes below.

And be sure to check out the book upon which this podcast is based,10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d. Edition, available just about everywhere books are sold. And if you don't mind, would you take a moment and leave our production crew a five-star rating wherever you get your podcast? This podcast requires tremendous time, energy, and research resources, and is completely free. For that reason, the best way to say thank you is with a great rating. Our staff is thrilled every time we see a new 5-star rating show up. As always, thank you!

SHOW NOTES:

Forte Capital Partners, LLC v. Harris Kramer, LLP, 2008 WL 4924724, No. C 07-1237 SBA (N. D. Cal. Nov. 14 2008) (“There is nothing in the Federal Rules of Civil Procedure or case law that legitimizes taking the full seven hours to depose a person when there is no purpose”)

Iron Hawk Technologies, Inc. V. Dropbox, Inc., No. 2:18-CV-01481-DDP-JE M (C. D. Cal. Mar. 20, 2019) (order time-limiting deposition of Dropbox CEO to three hours, in response Dropbox’s motion protective order)

Van Den Eng v. The Coleman Co., Inc., 2005 WL 3776352, No. 05-MC-109-WEB-DWB (D. Kan. Oct. 21, 2005) (rejecting defense demand to block deposition of former CEO, but limiting deposition to four hours; while evidence is weak that former CEO has relevant knowledge, “as a general, a party seeking discovery may test and asserted lack of knowledge”)

Speed RMG Partners, LLC v. Arctic Cat Sales, Inc., 2021 WL 5087280, No. 20-CV-609 (NEB/LIB) (D. Minn. Jun. 14, 2021) (rejecting defense request to time-limit 30(b)(6) deposition to 3.5 hours, saying there had not been a sufficient showing that topics of proposed corporate designee deposition were adequately addressed by prior fact witnesses)

Higginbotham v. KCS International, Inc., 202 F.R.D. 444 (D. Maryland 2001) (in response to plaintiff’s counsel’s alleged intransigence as to duration of deposition, defense counsel “could and should have filed a motion to modify the subpoena and to limit the duration of the deposition”)

Fed. R. Civ. P. 26(b)(2)(A) (authorizing court to limit duration of depositions)

Fed. R. Civ. P. 26(c)(1) (authorizing courts to impose limits on discovery, including depositions)

Fed. R. Civ. P. 45(d)(1) (authorizing courts to issue orders limiting undue burdens caused by subpoenas)

Fed. R. Civ. P. 45(d)(3) (3) (authorizing courts to modify subpoenas to avoid undue burden)

In this episode, Jim Garrity answers a frequent question he gets about Fed. R. Civ. P. 30's seven-hour time limit, namely, "The noticing lawyer questioned the witness for the full seven hours, so wasn't I still entitled to conduct my cross examination?" As always, he concludes the episode with excellent practice tips, here arguments to use when you need more time, and points to make when you're opposing such a request. Thanks for listening!

SHOW NOTES:

Tankersley v. MGM Resorts International and Bellagio LLC, 2022 WL 1395457, No. 22-cv-0 200995-RFP-DJA (D. Nev. Apr. 18, 2022) (discussing factors to consider in allowing more time for cross-examination where noticing party consumes most or all the seven hours allowed under FRCP 30(d)(1); held, plaintiff's lawyer allowed to reopen plaintiff's deposition and conduct four hours of follow-up after defense used all but 35 minutes of the default duration)

Alabama Aircraft Industries, Inc. v. .Boeing Company, 2015 WL 10090631, No. 2:11-CV-03577-RDP (N. D. Ala. Dec. 22, 2015) ( allowing Plaintiff, after deposition in which defendant conducted 5 1/2 hours of examination, and where plaintiff was only able to conduct 55 minutes of cross-examination before witness departed, to continue examination as part of original deposition for one and 1/2 hours)

In this episode, Jim Garrity explains the pitfalls in defending against – or in asking - the common wrap-up question “Have you now told me everything that supports your claims?” (or defenses, as applicable). A deponent who is unprepared for this question is likely to foreclose any opportunity to add additional information. On the other hand, a lawyer who asks this question at the very end of a deposition may open a Pandora's box that cannot be closed. Garrity addresses the situation, as always, from both sides, and offers practice tips to avoid problems.

Supporting cases in the show notes, as always.

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SHOW NOTES

Ziehm v. RadioShack Corporation, 2010 WL 2079550, No. 09-69-P (D. Maine May 22, 2010) (portions of plaintiff’s affidavit struck as contradicting deposition testimony, where plaintiff was specifically asked whether they had disclosed everything on a particular topic during the deposition)

Beckel v. Walmart Associates, Inc., 301 F.3d 621 (7^th Cir. 2002) (statements in employee’s affidavit in opposition to summary judgment could not be credited because it was consistent with deposition testimony given in response to questions whether the plaintiff “remembered anything else” that had been said, to which she said “No”)

Owens v. TelePerformance USA, 2009 WL 3719411, No. 04 C 3645 (N. D. Illinois November 4, 2009) (portions of affidavit stricken where plaintiff attempted to add additional, new information despite having answered “Yes” in deposition when asked “Have you now told me everything that you felt was unfair or discriminatory?” and “And you’ve told me everything that was said to you at the time?”) 

In this episode, Jim Garrity discusses a question he got from a lawyer whose corporate opponent refused to make the CEO available for deposition under the "apex doctrine." Garrity explains the advice he gave, which was to immediately notice a designated-representative deposition under Fed. R. Civ. P. 30(b)(6). He also discusses the value of designated-representative depositions in arbitration, where - because of sharp restrictions on the number of depositions that can be taken - many witnesses will similarly be off-limits.