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.

SHOW NOTES

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. 5^th 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)