It's a common question. If the examining lawyer says they're going to depose witnesses by remote video, and notices it that way, does this obligate you (and all other counsel) to likewise appear remotely? Or can you still freely appear in person if you wish? Listen in for critical insights into the issue, supported, as always, by research on point in the show notes, including both cases and citations to applicable rules. Thanks for listening!

SHOW NOTES

Thomas v. Communication Workers of America Local 3510, No. 4:25-cv-159-JDM-DAS, 2026 WL 2807142 (N.D. Miss. Sept. 18, 2026) (plaintiffs sought order requiring deposition to be conducted remotely and forbidding defendants from appearing in person with them; held, plaintiff could not force its wishes for remote deposition on a party that wished to appear in person, as partie has not stipulated to remote means under Rule 30(b)(4); nothing improper in counsel’s desire to observe the deponent; any party has the right to be physically present with the deponent even at a remote deposition)

Cressler v. Neuenschwander, 170 F.R.D. 20,22 (D. Kan. 1996) (“The court finds that the best solution in this case is to grant the plaintiff's motion for an order allowing the taking of the depositions of [several doctors], but to deny the plaintiff's request that the court order that neither plaintiff's counsel nor defense counsel attend the depositions in person. The plaintiff has provided the court with no authority, and the court has located none, which would restrain the defendant from being present during these depositions. See 4A James W. Moore, Moore's Federal Practice ¶ 30.09[5], at 30–114 n. 20 (2d ed. 1996) (Rule 30(b)(7) does not specify that a party may not be present during a telephonic deposition; so long as the voices of all the participants are transmitted, the deposition may fairly be characterized as taken by telephone under the rule). “[I]f the party seeking the deposition is prepared to conduct its portion without a face-to-face encounter with the witness, there is no reason not to permit it to do so, with any other party free to question the witness in person, thus avoiding any prejudice while reducing expenses.” Fireman's Fund, 1994 WL 583173, at *1; see also Jahr, 109 F.R.D. at 432 n. 4 (where plaintiff lacked financial resources and defendant was concerned about lack of face-to-face questioning, procedure by which plaintiff took deposition over the telephone and defendant appeared in person “would eliminate all of defendants [sic] concerns and still accommodate plaintiff's desires as well”).

Loughin v. Occidental Chemical Corp., 234 F.R.D. 75 (E.D. Pa. 2005) (party opposing telephonic depositions could cure any prejudice from lost demeanor evidence by traveling to the deponents’ locations and attending in person)

Moore v. Ford Motor Co., 755 F.3d 802 (5th Cir. 2014) (magistrate judge’s non-dispositive order set aside only if clearly erroneous or contrary to law; Fed. R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A))

Rule and Committee Notes

Fed. R. Civ. P. 30(b)(4) (“The parties may stipulate — or the court may on motion order — that a deposition be taken by telephone or other remote means.”)

Fed. R. Civ. P. 30 Advisory Committee’s Note (1993 Amendments) (“Paragraph (7) is revised to authorize the taking of a deposition not only by telephone but also by other remote electronic means, such as satellite television, when agreed to by the parties or authorized by the court.”)

Fed. R. Civ. P. 26(c) (protective orders specifying terms, method, and persons present for discovery)

Fed. R. Civ. P. 72(a) (review of magistrate judge’s non-dispositive orders)

Well, here's a surprise for you. Did you know that in federal court - and in jurisdictions that follow or apply the federal rules, such as state courts, arbitrations, or administrative proceedings - the rules impose a limit of ten depositions per side, not per party? Jim Garrity says that whenever he mentions this in casual conversations, many litigators react with surprise - as if he's lost his marbles. So, listen in for a 12-minute primer on this black-letter rule that's been in place now for more than thirty years. (You can of course stipulate with the other parties to allow for more. That's the best way to go. But Garrity suspects some lawyers get caught off guard by this nuance, and then must depend on the good graces of a court or other decision-maker to allow more.) Don't miss this super interesting dive into an oft-overlooked subsection of Fed. R. Civ. P. 30 and its state equivalents.

SHOW NOTES

Rule and Committee Notes

•   Fed. R. Civ. P. 30(a)(2)(A)(i) (leave of court required, consistent with Rule 26(b)(1) and (2), where a deposition would result in more than ten depositions being taken under Rule 30 or Rule 31 by the plaintiffs, by the defendants, or by the third-party defendants)

•   Fed. R. Civ. P. 30 Advisory Committee’s Note (1993 Amendments) (ten-deposition limit applies per side; parties on a side expected to confer on which depositions are most needed; enlargements or reductions ordinarily addressed at the Rule 26(f) planning meeting and Rule 16(b) scheduling conference)

•   Fed. R. Civ. P. 26(b)(1), (b)(2) (standards governing leave)

•   Fed. R. Civ. P. 29 (stipulations about discovery procedure)

Cases

•   Thykkuttathil v. Keese, 294 F.R.D. 597 (W.D. Wash. 2013)

•   Felman Production, Inc. v. Industrial Risk Insurers, No. 3:09-0481, 2009 WL 3668038 (S.D.W. Va. Nov. 3, 2009)

•   U-Haul Co. of Nevada, Inc. v. Gregory J. Kamer, Ltd., No. 2:12-cv-00231-KJD-CWH, 2013 WL 1249702 (D. Nev. Mar. 26, 2013)

•   Smith v. Ardew Wood Products, Ltd., No. C07-5641 FDB, 2008 WL 4837216 (W.D. Wash. Nov. 6, 2008)

Cases cited within the principal authorities

•   Bell v. Fowler, 99 F.3d 262 (8th Cir. 1996) (particularized showing required to exceed the presumptive limit)

•   Archer Daniels Midland Co. v. Aon Risk Services, Inc. of Minnesota, 187 F.R.D. 578 (D. Minn. 1999) (a party should exhaust its allotted depositions before seeking leave for more)

•   Whittingham v. Amherst College, 163 F.R.D. 170 (D. Mass. 1995) (same)

•   Doyle v. Gonzales, 2011 U.S. Dist. LEXIS 85115 (E.D. Wash. 2011) (permitting depositions beyond the limit under Rule 26(b)(2) where an after-acquired-evidence defense created the need)

You know how to assert a Fifth Amendment privilege in a deposition. But how to withdraw it, once the threat of criminal prosecution is gone? It's a dangerous minefield for the uninformed. In this episode, Jim Garrity explains the process, backed by both brand-new and enduring case law. Invaluable stuff, with a long list of supporting cites in the show notes for your research files.

SHOW NOTES:

United Healthcare Services, Inc. v. Mortazavi, et al., No. 3:21=cv=1547-L, 2026 WL 2076020 (N.D. Tex. July 16,, 2026) (order allowing defendant to withdraw prior assertion of Fifth Amendment rights, reopening discovery for the limited purpose of allowing defendant to testify fully in deposition and serve amended answers to interrogatories and request for admissions; excellent discussion of invocation and withdrawal of Fifth Amendment assertion)

Skillz Platform, Inc. v. Papaya Gaming, Ltd, et al., Case No. 24-cv-1646-DLC, 2026 WL 915251 (S.D.N.Y. Apr. 3, 2026) (in order to invoke the privilege, a witness must have “reasonable cause to apprehend danger from a direct answer” and have “reason to fear that any such answer might be used to incriminate him in future criminal proceedings;” “to be a “credible” threat of prosecution the fear of criminal prosecution may not be “imaginary or wholly speculative;” court refused to allow witnesses to testify where invocation was sought to be withdrawn three weeks )

In re Kowalsky, Case No. 24-19919-VFP, Adversarial Proceeding Case No. 24-1664, 2026 WL 2101871 (D. N.J. July 21, 2026) (in adversarial bankruptcy proceeding where sexual assault victim sought to bar debtor-defendant from discharging state-tort claim against him, court considered but declined to draw negative inference from debtor-defendant’s assertion of Fifth Amendment privilege when ruling on summary judgment motions)

Davis-Lynch, Inc. v. Moreno, 667 F.3d 539, 547 (5^th Cir. 2012) (elaborating on the factors a court should consider in evaluating whether and under what circumstances party may withdraw its indication of the Fifth Amendment privilege against self-incrimination in a civil case, saying that generally, a litigant may withdraw the indication, even at a late stage in litigation, if (1) the litigant was not using the privilege in a tactical, abusive manner, AND (2) the opposing party would not experience undue prejudice as a result)

United States of America v. 650 Fifth Avenue and Related Properties, Case 1:08-cv-10934-LAP, CM/ECF Doc. 1684-6 (S.D.N.Y. May 15, 2017) (filed, jointly-submitted agreed jury instruction on the jury’s right to draw an adverse inference against individuals that asserted the Fifth Amendment; instruction based on Sand, Modern Federal Jury Instructions, Instr. 75-5, Libutti v. United States, 107 F.3d 110 (2d Cir. 1997).

In re 650 Fifth Ave. & Related Properties, 934 F.3d 147, 169-170 (2d Cir. 2019) (District Court should take a liberal view toward applications by civil litigants to withdraw their previously-about for the amendment privilege; when confronted with the parties request to withdraw its previous indication of its Fifth Amendment rights, threshold issues are whether the request is “timely” and whether its opponent suffered “undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment”)

United States v. Certain Real Prop. & Premises Known as 4003-4005 5^th Ave., Brooklyn, N.Y., 55 F.3d 78, 83-84 (2d Cir. 1995) (stating that when confronted with a parties request to withdraw its previous indication of the Fifth Amendment, threshold issues are whether the request is timely, will cause undue prejudice from a litigants later-regretted decision to invoke the Fifth Amendment, the nature of the proceeding, how and when the privilege was invoked, and the potential for harm or prejudice to opposing parties)

Spevak v. Klein, 385 U.S. 511, 515 (1967) (the Constitution limits “the imposition of any sanction which makes the assertion of the Fifth Amendment privilege ‘costly;’” courts should seek out ways to permit as much testimony as possible to be presented in the civil litigation, despite the assertion of the privilege)

Skillz Platform, Inc. v. Papaya Gaming, Ltd. et al., Case 1:24-cv-01646-DLC, CM/ECF Doc. 1 (S.D.N.Y filed March 4, 2024) (Complaint detailing allegations of bot usage versus humans in online gaming platform)

In re Vrusho, 321 B.R. 607, 612 (Bankr. D.N.H. 2005) (stating that when a party to civil actions refuses to provide discovery invoking its Fifth Amendment privilege against self-incrimination, a negative inference may be drawn at the summary judgment stage as well as trial)

In re WorldCom, Inc. 377 B.R. 77, 109 (Bankr. S.D.N.Y. 2007) (saying that at summary judgment, the court is required to draw all reasonable inferences in favor of the non-moving party, despite the potential for the ultimate trier of fact to draw an adverse inference from the assertion of Fifth Amendment privileges)

In this episode, Jim Garrity explains the procedure for deposing current or former federal government employees where the federal government isn't a party to your litigation. These are commonly known as 'Touhy witnesses." And if they're important to your case, you'd better plan for their deposition very carefully. Garrity also discusses the importance of a strong backup plan, because many such deposition requests are denied by the employing agency. Important stuff to know! And great resources in the show notes, below.

SHOW NOTES

Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, 2026 WL 2042420, --- F. Supp. 3d --- (D. Ariz. July 13, 2026) (denying request for declaratory and injunctive relief against U.S. Department of Health and Human Services in APA action to force HHS to produce certain federally-employed treating physicians for deposition)

Complaint for Declaratory and Injunctive Relief [CM/ECF Doc. 1] Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., CM/ECF Doc. 1, No. CV-26-02379-PHX-KML, (D. Ariz. filed April 6, 2026) (alleging claim for violation of the Administrative Procedure Act, on the grounds of alleged arbitrary and capricious agency action, where federal agency refused to produce subpoenaed witnesses for deposition)

Motion for Preliminary Injunction [CM/ECF 12] in Support of Complaint for Declaratory and Injunctive Relief, Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. July 13, 2026) (motion seeking order setting aside HHS’ denial of Plaintiffs’ Touhy request as arbitrary, capricious, contrary to law, and in excess of delegated authority; requiring Defendants to authorize the depositions of Dr. Matthew Cusick and Dr. John Young within fourteen days, subject to reasonable limitations, including remote appearance, a limited duration, government counsel’s attendance, and restriction to nonprivileged factual testimony concerning Dr. Cusick and Dr. Young’s firsthand knowledge of Ms. Vincent’s care, including any device warnings and information available to Dr. Cusick; alternatively, remanding the matter to Defendants with instructions to reconsider Plaintiffs’ narrowed request within seven days under the governing regulation and IHS Delegation Memo and to provide a reasoned written decision addressing Plaintiffs’ need, unavailability, proposed limitations, and any specific disruption to IHS duties; ordering expedited production of the administrative record and expedited briefing as necessary to resolve this motion before the state-court trial; and granting such other relief as the Court deems just and proper)

Response in Opposition to Motion for Preliminary Injunction [CM/ECF Doc. 1], Becton Dickinson and Company, et al. v. United States Department of Health and Human Services et al., No. CV-26-02379-PHX-KML, (D. Ariz. Filed June 24, 2026)

Exxon Shipping Co. v. U.S. Dep't of Interior, 34 F.3d 774 (9th Cir. 1994) (treating request for depositions of current or former federal employees like any other discovery request)

https://oig.ssa.gov/touhy-requests/ (page for Touhy requests to Social Security Administration)

https://www.ecfr.gov/current/title-45/subtitle-A/subchapter-A/part-2 (Health & Human Services Touhy Regulations)

28 C.F.R. § 16.21 (Department of Justice's Touhy regulations)

Covington, Ben, Closing The Touhy Gap: The APA, The FRCP, And Nonparty Discovery Against Federal Administrative Agencies, https://columbialawreview.org/content/closing-the-touhy-gap-the-apa-the-frcp-and-nonparty-discovery-against-federal-administrative-agencies/ (noting an apparent and significant difference in Touhy request successes depending on where the action was filed, not on the merits of the request)

How many times have you noticed an expert witness for deposition, only to be told you've got to pay their fee in advance, failing which, they say, they aren't coming. As Jim Garrity explains, it doesn't have to be that way. Listen in and learn why prepayment isn't required and how to properly avoid advance payment. After all, those prepayment demands are often excessive, don't explain how the fee was determined, and of course don't guarantee the expert will even qualify as such, much less offer admissible testimony. And we've got a wealth of research for you in the show notes.

SHOW NOTES

Evans v. Home Depot USA, Inc., Case no. 2:25-CV-451-SPC-KRH, 2026 WL 1837154 (M. D. Florida June 25, 2026) (plaintiff’s treating doctor, a non-retained expert, was set for one hour deposition, and demanded prepayment of $3,000 for the deposition; held, prepayment is generally not required, “so lack of prepaid fees would not justify refusing to attend the deposition after proper service of a valid subpoena;” further outlining the process to address a treating physician’s potential nonappearance at a deposition, asking whether the deposition was subject to the courts subpoena power, and if so, whether the defendant had issued and served the subpoena, noting that the court then need not intervene until (a) the physician seeks to quash the subpoena or fails to appear, and (b) the defendant moves to hold him in contempt for failing to appear to deposition)

Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“The pertinent rule thus teaches that once Dr. Seldes has actually “spent” time responding to Spirit's questions at the deposition, he may then bill Spirit for a “reasonable” fee for that amount of “time.” Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee. I will not predict in advance what reasonable hourly fee Dr. Seldes may choose to request, but should a dispute arise, I will of course defer to the persuasive authority of cases such as the Garnier decision cited above and the precedent on which it in turn relied. See id. at *3-*4 (describing a range of reasonable hourly rates below $500))

Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *3 (E.D.N.Y. Aug. 10, 2011) (“The rule and the case law makes it clear that the parties seeking court intervention to determine a reasonable fee for an expert deposition should do so retrospectively—that is, after the deposition has taken place. The rule clearly contemplates that a court order will be issued subsequent to the deposition, as it requires a court to order payment of a “reasonable fee for time spent in responding to discovery”)

Tennant v. Handi-House Mfg. Co., Case No. 3:16-cv-1276-J-25MCR, 2017 WL 11105252 (M. D. Fla. Nov. 20, 2017) (Defendant moved for, among other things, order deferring payment for deposition of plaintiff’s treating physician, who canceled the deposition because he did not receive the $3,300 payment he demanded for his two-hour deposition; held, Defendant’s request to defer deposition fees of the treating physician granted, with the court “finding that prepayment of expert witness deposition fees is inappropriate under the Federal Rules of Civil Procedure;” noting that Federal Rule of Civil Procedure 26(b)(4)(E) “does not require the prepayment of expert deposition fees; further noting that the parties agreed that the issues presented are governed by the expert fee rules, implying that a treating physician may qualify as an expert under the circumstances); Court also noted that Fed. R. Civ. P. 26(b)(4)(E)(i) says that unless manifest injustice would result, the court must require that the party seeking discovery pay the expert a reasonable fee for “time spent” in responding to discovery; court noted that the deposition had not yet taken place, and so seemed to emphasize that it was premature to determine the reasonableness of payment because the provision talks about “time spent” and the doctor had not yet been deposed”)

Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025) (Bank filed Motion to Defer Payments to Experts or to Determine Reasonableness of Expert Charges, where defendants demanded that the bank pay an invoice from TASA Group in the amount of $10,325.29 in advance of the banking expert’s testimony, failing which the witness would not appear; bank argued that the court should defer reimbursement obligation pending the outcome of the case, in pending submission of supporting data, arguing that the Committee Notes to the 1970 amendments to Rule 26 say that the court may issue an order to pay fees as a condition of discovery, or it may delay the order until after discovery is completed.; Court noted that “other courts have denied request for advance payment because Rule 26 (small B) (4) (E) does not require it,” citing cases from Wisconsin and California for the proposition that, unlike ordinary witness fees, no rule requires that an opposing expert deposition fees be tendered to the witness in advance)

Regions’ Motion to Defer on Payment of Experts, or alternatively, to Determine Reasonableness of Kaplan Parties’ Expert Charges and Supporting Memorandum of Law (CM/ECF Doc. 435) Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025)

Defendant Marvin I. Kaplan’s Motion for Approval of Expert Witness Fees and Expenses (CM/ECF Doc. 436), Regions Bank, etc. v. Kaplan, No. 8:12-CV-1837-T-17MAP, 2015 WL 4935694 (M.D. Fla. Aug. 18, 2025)

Parkland Venture, LLC v. City of Muskego, No. 09-C-0972, 2010 WL 4723411 (E. D. Wisconsin November 15, 2010) denying plaintiff’s motion requiring the defendants to pay reasonable fees to the plaintiff’s experts in advance of taking their depositions; court noted that while rule 26(b)(4)(C) provides in relevant part that in less manifest justice would result, the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent responding to discovery, rule does not say that experts fees must be paid in advance of the deposition absent agreement to do so, and pointing out that unlike ordinary witness fees, no rule requires that an opposing expert’s deposition fees be tendered to the witness in advance)

Kramer et al. v. Hartford Insurance Co. of the Midwest, Case No. 8:12-cv-01824-T-17AEP, 2013 WL 12155927 (M. D. Florida April 30, 2013) (court granted Defendant’s Motion to Compel Deposition Testimony of Dennis James, an expert, finding “that prepayment of expert witness fees, including Mr. James’ expert witness in this action, is inappropriate under the Federal Rules of Civil Procedure. The court noted that while Rule 26(b)(4)(E)(i) says that in less manifest injustice would result, the court must require that a party seeking discovery pay the expert a reasonable fee for “time spent” [emphasis added], the Advisory Committee Notes (1970 Amendment) to Rule 26(b)(4) authorize a court to require the payment of fees and expenses as a condition of discovery, and also to delay the order until after discovery is completed. Thus, the court ordered the deposition to proceed but set a payment deadline for his fees within 50 days of the date of his deposition. The court emphasized that - while rule 26(b)(4)(E)(i) “is silent as to exactly when an expert will be paid after responding to discovery, the Court finds that a degree of reasonableness is inherent in the Federal Rules of Civil Procedure. In the circumstances of this case, a payment deadline of 50 days was reasonable.)

Harris v. Costco Wholesale Corp., 226 F.R.D. 675, 676–77 (S.D. Cal. 2005) (plaintiff’s counsel abruptly terminated defense deposition of plaintiff’s expert because Defendant would not pay expert witness fee at that time; court, rejecting the manner of termination is improper, said of Rule Fed.R.Civ.P. 26(b)(4)(C) that while experts must be paid absent manifest injustice, “The rule does not state, however, that the expert's fees must be paid in advance of the deposition absent agreement to do so. To the contrary, “[u]nlike ordinary witness fees, no rule requires that an opposing expert's deposition fees be tendered to the witness in advance… Because there is no rule allowing a party to terminate a deposition for the failure to pay opposing expert witness fees in advance, Plaintiff's counsel was wrong in doing so in the instant case)

Conte v. Newsday, Inc., No. CV 06–4859 (JFB) (ETB), 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (ruling that a motion seeking prepayment for an expert’s deposition was premature because the Rule “clearly contemplates that a court order will be issued subsequent to the deposition;” further saying “Nor, as discussed above, does the rule entitle plaintiff to payment in advance, citing Rule 26(b)(4)(E), which entitles an expert to a reasonable fee for “time spent” responding to discovery); citing Johnson v. Spirit Airlines, Inc., No. CV 07-1874FBJO, 2008 WL 1995117, at *1 (E.D.N.Y. May 6, 2008) (“[The expert] therefore may not insist on advance payment ....”). Rather, if the parties cannot agree to reasonable reimbursement for plaintiff's experts following their depositions, either party may apply to the Court for such a determination;” “Dr. Seldes therefore may not insist on advance payment, and may not set a flat fee before he knows what he will be called upon to do; he may instead charge only a reasonable hourly fee.”)

Conte v. Newsday, Inc., No. CV 06-4859 JFB ETB, 2011 WL 3511071, at *2 (E.D.N.Y. Aug. 10, 2011) (citing Broushet v. Target Corp., ––– F.R.D. ––––, 2011 WL 1750753, at *1 (E.D.N.Y. Mar.3, 2011), and saying “Courts consider the following factors in determining whether a requested expert fee is reasonable: (1) the witness' area of expertise; (2) the education and training that is required to provide the expert insight that is sought; (3) the prevailing rates for other comparably respected available experts; (4) the nature, quality and complexity of the discovery responses provided; (5) the cost of living in the particular geographic area; (6) any other factor likely to be of assistance to the court in balancing the interests implicated by Rule 26; (7) the fee actually being charged to the party who retained him; and (8) fees traditionally charged by the expert on related matters”)

Ratliff v. Baan Co., N.V., No. 1:99–CV–2455–WBH, 2003 WL 25774909, at *1 (N.D. Ga. Nov. 5, 2003) (concluding that after the expert’s deposition, the expert can submit a bill to be paid for the deposition)

Woodward v. Provident Life & Accident Ins. Co., No. Civ. A. 97–2062, 1998 WL 158744, at *3 (E.D. La. Mar. 30, 1998) (denying the motion to set an expert’s fee because the motion requests a flat fee to be paid in advance of the deposition without reference to “time spent” as enunciated in the Rule)

Burdette v. Steadfast Commons II, LLC, No. 2:11–980– RSM, 2012 WL 3762515, at *4–*6 (W.D. Wash. Aug. 29, 2013) (allowing prepayment of expert fees because the parties apparently did not dispute paying the fee in advance)

Federal Rule of Civil Procedure 26(b)(4)(E) (payment to experts)

Federal Rule of Civil Procedure 26(c) (protective orders to avoid undue burden or expense)

What to do when an organization resists your efforts to conduct a Fed. R. Civ. P. 30(b)(6) deposition by claiming it not only doesn't currently have information on the topics, but that it never had any? As Jim urges you to do in this episode, take the deposition and force the entity's designee to say it entirely lacks knowledge on the topics. Why? Because the absence of knowledge is itself a discoverable fact. And showing that an entity took no steps to become informed on critical matters can be powerful proof of indifference, negligence, or omission. Don't miss this one!

SHOW NOTES:

Order Overruling Defendant’s Objection To Magistrate Judge Vatti’s Order Dated February 5, 2026, LaBroad v. Costco Wholesale Corporation, et al., Case No. 3:24-cv-1102 (KAD), 2026 WL 1746249 (ruling that magistrate judge correctly determined “that the purported nonexistence of any materials regarding [defendant’s training on parking lot safety] is, itself, a relevant fact on which [Plaintiff] is entitled to develop evidence via Rule 30(b)(6)”)

Hepco Data LLC v. Hepco Medical LLC, 2020 WL 1870320, No. 2D19-2134 (2d DCA April 15, 2020) (certiorari granted, quashing order blocking depositions, because petitioners established through filed proffer that depositions were relevant; held, “litigants would never be able to take a nonparty deposition if all the non-party had to do to get out of it is to say that he or she had nothing to say; representations of opponent that discovery isn’t relevant need not be relied on)

John v. Core Brace, LLC 2021 WL 329460, No. 4:20-CV-00071-BLW (D. Idaho Jan. 29, 2021) (citing Apple. Inc., 282 F.R.D. at 263 for proposition that “A claimed lack of knowledge, by itself, is insufficient to preclude a deposition,” omitting additional citations)

United States of America v. Newman, 2021 WL 1026019, No. 19-1868 (RJL) ( D. D. C. Mar. 17, 2021) (sarcastically noting government’s proposed stipulation that certain evidence had not moved from its location during relevant time was an unconvincing “attempt to stipulate itself out of [having to respond to] discovery”)

Klorczyk v. Sears, Roebuck & Co., No. 3:13-CV-257 (HBF), 2015 WL 1600299, at *4-5 (D. Conn. Apr. 9, 2015) (holding that a "we-don't-know" response can be binding on the corporation at trial and prohibit it from offering evidence on those points; if a designee genuinely lacks knowledge, the designee must still be prepared to testify concerning the corporation's efforts to obtain the information and why it lacks sufficient knowledge)

QBE Insurance Corp. v. Jorda Enterprises, Inc., 277 F.R.D. 676, 690 (S.D. Fla. 2012) (establishing that the lack of knowledge answer is itself an answer which will bind the corporation at trial; lack of knowledge is insufficient grounds to preclude a Rule 30(b)(6) deposition; “The conclusion that the corporation is bound at trial by a legitimate lack of knowledge response at the 30(b)(6) deposition is, for all practical purposes a variation on the rule and philosophy against trial by ambush. Calzaturficio, 201 F.R.D. at 38; Wilson, 228 F.R.D. at 531; Taylor, 166 F.R.D. at 363 (rule prevents “sandbagging” and prevents corporation from making a “half-hearted inquiry before the deposition but a thorough and vigorous one before the trial”).

In this episode, we feature a brand-new deposition-related ruling that continues to build on the post-COVID pandemic rulings holding that in-person depositions remain the default and that parties seeking to force a remote-video deposition must satisfy the formidable good-cause burden. It's a great decision for your research bank, as are the others we've provided in the show notes below.

And here's a bulletin for you. As Jim explains here, research in the field of behavioral psychology shows us there's a powerful psychological reason for insisting that your deponent appear in person - and it isn't that you can personally gauge their demeanor. Don't miss this one!

SHOW NOTES

Groskreutz v. Agropur, Inc., No. 25-CV-1153, 2026 WL 1694341 (E.D. Wis. June 11, 2026) (in-person deposition required because of need for counsel to observe body language and because plaintiff failed to show good cause for remote video deposition)

Eletson Holdings, Inc., et al. v. Levona Holdings, Ltd., and Apargo Limited, et al., Case No. 1:23-CV-07331-LJL (S.D.N.Y. July 16, 2025), CM/ECF Doc. 505 (order requiring in-person deposition)

Simoni v. United Airlines, Inc., No. 1:21-CV-01267 (N. D. Ill. Aug. 25, 2023), CM/ECF Doc. 66 (order requiring in-person deposition)

Crutchfield v. Experien Information Solutions, Inc., et al., Case No. 1:25-CV-05697 (N. D. Ill. October 16, 2025), CM/ECF Doc. 44 (order requiring in-person deposition)

Fed. R. Civ. P. 30(b)(4) (“By Remote Means. The parties may stipulate—or the court may on motion order—that a deposition be taken by telephone or other remote means. For the purpose of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions)

Fed. R. Civ. P. 26(c)(1)(b) and (c) (authorizing court to determine manner, time, and place of deposition or other discovery)

Bond & Depaulo, Accuracy of Deception Judgments, Personality and Social Psychology Review, Vol 10, Issue 3 Aug. 2006, https://journals.sagepub.com/doi/10.1207/s15327957pspr1003_2

Have you ever had a queasy feeling, as an examining lawyer is explaining the so-called ground rules for the deposition with your witness, that something about the instructions was amiss? But you weren't quite sure what to say - and didn't really know whether or how to object? Instructions like, "Can we agree that if you answer a question, it means you understood it?", and "Will you agree to limit your testimony to actual facts you personally know to be true, and not answer based on speculation or opinion?" can box your client in, cause them to omit important information, and do grave damage at later evidentiary hearings or trials. In this episode, Jim Garrity explains how these kinds of instructions may be improper and how to articulate your objections. It's a definite don't-miss.

In this episode, Jim talks about the value of "second-order" examinations - asking deponents not only what they know, but what others know (and what others know that still others know, which is a form of third-order knowledge). It's an incredibly valuable tool for ensuring you fully understand the actors, documents, and events in your cases. Garrity explains why witnesses will talk more freely about what others know than about what they themselves know, and wraps up with practice tips for litigators who are either taking - or defending against - second-order knowledge examinations.

As always, thanks for listening!

In this final episode of our cross-examination series, Jim Garrity turns to the Reid Technique, the interrogation system developed in the 1940s for American law enforcement. Though the method has drawn serious criticism and been linked to false confessions, many of its individual components quietly appear in depositions, administrative hearings, and arbitrations every day, often deployed by lawyers who have never heard the name John Reid.

We break the technique into three "movements" civil litigators will recognize: the non-accusatory, warm opening that triggers reciprocity; confrontation and theme development, where a sympathetic narrative conceals a damaging concession; and the compound question that forces a false binary. Along the way, we cover how to prepare witnesses to recognize tonal shifts, resist softened mischaracterizations, and reject false either/or options. Finally, Jim explains how taking attorneys can ethically deploy these tools themselves.

In this third installment of our series on examination techniques, Jim Garrity dives into the so-called Reptile Method, developed by jury consultant David Ball and plaintiff’s attorney Don Keenan, and explained in their 2009 book Reptile: The 2009 Manual of the Plaintiff’s Revolution. It's long been a controversial approach because, some say, it's a disguised version of Golden Rule arguments that are generally forbidden in most jurisdictions. But whether you’re on the plaintiff side looking to deploy it or the defense side looking to neutralize it, you need to understand how the three-stage sequence works, and where it’s vulnerable.

SHOW NOTES

https://columbialawreview.org/content/shadow-tort-law-lessons-from-the-reptile/ (Columbia University law review article on "The Reptile" method)

https://lewisbrisbois.com/insights/clientalerts/the-reptile-theory-in-practice (defense firm blog on the Reptile Theory)

https://imslegal.com/articles/reptile-brain-strategy-why-use-it-how-counter-it (jury consulting firm article on the Reptile Method)

In this second episode in a series on different cross-examination methods, Jim Garrity spotlights Irving Younger's famed Ten Commandments of Cross-Examination. It's one of the earliest formal systems for conducting an effective cross. As Jim explains, there isn't a single "best way" to question or cross-examine witnesses. The path to world-class examination styles is being aware of the different approaches, understanding them, experimenting with them, and even possibly combining elements from several to develop your own style.

In this episode, and over the next few, Jim Garrity analyzes some of the better-known techniques or methods of conducting deposition cross-examinations. He begins with the Pozner-Dodd method, based on the book Cross-Examination: Science and Techniques, by Larry Pozner and Roger J. Dodd. As Jim explains, there isn't a single "best way" to question or cross-examine witnesses. The path to world-class examination styles is being aware of the different approaches, understanding them, experimenting with each, and even possibly combining elements from several to develop your own style.

SHOW NOTES:

Pozner, Larry and Dodd, Roger J., Cross-Examination: Science and Techniques, 3d. Ed.

https://www.amazon.com/Cross-Examination-Science-Techniques-Larry-Pozner/dp/1632843919/ref=sr_1_4?crid=2OP2T6EBDBNI3&dib=eyJ2IjoiMSJ9.o49yLDTFRzsh1lO1WhQd4xBgkEuhYLH3obvuBC2GIdpGyzn1i0dg1lEzyMEYoFcB.NPgrs8W1727PEigEc3OXABbQt85juirYS59s5B12ids&dib_tag=se&keywords=pozner+dodd&qid=1772489570&sprefix=pozner+dod%2Caps%2C227&sr=8-4

In this episode, Jim Garrity - the leading expert in the country on deposition strategies and tactics - rolls out another spectacular deposition strategy you won't find anywhere else. It's the application of the PACE Method to your deposition scheduling. It will change how you draft your deposition notices forever.

PACE - an acronym for Primary, Alternate, Contingency, and Emergency - was devised by the U.S. Military to ensure that if the primary plan goes haywire, there is a Plan B: an immediate go-to backup. And a Plan C, and a Plan D. It sharply increases the odds of mission success because there are no debates or delays when one plan fails. Everyone switches to the next layer of redundancy.

Here, Garrity tells you how to apply PACE to deposition scheduling, so that when your primary plan for deposing a witness - say, an in-person deposition - cannot proceed, you (and all other participants) immediately switch to your alternate plans.

As always, thanks for listening to the number #1 podcast in the world devoted exclusively to deposition strategies and tactics for litigators handling civil, administrative, arbitrative, and criminal proceedings.

In this episode, Jim Garrity urges you once again (see Episode 7, Audiotaping Your Depositions) to independently audiorecord your depositions. Apart from all the prior, excellent reasons he discussed, there's a new one, and it stems from technical glitches that disrupt the reporter's audio and video feed in a remote deposition. Give this one a careful listen!

SHOW NOTES

McGillvary v Riez, et al., Case No. 22-6430-MAS-JBD, 2025 WL 2962775 (D. New. Jersey Oct. 17, 2025) (memorandum order on, among other things, a motion to suppress the transcript of the plainest deposition and to compel production of the audio recording of the deposition, based on allegations that the transcript contained numerous errors and omissions) 

A must-listen episode with actionable guidance for litigators and trial teams who want to keep depositions moving and the record clean. We break down the “you can answer” interjection: why it is usually unnecessary, how it inserts defending counsel into your Q-and-A, and how repetition disrupts tempo and shifts the witness from answering questions to seeking permission. You will get a ready-to-use preliminary instruction that tells the witness to answer after objections unless counsel clearly instructs “don’t answer” or the witness needs a rephrase. We also cover when to address opposing counsel on the record and how to frame the issue as coaching and delay. If the conduct escalates, we explain how Rule 30(d)(3)(A) supports suspending the deposition and seeking a protective order.

SHOW NOTES:

Sample preliminary instruction to minimize "You can answer" gatekeeping"

During this deposition, the lawyers may make objections from time to time. For example, you may hear one of the lawyers say objection, or object to the form. These objections are mainly for the court reporter and, if necessary, for the judge later. They’re not signals to you to stop or to wait for permission. The only time you may hesitate is if the objection you’ve heard is “don’t answer that question.” Otherwise, after objection, or if theres no objection, go ahead and answer the question that was asked, after you heard the objection. You should not turn to your lawyer after each question, or wait for your lawyer to say you can answer after each question. Just listen to the question, and if you understand it, answer it in your own words. The only time you should stop answering as if your lawyers objection is along the lines of don’t answer that question, or if you yourself don’t understand the question and need me to rephrase it. Otherwise, you should go ahead and answer the question.

They're baaaaack! In-person depositions, that is. In this episode, Jim Garrity discusses two brand-new court rulings that reflect a growing trend among judges to enforce noticed in-person depositions of parties and key witnesses. It's a subtle but striking shift away from remote depositions, which took root during the COVID pandemic. Jim discusses the rulings in detail, as well as an interesting observation by an Illinois federal judge about the behavioral psychology that favors face-to-face confrontations. Finally, Jim offers practical guidance on arguments to make for and against remote depositions in your cases, including the two most powerful arguments to make when seeking an order requiring a deponent to appear in person.

SHOW NOTES

James, et al. v. Thomas, Case No. 1:24-CV-00061-RGJ-LLK, 2025 WL 2945597 (W. D. Ky. Oct. 17, 2025) (denying motion for protective order sought by three plaintiffs - who reside in New York, New Jersey, and Florida - to avoid traveling to Kentucky for their depositions)

Crutchfield v. Experience Information Solutions, Inc., et al., Case No. 25-CV-5697, 2025 WL 293-8760 (N. D. Ill. Oct. 16, 2025) (denying motion for protective order, filed by Florida-based plaintiff, that sought to avoid an in-person deposition in Chicago)

When a 30(b)(6) representative is deposed, the testimony is that of the organization, not of the individual answering the questions. However, in the heat of battle, it can be challenging to remember this distinction. Questions in 30(b)(6) depos that use words like "you" - and answers that use words like "I" or "me" - can blur the roles and lead an examiner to see the testimony as also being that of the witness individually. But it isn't. Psychologists refer to this confusion as an "attribution error," meaning that we may attribute the testimony to the wrong source.

This confusion can be fatal to a claim if the representative is also a key witness individually and wasn't deposed separately. Today, Jim discusses a brand new court ruling where a federal judge dismissed a claim against an individual defendant (and key witness) who was only deposed as a 30(b)(6) deponent. The question there was, when a 30(b)(6) witness says “I,” who’s really speaking—the individual or the entity? Learn how that 30(b)(6) deposition in Ademi wasn't enough to survive summary judgment, and what every litigator must do to avoid the same trap. Essential listening for anyone taking or defending corporate rep depositions.

SHOW NOTES

Ademi, et al. v. Central Park Boathouse, LLC, and Dean Poll, individually, No. 22-cv-8535 (S.D.N.Y. Sept. 23, 2025) (summary judgment granted in favor of individual defendant where plaintiff’s counsel only deposed defendant in a 30(b)(6) capacity and, thus, had no testimony from the witness himself)

Fed. R. Civ. P. 30(b)(6) (designated representative rule)

King v. Pratt and Whitney, 161 F. R. D. 275 (S. D. Fla. Apr. 27, 1995) (rule governing representative depositions doesn’t limit scope of questions that can be asked, beyond topic list); Joseph v. Chronister, et al, 2019 WL 8014505, Case No. 8:16-cv-274-T-35CPT (M. D. Florida January 29, 2019) (scope of designated-representative deposition is not strictly confined to topics set forth in notice; further noting the twin benefit of this type of deposition, being that it limits the number of people within a corporation to be deposed, and prevents bandying); See Marksberry v. FCA US LLC, 2021 WL 2142655, No. 19-2724 (D. Kan. May 26, 2021) (lawyers may object to topics as “outside the scope” of that listed on the 30(b)(6) notice, and such objections have been held to be permissible, but the witness “must nevertheless answer the question because Fed. R. Civ. P. 26(b) - not the deposition notice defines the scope of discovery”).

In this episode, Jim Garrity uses a pending bar disciplinary proceeding against a Florida lawyer as a potent reminder of the consequences of failing to ensure that your conversations during breaks in remote (virtual) depositions are not heard by others. As always, he offers practical guidance to help you avoid this potentially career-ending mistake. Citations to the referenced case are in the show notes.

SHOW NOTES

Zoom community forum reporting audio feed despite activation of mute button (https://community.zoom.com/t5/Zoom-Meetings/Participant-on-mute-yet-I-can-still-hear-them/m-p/142674)

Excerpt from Zoom’s terms of service at https://www.zoom.com/en/trust/terms/ (You agree [that the software and services are provided “as is” and that Zoom makes no guarantee] . . . .that the services or software will...be...error free. . . . [Y]ou will be solely responsible for any damage to you resulting from the use of the services or software. The entire risk arising out of use or performance of the services or software remains with you”)

Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed February 1, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Respondent’s Response to Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed March 11, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Report of Referee, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed April 28, 2025); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Amended Initial Brief (attorney appealing Report & Recommendation of Referee), The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed September 15); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Today, Jim Garrity examines a critical issue in trial practice: whether an incomplete deposition—cut short when the deponent becomes unavailable—can be admitted at trial, particularly when the opposing party had no opportunity for cross-examination. Drawing on a new Sixth Circuit Court of Appeals decision and Rule 32 of the Federal Rules of Civil Procedure, Jim explores the court’s decision, the key factors trial lawyers should argue for or against exclusion, and the balancing test that should be used when essential testimony hangs in the balance. Discover practical strategies for both offering and opposing use of incomplete deposition transcripts in high-stakes litigation. Thanks for listening!

SHOW NOTES

Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)

Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)

Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)

Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)

Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)

Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)

In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)