Chapter 6: Depositions

A deposition allows an advocate to obtain sworn oral testimony from parties and non-parties — pinning down a story, exploring documents and ESI, assessing the deponent's demeanor, and preserving evidence usable later as admissions, impeachment, or substantive proof at trial or hearing.

Chapter 6

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Where Weaver’s Needle casts its long shadow at four in the afternoon, there you will find a vein of rose quartz laced with gold wire—and you will be rich beyond your wildest dreams.

The Legend of the Lost Dutchman Gold Mine and Superstition Mountain

§ 6.1 The Deposition Process

§ 6.1.1 Advantages of Depositions

A deposition allows an advocate to obtain sworn oral testimony from parties and non-parties. Witnesses attend a deposition, answer relevant questions, and reveal informative documents. This interactive question-and-answer discovery device is a primary way lawyers develop evidence that will be instrumental in determining the outcome of a case.

You may never be able to depose the Lost Dutchman, but you can search for information beyond your wildest dreams. Depositions serve several significant purposes and help advocates to:

• Obtain and explore information from the other side through prepared and spontaneous, flexible follow-up questions.
• Determine what a deponent knows and does not know.
• Pin down a deponent to a particular story.
• Explore documents, electronically stored information, and social network communications with the deponent.
• Assess the deponent’s demeanor to determine credibility.
• Confront an adversary deponent with damaging information or probe the deponent about weaknesses in the case.
• Preserve testimony to be used later as admissions, impeachment evidence, or for other evidentiary or cross-examination purposes at a trial or arbitration or administrative hearing.
• Secure useful evidence to support a successful negotiation or mediation.

§ 6.1.2 Disadvantages of Depositions

Depositions have some disadvantages, though they are usually far outweighed by the advantages:

• Depositions can be somewhat expensive.
• Depositions may force the other side to prepare or may trigger counter-depositions, but it is poor practice indeed to prepare a case relying on the hope that the other attorney is a stumblebum.
• Depositions educate witnesses. Being deposed helps one learn the testifying process as well as what to say and what not to say. It can telegraph punches you would otherwise prefer to save for cross-examination at trial. On the other hand, an admission at a deposition can facilitate summary judgment and alleviate the need for trial.
• A discovery deposition also preserves the testimony of the opposing party or adverse witness, the transcript or recording of which may be able to be used at trial or a hearing should that deponent be unavailable.

On balance, depositions are the best discovery devices available. They should be used in every case, except in those occasional moments in which you can look yourself in the mirror and say, “Even the most overly aggressive lawyer seeking to bill hours would not depose in this case.” So much for the disadvantages.

§ 6.1.3 Scope of Depositions

Rules of civil procedure, case law, and common practice provide the basic procedural framework for the taking and using of depositions. These provisions vary to some extent among forums, lawyers, and legal communities. This chapter explains common deposition rules and practice and describes successful strategies and tactics for the taking and using of depositions.

Federal Rules 26, 29, 30, and 32 encourage and provide attorneys with the authority to customize deposition practice. [Rule 26(f)](https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) requires counsel to discuss discovery plans, including depositions to be taken. [Rule 29](https://www.westlaw.com/Document/N296B6850B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N296B6850B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) provides lawyers with the ability to vary rules allowing depositions to be taken efficiently and economically. One of the primary goals of the rules is to provide flexibility concerning the scope, number, timing, and procedures regarding depositions. State court rules similarly afford this flexibility.

Depositions are also commonly available in arbitration cases and often available in administrative law cases. The forum rules may explicitly permit the taking of depositions or the parties may agree to take them. The procedural rules for these depositions are similar to the procedures discussed in this Chapter.

§ 6.1.4 Timing of Depositions

When a deposition may be taken depends on the applicable rules of civil procedure and the needs of the parties. Federal Rule 26 permits depositions to be scheduled only after the parties have met and conferred about a discovery plan. This conference typically occurs between 60 to 90 days after the filing of the lawsuit. Federal Rules 30(a) and 29 permit counsel to schedule depositions at any time they mutually agree by stipulation (unless it would interfere with deadlines imposed by the court), and to seek leave of court to take an early deposition if they cannot agree. State rules typically allow depositions to be taken without leave of court by the plaintiff 30 days after service of the complaint and permit the defendant to schedule a deposition after receiving the pleadings.

Federal Rule 30(a)(2) designates three specific situations when leave of court may be required to schedule a deposition:

1. When more than 10 depositions would be taken. Section 6.1.5 discusses the 10-deposition limit.

2. When the person to be examined has already been deposed in the case. This rule prohibits a person generally from being deposed more than once. This requirement does not apply to incomplete depositions that are temporarily recessed or adjourned for the convenience of the deponent or counsel to gather additional materials. Alternatively, incomplete depositions may be completed by phone or video conferencing if the parties agree, particularly if significant travel costs are incurred or if only several questions remain.

3. *Before counsel have conferred in accord with *[Rule 26(d)](https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) (unless a deponent is about to leave the United States). If the deponent will be unavailable for examination in America because the person is expected to leave this country, a deposition may be scheduled based on a notice and a certification with supporting facts.

Some state court jurisdictions also limit the number and timing of depositions, as explained in Section 6.1.5. Attorneys usually have the power to vary the number and scheduling by an agreement, and may always seek leave of court to expand or restrict these terms.

Strategy considerations may prompt depositions to be scheduled at the earliest practical time during a case. Early examination preserves more accurate testimony, permits more time to investigate the facts obtained and to research the issues uncovered, and commits the deponent to testimony. Further, early successful depositions may prompt a ready settlement on advantageous terms. Attorneys, especially defense attorneys, may schedule a deposition as soon as possible to evaluate the extent of claims and defenses.

In other situations, a deposition can be scheduled later in the case. A delayed deposition permits the lawyer to be better informed on the areas of inquiry. Investigation may be needed to prepare properly for the deposition, and other discovery devices may reveal helpful information.

The timing of a deposition may also depend on other depositions yet to be taken. A deponent at a later deposition may have the advantage of either having attended or seen an earlier deposition or having read the transcript of an earlier deposition, which may influence potential testimony. To avoid this problem, depositions of adverse parties or witnesses may be scheduled back to back, on the same or subsequent days. A deposition may need to be taken just before or even during a trial or hearing if a witness belatedly becomes available. Federal Rule 26(d)(1) explicitly permits stipulations regarding specific deposition sequencing.

Depositions in arbitrations and administrative law cases often occur early in a case or in a timely manner, largely because of how promptly the case may progress and the less time available before the final hearing.

§ 6.1.5 Number of Depositions

Federal Rule 30(a)(2)(A)(i) establishes a limit on the number of depositions parties may take unless they agree otherwise or obtain leave of court. No more than ten depositions may be taken by one side in a case. The purpose of the rule is to obviously limit the number of depositions. The rule is intended to require the attorneys to agree on a cost-effective discovery plan for cases involving a significant number of depositions.

The rule states that a deposition may not be scheduled if “a proposed deposition will result in more than 10 depositions being taken under this rule or Rule 31 by the plaintiffs, or defendants, or by third party defendants.” This provision restricts each side of the case to ten depositions, irrespective of the number of parties on a side. In multi-party cases, the lawyers will need to confer and agree on whose depositions need to be taken. If parties in any case believe that more than ten depositions are needed and are unable to agree on additional depositions, court intervention may be sought.

[Rule 30(a)(2)](https://www.westlaw.com/Document/N2B7CBC20B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N2B7CBC20B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) states that a “party must obtain leave of court and the court must grant leave to the extent consistent with [Rule 26(b)(1) and (2)](https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)," which are the general rules regarding the scope of discovery. This provision allows courts to grant reasonable requests for more or fewer depositions. Parties who believe the number of depositions to be taken in a case is excessive, even if less than ten, may seek a lower limit. [Rule 26(b)(2)(A)](https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) expressly authorizes the court to modify the number of depositions to prevent the overuse of discovery.

Most state court rules do not limit the number of depositions that may be taken. These states do permit a party to obtain a protective order restricting depositions to a reasonable number, depending on the circumstances. Other states specifically limit the number of available depositions to three, five, or ten, and allow stipulations or orders for more.

The number of depositions available in arbitrations and administrative cases often mimic the above considerations in court cases. Depositions may be limited to key witnesses or those with vital evidence, to reduce discovery expenses and to accelerate the time to a final hearing.

§ 6.1.6 Location of Depositions

Federal Rule 30(b)(1) and similar state rules provide that the attorney taking the deposition has the right to specify where it will be held. Plaintiffs and their agents are often deposed where the lawsuit was commenced and can be required to attend depositions in the district where the action is pending.^[1]^ Defendants are typically deposed where they live or work. Depositions of a corporation’s officers, managing agents, and employees are ordinarily taken at its principal place of business or work. Special circumstances, such as hardship or financial burden to a party, may also affect the place of a deposition.

The attorneys commonly agree to the most convenient and reasonable location, and the deposition location is not usually a problem. For example, if all the lawyers and plaintiff are in one city and the defendant is in another state, it may be less expensive and more convenient for the defendant to be deposed in the locale where everyone else is rather than have all those participants travel.

Depositions are frequently held in the examining attorney’s office, often in the reporter’s office, occasionally in a courthouse, sometimes in the opposing attorney’s office, at times in the deponent’s office, but seldom in a Hollywood movie studio. The exact location of the deposition largely depends on convenience to the parties and lawyers and what effect a location may have on the deponent. Although holding the deposition in a deposing lawyer’s office may be convenient, holding it in a records office may make it more convenient to review documents and electronically stored information obtained before or during the deposition. Holding the deposition in the office of the deponent’s attorney may make the deponent comfortable amidst familiar surroundings, whereas holding it in a courthouse may be imposing to a deponent. Attorneys occasionally wrangle over location. A court reporter’s office may offer neutral ground, or a protective order regarding a convenient location may be obtained if necessary.

Remote depositions may be conducted if the participants are in distant locations and cannot all be convened in one location.^[2]^ This method may be more affordable and convenient and avoid travel expenses. In some cases, it may be the only available option. See § 6.3.2. Conventional wisdom holds that parties and key witnesses ought to be deposed in person, so the lawyers can more effectively question and evaluate them and that less important witnesses may be able to be effectively deposed remotely. But with the advent of improved technology and in the aftermath of COVID-19, one need not cling tenaciously to this view.

§ 6.1.7 Time Allocated to Depositions

Federal Rule 30(d)(1) limits the length of a deposition to seven hours in one day. The parties can agree or seek permission for a longer time. The time to be counted in the seven-hour federal rule is the time taken by questioning and not consumed by breaks. Seven hours is ordinarily more than sufficient for most deponents.

In state court cases, depositions are commonly scheduled for a half-day or a whole day. How long a deposition is scheduled for and how long it lasts usually depends on how much reasonable time is needed to complete it. The notice of deposition typically states the beginning time of the deposition and that it will continue until completed. Many depositions take a few hours, some take several hours, and still others take one hour. And then there are those few that take more than one day.

Judicial, arbitration, and administrative rules reasonably limit the time for a deposition. These jurisdictions recognize that modern depositions have increasingly expanded in length with examining attorneys asking tangentially relevant questions and opposing lawyers raising objections and asking extensive questions. Federal Rules 26(b)(1) and (2) limiting the scope of discovery and [Rule 26(c)](https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) protective orders provide ways to limit unreasonable depositions.

All jurisdictions permit a party to seek an order establishing a time limit for a deposition or extending a deadline. Counsel can request more time, if needed, as long as the questions and areas are relevant. Situations where more time is necessary involve an examination covering lengthy events, a case with many lawyers and parties, an action with numerous documents, or a deponent who needs an interpreter. Where there are many deposition exhibits, the documents can be provided before the deposition to save time, unless surprise is a tactic.

An examining attorney can also seek an order controlling unnecessary interference and inappropriate objections by a defending lawyer, making the deposition shorter. Another idea, somewhat farfetched, to restrict the time is to prohibit some lawyers from “showing off.” Federal and state rules encourage parties to use deposition time wisely with the threat that sanctions, including reasonable costs and attorney fees, may be imposed on anyone impeding or delaying a deposition. See §§ 6.10 & 11.4.

LLMs can help lawyers use deposition time efficiently by analyzing prior depositions, identifying potentially redundant or unnecessary topics. GenAI can also generate focused question outlines and issue-based timelines, ensuring that attorneys maximize their allotted time. By removing duplication within deposition outlines, LLM-backed tools further streamline questioning. GenAI-backed tools can also analyze deposition transcripts in real time, determining whether sought-after evidence has been obtained, allowing attorneys to adjust their questioning strategy on the fly. If you get the evidence you want (and need), LLMs can help you not ask the dreaded “one question too many.” With GenAI, lawyers can stay within the rules’ time limits while also ensuring that depositions are both thorough and effective.

§ 6.1.8 Non-Party Depositions

Individuals who are not parties to a case can be ordered by subpoena to appear at a deposition and testify and produce documents. These people include independent witnesses to an incident and persons with relevant information. Employees, agents, and representatives of a party may be commanded to appear with a notice of deposition and need not be served with a subpoena.

Documents to compel the attendance of non-party deponents include the Rule 45 subpoena along with the deposition notice. A lawyer or an administrator or a clerk of the court where the deposition is to be taken may issue the subpoena, depending on the rules. The scheduling lawyer has the subpoena served on the deponent with the notice and travel fees as set by statute or rule. Expenses for reasonable preparation and attendance may also need to be tendered to some non-parties.

Federal Rule 45(a)(2) provides that a subpoena must be issued by the court where the action is pending, but may be served anywhere in the United States although it may only require appearance within 100 miles of where the deponent resides, is employed, or regularly transacts business. A motion to compel compliance must be heard in the district where compliance is required, though that court can transfer the motion to the issuing court upon consent of the person subject to the subpoena or if the court finds exceptional circumstances.^[3]^

A state court subpoena is not enforceable outside the boundaries of the issuing court. For example, a Minnesota judge cannot issue a subpoena that would be directly effective in California, although it may become the basis for issuance of a subpoena by a California court that would require attendance in California. The general rule is that a non-party cannot be forced to attend a deposition, hearing or trial outside the community they live or work in. Since they are not parties involved in litigation, they need not have to travel outside their city or state, unless they volunteer to do so.

For example, a non-party witness who resides in California cannot be forced to attend a deposition in Minnesota. The party who needs to take their deposition may obtain a subpoena from the local forum where the deponent lives or works and depose them nearby. Usually, the lawyer files the lawsuit documents with the local court and obtains a subpoena from that court to be served on the deponent. For example, the non-party California deponent can be deposed in California for the Minnesota lawsuit by obtaining a subpoena from the local California court.

Courts do have discretion in designating the location of non-party examinations within their territory. Non-party witnesses usually are not required to travel distances for the convenience of the parties. Individual deponents need to be deposed nearby where they live or work. Business agents are usually deposed at their principal place of business or where the examinee resides or works. A non-party witness designated as a deponent for a corporation, association, or governmental agency may be able to limit the deposition location to the places authorized by [Rule 45](https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0).

The party seeking the deposition has the burden to show the capacity of the prospective deponent: that is, whether the deponent is a party or non-party. This burden is easily met in most situations. Occasionally, an issue arises regarding whether a prospective deponent, often a business employee and eyewitness to an event, is a non-party witness or an agent of the party. The relationship between the deponent and the party at the time of the event and at the time of the deposition determines the answer. A former employee of a business must usually be subpoenaed to a deposition.

A party who seeks to review or obtain documents including electronically stored information from a non-party may or may not need to schedule a deposition to do so, depending on the applicable rules of procedure. In federal cases, [Rule 45](https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) allows a party to serve a subpoena on a non-party ordering the party to produce and permit inspection of documents without having to appear for a deposition. This procedure saves the non-party the time and expense from having to bring exhibits to a deposition and saves the parties the expense of attending what would be a perfunctory deposition.

In many state court jurisdictions, a party must schedule a deposition to obtain documents in the possession of a non-party. In these state jurisdictions, an attorney who seeks documents from a non-party but who does not need to take that person’s deposition may have a number of options. The attorney may first request the non-party to voluntarily disclose the documents without the need for a deposition subpoena. The attorney may also stipulate with the opposing lawyer to vary the rules and not provide a notice of a deposition with the subpoena, although this practice may be prohibited. Or an attorney may schedule the deposition, have the non-party appear and produce the documents, and then immediately conclude the deposition. Whatever alternative an attorney attempts must comply with the rules and also not violate any protections provided a non-party who is not involved directly in the case.

Some jurisdictions by rule and some judges by order require a party to advance or reimburse a non-party for expenses incurred in preparing for and attending a deposition and providing documents. The rule may require that expenses or other payment be tendered with the subpoena or before the deposition or document delivery occurs. Non-parties should not have to incur costs in a case that does not involve them. These courts recognize that it is only fair to have parties pay for their intrusion into the business and personal lives of non-parties.

§ 6.2 Preliminary Deposition Considerations

The taking of depositions requires the consideration of several preliminary matters, including: giving proper notice, determining who can attend, and ensuring that the deponent brings needed documents to the deposition.

§ 6.2.1 Noticing the Deposition

Federal Rule 30(b)(1) requires the party taking a deposition to provide reasonable notice to all parties to the action, specifying the time, place, person to be deposed, and method of recording. The minimum time permissible to notice a deposition should be a reasonable amount of time dependent on the circumstances and may be governed by specific time requirements established by rule. Federal Rule 32(a)(5)(A) states that a party who receives less than a 14-day notice of a deposition may seek a court order rescheduling the deposition. This rule, while not mandating a minimum 14-day notice, encourages lawyers to schedule depositions after this notice period. In state cases, applicable rules or court decisions may require “reasonable” notice or may specify a time, such as ten or thirty days.

Federal Rule 30(b)(3) also requires the parties to designate in the notice of deposition the method by which the deposition shall be recorded. A deposition may be recorded by stenographic means (with a reporter who uses a stenograph machine), by sound and video (a video recording), or by sound alone (audio recording). Video recordings are common and replace or augment traditional stenographically recorded depositions. Attorneys who prefer video recordings may have a stenograph reporter transcribe the deposition in case a malfunction renders the video unusable. Many jurisdictions permit other recording methods (e.g., videoconferencing platforms, non-stenographic recording systems), which can reduce litigants’ cost, as well as increasing transcript velocity. For remote depositions taken in distant locales, the notice needs to provide the recording and communication details and the location of the participants.

The federal rule allows the party noticing the deposition to unilaterally choose the method of recording without the need to obtain agreement of other counsel or court approval. In a few state court jurisdictions, a party noticing a deposition must obtain consent of the other attorneys or permission of the court to take a deposition other than by the stenographic method.

Changes in the scheduled time may be, and routinely are, made by agreement of counsel. Federal Rule 29 permits the lawyers to set their own scheduled date (unless it interferes with a deadline imposed by the court), and the time is usually negotiable. A mutually convenient time can be arranged in a variety of ways: a phone call or text to the opposing attorney confirming the arrangements with a follow up notice, or an email message to the attorney suggesting a number of alternative times and dates, or a cover letter with the formal notice stating that the attorney may suggest a more convenient time, or a stipulation between or among the lawyers.

[Caption]

[Parties] stipulate that the deposition of [name of deponent] shall be taken by [plaintiff/defendant] on oral examination at [place], [address], on [date], at [time] ___ m. The deposition shall be recorded by [state method(s) of recording]. The following individuals may attend [Identify specific attendees]. Notice of the time and place of this deposition as required by Rule 30 is waived. [Add any other stipulations.]

[Signatures]

Examples of a printed notice sufficient to compel the attendance of an individual party or corporate deponent to the deposition include:

[Caption]

To: Each party and attorney for each party.

PLEASE TAKE NOTICE that the deposition of [name of deponent] will be taken by oral examination pursuant to the applicable Rules of Civil Procedure before [name of reporter] or other person authorized by law to administer oaths at [location], at [city and state] on [date] at [time] ___ m. The method of recording this deposition will be [video recording/audio recording/stenographic recording/combination (specify)].

The deposition will continue until completed. You may appear and examine the witness.

[Signature]

[Caption]

To: Each party and attorney for each party.

PLEASE TAKE NOTICE that the deposition of [name of corporate party] through the testimony of [name of witness], [title of deponent], will be taken by oral examination pursuant to Rule 29 of the Arbitration Forum Code of Procedure before [name of reporter] or other person authorized by law to administer oaths at [location], at [city and state] on [date] at [time] ___ m. The method of recording this deposition will be [video recording/audio recording/stenographic recording/combination (specify)].

The deposition will continue until completed. You may appear and examine the witness.

[Signature]

Depositions may be scheduled at any time during regular business hours, and during other hours for good reasons. Recesses will be necessary for the rest and recuperation of everyone present. Adjournments may become necessary if the deponent needs time to search for some information or make some other inquiries, or if the subject matter of the deposition is still developing. Attorneys typically discuss and agree on deposition timing, recesses, lunch, and other breaks.

Rule 30(g) explains what may happen to the lawyer who notices the deposition but fails to appear or fails to obtain the attendance of the reporter or deponent. The deposing lawyer may be ordered to pay the other party the amount of the reasonable expenses incurred, including reasonable attorney fees. If an unsubpoened witness promised to attend the deposition but fails to appear, the deposing lawyer will be liable for reasonable expenses, unless the witness would not have attended because of illness even if subpoenaed. So, confirm your calendar schedule to make sure you show up, remind the reporter, and double-check with the witness deponent.

It is common for lawyers to attend all depositions, although a lawyer is not required to attend a deposition of a non-party or even of a party who is not the lawyer’s client, although such an absence may be unwise. The failure to attend a properly noticed deposition will prevent the attorney from asking questions or making objections, which may be waived. And not appearing may have later, unanticipated ramifications. Counsel may be able to participate by phone or video conferencing, which would need to be arranged ahead of time. Rule 30(c) does permit an attorney not attending to submit written questions to be answered by the deponent. See § 6.9.

§ 6.2.2 Persons Present at the Deposition

The people present at a deposition in a court case, arbitration, and administrative proceeding include the following individuals. State court rules are commonly identical or similar to the federal rules and procedures.

1. The Deponent. All persons who have information relevant to the claims and defenses or are likely to provide evidence may be deposed. This includes parties, witnesses, and other individuals. The problems encountered with identifying corporate or organizational deponents is resolved by Federal Rule 30(b)(6), which permits a party to name as the deponent a public or private corporation, a partnership or association, or governmental agency and describe with reasonable particularity the matters on which examination is requested, and require the organization to designate one or more officers, directors, managing agents, or other persons to testify on its behalf. The organizational party must select someone who is knowledgeable about the subject matter (or more than one deponent) and must prepare the deponent(s).

Rule 30(b)(1) solves the further problem of an unknown deponent, by allowing a party to identify the deponent with a “general description sufficient to identify the person or the particular class or group to which the person belongs.” An example of such a notice follows.

[Caption]

To: Each party and attorney for each party.

PLEASE TAKE NOTICE that the deposition of [name of corporate party] will be taken by oral examination pursuant to the Federal Rules of Civil Procedure before [name of court reporter] or other person authorized by law to administer oaths at [location], at [city and state] on [date] at [time]. The method of recording this deposition will be [video recording/audio recording/stenographic recording/combination (specify)].

[Name] Corporation is directed, pursuant to Rule 30(b)(6) of the Rules of Civil Procedure, to designate one or more officers, directors, managing agents, or other persons who consent to testify on its behalf on each of the following subject matters:

1. [Describe with reasonable particularity the matters of the examination.]

The deposition will continue until completed. You may appear and examine the witness.

[Signature]

These rules provide the examining party with an almost ideal discovery world. If the examining attorney knows who should be deposed, that person can be designated. If the attorney only knows the subject matter to be discovered, the opposing party must designate the person who knows that information. If during the examination, the deposing lawyer discovers additional employees or persons who know something, they can be deposed later. Who could ask for anything more?

2. *Attorneys. *These include the attorney(s) representing the deponent and the lawyers representing the parties. A deponent who is either a witness or a party has a right to have an attorney present to defend; and all other parties have a right to have their lawyers present, who may ask questions.

3. *Officer/Reporter. *An authorized individual will administer the oath or affirmation and will record the testimony. The reporter may have an assistant operate the recording equipment.

4. *Parties. *All parties to an action may attend all depositions. Federal Rule 30(b)(1) requires that a deposition notice be provided to each party, implying that all parties have a right to appear. The prevailing view is that parties have a right to be present during a deposition. They have a right to be present during a hearing or trial, and the logical extension of this right would include deposition proceedings. They often do not attend because there is no reason to do so.

Sometimes, strategic reasons dictate having parties attend. For example, their presence may assist in obtaining complete and accurate testimony from the deponent (the deponent may be the only other eyewitness), or their presence may help them prepare for their own deposition. Conversely, there are reasons not to have a party appear. For instance, a party may react to some of the testimony and disrupt the deposition, or a party may expect an attorney to be aggressive rather than compassionate, influencing the attorney’s performance.

And, sometimes there may be a good reason to resist a party’s attendance. The attorney representing the deponent may object to the undue influence the party’s presence has on the deponent, or to harassing or inappropriate conduct by the party, or to the presence of a party’s representative during confidential testimony. The objecting lawyer may seek agreement of counsel or may need to obtain a protective order under Federal Rule 26(c)(1)(E) to bar another party’s attendance.^[4]^

A corporation, association, or governmental agency may be able to have two individuals present during a Rule 30(b)(6) deposition. One person would be designated to represent the organization as a party representative. Another person would be designated as the knowledgeable deponent pursuant to Rule 30(b)(6).

5. Witnesses. Non-party deponents do not commonly attend a deposition of another individual, although they may if there is no objection by a party. A request by one party to exclude someone may or may not be acceptable to bar that person. It is common in some cases for stipulated pretrial orders to explain who can or cannot attend certain depositions.

A non-party deponent witness may be excluded if all the parties agree or if a party obtains a court order pursuant to Federal Rule 26(c)(1)(E). A potential deponent may be appropriately excluded from a deposition to avoid any unfair advantage to a party, or that a future deponent may gain by attending an earlier deposition. An excluded deponent may also be prohibited, by stipulation or court order, from reading or viewing or being informed about the testimony provided in earlier depositions.

6. Third Persons. Depositions commonly occur without the presence of third persons. May interested individuals or members of the public or media attend a deposition? (Quite unlikely.) Is a deposition a public hearing? (No). Can tickets be sold? (Price dependent.) Federal Rule 26(c)(1)(E) permits protective orders “designating the persons who may be present while the discovery is conducted.” This implies that third persons can be restricted through a stipulated protective order. Further, Rule 29 allows attorneys to establish their own rules for the conduct of the deposition, thus further implying that the attorneys may mutually exclude whomever they want from a deposition.

Courts have declared depositions to be private proceedings closed to the public, and this appears to be the prevailing and correct view.^[5]^ A deposition’s purpose is markedly different from a hearing or trial and subject to different protections. The judge determines what is admissible at trial and protects parties from indiscriminate disclosure of irrelevant private information. But no advocate at the deposition can conclusively determine the relevancy of testimony.

These practices support the conclusion that deposition information should be deemed private until disclosed in court, and that the public does not have a right to attend a deposition unless a court rules otherwise. Courts have restricted the attendance of individuals present at depositions because of privacy considerations, because the examining party seeks to obtain the independent recollection of a deponent without influence by other depositions, and because such a person would be properly excluded from hearing such testimony at trial. Courts may also prohibit prospective deponents from reading or viewing other depositions.

Deposition transcripts or recordings do not have to be filed with the court. Most court rules, including Federal Rule 5, prohibit the public filing of discovery information including transcripts and recordings, unless needed to support a motion hearing or for trial. These rules suggest that the information revealed during a deposition is not public information, supporting the proposition that depositions are private proceedings.

Usually, third persons will not attend a deposition, and ordinarily attorneys do not invite them. However, somebody—a relevant observer or a member of the media—may want to attend. More often, an attorney wants a third person present to assist (an expert consultant) or for tactical reasons (to influence the deponent), while an opposing attorney may object to that person being present, also for legitimate reasons (to avoid becoming familiar with testimony).

Federal Rule 26 allows attorneys mutually to restrict the attendance of third persons to a deposition, but if they are unable to agree on who should be present, they will either have to reach a compromise or seek a Rule 26(c) or a Rule 37 order. Courts that issue such orders must balance the First Amendment rights of the third person (usually the press) with the privacy rights of the litigant. Courts have restricted attendance of a third person (a newsperson) at a deposition and sealed the subsequent transcript.^[6]^ Courts, including the Supreme Court, also have denied third persons access to information in criminal cases, protecting the defendant’s right to a fair trial through prior restraint.^[7]^

These issues can be addressed by counsel communicating with each other regarding their preferences on who should or may attend a deposition. The deposition notice can specify attendance or restrictions. Defending attorneys can notify other lawyers whom they plan to bring along. Disagreements can be resolved by an order of the decision maker.

§ 6.2.3 Ensuring Production of Documents and Materials

You may want a deponent to bring documents, electronically stored information, or tangible things to the deposition. Federal Rule 30(b)(5) and similar state rules allow you to compel the disclosure of such documents from a party at a deposition by attaching to the deposition notice a Rule 34 request for production of paper and electronic documents or tangible things. Federal Rule 45(b) permits you to compel disclosure from a non-party deponent by serving a subpoena commanding the person to bring the designated materials and things to the deposition.

Rules 34 and 45 operate similarly, not only to allow inspection, but also to permit the copying of documents or reproduction of electronically stored information. Rule 45 also allows a court to modify or quash an unreasonable or oppressive subpoena or to condition the disclosure of such materials on the advancement of the reasonable costs of production by the examining party and to the deponent. Rule 45 expressly permits use of a subpoena to obtain documents from a non-party without the fanfare of a deposition.

Using one or the other of the document disclosure methods may prove very revealing and prevent frustration at the deposition. You will have the opportunity to review documents with the deponent and to receive an explanation of their contents from the deponent. You will also be able to avoid the response from some deponents, “Golly, the smoking email is on my office laptop which is being attacked by a computer hacker.”

§ 6.3 Recording the Deposition

[Federal Rules 28(a) and 28(c)](https://www.westlaw.com/Document/N26E44840B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N26E44840B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) and similar state rules require that an officer authorized to administer oaths be present for the taking of a deposition and that this officer cannot be a relative, employee, or attorney of any of the parties or lawyers or otherwise be financially interested in the action. This disinterested officer is usually a reporter, typically from an independent court-reporting firm. Rule 30(c)(1) allows someone other than the officer who put the witness under oath to record the testimony, as long as this person is under the direction of the officer and the officer is personally present. The party who notices the deposition typically pays for the officer’s time and the costs of reporting.

The party who notices the deposition, as explained in Section 6.2.1, chooses the method of recording. A party who did not notice the deposition may also have a choice regarding how the deposition is recorded. Federal Rule 30(b)(3)(B) permits any party to designate another method to record the deponent’s testimony in addition to the method specified in the notice.

Depositions that are visually recorded by video are often the preferred recording method. The availability of affordable and technically sound recording equipment makes this option readily available. Plus, this method has the advantage of preserving how the witness responded in addition to what the witness said aloud. The traditional method of having a reporter use a stenographic machine to produce a written transcript continues in use. Some final administrative hearings are audio recorded, and pre-hearing depositions may also be audio recorded.

The additional record or transcript is made at that party’s expense, unless agreed to or ordered otherwise. These provisions allow other parties at their own expense to record a deposition the way they prefer. A party planning to do so must provide notice to the deponent and all of the parties. For example, the party noticing the deposition may schedule a deposition to be recorded by stenographic means while another party, after giving notice, arranges for a video recording. Many state courts permit only the party noticing the deposition to designate the method of recording and do not permit other parties to arrange other recording methods unless all parties are agreeable or a court issues an appropriate order.

§ 6.3.1 Deposition Transcript

and Record

There is no general requirement that a recorded deposition be transcribed, although a transcript may eventually be made of the deposition when it is needed for a motion, hearing, or trial. A stenographically recorded deposition may be converted into a transcript by the reporter. Electronically recorded depositions may produce an e-transcript along with the video or audio recording and deposition documents.

Modern recording equipment can both record and produce various formats. The electronic recording system may simultaneously record and reveal the testimony, appearances, and documents. A real-time transcript may accompany the oral deposition. Deposition formats can be paperless. Completed e-transcripts can also be fully searchable. As computerized and electronic technology advances to preserve, retain, and reveal testimony and images, more affordable and effective methods will provide readily available transcripts and records.

Documents introduced or produced during a deposition can also be easily made part of the transcript record. Paper or printed documents can be scanned and electronically stored information can be preserved in a pdf or other file format. Transcripts can be synchronized to video depositions, and exhibits can be embedded in the synchronized transcript for retrieval and export to hearing and trial presentation software.

Federal Rules 26(a)(3)(A)(ii) and 32(c) require a party to arrange for and pay for a transcript if that party relies on the testimony of a deponent as evidence at trial or in support of a motion. Any party may arrange for and pay for a transcript or record, although it is most common for the party taking the deposition to do so. Parties not requesting a transcript or record may order a duplicate (which usually costs less than the original), or may use another party’s transcript or recording if agreed to by that party and not violative of a rule.

LLMs can help deposition transcript generation by converting real-time audio and video into accurate, formatted transcripts while correcting errors and adding speaker identifications. GenAI can also enhance transcript usability by making them fully searchable with keyword indexing and generating real-time summaries and issue-based highlights. Additionally, lawyers can submit their deposition outlines into LLM-backed tools, which can analyze the transcript and determine whether all sought-after evidence has been covered. This can ensure that attorneys capture critical testimony efficiently, establishing each element of each claim, avoiding any gaps in the record.

§ 6.3.2 Remote Video and

Tele-Depositions

Federal Rule 30(b)(4) and similar state rules specifically authorize phone and remote electronic depositions by stipulation or court order. The rule also defines the location of a telephone deposition to be the district where the deponent answers the questions. The purpose of the rule is to publicize and authorize the use of video, phone, and digital methods of taking depositions.

Practical considerations including costs, travel, transportation, and scheduling may make a videoconference deposition attractive or necessary. The pandemic expanded the use of electronic communication methods, including remote depositions. These tele-depositions were conducted with the participants in different locations, some in the same community and some distant. These methods continue because they have proven to be effective and affordable in many situations. In other cases, the lawyers will want or need to conduct in person depositions, particularly for party deponents and key witnesses. See § 6.3.4.

Distant depositions can be arranged in various configurations. All the participants can be in different locations. Or, the deponent and the lawyer representing the deponent could be in one locale. Or, the recorder and deponent could be a separate location. The circumstances will largely dictate the available configurations.

Telephone depositions can be a useful way to obtain information efficiently and economically. What about effectively? A decided disadvantage is the lack of visual means to determine the deponent’s credibility and the inability to be in the presence of the deponent. Another concern is who might be assisting the deponent to answer questions. Other remote electronic VoIP (voice over internet protocol) systems, such as Zoom, Teams, Google Meet, Skype, WebEx, and similar programs, provide affordable and effective audio and video presentations. Digital, streaming, and technological advances will continue to promote the use of these deposition methods. And societal circumstances limiting travel or involving health issues or concerns will further foster the use of remote depositions.

These distant depositions operate similarly to conference calls and follow procedures identical to local, in person depositions. The officer swearing in the deponent may be with the examining attorney or in the room with the deponent. Placement depends in part on how the deposition is recorded by stenographic or electronic means. See § 6.7.4.

§ 6.3.3 Electronic Recording of Depositions

Safeguards that help ensure the accuracy and trustworthiness of video and audio recordings include the following suggestions:

• High quality recording equipment should be used (and tested before being used), with a back-up system.
• The person who operates the equipment should be an expert.
• In video depositions, the appearance of the participants should not be distorted by selective camera or sound recording techniques.
• In audio recordings, the speakers should identify themselves whenever necessary for clarity of the record.
• Another party may record the deposition by a different method, creating an additional source of what occurred as long as the recording is unobtrusive and does not interfere with the deposition.
• The original electronic recording should be labeled and immediately delivered to counsel for storage and safekeeping.

In a few state court cases where the rules still may not explicitly authorize the use of electronic recording methods, an agreement of the parties or a court order will allow such method.

§ 6.3.4 Video Depositions

Video recorded depositions provide an excellent technique for preserving the testimony of a witness who will be unavailable for trial or a hearing. These digital recordings have some distinct advantages over conventional stenographic recordings. They show facial expressions, physical posture, demeanor, reactions, exhibits, all in living color. A video deposition preserves what is said and how it is said, as well as the atmosphere and conduct of the proceedings. You need only attend a deposition and later read the transcript, comparing it to what happened during the deposition, to realize the real differences.

The visual deposition can significantly strengthen the negotiation posture of a case and significantly affect outcomes. Unless you are a Denzel Washington or Meryl Streep, showing a visual rendition of the deposition will have substantially more impact than the mere reading of a transcript. Stenographic and audio recordings can capture the testimony, but only a video recording recreates the tears, tension, and triumph.

Careful consideration must also be given to the placement of people and equipment. A professional technician is necessary to place and operate the camera(s) and the recorder and to monitor the recording. The equipment may not be difficult to operate, but there is a difference between a novice and an experienced person in producing results. The camera or cameras need to capture all the major events, including the questioning, the responses, the objections, and discussions. The camera obviously needs to be focused on the deponent for the answers, and may be panned to view others as needed.

There is a Uniform Audio-Visual Deposition Act, which lists procedures to be employed in these depositions.^[8]^ The model act provides that any deposition may be recorded by audio-visual means without a simultaneous stenographic record and without approval of the opposing party or a court. Another party is entitled to make a stenographic or audio record (and bear the expense) and is also entitled to a copy of the video recording (at no expense). The act further dictates that the audio-visual record is an official record, along with any transcript later prepared by an official reporter; that such a deposition may be used for any purposes a stenographic deposition may be used; and that the subpoena notice for the deposition must state that it will be recorded by audio-visual means.

The procedures to be observed during a video deposition include:

1. The deposition must begin with statements explaining the identity of the operator, case, deponent, date, time, place, parties, attendees, and any stipulations.

2. Counsel must identify themselves on camera.

3. The oath must be administered on camera.

4. The ending of one segment and the beginning of another one must be announced on the recorded portions.

5. The deposition must end with statements that the deposition has concluded and with any stipulations regarding custody of the recordings and exhibits.

6. The deposition must be properly indexed by a time generator or another reliable mechanical or digital system. A video counter may provide an external means of indexing the deposition and may be enhanced with a timer indicating the length of segments. A time-date digital generator provides an internal indexing means, by placing the elapsed time in minutes and seconds and the date in digital frames.

7. Objections and instructions not to answer, and other comments by the deponent’s counsel, will proceed as in a stenographic deposition.

8. The video recording may be altered only by court approval.

9. The original recording, any later edited copies, and all exhibits must be immediately secured.

10. Reasonable expenses may be taxed as costs.

Modern equipment makes editing relatively easy. The time-date function or barcode provides an index for locating specific testimony or objections. An accompanying e-transcript with search functions can assist in locating segments. Digital recordings can be edited using electronic breaks and deleting unwanted or inadmissible portions of the recordings. Care must be taken to prevent tampering with these recordings so that the testimony is not taken out of context or presented unfairly.

GenAI can increasingly perform feats that would have seemed magical just a few years ago. For example, GenAI-backed tools can analyze a witness’s facial expressions, body language, and tone that may detect signs of nervousness, evasiveness, or confidence. Other tools can index deposition footage based on textual or other notable cues, helping lawyers pinpoint evasive, critical, or inconsistent testimony. GenAI can also parse transcripts, in real time, automatically tagging key testimony, objections, and procedural elements. For trial preparation, LLMs can create “best of” and “worst of” reels, highlighting persuasive or damaging moments. Additionally, GenAI can suggest follow-up questions based on prior responses, allowing attorneys to refine their deposition strategy in real time.

§ 6.3.5 Reducing the Cost

The costs of depositions include the charge for the reporter during the deposition, a charge for recording equipment, and for preparing the transcription of the testimony or record after the deposition. Reporters charge an hourly or daily rate for the deposition and post-deposition transcription and record work. Reporters have their own recording equipment that they operate. Additional recording costs may include paper transcription expenses at a per page rate or e-transcription costs. Real time transcription increases expenses. Deposition costs may be advanced by the lawyer as long as the client remains liable for the expenses.

The preceding sections have suggested ways of reducing deposition costs, which include: A deposition can be audio recorded. Travel expenses can be saved by taking a deposition using remote electronic methods. A deposition need not be transcribed. An attorney anticipating this can take notes during a deposition to record and remember vital information. Ordering a transcript or a video recording can be delayed until a later stage of the case. Or the attorneys together could split the costs. GenAI-backed systems can dramatically reduce costs, while providing many procedural and substantive improvements.

In some cases, the lawyers will agree that a deposition of a certain deponent should be taken and share the deposition costs. Such a deponent may be important to both sides, may refuse to speak to either side, or may be unavailable for the trial or hearing and yet have information the parties need. A video recording may be sufficient, with no transcript needed; or a transcript can be prepared by a mutually agreed upon independent person and not a reporter.

Some attorneys are willing to bargain away some discovery rights to gain the agreement of opposing counsel to take an inexpensive deposition. For example, an examining attorney may agree to waive the right to submit any interrogatories on the topics covered by the deposition. This type of agreement may allow for sufficient discovery while saving the expenses involved seeking a Rule 26 order.

The extent of cost reduction depends on the creativity and willingness of the attorneys involved. Parties may gain through cooperative approaches. For example, cost reductions may justify taking a modified deposition involving a party with insufficient funds or little at stake.

Federal statute 28 U.S.C. § 1915 and similar state statutes provide indigent civil litigants with an opportunity to proceed in forma pauperis. [Section 1915(a)](https://www.westlaw.com/Document/NCED0D900A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCED0D900A35911D88B25BBE406C5D950/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) provides that “any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding . . . without prepayment of fees and costs or security. . . .” This provision affords the district court broad discretion in determining the applicability of the statute to a case.^[9]^ Such fees or costs advanced by the court will be taxed as costs and reimbursed to the court, should the in forma pauperis party prevail.

This statute does not explicitly permit depositions to be funded. It is up to the court in each action to exercise its discretion and decide whether to advance costs for depositions and pretrial discovery.^[10]^ Courts have authorized the payment of costs of taking, transcribing, and making copies of depositions. Some courts impose a burden on the indigent party to provide the court with information enabling it to determine the reasonableness and necessity of pretrial discovery costs.^[11]^

Courts have discretion to order that costs be shared or borne by the opposing party. Some districts have local rules that allocate costs. A party may have to pay for the travel costs of the opposing deponent, and reasonable attorney’s fee for an opposing lawyer, if a deposition occurs beyond a certain distance from the courthouse. The party taking the deposition ordinarily pays the associated expenses of recording and transcription. A court has discretion to require a party to bear the deposition costs of another party, particularly if the examining party has raised important public issues or has no financial resources.

Some deposition costs will be reimbursable to a prevailing party (or to the court if the party proceeded in forma pauperis). Reporter fees for the stenographic transcript or audio or video record may be taxed as deposition costs reasonably necessary to the case.^[12]^ Federal Rule 54(d) and related state court rules outline recoverable costs and provide that they may be taxed by the clerk or administrator and may be reviewed by the court on a timely motion. The prevailing party typically completes a form provided by the court, who then decides who pays what, subject to court review. Similar provisions may be available in arbitration and administrative cases.

§ 6.3.6 The Record

The reporting officer at the deposition has the responsibility under the rules to record all testimony and all objections occurring during the deposition. Ordinarily, a reporter will record everything said by anyone present. Federal Rule 30(b)(5) specifies how an officer is to conduct and begin a deposition. This rule requires the officer begin with a statement on the record that includes: “(i) the officer’s name and business address; (ii) the date, time and place of the deposition; (iii) the name of the deponent; (iv) the administration of the oath or affirmation to the deponent; and (v) identification of all persons present.” This rule further states that if a deposition is recorded other than stenographically, by video or audio means, “the officer shall repeat items (i) through (iii) at the beginning” of each recorded segment or other recording method. The rule further provides: “At the end of the deposition, the officer shall state on the record that the deposition is complete and set forth any stipulations made by counsel concerning the custody of the transcript or recording and the exhibits and concerning other pertinent matters.”

The attorneys should make certain that the record is accurate by:

1. Speaking clearly and having the deponent speak clearly.

2. Proceeding at a pace appropriate for the reporter.

3. Spelling difficult names and words (or providing a list).

4. Allowing a deponent to finish an answer without interruption (unless the interruption is necessary).

5. Avoiding superfluous comments, (“O.K., now, let me ask you this,” “I see,” “Strike that”), repeating answers, and unnecessary arguments (“I object and let me read three insightful pages from this intriguing treatise that will explain why . . .”).

6. Not asking multiple questions.

7. In stenographically and audio recorded depositions, reducing all conduct, gestures, and inaudible responses to verbal descriptions, noting for the record what happened.

8. Not building Minecraft blocks with Federal 3rd reporters.

Everything relevant that goes on during a deposition should be recorded. There are times when going off the record will be necessary or requested by an attorney. If counsel agree to go off the record, the reporter will abide by their request. If one lawyer requests going off the record but the other lawyer refuses, the reporter should continue to record.

Going back on the record will occur when counsel suggest it, and the reporter will record the suggestion. Occasionally statements are made, agreements are reached, or things are done off the record that must be included on the record. In these situations, an attorney need only verbalize or summarize on the record what happened off the record and obtain the recorded “agreed” from the other attorney.

§ 6.3.7 Reporters and Depositions

Court reporters are an integral part of a deposition. The abilities of court reporters vary as much as the abilities of attorneys, and the accuracy and completeness of a deposition record and transcript depend in part on the abilities of the reporter. Some of their more telling observations, obtained from interviews with experienced reporters, follow:

1. Recording equipment proves that reporters make mistakes. Some errors are within their control; others are not. The deposition process itself provides various opportunities for human error. Mistakes are inevitable even with the use of recording equipment, as pronunciation by the deponent and other voices or noises off camera can make the audio portion difficult to hear and understand.

2. Life should be made as easy as possible for reporters by doing simple things, including: providing them with a copy of the deposition notice containing the necessary information, allowing them the choice of where to sit, spelling difficult names or words during the deposition, furnishing them with a glossary of technical terms, pre-marking exhibits, providing them with a copy of anything read into the record, allowing them reasonable breaks, and asking them at the end if they need anything for preparation of the record.

3. Not all reporters charge the same for their services, but there is a general pattern: an hourly or daily rate plus an amount for the original record or transcription and one duplicate. An average deposition produces about 40 pages of transcript per hour. With the aid of electronic and digital transcriptions, reporters can offer real time or rapid delivery of deposition transcripts.

4. Some reporters do not do anything unless they are told. They do not swear in a deponent unless asked; they do not mark a document unless asked; and they do not go back on the record unless told to do so. Other reporters may suggest something be done if in their opinion a lawyer makes a procedural error.

5. Some reporters tend to listen to the attorney who has hired them. Others obey that attorney outright. The reporter may side with the hiring attorney during deposition incidents, including conflicts between the attorneys about going off the record, breaks, or what the deponent just said or did. Reporters realize that if they do not do things the way the hiring attorney expects, they may not be employed again, and that some other more obedient reporter will be hired.

6. Reporters also understand that the attorneys involved have the primary obligation and burden to arrange and preserve a “recordable situation” during a deposition. Reporters further understand that they are officers of the court and have an obligation to ensure that a deposition results in an accurate and complete recording.

7. Remote and distant depositions may provide special considerations. Court reporters advise that lawyers and deponents unfamiliar with these mediums need assistance and instructions. It is not the responsibility of the reporter to prepare the deponents, or advise the attorneys, on what to do. As officers of the court, they also understand they need to remain impartial.

§ 6.4 Preparing for the Deposition

From your first law-school exam you know you had to prepare thoroughly for the questions and answers to do well. So also with a deposition.

Preparation of a case requires familiarity with your file and all other sources of factual information and legal claims and defenses relating to the case. Preparation also requires a grasp of the applicable legal doctrines and overall discovery strategies. Further, it demands knowledge of both the subject matter of the deposition and what the deponent knows about those topics. This includes experts and lay witnesses. If the deponent is an eyewitness to an accident, you should be familiar with the location, site, topography, area and other matters relating to the accident. If a deponent is an expert engineer, then you should be versed in whatever specialized engineering area the deposition will cover.

You can readily augment your preparation of a deposition by using the Internet and searching websites to provide information you need or by using other resources or personnel. You can obtain biographical data about individuals, perhaps track their communications on social network systems, become an expert on scientific and technical areas, locate houses and intersections on maps, and often discover more than you need to know. An LLM-backed search engine can assist in finding relevant information and strategic planning. See § 1.2.7.

GenAI can streamline deposition preparation by analyzing pleadings, motions, and evidence to generate targeted deposition outlines. By structuring outlines based on claims, their elements, and potential defenses, LLMs can ensure that attorneys cover all necessary topics while maintaining a logical flow. LLM-backed tools can also extract key facts from other evidence—prior statements, discovery responses, and expert reports—helping attorneys tailor their questioning to each witness. For expert witnesses, GenAI can summarize complex technical reports, providing lawyers with the essential background needed to challenge opinions effectively. And LLM-backed search engines can analyze the expert’s cited scientific or industry journals—as well as uncited articles in the field—to undercut the expert’s claims.

Beyond outline generation, LLMs can also enhance strategic planning by identifying potential areas for impeachment and refining questioning techniques. By comparing deposition testimony with prior statements, GenAI can flag inconsistencies and suggest follow-up questions to exploit contradictions. LLM-backed tools can also conduct deep background research, gathering biographical information, social media activity, and public records to uncover relevant insights. Additionally, GenAI can predict likely responses based on similar past depositions, allowing attorneys to adjust their strategy in real time and maximize the examination’s effectiveness.

An assessment of the deponent is extremely beneficial to proper preparation of the case. A source of information may be your own client or a friendly witness who knows the deponent. You should seek whatever information will assist you in gauging the deponent’s ability to communicate, degree of common sense, amount of education, extent of sophistication, likely emotional reactions, physical well-being, and any particular strengths or weaknesses relevant to the deposition.

Preparation further requires a determination of the purpose and goals of the deposition. The scope of the deposition determines its length. You may schedule a lengthy and thorough deposition for one deponent, and a short deposition for another to elicit specific information.

With assessments of the factual, legal, and strategic aspects of the deposition, you can now decide on the specific tactical approaches to take toward the deponent. Being compassionate, instead of confrontational, is often more productive. A cooperative, informal approach that permits a deponent to tell a story spontaneously, coupled with a persistent and insistent approach concerning selected topics, typically produces a deposition for all seasons and reasons.

Different purposes necessitate different approaches. If you want to obtain reams of information, then a friendly, empathetic manner may best yield that result. If you wish to gain a commitment from a deponent, a stern and resolute tactic may attain that goal. If you prefer to confront a deponent, an aggressive and adamant technique may best achieve that purpose. If you want to preserve testimony for a trial or hearing, a cooperative, formal approach may obtain such testimony.

The more preparation you do, the more foresight you will have to anticipate problems and the better you will be able to respond appropriately to unanticipated events during a deposition. A rigid and over detailed preparation may have its drawbacks. You want to obtain specific information you believe exists and be open to new and unexpected data.

During the deposition, you’ll need to listen carefully to the responses, be flexible to adapt various lines of inquiry, and explore new theories. Unplanned and spontaneous curious questions can often produce very useful information.

As noted throughout this chapter, GenAI-backed tools can be very helpful, both for deposition preparation and during the deposition itself. By allowing LLMs to gather evidence, classify it, curate an efficient outline, and then ensure that all of the desired information has been obtained, depositions can move further from “art” to “science,” leaving no relevant deposition-stone unturned.

§ 6.4.1 Outline Organization

Beprepared.com is correct: be prepared! If there is one absolute rule that should be followed it is: Prepare a complete and thorough outline for the deposition. The degree of detail depends on several factors, one of which is your level of experience. The more experience you have, the less exhaustive the outline need be. Maybe.

Some experienced attorneys are able to conduct an effective deposition without extensive notes, relying on an organization they have created in their minds or relied on previously. Some lawyers rationalize their lack of written, printed, or computer assisted preparation by thinking they can do this. The vast majority of us need a prepared outline.

It is difficult, if not impossible, for most of us to perform several skills at one time. You too may have found it difficult, for example, to stay awake, think, and respond in your law-school classes. Similarly, during a deposition, it may be difficult to talk, listen, observe, think, decide on a tactical maneuver, and formulate the next question, all in one brief moment. And, it is much more difficult to do all that when you experience the peer pressure and tensions that may accompany the deposition.

A thorough, planned, and well-organized outline of what you want and need to cover during the deposition allows you the time to concentrate on your essential listening and observing skills. It also impresses the opposing attorney with your professional preparedness, prevents the omission of important topical areas, allows flexibility to follow tangents spontaneously, prevents repetitious questioning, eliminates having to guess what else to cover, and saves time and money.

Law publications and legal websites containing discovery lists for specific cases are sources for ideas about what to ask. Outlines prepared on a computer program or electronic transcripts of previous depositions involving similar events can be easily edited. After preparing a draft, you can edit and eliminate superfluous or unimportant areas.

The outline should be organized in some logical, chronological, or associational sequence (organized by issues, claims, defenses, events). As a strategic maneuver you may decide to skip around, and not ask questions in a logical order during the deposition. Your preparation of the outline should be complete to avoid omitting topics. It needs to be thorough but not overly complex nor difficult to read and follow.

It is generally advisable not to compose all your questions in their entirety, but only those important ones that need to be carefully phrased to elicit a certain response. Questions seeking vital admissions, leading questions that may confuse or trap the deponent, important foundation questions, and questions that will be asked at trial or hearing may need to be carefully prepared. Preparing too many questions may reduce your flexibility during the deposition, make you sound like a Double Jeopardy contestant, and take too long.

The rules of evidence should not unduly influence your outline preparation or seeking information during the deposition. The evidentiary rules govern admissibility for trial and hearing purposes, not for discovery purposes. Unless the deposition is solely to preserve testimony for a trial or hearing, you need not become preoccupied with what is or is not a proper question or an admissible answer. Sometimes it is best to forget the rules of evidence (easier for some of us than for others) and probe for: triple and quadruple hearsay, questionable evidence, inauthentic documents, and gossip and unfounded opinions. All this may still not uncover the smoldering email, but it is certain to make things more fun and often may produce some relevant information.

The structure of your outline should also suit your personal and professional preferences. Its organization should be easy to read and easy to follow. The use of a laptop and a helpful software program provides the flexibility and space to make notes, record dandy responses by the deponent, or just doodle.

LLMs can streamline deposition outline preparation by structuring questions logically based on issues, chronology, or legal elements. By analyzing case materials, GenAI can ensure that attorneys cover all relevant topics while avoiding unnecessary repetition. LLM-backed tools can also refine key questions, optimizing phrasing for clarity and strategic impact. Whether an attorney needs precise leading questions, open-ended inquiries, or foundation-building prompts, GenAI can generate tailored suggestions to elicit the most useful responses.

Beyond initial preparation, LLMs can enhance deposition adaptability by identifying areas for spontaneous follow-ups and alternative questioning sequences. During the deposition, GenAI-backed tools can track the conversation in real time, flag the deponent’s inconsistencies, and suggest follow-up questions to explore contradictions or gaps. LLM-backed tools can also compare deposition outlines to prior testimony, ensuring that attorneys address discrepancies effectively. AI allows lawyers to prepare for depositions that are more efficient, more dynamic, and more effective.

§ 6.4.2 Deposition to Preserve Testimony

Depositions are usually conducted in order to gather information from the deponent. Some depositions are taken for a more specific purpose: to preserve testimony.^[13]^ The decision to take a preservation deposition depends on the availability of the deponent for trial or hearing. It is common for expert witnesses to have their testimony preserved through depositions, often video depositions, as their schedules may make it difficult for them to appear at a hearing or trial.

The testimony of a lay person, eyewitness, or other deponent, including a party, who will not or may not be able to testify at a later event may be considered by the fact finder in five specific situations noted by Federal Rule 32(a)(4) and similar state court rules:

1. The deponent dies before the trial or hearing.

2. The witness is more than 100 miles from the trial or hearing.

3. The deponent is ill, infirm, or imprisoned.

4. The witness cannot be subpoenaed.

5. Exceptional circumstances exist.

A deposition to preserve testimony may be taken when necessary and permitted under these rules. Other applicable court rules may require that witnesses testify in person at a trial. [Federal Rule of Civil Procedure 43](https://www.westlaw.com/Document/NA00D2B50B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA00D2B50B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) states that the “testimony of witnesses shall be taken in open court.” These rules support the doctrine that in person trial testimony is required unless one of the exceptional circumstances exist.^[14]^

Preservation depositions are taken of witnesses who have information supportive of the examining attorney’s case. These deponents would be called testify at a hearing or trial by the examining lawyer, and the deposition question-and-answer format needs to parallel this examination format. The strategies involved in taking this type of deposition differ from the approaches relating to discovery depositions. Witnesses may consist of deponents who are friendly or neutral or who are unfriendly.

In preserving the testimony of a friendly or neutral witness, the deposing attorney duplicates what would be the direct examination of this witness. Effective methods include:

• Questions that elicit the reasons the deponent will be unavailable.
• Using techniques to make the direct examination effective, such as simple, understandable questions structured to create and maintain interest.
• Responsive answers detailing the necessary information, including sufficient foundation explanations.
• Avoiding objectionable questions, such as leading questions, except to develop testimony.

Preservation depositions of unfriendly witnesses involve different considerations since they usually seek admissions from an opposing party or adverse lay or expert witness. The question-and-answer format parallels adverse direct examination (like cross-examination) with its use of leading questions to gain specific information and to control the witness.

These approaches differ markedly from discovery depositions, which are more flexible and less concerned with evidentiary matters. But depositions may not all be neatly divided into preservation or discovery classes. Because a deposition often serves several purposes, some of its parts may seek to elicit supportive admissions, while others attempt to discover information or reduce credibility and establish cross-examination and impeachment material. The examining attorney must be flexible and adapt the applicable strategies to the respective parts of a deposition.

One deposition can be both a combined discovery and preservation deposition. Questions can initially be asked to discover what the deponent knows, and subsequently, during the same deposition, direct or cross-examination questions can be asked to preserve testimony. Because a deposition to preserve testimony will be a substitute for trial or hearing testimony, the common and preferred practice is to visually record the deposition so the fact finder sees and hears the witness testify, just like they would if the witness attended the trial or hearing.

The attorney representing the deponent must also be aware of the strategies involved in preserving testimony and typically will ask direct or cross-examination questions needed for the hearing or trial. Other lawyers in the case also have an opportunity to ask questions. In all preservation depositions, the examining lawyers must be concerned that all questions and answers will be admissible at the hearing or trial.

§ 6.5 Taking the Deposition

Taking the deposition involves a number of considerations discussed in detail in the following subsections.

§ 6.5.1 Preliminary Procedural Matters

Federal Rule 30(c) and similar state rules provide that the deposition officer shall put the witness under oath or affirmation (if the witness objects to the oath and prefers the affirmation) and shall personally, or by someone acting under direction, record the testimony of the deponent. The officer must record certain information, including the caption of the case, the persons present, and the appearances of the attorneys, as previously explained.

§ 6.5.2 Demeanor of the Attorneys

Attorneys have an obligation to conduct themselves during a deposition as if they were at a hearing or trial. Judges have so held, as passages from two historic opinions make clear:

[T]he record of the examination before trial of [counsel] clearly shows conduct on the part of counsel which would not have been indulged in were the testimony taken before a judge or in open court; nor would it . . . have been permitted . . . in the trial of the action. There seems to be no reason why, therefore, counsel should conduct themselves upon an examination before trial any differently than in trial.^[15]^

The federal rules envision that discovery will be conducted by skilled [attorneys] of the bar, without wrangling and without the intervention of the court. The vision is an unreal dream. . . . Perhaps this is inevitable, for litigation at all stages and under the best of circumstances is fertile ground for conflict. The opposing self-interests of the parties, as each vies for advantage, often spawn not only bitterness but also abuse of the discovery process.^[16]^

Times have changed, and lawyers are much more civil and professional and much less unreasonable and obnoxious.^[17]^ It is improper for an attorney to engage in any conduct that the attorney knows would not be allowed before a judge, arbitrator, or ALJ. The Federal Advisory Committee confirms this expectation: “In general, counsel should not engage in any conduct during a deposition that would not be allowed in the presence of the judicial officer.” See Rule 30(d)(3).

Federal Rule 30(d)(3)(A) prohibits depositions from being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. State court rules provide similar provisions. Lawyers who act otherwise ought to be sanctioned. Whatever an attorney does during a deposition should be done for legitimate reasons and with good faith intentions.

Questionable attorney conduct can usually be controlled by peer pressure, by noting such conduct on the record, by asking the offending attorney to stop, and if all else fails, by seeking a protective order or sanctions. The preferred use of video depositions, which can record what the lawyers say and do, usually has a calming effect on obstreperous behavior. Lawyers realize they are more likely to be held accountable for unprofessional and uncivil conduct if the decision maker can see and hear what they have done. See § 6.5.10.

§ 6.5.3 Governing Rules and Stipulations

The rules of discovery procedure automatically govern the deposition process, and there may be no need for lawyers to agree on additional rules. In many cases, counsel will discuss proposed stipulations before the deposition proceeds or may agree to specific procedures. The lawyers will initially place these agreements on the record. Stipulations can be reached at any time during a deposition.

If the lawyers have not taken depositions together before, or if counsel is from anther jurisdiction, it may be wise to discuss expected procedures ahead of time. Also, the marking, introduction, and use of exhibits including electronically stored information may require some stipulated ground rules. Further, in a case involving many parties, a stipulation that an objection by one attorney will be deemed to have been made by all attorneys can save time and prevent confusion. Typical concluding stipulations will be reviewed in Section 6.8.1.

§ 6.5.4 Introductory Statements

and Questions

Common introductory requests and explanations include:

1. The record needs to reflect who all are present. The reporter usually notes the appearances of counsel and the deponent at the beginning of the deposition record. Counsel may need to confirm this has been done. Some attorneys prefer describing on the record the case information and who is present, so all know what is happening and who is who.

2. There is usually no need to seek an agreement from all the lawyers that everything has proceeded properly and correctly up until that moment to prevent later objections to the formalities. Federal and State Rules 32(d) provide that objections to the reporter’s qualifications and to the taking of the deposition will be waived unless made prior to the beginning of the deposition or when the disqualification becomes known. A request for an agreement may otherwise invite an objection that would have been waived.

3. An explanation regarding whom the attorney represents may be helpful. This may not be necessary for a party deposition, but will be for a witness or in a multi-party case. An attorney who does not represent a witness, but represents the adverse party, cannot counsel that witness during the deposition and may not have standing to object to all questions. Some attorneys, however, will insist on objecting, and it may not be clear what they can or cannot do. A request for an explanation establishes the ground rules for the deposition.

4. Explanations and questions directed to the deponent will vary, depending on the deposition approach and the relationship the deposing attorney wants to establish with the deponent. Common opening explanations, which help put the witness at ease and which serve as aids in preventing later inconsistent testimony, include:

Examining attorney:

Ms. Deponent, I am Jeffrey Strongheart, and I represent the Cookie Monster in this lawsuit. Do you understand what a deposition is? (Or, “Has your attorney explained to you what a deposition is?”) (If no, explain in detail. If yes, continue on.)

I am going to ask you a series of questions about the incident involved here, and your answers will be recorded. If at any time you don’t understand a question, please tell me and I will repeat or rephrase the question. If you answer a question, we presume you understood it. Do you agree to this? (If yes, continue on.)

This deposition will be recorded by the reporter, and everything that is said here today will be preserved. It is important you say your answer out loud in a voice we can all hear as well as understand. Head nods and hand gestures will need to be explained verbally. Is this acceptable to you? (If yes, continue on.)

If you feel you need to take a break, please let me know and we may arrange a short break. There is water available.

Do you have any questions before we begin?

These explanations, which can be varied and modified, may establish some rapport with the witness, may make the deponent a bit more comfortable, and will also effectively prevent witnesses from later trying to claim they did not understand the questions asked.

Another approach and other procedures that may create a different atmosphere and expectation may also be explained:

At the trial, all the testimony you give will be available in recorded form, and I may ask you the same questions that I ask you today. If your answers then differ from the answers given today, you may be asked to account for the difference in your answers. Do you understand this?

Your testimony today is under oath, as if you were in a court of law. You have sworn to tell the truth, and if you fail to do so, adverse consequences may result. You understand this, right?

These explanations prevent later misunderstandings by the deponent that they would be asked the questions at a later time or that they were under oath. This portion of the deposition can be read at the trial or hearing for impeachment purposes. Many attorneys will omit these explanations or not be this specific because they do not want to suggest that the witness be cautious about responding and they do not want the witness to become more tense, anxious or uncomfortable.

Your opening explanations, statements, or questions will affect the atmosphere you want to create at the deposition. If you want to establish a friendly, informal relationship, your initial remarks should have a welcoming, affable character to them. If you want to create a stern, formal atmosphere, your remarks should be firm and demanding. You can attempt to make deponents feel at ease or uneasy. You may not wish to employ any of the traditional openings and may prefer to initially begin with factual questioning. Whatever you decide, it must be planned.

§ 6.5.5 Handling Exhibits

A variety of exhibits may be available during the deposition. You may have had the deponent bring some documents, electronically stored information, emails, social network communications, web screen displays, materials, or objects pursuant to Federal and State Rules 34 or 45. The deponent may voluntarily bring some materials or may use some information to refresh recollection. Or you may wish to question the deponent about materials in your possession.

For materials already in your possession (e.g., discovery documents), LLMs can analyze those exhibits and generate targeted questions to elicit relevant testimony. By reviewing documents, GenAI can identify key provisions, inconsistencies, or potential red flags that might require further exploration. Additionally, LLMs can anticipate how a witness might respond, helping lawyers prepare for potential harmful responses or evasiveness. If a deponent’s response creates risk, GenAI can quickly suggest immediate follow-up questions to clarify ambiguities or mitigate damage.

If the deponent has brought documents as requested, the deposing lawyer may read the Rule 34 or 45 document production request into the record and then ask whether the materials brought to the deposition are responsive to this request. The question and the answer make clear whether the disclosing side has fully or partially responded to the request. The lawyer may also read into the record a description of the materials available at the deposition or have the deponent read part of a document being reviewed into the record. This approach makes clear what provision is being referred to, but it can be unnecessary and time-consuming. In these situations, the beginning and end of the document can be noted on the record, or the deponent can identify provisions.

For a deponent’s “on the spot” document productions, LLMs can dramatically reduce deposition downtime by instantly analyzing deponent-provided documents, ensuring attorneys make the most of their limited questioning time. Once the documents are ingested (e.g., with phone camera, or a portable scanner), GenAI can extract key information, summarize contents, and generate a curated list of targeted questions—all within minutes. Instead of reading long passages into the record, lawyers can rely on LLM-backed tools to generate concise summaries and highlight key provisions for the deponent to confirm. Additionally, LLMs can compare newly produced documents against prior discovery in real time, flagging inconsistencies and suggesting objections immediately. These capabilities can keep the deposition running efficiently, helping attorneys efficiently use their rule-mandated time limits, while also maintaining a strategic advantage.

Part of this identification process includes marking the deposition exhibits. The rules require that exhibits be marked so the record is clear regarding the identity of the exhibit and all references made to it by the deponent and attorneys. The process is simple. If the exhibit has not been pre-marked before the deposition (by the reporter, deposing lawyer, or by agreement of the lawyers), the reporter can mark the exhibit upon request, typically with a deposition number.

Reporter, please mark this document as Deposition Exhibit 1.

Or, other lawyers prefer to describe the material. As examples:

Reporter, mark as Exhibit 1 this three-page will, signed by Howard Hughes and witnessed by Saint Peter and Bugs Bunny.

Reporter, mark this Facebook entry from Z as the next exhibit.

This type of explanation clarifies the document for the record but should not be used if the witness needs to identify the exhibit, the exhibit is controversial, or the statement will be objected to as inaccurate or incomplete.

All documents and objects need to be marked before they are used, and all subsequent references to the exhibit should include the exhibit identification. Paper or printed exhibits can be marked with a label. Computer generated exhibits may be marked as appearing on a server, flash drive, or other device, or as digital photos, or as printed duplicate originals. For example:

I show you on the monitor this reproduction of an email, marked Deposition Exhibit 2, and ask whether that is your electronic signature on the bottom marked with an emoticon.

You may prefer showing the exhibits to the opposing attorney before you hand them to the deponent, particularly if the attorney is not familiar with the exhibit. It is professional courtesy to do so, and an experienced opposing attorney will insist on reviewing an unfamiliar exhibit. Witnesses often discuss exhibits without identifying them, and you may need to clarify the record by designating the exhibit number or letter of the document or object they discuss. Further, you may want the exhibits marked by the witness with initials or a specific mark, to designate significant portions of the exhibit the witness acknowledges or describes.

Part of the process of introducing exhibits in a deposition parallels the process of their introduction at trial, but there are differences regarding the offering of an exhibit and the laying of foundation. There is no need to “offer” an exhibit at a deposition because it automatically becomes part of the record. Any objections to the receipt of an exhibit will be later determined by the judge, arbitrator, or ALJ.

Further, while there may be no need to lay a foundation for the exhibit, there may be reasons for doing so. The answers to foundation questions may produce sufficient information, necessary to compose a Rule 36 admission request relating to the genuineness and authenticity of the exhibit or to frame a stipulation. The foundation questions may need to be asked at the trial or hearing, and the answers to such questions at the deposition provide required responses. Lastly, a deposition record with foundation answers makes possible the introduction of the exhibits at the trial or hearing, if the deponent is unavailable to testify.

Federal or State Rule 30(f) describes what happens to the exhibits after the deposition. The intent of the rule is to permit an attorney to offer duplicates for marking and annexation to the deposition. These copies are the “substitute,” and the originals used during the deposition would not be attached to the transcript or record, but would be returned to the party who provided them. Exhibits that appear in electronic files or computer hard drives can be preserved in a readable format on a portable device. Digital photos or reproductions may preserve screen display exhibits.

The original documents must be retained and made available to other parties should the need arise. The deposition record and exhibits are only filed with the court, arbitration, or ALJ office when needed for a hearing or trial.

§ 6.5.6 Discovery of Materials

Federal or State Rule of Civil Procedure 34 is the appropriate discovery device to obtain copies of documents, electronically stored information (ESI), and things before or at a deposition, as explained previously.

You can ask questions concerning how thorough the search was for the materials produced pursuant to a Rule 34 request. A detailed inquiry into the mechanics of the search may indicate that some potential sources of information were overlooked, and you can insist that such documents, ESI, and materials falling within the Rule 34 request be produced. The preservation of electronic and computer-generated documents may require the deposition of an information technology witness, and not only the witness who created the email or word document. The creation of social network communications may require a deponent to log on to an account during the deposition and produce relevant information. Relevant websites may need to be visited with the deponent to ask questions or search for information.

And, your inquiries may discover additional relevant materials not within the ambit of the Rule 34 request. You can uncover the identity and location of these materials and request that you be allowed to inspect and copy them. Your request may not necessarily be complied with (without a formal Rule 34 request), but more often than not, professional courtesy, the spirit of cooperation, and the common practice will prompt the other attorney to agree to your reasonable request or provide you with the materials.

Further, your questioning may also uncover materials the deponent used to refresh recollection in preparing for the deposition. You have a right to review these materials. Courts require their disclosure, relying on Federal or State Rule 30(c) and Federal or State Rule of Evidence 612, which permit depositions to proceed in the same fashion that direct and cross-examination proceed at trial.^[18]^ Courts can require documents to be disclosed that are otherwise protected by the attorney-client privilege because the use of documents to refresh recollection operates as an effective waiver of the privilege.^[19]^

Finally, you may insist that all documents, ESI, or things discovered during a deposition be produced before the deposition terminates, during a break, or at a later date when the deposition has been continued. You may also uncover the existence and identity of other discoverable information not requested and not used to refresh recollection. You should, during the deposition, seek an agreement from the other counsel on the record along with a deadline allowing you to obtain or reproduce these materials.

Examining Counsel: The record will reflect that Laura Morgan has agreed to allow me to inspect and copy all email correspondence exchanged between the plaintiff and defendant in May and that these records will be made available in defendant’s office by October 15. Would you further agree to provide me with a duplicate original of the May 1 contract signed by John Wood within 10 days?

If the other attorney fails to provide such access or copies, the requesting attorney can submit a Rule 34 request buttressed by the previous agreement or bring a Rule 37 motion for enforcement of the agreement.

If you are the attorney who has been asked for something, you may cooperate with the other attorney unless you have good reason not to. You ought not give information away until you first have had the chance to review the materials yourself and appraised its discoverability. If you do agree to disclose the materials and later change your mind, you ought to have a good faith, substantial reason for doing so, compelling enough to convince the other attorney not to initiate a Rule 37 motion and sufficient to avoid the imposition of motion expenses and attorney fees.

§ 6.5.7 Confidential Information

Your search for information during a deposition may include confidential information. You can anticipate this and seek a stipulation with opposing counsel that such confidential information will be disclosed on a restricted basis. If refused, you can seek a court order. Federal Rule 26(c)(1)(G) and similar state rules permit parties to obtain a court order preserving the confidentiality of information. This order can be obtained by a motion or through a stipulation by counsel. See § 5.11. These agreements can be made on the record at a deposition and later confirmed and approved with a court order. Without an agreement or order, the deponent’s attorney may refuse to disclose confidential information and documents and instruct the deponent not to respond.

The major terms of these agreements include the scope of the confidential information, who has access to the information, and how the information will be preserved (especially if it includes computer-generated information). Usually only the attorneys, a party or a representative of a party, and an expert will have access to the confidential data. Details, such as which attorneys and how many, which party representatives, and how many experts, will be negotiated by counsel. Problems relating to confidential matters can be resolved before the deposition, so that the documents can be readily disclosed during the deposition itself.

§ 6.5.8 Continuing Depositions

Breaks during a deposition are common allowing participants a short respite from the process. Even if the witness does not need a break, the reporter likely will. Brief breaks ordinarily occur by agreement of counsel, typically every 60 to 90 minutes, along with a recess for lunch. The other attorney may suggest a recess or lunch break during a deposition. Before acceding to such a request, you should complete a segment of the deposition to avoid a conference between the deponent and the attorney during the break that could lead to alterations in the testimony.

Most often, depositions end at or before their scheduled time and date, and there is no need for an adjournment. Occasionally, depositions may be suspended and continued. You may decide to adjourn the deposition for reasons of strategy. The deponent may not be prepared to respond to a question, and you may want time to allow the witness to obtain data or review materials. The deposition may uncover some documents, and you may need to review them before continuing. Occasionally, your preparation may not be complete, and you may need a break to obtain more information or to rethink your approach.

§ 6.5.9 Reacting to Objections

Your opponent has a right to make proper and limited objections during a deposition, although no one is usually there and authorized to rule on the objections at that time. Ordinarily, your reaction to an objection is to proceed and insist on an answer to the question. Federal Rule 30(c)(2) provides that all objections shall be noted but the examination shall proceed with the testimony taken subject to the objections. State courts have similar rules. Section 6.7.5 describes the proper making of appropriate objections. As the deposing attorney, your primary concern with objections is to avoid them and prevent them from interfering with your taking the deposition.

Federal rules and practice require that the objecting lawyer state the specific objectionable ground so counsel know the reason for the objection. Sometimes you will ask a question that you realize is poor, and if there is an objection, you will know why. At other times you will ask a perfectly proper question, and still receive an objection. In these situations, you typically will proceed and insist on an answer. If you are quite uncertain about the propriety of your question or why the attorney has objected, you could ask for an explanation. You can then decide either to rephrase the question or withdraw it. Your reaction will largely depend on the specific type of objection raised:

1. If an objection to the form of the question is raised, then you should rephrase it if the question is improper or not understandable. Federal Rule 32(d)(3)(B) and similar state rules permit these objections. If you decide it is proper, insist on an answer.

2. If an objection cites lack of foundation, you may want to establish the foundation through additional questions. If the deposition is to preserve testimony, then you will want to lay the proper foundation. You usually want to know why a deponent knows something, unless it is obvious from the context.

3. If an objection is based on relevancy or competency, you may be able to cure the objection by rephrasing the question or by asking a proper question. If so, do it. If not, insist on an answer. Federal Rule 32(d)(3)(A) and similar state rules authorize these objections.

4. If the objection is based on other grounds (e.g. hearsay), ignore it and obtain your requested answer from the deponent. If the deponent is unsure of responding, insist on an answer. You usually have a right to the answer regardless of the nature of the objection.

5. If the attorney objects and properly instructs the deponent not to answer, you may find it impossible to extract an answer. Section 6.7.6 explains the proper use of instructions not to answer. You may ask the witness to make the refusal clear on the record. If there is an objection to your question, do not ask if the attorney is instructing the witness not to answer. There is no sense in putting ideas in your opponent’s head, even though there may be room.

6. If the opposing attorney persists in an instruction, your recourse is to seek an order under Federal Rule 37 or the applicable state rule to compel an answer. To obtain such an order from the judge, arbitrator, or ALJ you need to present a verbatim excerpt from the record including the exact question, the objection and instruction not to answer, and the deponent’s refusal to answer, along with the reason supporting the answer.

The sanctions available under the rules may need to be sought only occasionally because the examining lawyer may uncover sufficient information through subsequent questions that are answered. And the question’s importance may likely diminish as the time, effort, and expense involved in obtaining the response mounts. Rarely is there an adjournment of the deposition to seek an immediate court ruling. The deposition may continue and the order sought later. The deposing lawyer may be able to avoid the problem, either by asking the same question later in a different form or by agreeing to accept a partial answer.

Reacting to objections should not include arguing with the other attorney about the correctness or appropriateness of the objection. There is no need to try to persuade the attorney because the question must be answered regardless. There may be a reason, however, to discuss an instruction not to answer—if you do change counsel’s mind, it will save you a motion-hearing trip. Otherwise, arguing over objections wastes energy, often tips the witness to the reason underlying the question, and allows more time to conjure up a qualified response.

If an attorney insists on interposing frequent objections to your questions, there are several ways you can handle the situation. You may suggest that the record reflect a continuing objection to all or certain of your questions, to avoid the objector from interfering. You may tactfully remind the exasperating opponent that under the applicable rules nearly all objections are preserved for trial or hearing and that there is no need for those objections. You may advise the obstreperous lawyer that unnecessary objections unduly interfere with the deposition and that such conduct is improper under the rules. You can seek, in those egregious situations, a protective order or a Rule 37 sanction. And you can rely on the suggestions in the following section.

§ 6.5.10 Controlling Interference

A primary concern of the deposing attorney is to maintain control over the deposition procedures. The preceding sections have described situations and suggested approaches allowing the attorney to prevent interference and maintain control. Interference may stem from the opposing lawyer, the deponent, or strategy considerations.

Rules of civil procedure and court decisions prohibit an attorney from interfering with the deposition. Sections 6.7.6 and 6.7.7 describe what a lawyer representing a deponent may properly do during a deposition. These restrictions will not prevent or deter uncivil advocates from attempting to interfere. You may counter interfering tactics with the following approaches:

1. Establish reasonable ground rules. Explain instructions at the beginning or during a deposition explaining conduct that is permissible or that will not be tolerated—such as the lawyer interrupting or testifying. You may remind the opponent that conduct not permitted at a trial or hearing is also the type of conduct not allowed at a deposition.

2. Insist that the rules and court decisions regulating deposition practice be followed. There may be precedential reported decisions or cases from a jurisdiction with similar rules that regulate what counsel may not do and that admonish interfering lawyers. Advise the attorney of these cases or read such prohibitions from a relevant case on the record.

3. Record everything that occurs. Especially record all non-verbal conduct by the opposing advocate, whether it involves passing a note to the witness, whispering in the deponent’s ear, signaling the witness, conferring with the client, or other conduct affecting the testimony. If a deposition is being video recorded, and the camera is focused only on the witness and not the lawyers, have the operator place the camera in a location that records the conduct of everyone.

4. Admonish an attorney for unnecessarily conferring with the deponent. Some jurisdictions and courts may prohibit an attorney from counseling a client during a deposition, or even during a recess. If these restrictions apply, advise counsel and deponent of their inability to improperly consult with each other.

5. Advise the opposing lawyer that you will immediately phone or contact a judge, arbitrator, or ALJ to seek a ruling regarding the improper behavior. If the interfering conduct continues, phone the decision maker assigned to a case or contact the clerk or administrator’s office and ask for someone to resolve the dispute. You may then explain the problem over a speaker-phone or through video conferencing with all attorneys and ask for a ruling.

6. In unusual cases in which the opposing advocate is uncontrollable, suggest or reschedule the deposition to be held before a discovery neutral, magistrate, judge, arbitrator, or ALJ who can control the situation and immediately rule on objections.

7. Advise the interfering attorney that if the conduct continues the deposition will be adjourned and a protective order sought. If the inappropriate conduct continues, continue the deposition and notice a motion seeking the order. For depositions that are stenographically recorded, advise counsel that the deposition will be rescheduled before an operator who will visually record the deposition.

§ 6.5.11 Concluding Questions

and Considerations

All depositions eventually come to an end, often cheered by the deponent.^[20]^ When completed, the deposing attorney may wish to end the examination with several broad questions on the record to make clear that the witness has both understood everything and told all. Questions such as “Have you understood all the questions you answered?” or “Did you reveal all the information you were asked about?” may produce affirmative or “to the best of my recollection” responses and nothing further. Or they may likely trigger an appropriate objection on the grounds of being over-broad and vague.

Other concluding questions have different purposes. “Do you wish to change any of your answers?” may produce a quick no or a statement from the deponent’s attorney that the deponent has a right to review the record and make any legitimate and permitted changes. “Do you wish to say anything else to add to your testimony today?” is a stab-in-the-dark question, hoping that the witness will somehow say something damaging. This question may also prompt an objection that the question is too broad. Neither question may serve any useful purpose.

Some examining attorneys advise deponents that they have an obligation to provide supplementary answers to the deposition questions if they recall any additional information after the deposition or if they need to update answers. This supplementation commitment may or may not be mandatory under Federal Rule 26(e) or a state counterpart. The opposing lawyer may object and explain that the rules govern supplementation.

Federal Rule 30(c) allows an examination of the deponent by the deponent’s counsel or attorneys representing other parties. This examination will occur after you have completed your questioning. You have an interest in making certain the other attorney receives that opportunity. If the opportunity has not been provided, the deposition could be considered incomplete and perhaps useless as evidentiary or impeachment material. It is good practice to consider asking on the record whether other lawyers have questions before ending a deposition.

Examining attorneys usually allow another attorney to ask a reasonable number of questions for rehabilitation or other relevant purposes. Questions that become excessive in number allow you to take the position that your deposition of the deponent has formally ended because the examination has become a deposition by other counsel. You can then advise the other lawyer that you will no longer pay the deposition expenses. You can negotiate with counsel to assume the extra costs associated with the lengthened deposition.

As noted earlier in this chapter, LLMs can assist with both concluding questions, as well as rehabilitations. By analyzing prior testimony in real time, GenAI can also identify inconsistencies, gaps, or ambiguities and tailor closing questions to clarify key points before the deposition’s conclusion. Counsel defending the deposition didn’t have the benefit of knowing the deposing lawyer’s outline, so LLM-backed tools can rapidly generate a structured outline that will quickly produce well-phrased questions that align with the client’s claims, elements, and defenses. The rehabilitating attorney can remedy some damage, refocusing the narrative with their client’s strengths.

§ 6.6 Deposition Questioning Strategies

There are deposition-questioning techniques that are very effective and will be used in virtually every deposition. And then there are “other” techniques used by novice or unsuccessful attorneys that flag their inexperience or contribute to their losing percentage. They make interesting grist for analysis when formulated as questionable precepts:

• *Don’t Pay Close Attention to the Deponent’s Responses. *It is hard enough to ask the questions, and if you must also listen closely to the answers, well, it might be too much for you. For example:

Deponent: All right, so I am not the real deponent. I didn’t think you would ever find out. My name is. . . .

Counsel: Excuse me, let’s take a short recess. I have to call and reserve a disk golf tee time for this afternoon.

• Don’t Observe the Witness. Witnesses may react in the most telling ways to certain questions. Their body posture and facial expressions may indicate their nervousness, or anxiety, or an inconsistent answer. This all means nothing. For example:

Counsel: You were riding your e-motorcycle 135 miles an hour as you sped through the grade school soccer field, correct?

Deponent: Not really. (Thud.)

Counsel: Your client looks awfully uncomfortable. How about a recess?

• React Visibly to Damaging Information. Experienced attorneys will impassively and neutrally respond to the most damaging information without indicating what surprises, bothers, disturbs, or pleases them. It may be better for your psyche (although not your law practice) to release your primal instincts as your case disintegrates before your eyes. For instance:

Deponent: I remember the exact words your client spoke immediately after the accident. She said, “It was all my fault. I was 100 percent negligent, you were zero percent at fault.” In fact, I wrote it down immediately in this document in front of a group of traveling clergy. . . .

Counsel: I got good grades in law school, I never complained about the bar exam, why should my career be tarnished?

• Ask Complex, Unclear Questions, Chock Full of Legalese. Successful attorneys prefer using simple, clear questions, so that the deponent understands and that the questions will be appropriate for later evidentiary or impeachment use. It may sound better to your law school ear if you ask discombobulated questions. For example:

Counsel: Allow me to recapitulate your previous flibbertigibbet testimony, which you have provided us this day in discombobulated response to my rather lucid and perspicacious question relating to the doctrine of incorporeal hereditaments, did you or did you not commit this heinous act perpetrated on my client, the plaintiff in this civil action, file number. . . .

• Don’t Be Curious. If you are trying to find out information from the other side or what the deponent knows, don’t probe, don’t ask follow-up questions, don’t be inquisitive, and don’t ask questions because you do not understand something. Keep your puzzlement to yourself. You have enough things to remember already and there is little use in becoming confused with the facts. For example:

Deponent: I told your client that it was probably going to be what we call a fornistan, but he insisted, and the next day. . . .

Counsel: Oh, a fornistan, sure. Can you get one of those on eBay?

• Assume Everything Is in Your Best Interests. Depositions can be significantly reduced in time, scope, and expense if you make assumptions about what happened, instead of asking question after question to discover what actually did happen. This guessing game also reduces the amount of evidence available for trial or a hearing, making your case notebook lighter and making it easier on the law clerk who carries your laptop to court. For example:

Counsel: State your name.

Deponent: I am the prime number formerly known as 2^82,589,933^.

Counsel: Were you meandering your three-wheel vehicular mode of transportable velocity on the date this tragic accident transpired?

Deponent: Yes.

Counsel: Nothing further. I’m bright enough to know what happened.

• Cover Your Ears and Close Your Eyes When the Deponent Says Things that Hurt Your Case. The last thing you want to hear about are reasons that may cause you to lose the case. It’s less painful if you ignore the bad news and pretend it doesn’t exist. For example:

Deponent: I have a tweet your client sent complaining about your fees and bad breath, and, oh yeah, he admits he owes me a million dollars.

Counsel: No worries. Let’s move on to something else.

• Insist on Generalizations and Conclusions, Not Factual Responses. Experienced and successful lawyers insist on factual responses to factual questions. They understand that many people tend to use generalized, conclusory words to describe things. They know that to prove a case they need admissible evidence, not generalizations and assumptions. They know they have to ask continually the key questions: “How do you know?” “What facts do you have to support that statement?” They understand there are many reasons a witness will reach a conclusion without having supporting facts.

But this process takes patience and persistence. It is much simpler to take what a witness says at face value. After all, witnesses would not say something unless they had total recall and communicated in unequivocal words. Well, not all the time. For example:

Counsel: Did Mr. Danforth sign the contract?

Deponent: Yes, of course.

Counsel: How do you know?

Deponent: Well, I saw his name on the document. I assume he signed.

Counsel: You did not see him sign, did you?

Deponent: No.

Counsel: Then, you don’t know if he signed the contract, do you?

Deponent: Not really.

Counsel: Did Mr. Danforth read the contract?

Deponent: Oh, yes.

Counsel: How do you know?

Deponent: He sat with me for a while with the contract.

Counsel: Did he appear to glance at the contract?

Deponent: I don’t know.

Counsel: Did you observe his eyes as he looked at the contract?

Deponent: No.

Counsel: Did he say anything to indicate he read the contract?

Deponent: No. But he didn’t say he didn’t read it.

Counsel: You don’t know whether he read it or not, do you?

Deponent: No. I thought so. I assumed he read it. I guess . . . all right, I confess. I read it. It took me about two minutes. The content was boring. So was your client.

There are other more effective strategic and tactical options that bolster deposition success. The following sections detail these especially useful alternatives. Not all apply in every deposition: each has its place and moment. An LLM can also assist in identifying and selecting potential techniques. See § 1.2.8.

§ 6.6.1 Specific Techniques: How to Probe

• Insist on Responsive Answers. Attorneys should ordinarily insist that witnesses fully and accurately respond to questions. But witnesses may respond in different ways.

They may respond “I don’t know,” and they may not know. You can follow up and ask why they don’t know.

They may summarily respond “I don’t know,” but further questioning may be necessary to make certain they have no information. Follow-up questions may include: “You don’t know, or you don’t presently remember?” “Did you know something in the past?” “Is it your testimony today that you do not have any personal knowledge to answer that question?”

They may respond “I don’t know for sure,” but you are more interested in their estimate or even their guess about something. You can lead the deponent with “bracketing” questions:

Deponent: I don’t know for sure.

Counsel: How far was Mr. Haydock’s motorcycle from Mr. Herr’s scooter when you first looked up after you heard a noise?

Deponent: I don’t really know.

Counsel: Was the distance less than 200 feet?

Deponent: Yes.

Counsel: Was the distance more than 100 feet?

Deponent: About that.

Counsel: Was it more or less than 150 feet?

Deponent: I’m not sure.

Counsel: Is it fair to say it was less than 200 and more than 100 feet?

Deponent: Yes.

They may respond “I think so” or “probably” or “I’m not certain, but I believe so.” You have to decide whether to follow up with further questions seeking a more definite answer, or a yes or no, or “I don’t know.” If the less-than-certain response is favorable, further inquiries may erode that answer. If the response is unfavorable, further inquiries may solidify that answer. Your assessment of potential responses should be your guide.

They may respond “I don’t recall” or “I don’t remember.” You have to decide whether you want to attempt refreshing their recollection or to leave the response as is. You may need to ask if there is anything that may refresh their recollection. It is important to discover not only what the deponent knows but also what is not known. If the deponent does not recall something, you may follow that response with “Then this could have . . . .”

They may respond with a selective memory, remembering only favorable information. It is the task of the examiner to explore or refresh the deponent’s recollection of unfavorable facts.

They may respond with an emerging pattern of ambiguous or evasive or incomplete answers. You then have to decide whether to ask questions that continue to elicit these responses. The deposition record could reveal a witness who knew little, was evasive, and who will be quite worthless as an opposition witness.

• Decide on a Structured Approach. Some attorneys employ a standard questioning approach to obtain complete information about an event. An effective technique includes: (1) asking general, open-ended questions prompting narrative answers; (2) following up with specific, closed-ended questions to clarify and probe the responses; (3) comparing another version of the event to pinpoint similarities and differences between differing accounts; and (4) concluding with questions that establish that is all the witness knows or remembers. This and other similar approaches attempt to exhaust the memory of a witness regarding a vital event.
• Encourage the Deponent to Talk and Ramble. This, of course, depends on what the deponent says. The response may be self-serving or irrelevant and should be discouraged. But it may be relevant. Loquacious witnesses sooner or later tend to disclose some damaging information or to say something inconsistent.
• Go from General to Specific. Depositions often seek information about both common and routine conduct and specific or unique acts performed by the deponent. You can decide whether you want to have the deponent first explain the routine acts, then follow with questions delving into specific conduct, or vice versa.
• Proceed in a Logical Order or Shift the Subject Matter of the Questions Occasionally or Frequently. A logical, orderly line of questioning should produce more and reliable information from the deponent. A haphazard, helter-skelter approach may cause difficulty and result in confusing and inconsistent responses. Your primary goals will influence the use of either approach.
• Explain What You Want. You can explain or instruct the deponent to answer in certain ways. You may tell the deponent exactly what you want. For example: “Tell me everything that you said and everything that he said.” “Please explain, step by step, what happened, describing everything you saw.” Or, “Answer the next questions either yes, no, or ‘I cannot answer yes or no.’ " These directions help establish a clearer story and keep the witness on track. You may need to be persistent when necessary, because even specific instructions may not produce the responsive answer.
• Revisit Lines of Inquiries. You may want to revisit inquiries about critical issues, but not by repeating questions using the same words. Sometimes answers to questions change if re-phrased at different times during the deposition. This tactic also makes it difficult for a less-than-honest deponent who has difficulty remembering what was said previously.
• GenAI Assistance. As noted earlier, LLMs are quite good at analyzing massive amounts of text, so the technology can flag inconsistencies—both from the deponent, as well as the deponent’s colleagues. LLM-backed tools can also help refresh memories, providing items from the record where the deponent was involved in the event at issue. In short, many of the deponent’s “sins of forgotten” can be cured at the GenAI confessional.
• Short-Circuit Questions. Depositions often involve questions about related documents or incidents and, rather than repeat an entire detailed line of questions for each document or incident, you may ask: “Would your answers pertaining to Exhibit 1 generally pertain to Exhibit 2 as well?” This shortened inquiry may be objected to as overly broad and may cause you to miss some detail.
• Lead the Witness. You may want to lead the witness with factual or leading questions because you want to obtain some responses that support your theories of the case. This approach can help you create an impression or perspective of a deponent, particularly regarding the deponent’s memory. For example, if you want to establish that a deponent has a poor grasp of the circumstances of an accident, you may ask several questions: “This accident happened very quickly. You didn’t expect to be involved in an accident. It’s fair to say this was a frightening experience for you. You became tense anticipating the crash. You were moving at the time of the collision?” If you want to establish that a deponent had a good grasp of what happened, you may ask a series of questions: “You have a vivid memory of this event. Nothing like this happened to you before. It’s fair to say you were especially alert because of the potential danger. You had a clear view of the scene. You were alert as you looked in the direction of the accident?” The more accurate the suggestive leading questions are, the more likely a deponent will have to agree with your conclusion.
• Take Notes. You may need to take notes during a deposition, to record a response or to frame later questions on a topic. Note taking may affect the deponent. It may cause you to lose eye contact with the deponent, who may speak more slowly as you keystroke or write or may stop answering until you are done. Deponents may wonder why you are taking notes of some responses and not others, causing them to expand or limit their responses or become more cautious and guarded. Note taking, while essential, should not adversely affect the flow of the deposition.
• Pace the Deposition. Be aware of the rhythm and timing of the deposition. A pace or varying paces that achieve your goals should be maintained. Fast-paced questioning tends to keep your mind alert, while forcing responsive answers and providing less time for the deponent to think about less-than-honest responses. But a quick pace may also discourage lengthy narratives by the deponent, interrupt responses, and make it difficult to keep track of what was asked and what was said. Slower-paced questioning may eliminate these deficiencies but sacrifice the advantages. Moderate, changing paces may be most effective.

§ 6.6.2 Specific Techniques: What to Ask

• Ask Anything and Everything. Depositions commonly seek factual information, so you ordinarily want to probe, explore, and press deponents for information until their memory is exhausted. All kinds of information should be elicited—the good, the bad, the neutral, and especially the harmful information, because discovery is the place to uncover case weaknesses as well as strengths.
• Ask Who, What, When, Where, Why, and How Questions. These questions will usually produce detailed information, clarifying and supplementing a deponent’s narrative response.
• Employ Closing Questions. As the deposition progresses, you should consider whether you have taken precautions to prevent the deponent from legitimately modifying or adding testimony later. One such device is the use of periodic wrap-up questions, such as “Have you stated everything that you remember happening at that time?” Or “Did you say anything else that you haven’t told us?” Or “Do you have any other information relating to the incident that you have not disclosed?”
• Probe the Source of the Information. A deponent often provides information without clarifying whether that information is based on personal observation or knowledge, hearsay, inference, or assumption. You are well advised to determine its exact source and discover what they really know or what they just suppose.
• *Pursue Accountability. *Questions about other sources of information also make the witness more accountable. A deponent who thinks you have no corroborating or contrary source of information may be inclined to exaggerate. A deponent who understands you have access to a credible source is likely to be more forthcoming, or perhaps attempt to formulate a story consistent with that source. Accountability reduces the chances of exaggeration and increases the likelihood of accuracy.
• Detail Conversations. Deponents usually provide a summary of a conversation when asked what was said. The examining attorney must then decide whether to seek clarification through detailed questions to determine whether the answer is: (1) an impression of what was said, (2) a paraphrase of who said what, (3) a close approximation of the conversation, (4) an exact quotation, or (5) some other recollection. Probing questions not only obtain a deponent’s full story but also reveal the deponent’s credibility.
• Compare Stories. Your client usually has a different version of what occurred from that of an adverse deponent. You can compare conflicting versions. You may want the deponent to know that your questions are based on information you have gained from another source, or you may want the deponent not to realize you are verifying another version. The timing of comparative questions may also affect the results of this approach. In order not to influence the response, you can initially ask narrative, neutral questions to obtain information. Or, if you do hope to influence the response, you could frame suggestive, leading questions. You cannot effectively ask if another witness is lying (that’s for the ultimate fact finder to decide and objectionable), but you can inquire into whether the deponent agrees or disagrees with what another person said, saw, or did.
• Ask About Feelings, Emotions, Opinions, Thoughts, and Attitudes. Too often, examining attorneys limit their questions to what happened and what was said or observed. Other levels of questions may produce helpful information. “What were you thinking? What was your attitude? What judgment did you make about that person? What is your opinion? How were you feeling at that moment? What did that sound like? Did you notice any smell?” Questions dealing with thoughts, attitudes, judgments, opinions, feelings, emotions, impressions, and sense perceptions often explain the reason for some event and may lead to more information about it. Responses to these questions add a helpful dimension to the case.
• Inquire About Witnesses and Documents. Whether a witness answers a question completely or incompletely, you should consider asking whether anyone else might have more information or whether there are any documents, electronically stored information, and things that might reveal more data. Questions should be routine and asked periodically during a deposition about potential sources such as witnesses, documents, materials, emails, social network communications, websites, blogs, and other persons with information
• *“Work” a Document with the Deponent. *The technique of “working a document” during a deposition involves asking various questions designed to authenticate the document and to inquire into its creation, meaning, and history. You may want to know about previous drafts, who assisted in drafting its contents, who the document was sent to, who responded to it, how it was discovered, what happened after it was received, and related questions.
• Have the Deponent Draw a Diagram. Drawing a diagram may make it easier for the deponent to testify accurately and for you to understand the testimony. It also commits the deponent to a specific drawing. Trials and hearings often involve visual aids and demonstrative evidence, and depositions can include a visual diagram depicting the deponent’s testimony. Diagrams composed by a witness during a deposition may obviously not be drawn to scale. Accurately depicted diagrams can be prepared before the deposition to be completed or highlighted by the deponent.
• Use a Computer-Generated Graphic or Other Exhibit. You can have the deponent review a demonstrative exhibit you created or a real evidence exhibit in a case, and comment on it. Or you may illustrate an event on a monitor and ask the witness to agree or disagree with the illustration. You may also display and ask questions about social network communications and websites.
• Review Pleadings and Materials. The deponent may be able to add to, explain, be surprised by, or become confused by legal materials. A party deponent may not be sufficiently familiar with pleadings, interrogatory answers, or other disclosures. Deponents have a difficult time if not properly prepared to respond fully and persuasively to such questions as “Your complaint alleges that ‘Plaintiff suffered specific damages amounting to $66,666.’ What facts do you have to support that claim for damages?” Or, “Your answer denies a complaint allegation that ‘defendant breached the contract.’ On what facts do you base your denial?”
• Place the Deponent at a Specific Time. Questions causing the deponent to go back in time about a particular event often help the deponent to recall more of the incident. Using retrospective questions, you can put the deponent at a time and place before having spoken to others about the event or before being prepared for the deposition by an attorney. This approach seeks a recollection before being influenced by others.

§ 6.6.3 Specific Techniques: How to React

• Use a Gauge. You usually have some means of determining whether the deponent has told everything and whether the responses are complete. Time is a very effective gauge. The deponent may testify that a conversation occurred during a ten-minute interval. This period of time can assist you in establishing whether the witness has explained the complete event and conversation. You merely approximate the time it would take to do or say what happened and match that with the responses. You can allow some additional time for forgotten events or conversation. This total will help determine whether the deponent has told you everything or whether you need to probe further. The deponent who says the conversation lasted ten minutes, and then only describes three minutes of dialogue, needs to be questioned further.
• Suggest a Mistake. Many depositions involve something that occurred as a result of someone’s mistake, and deponents may refuse to admit their involvement in that error. The foil to such a position may be simple: ask whether it is inevitable or possible that, on occasion, a mistake or error is made.
• Seek an Admission. Depositions produce information that can be phrased in the form of an admission. A deponent may agree with the examiner’s specific or leading question and admit facts. If the deponent disagrees, further questions can be asked to determine the basis of the disagreement. It is advisable not to argue with the deponent but to inquire into why no admission can be affirmed.
• Pursue an Admission. What should you do when the deponent makes an admission and you want to get further specifics? You must make a judgment: if you pursue the questioning, will the deponent attempt to retract or soften the admission, or will such detailed questioning solidify the declaration? Proceeding and probing the grounds of the statement is probably best: it is better to uncover information than not to explore the area.
• Summarize Previous Testimony. The deponent may say something favorable, though not in the most favorable language. You can summarize what was said in more favorable words and ask the deponent if that statement is correct. Or a deponent may say one thing at one time, add a comment later, and, still later, make another revision. You can summarize everything said and ask the deponent if your summary is accurate. You cannot offer testimony or put words in the mouth of a deponent (counsel ought to and will object), but accurate summarizing is proper and appropriate.
• React to the Deponent’s Disposition. Witnesses display various attitudes in a deposition. They can be friendly, confused, neutral, anxious, indifferent, partial, withdrawn, outgoing, tense, aggressive, hostile, or some combination of these. You have to decide whether the deponent’s disposition helps or hurts your approach and how to react to it. Should you alert the deponent? Should you ignore it? Should you attempt to control or change the attitude?
• Appear Disbelieving. Your disbelief may cause some deponents to second-guess their response. Follow-up questions such as “Are you sure?” or “Is that right?” or “How can you be certain?” especially to a questionable response may cause some deponents to become anxious and wonder whether they are indeed right. Your disbelief of their responses may cause them to change a “yes” to a “probably” or a “no” to a “possibly.” Other deponents may become confused and believe they made some mistake; still other witnesses may become paranoid and believe you have proof supporting your disbelief, with which you can confront them. If you have an objective source of contrary information (a written document, for example), you can introduce and display it. Or you can look at your private notes as you compose a question, and the deponent may believe you have something that contradicts them. You cannot badger a witness into an answer nor can you deceive them, as counsel will object to such attempts.
• Undermine the Deponent’s Credibility. You can impeach a deponent during a deposition with an inconsistent prior statement made by that deponent. The prior statement can be made before or even during the deposition. If you have impeaching materials indicating a deponent is wrong or is testifying inaccurately, you have to decide what to do. You can choose to ignore it and go on, or doubt the information and intimate that you have contrary information without disclosing it, or challenge the testimony directly by disclosing impeaching material and not reserving it for the trial or hearing. (You cannot impeach a deponent with a prior statement made by another person, but you can ask whether the deponent agrees or disagrees with a conflicting story told by someone else.)
• *Ask About the Deponent’s Memory. You *can ask relevant questions to determine the extent of the deponent’s memory. You may ask: “Would you consider your memory a good or poor memory concerning that event?” This may produce a self-serving response, but also may lock the deponent into a position that you can use for contrast later, particularly if a cautious witness with a selective or poor memory claims to have a good memory. The opinion question can extend to other areas, such as “Why do you believe you had an excellent view?” or “How weren’t you able to hear everything that was said?”
• Be Persistent. Persistence is an ideal tactic to pursue. During a deposition you may become bored with the tedious questioning, resigned to the damaging information, or put off by the opposing lawyer. These situations can affect your effectiveness and may require additional effort. It will help to stay the course you charted.
• Make Credibility Assessments. During and after the deposition, you can assess the credibility of the deponent. You should put yourself in the place of the opposing lawyer and ask: “Will that deponent be an effective witness at the hearing or trial?” One of your main goals is to have the opposing attorney leave the deposition answering that question in the negative.
• *Resolve Remote Deposition Problems. *Issues may arise during distant depositions that require attention. The streaming video may freeze on vital responses, or not all lawyers may have heard an answer. The responsibilities for an accurate deposition may be on the attorney taking the deposition, and that attorney can ask the assistance of other counsel and the reporter in ensuring that a complete deposition has been properly recorded.

What to do regarding these tactics during a deposition often requires a split-second judgment on your part. Experience will help you refine that judgment ability, but anticipating situations, rehearsing how you will react in certain circumstances, and hard work preparing for the deposition will also assist in refining that decision-making process.

§ 6.6.4 Specific Techniques:

Deposing the Expert

Expert witnesses provide some common areas for examination. The discovery rules set forth the various categories of experts and the methods available to obtain information. Interrogatory answers and expert reports will reveal information regarding their background, opinions, and conclusions. A general list of deposition topics to be explored with most adverse expert deponents include the following:

• Their qualifications.
• Their lack of qualifications relevant to the issues in the case.
• Their opinions as stated in their expert report that support the examining lawyer’s case.
• The bases and lack of bases for their opinions.
• The sources of information relied on in forming their opinions and bases and other sources referred to in their report.
• The lack of relevant data or support for their conclusions.
• Their fees and whether they anticipate testifying for the party in the future.
• The number of times they have testified for plaintiffs and defendants in previous cases.
• What informative data or evidence that was available they did not review.
• What other information they did not consider that might change their opinion.
• The degree of probability of their conclusions.
• Probable and possible causes or explanations contrary to their opinions.
• Their familiarity with any treatises, websites, or materials useful to the examining attorney’s case.

Inquiry into these areas serves several of the purposes of deposing an expert: to explore the details of the expert’s opinion, to prepare for cross-examination of that expert at trial or hearing, and to provide information necessary to counter or impeach the expert’s testimony through the opinion of the deposing attorney’s own expert.

Deposition inquiries of an expert may be subject to some limitations, including: (1) the information sought must pertain to matters within the expert’s knowledge and expertise; (2) hypothetical and opinion questions must be based on the facts in the case; (3) questions cannot be so broad as to require the expert to do research to provide an answer.

LLMs can improve expert depositions by generating tailored outlines based on expert reports, prior testimony, and discovery responses. By structuring questions around qualifications, methodology, biases, and evidentiary gaps, GenAI can help ensure that attorneys effectively challenge the expert’s credibility and conclusions. LLM-backed tools can also compare deposition testimony with prior expert reports (of that expert, or of others in the same litigation) to flag contradictions and identify missing data or alternative conclusions from scientific literature. Additionally, LLM-backed search engines can conduct deep research into peer-reviewed studies, technical manuals, and industry standards, equipping attorneys with counterarguments that undermine the expert’s claims.

Beyond preparation, GenAI can improve real-time deposition strategy by suggesting follow-up questions that might expose weaknesses or force clearer admissions. LLMs can analyze a witness’s responses on the fly, recommend alternative phrasing, and generate impeachment strategies. By researching the expert’s prior cases, LLM-backed tools might identify inconsistencies and uncover financial incentives that may affect credibility. In short, GenAI is increasingly able to permit more adept, agile depositions of experts.

§ 6.7 Representing the Deponent

A deponent has a right to have an attorney at the deposition. Lawyering responsibilities require defending counsel to be present and involved in the deposition as necessary to represent the deponent well. Defending attorneys may be passive, not have much to do, and have only a few questions to ask. This commonly happens because the deponent has been properly and thoroughly prepared, and the examining lawyer asks appropriate questions and conducts the deposition professionally. Some circumstances may require more active participation.

The following subsections focus on the various functions of deponent representation and also discuss the ancillary functions involved in depositions of non-client and non-party deponents.

§ 6.7.1 Selecting the Deponent

The notice of deposition commonly designates the person to be deposed. Sometimes, the other attorney may wish to depose someone you know does not have relevant information. You must decide whether to tell the other attorney ahead of time, and perhaps suggest someone else to be deposed (and save everyone wasted time and effort) or to appear at the deposition and snicker (really?).

Federal Rule 30(b)(6) permits the deposing attorney to designate the subject matter of a deposition to be taken of a corporation, governmental agency, or other organizational party. As previously explained, this rule permits the recipient of the notice to select the deponent or deponents and to designate or limit the matters on which they will testify. See § 6.2.2. Whom do you and your party client select? Obviously, you pick the person or persons who have information relating to the subject matter of the deposition. But what if there is more than one such know-everything witness? Then you should select:

Someone astute enough to understand the questions asked and to perceive what motivates opposing counsel to ask them.

Someone articulate enough to compose favorable answers.

Someone resourceful enough to phrase what is said to make the best of the strengths of your case and to de-emphasize its weaknesses to the extent legitimately possible; and

Someone of character, a witness who will speak the truth and whose phraseology and tone of voice will manifest candor and accuracy.^[21]^

Should you find such a witness, consider using that person for all your depositions regardless of the subject matter (not really).

§ 6.7.2 General Deponent Preparation

Your deponent preparation should include a complete explanation of deposition procedures and of the facts and elements of the particular case.

Preparing a deponent takes time and involves expense. You can reduce some of that effort by providing the deponent with prepared deposition instructions. A set of novel instructions follows, and a set of very useful deponent instructions appears in Appendix A of this text.

The value of general instructions is considerably enhanced by a preparation conference with your deponent. There you can emphasize or modify major points, provide additional instructions, and answer any remaining questions. Deponents can also observe a video real or simulated deposition designed to educate them further.^[22]^

Instructions on What NOT to Do at Your Deposition or If You Do These Things I Will Withdraw as Your Lawyer

1. Don’t act ashamed you have me for your attorney.

2. Do not dress like a zombie or wear that dated circus outfit.

3. Don’t faint. If you feel a faint coming on, don’t fall over on me.

4. Do not respond “huh” when the other lawyer asks your name.

5. Don’t eat sour tasting food while answering questions.

6. If asked whether you are a party in the case, don’t ask what time it starts.

7. Don’t make faces at the camera or ask if the deposition will be shown on cable.

8. If the other attorney asks about your major expenses, don’t point to me.

9. When I ask you questions, try not to laugh out loud.

10. If I shut my eyes or lay my head on the table, don’t wake me, until it’s all over.

§ 6.7.3 Specific Deponent Preparation

This section offers guidelines on specific preparation about a case. You likely need to meet with a deponent more than once for adequate preparation. Important deponents may need a couple or several meetings.

• Explain What the Case Is All About. You may have previously discussed the case with a client or deponent, but an updated explanation will aid understanding. You want to make certain the party deponent understands not only what is happening but why it is happening. Commonly understandable language, not law-school legalese, should be used to outline the issues, detail what needs to be to proven, describe the approach of the opponent, and explain the purpose of the deponent. A witness if well prepared will answer questions more knowledgeably, perceive the motives of the other attorney more easily, understand the impact of the answers more clearly, and be more at ease and confident during the deposition.
• Review the Facts and File. The deponent may have provided you with information earlier, and you need to review this information. It will help refresh the deponent’s recollection and may generate additional information. You can inform witnesses about facts they do not know. You may have notes to refresh their recollection, documents and objects they should see, or other information in your file or computer they should know about.
• *Be Thorough. *You should go over everything relevant to the deponent’s testimony. Pleadings, discovery responses, statements, emails, letters, social network communications, materials, websites, affidavits, internet searches, computer generated documents, you name it, the deponent should likely see it if it has a bearing on their testimony. While you need to carefully go over all documents that may be relevant or potentially introduced, remember that documents a deponent reviews to refresh recollection may be discovered, and this possibility may limit your disclosures.
• Explain Conflicting Stories. You accept it as a fact of legal life that your deponent’s story will differ from the other side’s story and perhaps from stories of other witnesses, but the deponent may not understand this. You should explain that this is normal and that they should tell the truth using their best recollection, and not attempt to harmonize their story with someone else’s version, unless it is what happened.
• Be the Devil’s Advocate. Tell your deponent what you know about the examining attorney. It is essential that you explain the type and scope of questions deposing counsel will likely ask. You will want to practice by having yourself or another colleague or lawyer simulate the deposition by asking questions. You may want to record practice depositions so the deponent can listen to and see the responses and learn their strengths and weaknesses. The use of video replay recordings is an excellent way to fully prepare deponents.

LLMs can improve deponent preparation. For example, LLMs can also generate structured preparation outlines by analyzing pleadings, discovery responses, and case law to focus on key issues. GenAI can also be an effective Devil’s Advocate by simulating opposing counsel’s likely questions based on case strategy and claims. Some systems can also adjust the difficulty and aggressiveness of practice questions, allowing the deponent to prepare for different questioning styles. Some LLM-backed tools even incorporate voice recognition and voice synthesis, enabling deponents to “shadow box” with their machine-powered deponent.

Beyond question generation, GenAI can enhance witness confidence by simulating real-time deposition questioning and providing feedback on clarity and precision. LLMs can highlight testimony weaknesses, suggesting ways to strengthen answers while maintaining credibility. Additionally, GenAI can summarize conflicting witness statements, helping deponents understand and navigate opposing narratives. By reinforcing the importance of factual accuracy and harmonizing testimony, LLMs can help witnesses better provide consistent, reliable answers under pressure.

The preparation of a deponent who is a witness and not a party client varies from the suggestions presented in these sections. What a lawyer discusses with a deponent client may be protected by the attorney-client privilege. What a lawyer discusses with a non-client deponent may be discovered.

The attorney can still approach the independent witness and explain many of the previous instructions and facets of the case if the witness does not have a lawyer. However, the attorney does not represent that witness and therefore cannot render legal advice or pursue matters that conflict with the client’s best interests, nor instruct the witness about what to do during the deposition. Further, what the attorney tells the witness is not protected by any privilege and may be reasonably inquired into by the examining lawyer. Your preparation, explanations, and instructions will differ accordingly to take into account the different relationship with the non-client or non-party deponent.

§ 6.7.4 Video and Remote Preparations

Deponents who will testify via distant electronic methods require additional instructions. Guidelines for an effective remote video deposition include:

Surroundings

1. Location. If circumstances allow, it’s best if you are physically with the deponent, so you can do the set up. If not, you’ll need to instruct the deponent on setting up the room.

2. Room. A quiet and secure room needs to be selected to avoid noise and distractions.

3. Backdrop. The background of the deponent should be clear and neat, with nothing distracting on the walls. A solid-color backdrop can be used for a clean look.

4. Lighting. The view of the witness needs to be sufficiently illuminated. Cameras automatically adjust for brightness. Natural light or lamps can provide proper lighting.

5. Chair. Comfortable, solid and quiet, and no rockers.

6. Camera Angle. The camera or webcam lens should be level with the deponent’s eyes to avoid distortion. And the witness needs to be reminded to talk to the camera.

7. Appearance. The deponent should dress for a formal court appearance, and select an appropriate quiet or muted color for the recording.

Set Up

1. Network. Confirm an adequate megabits connection speed. A hard wire connection may be more reliable than Wi-Fi.

2. System. Check the sound level and visual lag speed. More than a half-second talking delay can be befuddling.

3. Mechanics. Confirm the software operations. Become familiar with connecting, answering, and muting. Operate the mechanics for any demonstrative and real evidence, including drawing, pointing, and highlighting.

4. Troubles. Be prepared for glitches and buffering, and have a plan or an available IT assistant to reconnect after a possible disconnection.

Deponent Prep

1. Review with the witness routine deposition preparation regarding procedures, available water, timed breaks, and related matters.

2. Explain the deponent is on television, in effect, and needs to look at the camera and speak up while testifying, and that a judge, jury, arbitrator, or ALJ may view this in the future.

3. Remind the witness to remain aware of body posture and avoid distracting facial expressions, nervous tics, and casual habits.

4. Describe there may be a connection lag and to wait a moment before answering to permit an objection and to avoid talking over others.

Practice and Rehearsal

1. Practice well before the scheduled deposition to make sure all is operational.

2. Comment that the camera may cause anxiety or nervousness, which is normal, and suggest the deponent focus on talking to a real person.

3. Conduct a rehearsal from a remote site to double check all is operational and that the deponent sounds and looks comfortable and credible

Final Preparation

1. Begin the connection procedures well before the start of deposition to allow enough time to correct problems.

2. Confirm all is working, especially the sound and camera.

3. Deactivate unnecessary software, cell phones, tablets, and other devices, or activate “do not disturb.”

4. Triple check the equipment and operations.

5. Imagine yourself a movie director. . .

§ 6.7.5 Raising Objections During Depositions

You may have a right to object to some questions posed to a deponent, including client and non-client witnesses, but you will likely make few objections with deposing lawyers who properly conduct a deposition. The proper way to make an objection is to state concisely the objection and specific ground(s) in a non-argumentative manner. Whether your objection is correct or not, the examining attorney generally has a right to insist on an answer, unless you instruct your client not to answer privileged inquiries. Usually, little purpose is served by an explanation of the objection or an argument over its merits, unless you have legitimate strategic or procedural reasons for so doing, which may help the deponent.

Federal Rule 32(d) describes the situations requiring objections during depositions (it does so by stating the circumstances in which otherwise valid objections are waived). State court rules have similar regulations. And, these provisions commonly apply to depositions taken in arbitration and administrative law cases.

Subsection (1) provides that all errors and irregularities in the deposition notice are waived unless a written objection is promptly served on the party giving the notice. This requirement places the burden on the opposing party to raise any notice problem.

Subsection (d)(2) provides that any objection based on the disqualification of an officer who takes the deposition is waived, unless it is made before the taking of the deposition begins or as soon thereafter as the disqualification becomes known or could have been discovered with reasonable diligence. Disqualification situations are quite rare.

Subsection (d)(3)(B) details the objections that must be made concerning other errors. Any irregularities occurring at the deposition, regarding the taking of the examination, the oath or affirmation, the conduct of the parties, or “errors of any kind which might be obviated, removed, or cured if promptly presented,” are waived unless seasonable objection is made at the deposition. For example, an opposing lawyer who is aware that a deponent has not been properly sworn will be unable to raise this objection later because an objection made during the deposition would have provided timely notice and an opportunity to cure the error.

The same subsection also applies this “seasonable objection” standard to the form of the questions and answers during the examination. Improper questions by an examining attorney that can be corrected at the deposition must be objected to in order to preserve the objection for trial or hearing. Examples of such form objections to inappropriate questions and responses include: vague, confusing, ambiguous, misleading, complex, compound, or argumentative questions; misquoting the deponent; and non-responsive answers. Most depositions allow leading questions because the deponent is an adverse party, an agent, or a hostile witness, and a leading objection will be improper. The decision whether to object under this rule turns on whether the error produced by the objectionable question or answer can be obviated or corrected during the deposition. If so, an objection is warranted.

Rule 32(d)(3)(A) delineates another situation requiring an objection to be made during a deposition: objections to the competency, relevancy, or materiality of testimony are not waived by a failure to make them at a deposition, unless the ground of the objection is one that might have been obviated or removed if timely presented. The Federal Rules of Evidence have eliminated immateriality as an objection, and competency objections are uncommon. Relevancy objections are available.

What situations require making a relevancy objection to avoid waiving the objection? Information discoverable during a deposition includes evidence that will not be relevant for trial or hearing purposes. The scope of relevancy under Federal Rule of Civil Procedure 26 for deposition purposes exceeds the scope of relevancy under [Federal Rule of Evidence 401](https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N4DE88ED0B96D11D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). Since deposition questions may seek broad information irrelevant for trial or hearing purposes, the concern of the deponent’s attorney is to object to irrelevant questions that, if objected to, could somehow be cured by or rephrased by the examining attorney. Irrelevancy objections are not typically common and often need not be asserted.

The failure to object to certain questions during depositions will result in the waiver of underlying rights. A party is also bound by an attorney’s failure to raise a timely objection. For example, Federal [Rule 26(b)](https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NCBF83860B96411D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) makes privileged matter non-discoverable. A procedural lapse by a deponent’s lawyer in neglecting to object to inquiries into privileged matter during a deposition will operate as a waiver of the substantive protections. A later objection at trial or hearing to such inquiries will be overruled because a waiver occurred during the earlier deposition. Objections to privileged or other matters sought from a client or party deponent will be necessary to preserve those objections and will also be preliminary to an instruction from the deponent’s counsel not to answer the questions.

Some attorneys, because of the uncertainty of the need to object to certain questions, prefer entering into a stipulation at the start of the deposition, stating: “It is stipulated that all objections to questions and answers shall be preserved by each party and those unmade are not waived, except those as to form.” Many attorneys perceive no need for this agreement and prefer having the rules control.

Objections will sometimes actually work: an attorney will not pursue an answer after an objection to a question. An objection says, in effect, that the objecting lawyer believes the question is improper or seeks non-discoverable information, and that belief may have some effect on the thinking of the other attorney. This is particularly true in depositions involving experienced and inexperienced counsel. The experienced lawyer may attempt through peer pressure and objections to limit the scope of the examination, and the inexperienced attorney may be convinced enough not to insist on answers. This may also occur in situations in which the examining attorney has doubts about the legitimacy of the question or the hoped-for response. The objecting lawyer may well be right and the examining attorney may agree.

There will be times when you must interject objections, especially if the deposing counsel is asking improper questions or conducting the deposition unprofessionally. While you may have a right or need to make an objection, it should not be made in an effort to improperly interfere with the testimony or frustrate the purpose of the deposition. The Federal Advisory Committee, in an effort to reduce the frequency and use of objections during depositions, explains: “Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should respond. While objections may be made during a deposition, they ordinarily should be limited to those that under Rule 32(d)(3) might be waived if not made at that time."^[23]^ Federal and state court decisions also recognize that frequent and unnecessary objections constitute abusive and improper deposition practice.

Tactical ramifications will also affect your judgment about whether you should object or not. For example, the examining attorney may inquire into the deponent’s opinions on other matters without asking for foundation or establishing competency. Your objection to lack of foundation may prompt the examiner to consider the defect in the inquiry and to rectify it by asking foundation questions and obtaining more detailed responses and consequently more information. If you need or want that information detailed in the deposition, you should object. If you do not want the other attorney probing further, you should not object.

You must decide during depositions not only whether you have a proper objection but also whether tactically it is wise to object. Many depositions are relatively objection-free, and you should not feel unfulfilled as an advocate if a deposition passes without your having to object to anything more substantial than the shape and color of the table. A program can help with identifying potential objections and instructions not to answer.

§ 6.7.6 Instructing the Deponent

Not to Answer

An instruction not to answer occurs when the attorney representing the deponent advises the deponent not to answer a question that is objectionable and need not be answered.^[24]^ The instruction may accompany the making of the objection or may follow an objection if the deposing lawyer insists on an answer. In most jurisdictions, instructions not to answer may only be utilized in a few, limited situations.^[25]^ Federal Rule 30(c)(2) provides: “A party may instruct the deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a [protective order] motion.” State courts have similar rules.

With regard to the assertion of a privilege, an objection and instruction not to answer may be made to preserve a privilege. The reason why a claim of privilege is a legitimate reason is that a subsequent answer may constitute a waiver of the privilege by revealing the private and protected information. The objecting party has to specifically object and describe the nature of the privilege, and cannot merely assert a general objection. The examining attorney can ask limited questions designed to seek information about the legitimacy of the privilege such as the identity, existence, nature, and type of information withheld.

With regard to the limitation of evidence directed by a court, an objecting party may instruct the deponent not to answer to comply with the court order. An examining attorney may not inquire into an area ruled to be inappropriate. A judge, arbitrator, or ALJ may issue such a ruling in a discovery order or a protective order restricting discovery.

With regard to instructions not to answer to enable a party to seek a protective order, [Rule 30(d)(3)(A)](https://www.westlaw.com/Document/N2B7CBC20B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N2B7CBC20B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0) permits a party to bring a motion to restrict a deposition on the grounds that it “is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party.” To comply with this rule, an objecting attorney must object on the ground of bad faith, annoyance, embarrassment, or oppression and may insist on adjourning the deposition to bring a motion seeking a protective order. Questions that seek information far beyond the scope of discoverable information may be considered bad faith and harassing questions, and appropriate grounds to support a protective motion. Questions that are objected to on the grounds of irrelevancy or hearsay may not be bad faith or harassing questions. In some cases, there may be a bright line and in others a fine line regarding what is bad faith and harassment. Questions will need to be extraordinarily unreasonable to justify the time and expense to suspend a deposition and seek a ruling.

If there is no legitimate reason supporting an instruction not to answer, the lawyer and deponent have abused their roles. An instruction not to answer should only be asserted if expressly permitted by law. A judge, arbitrator, or ALJ may impose sanctions for the improper use of an instruction.

With regard to non-client deponents, a lawyer who does not represent the deponent cannot advise that deponent not to answer, as noted previously. See § 6.7.3. The lawyer may suggest that the question may not be answered, or that a privilege may exist, but the witness must decide how to respond. Neither an examining attorney or a defending lawyer may advise a non-client or non-party deponent not to answer a question or assert a privilege. Rule 1.7 of the Model Rules of Professional Conduct prohibits an attorney from rendering advice to a person who may have a conflict of interest with the attorney’s client. A non-party witness will or may have an interest different from a client’s interest, rendering an attorney representing a client unable to suggest advice to that deponent.

GenAI-backed tools can help attorneys protect privileged information and enforce protective orders by actively monitoring deposition questioning in real time. Lawyers can input privilege details, protective order contents, and other restricted topics, allowing the tool to track questions, flagging any potential violations instantly. If a question risks waiving privilege or breaching a court-ordered limitation, the tool can alert attorneys and suggest precise legal grounds for objecting or instructing the deponent not to answer. By analyzing live deposition transcripts, technology can ensure that attorneys respond swiftly and appropriately, reducing the risk of inadvertent disclosures while maintaining compliance with deposition rules.

§ 6.7.7 Protecting the Deponent

The rules regarding permissible conduct by a defending lawyer representing a deponent are fairly well established: the attorney can make proper objections, assert legitimate instructions not to reveal privileged information, and protect a deponent from harassing and bad faith questions. Other efforts to defend a deponent may well be inappropriate, depending on the interpretation of the rules, the circumstances of a case, and the views of counsel. The following “if” situations reflect a range of commonly acceptable conduct to unacceptable behavior.

• If you or the deponent did not hear a question, you can properly ask the reporter to read the question back or ask the examining lawyer to repeat it.
• If you did not understand a question, you can ask the question to be repeated or rephrased. If the deponent did not understand, the deponent should say so and have the question re-asked. If the question is poorly phrased, you may object to the form of the question as being vague or unclear.
• If the deponent becomes fatigued, you can insist on a recess. Even if the other attorney objects, the deposition cannot continue if you or the deponent leave the room for a brief rest from legitimate fatigue.
• If a witness forgets something or answers inappropriately, you may not request a recess in order to talk to the deponent. The deposing attorney has a right to obtain information from the deponent—not from you or the deponent after having been coached or spoonfed by you. The tactic of taking a break to prepare a deponent for an answer or to correct a response is improper and an abusive practice. Breaks are fine. The just can’t be coaching sessions.
• If the deponent has answered a question and begins to ramble, you can interrupt and object to any further response on the ground that the deponent has answered the question. If the witness is being non-responsive and unnecessarily volunteering information, you may properly object, and, in effect, remind the deponent not to ramble.
• If a witness has difficulty remembering a fact, you may not interrupt and volunteer the information. The examining attorney has a right to determine what the deponent knows, not what you know. It may be appropriate to correct an obvious misstatement of a deponent if the information is inconsequential or if everyone else is confused by the answer. Your interest in doing so is to provide accurate information and not to unnecessarily interfere with the deposition.
• If the deponent has difficulty providing an answer that is contained in a document, it is inappropriate for you to show the deponent that document for the answer. The examining attorney has a right to assess the memory of the witness without reference to a document. The deponent can plead ignorance, if genuine, and not answer unless shown the document.
• If a witness is shown a paper or electronic document by the examining attorney during the deposition and is immediately asked questions about the document, it may be appropriate for you to remind the deponent that they may review the entire document or specific provisions before answering any questions. It is also appropriate for you during the deposition to review the document for purposes of making an objection. It is improper for you to confer with the deponent or take a break in an effort to influence the testimony about the document.
• If it appears to you that your client or party deponent needs advice, or if the deponent asks to consult with you, you may or may not be able to do so. Most courts and jurisdictions permit attorneys to consult with a deponent during a break and limit consultations during the deposition to occasional or reasonable consults. The rationale permitting consultation is that there is no one present during a deposition to monitor the proceedings and there are no rules of evidence restricting questions and responses. These protections, which are available at a trial or hearing but not during a deposition, justify a deponent and an attorney sometimes consulting with each other. Other jurisdictions prohibit lawyers from consulting with deponents during a deposition, and still others proscribe it even during deposition recesses. A rationale for these restrictions is that the lawyer had an opportunity to prepare the deponent before the deposition and consultations during a deposition will unfairly influence the testimony of the deponent. Another rationale is that a lawyer does not have a right during trial or hearing to consult with a witness during cross-examination.
• If a lawyer commits the following misconduct, sanctions may be imposed: It is improper during a deposition to whisper in a deponent’s ear; or signal the deponent with some gesture, touch, or facial expression; or interpose an improper objection, testify, or otherwise interfere with the deposition.

The appropriateness or impropriety of attorney conduct can be assessed by relating the behavior to the purposes of a deposition. A deposition provides an opportunity to obtain factual information and determine what a deponent knows. Conduct that interferes with this purpose is improper. Conduct that attempts to protect the deponent while not interfering with the goal of the deposition is appropriate. Lawyers who attempt to protect deponents using improper tactics may be controlled by the examining attorney, as explained in § 6.5.9. Or they may be admonished and sanctioned by a judge, arbitrator, or ALJ.

Federal Rule 30(d)(2) specifically authorizes the imposition of sanctions on any person who “impedes, delays, or frustrates the fair examination of the deponent.” A decision maker who finds that if any impediment, delay, or other conduct of counsel has frustrated a fair examination of a deponent may impose on the attorney or party, or both, appropriate sanctions, including reasonable costs and attorney fees. State courts have similar provisions and sanctions.

§ 6.7.8 Questioning the Deponent

Federal Rule 30(c) allows the attorney representing or defending the deponent to “cross-examine” the deponent. That term is actually a misnomer because usually your deponent is a client or a friendly or neutral witness, and there is no need or urge to cross-examine. You may want to ask the deponent some questions at the end of a deposition, and you should proceed as if you were conducting a direct examination. If you did conduct a cross-examination and used leading questions, the other attorney may be able to object to these questions, and to move later to strike responses to the questions rendering the testimony inadmissible.

In what situations should you question your deponent? The best question may be no question—the sooner the deposition is over without the deponent saying more or misspeaking, the better. If you ask questions, you run the risk of the deponent not understanding what you are asking or responding in a different way from what you expected. Further, the more questions you ask, the more information is provided the other side; the more time the other lawyer has to think what else to ask; and the more likely the opposing counsel will ask even more questions.

There will be occasions when you’ll want or need to ask questions. In cases where the deponent is your client or a key witness, questions may need to be asked. If the deponent did not have an opportunity to complete an answer or to explain a response, you may want to ask some questions to clarify or supplement the testimony. Or if the deponent made a misstatement or forgot to provide some information, you may need to ask questions to complete the record or rehabilitate the witness. Or you may want to record helpful testimony to support a settlement position and use this evidence during negotiations.

LLMs help this rehabilitation by programmatically detecting misstatements and inconsistencies in real time. By analyzing transcripts and cross-checking testimony against prior statements, pleadings, and discovery responses, GenAI systems can flag deponent’s testimonial contradictions (from their prior statements) or the deponent’s factual errors that may require clarification. Additionally, LLM-backed tools can identify deponent’s harmed credibility, suggesting rehabilitation through precise follow-up questions. Beyond identifying issues, LLMs can assess the deposition transcript to weigh the risks and benefits of further questioning, helping balance the potential additional inquiries’ benefits with the risk of unnecessarily giving opposing counsel more bites at the apple.

Further, if the deponent is not your client, the deposition provides an efficient opportunity to obtain relevant information, as it will often be the best way to secure answers. Also, you’ll need to conduct a thorough examination to preserve the testimony of a deponent who either will not or may not be available at the trial or hearing. Death, illness, being outside the jurisdiction of the court, or unforeseen circumstances may prevent the deponent from testifying later. The only available testimony will appear in the deposition record, and you need to preserve information helpful to your case. But, usually, the witness will be available, and there is no need to preserve testimony. And, since so many cases settle, there is even less of an urgent need to preserve information.

Problems may arise when another attorney begins to ask a lot of questions at the end of an informational deposition. The lawyer who noticed the deposition is paying for the reporter’s time, and if that lawyer thinks another attorney is ranging far afield, the attorney should be advised that the deposition will come to an end unless there is an agreement on sharing expenses. If you prolong questioning, you ordinarily become obligated to pay a fair share of the deposition costs.

Federal Rule 30(c)(3) permits a lawyer who cannot or chooses not to participate in the oral examination nevertheless to submit questions. The attorney may serve printed questions in a sealed envelope or password protected file on the party taking the deposition, and that party shall give the questions to the reporter, who will ask questions of the deponent and record answers. If the deposition occurs in a distant and expensive location, if the deponent is not a party or a significant witness, or if only objective information is sought, this is an available device.

§ 6.8 Concluding the Deposition

After the questioning has been completed, there are a number of concluding matters to consider: stipulations, reviewing the deposition, signing the deposition, possible changes, and preserving the deposition.

§ 6.8.1 Stipulations

Attorneys at the conclusion of a deposition, or at the beginning, may suggest that certain stipulations be made on the record concerning: (A) reviewing the deposition by the deponent, (B) reviewing the deposition by other attorneys, (C) signing the deposition, (D) changes in the deposition by the deponent, (E) preserving or filing the deposition, (F) all of these. These represent common stipulations in some jurisdictions. Some attorneys lump them all together under the rubric of “usual stipulations” and seek to have them waived. Some examining attorneys expect and ask the attorney representing the deponent to explain to the deponent, on the record, the effect of these various stipulations (“Counsel please instruct your client . . .”). Whatever you do, you should have a reason for doing it. If you do not understand what the usual stipulations are, do not agree to them. If you do not want to or need to instruct your client regarding stipulations, you should not do so. What should you do? Read on.

§ 6.8.2 Deposition Review by the Deponent

A deponent has a right to review the deposition after it is completed. The deponent may read a transcript of the deposition or review the recording. Some jurisdictions require that the deponent request on the record to review the deposition. Other jurisdictions require a deponent to review the deposition unless the deponent waives the right or opportunity to do so. Federal Rule 30 and similar state rules provide that a deponent before completion of the deposition may request that the deponent review the transcript or a recording within 30 days after receiving a copy or after being notified by the officer that the deposition is available. Jurisdictions place a time limit on when the deposition record may be reviewed.

It is critical that the deponent’s testimony be correctly and accurately recorded. In a stenographically recorded deposition, the reporter may make transcription errors. In recorded depositions, some glitch may have caused the recording system to malfunction. The transcript may include incorrect statements that can become the basis for an alleged admission or impeaching statement. The deponent may not have spoken clearly resulting in the recording of an inaccurate or incomplete answer. These are reasons why a deponent, and the deponent’s attorney, should on the record of the deposition request that it be reviewed and not waive the opportunity to do so. After receiving the deposition transcript and recording, the deponent or the deponent’s attorney can review the deposition.

There may be a good reason not to review a deposition. If a deponent does not do so, and opposing counsel later attempts to use a deposition to establish admissions or impeachment, the deponent may say with some credibility that the answer appearing in the transcript or recording is incomplete or inaccurate. If, however, the deposition is reviewed by the deponent, no convincing, credible reason remains for the deponent to later rebut the record. This is why some deposing attorneys encourage a deponent to request a review of the deposition or suggest the deponent not waive the opportunity to do so. Other deposing attorneys prefer the deponent not review the deposition so the answers will stand without the deponent having a chance to review or attempt to change the responses.

LLMs can facilitate deposition review by comparing a parallel recording to the official transcript, flagging discrepancies that may impact deposition accuracy. For example, counsel can create an independent audio or video recording for verification, allowing GenAI to analyze both sources and detect inconsistencies. LLM-backed tools can also identify transcription errors, such as misheard words, omissions, or incorrect speaker attributions, ensuring that the final record accurately reflects the deponent’s testimony. By cross-checking the official transcript against the deposition audio, GenAI can help safeguard against inaccuracies that could lead to harmful evidence or mischaracterized admissions.

Whether a deponent reviews or does not review the deposition does not technically affect the use of the deposition. The rules permit the deposition to be used with the same force and effect as if it had been reviewed.

§ 6.8.3 Deposition Request by Attorney

An attorney representing a party other than the deponent may request that the deponent review the deposition. Some jurisdictions require a deponent to do so upon request of a party. This request would be made if there was an advantage in having the deponent review the transcript or recording. Some jurisdictions require that the attorney make such a request on the record before the completion of the deposition. Other jurisdictions require the deponent to review the deposition unless the deponent or the other party waives the right or opportunity to do so. Federal Rule 30 and similar state rules provide that any party may request that the deponent review the transcript or recording of the deposition within 30 days after receiving the deposition or after being notified by the officer that the transcript or recording is available for review.

Sometimes there is a good reason to have the deponent review the deposition, and sometimes there is not. If you are pleased with the deposition the way it was recorded, or if the deponent could make possible changes to critical responses, then you will not want the deposition reviewed. If you want to avoid the deponent later saying the deposition is inaccurate because it was not reviewed, you may want to request or not waive review of the deposition.

§ 6.8.4 Deposition Signing by Deponent

A deponent may have a right or obligation to sign a deposition transcript or recording. Some jurisdictions require the deponent to do so; others provide the deponent with an opportunity to do so; and some jurisdictions only require the deponent to sign if there are changes made to the deposition. Federal Rule 30(e) and similar state rules provide that if the deponent or a party, before the completion of the deposition, requests to review the transcript or recording, the deponent has a right and opportunity to sign a statement reciting any allowable changes in form or substance and the reasons for the changes. Other jurisdictions provide that a deponent has a limited period of time to sign a statement that the deposition has been reviewed and that, if the deponent does not do so, the right or opportunity to sign is automatically waived.

In federal cases, the deponent only has to sign if there are changes made to the deposition. In other jurisdictions, the deponent may sign but need not. In practice, it is common for deponents not to sign the deposition unless there are changes made. This practice attempts to reduce the effectiveness of a deposition used for admission or impeachment purposes. A signed deposition transcript or recording has more evidentiary weight than an unsigned deposition. There is a common practice for deponents to review a deposition and, if there are no changes, not to sign the transcript or recording. This practice is allowed by the federal rules.

Whether a deposition is signed or unsigned does not affect its use. Courts will permit the use of an unsigned deposition for all purposes unless a party brings a motion challenging its use by claiming prejudice as a result of this use.^[26]^ A deponent, or the deponent’s attorney, should waive signing a deposition transcript or recording under certain circumstances: (1) if it reduces the impact of the deposition for evidentiary purposes, (2) if the rules do not impose any adverse consequences for doing so, (3) if there are no changes made, and (4) if it saves valuable time and money.

§ 6.8.5 Deposition Changes by Deponent

A deponent may have an opportunity to make changes in form or substance to answers provided during a deposition. Some changes may be permitted after reviewing the transcript or recording. Rules of procedure and judicial decisions vary regarding what changes are legitimate and permitted. The trend is to restrict changes and prevent deponents from changing their mind or testimony after a deposition.

Federal Rule 30(e)(1)(B) simply states that “If there are changes in form or substance . . . [the deponent must] sign a statement listing the changes and the reasons for making them.” Some federal courts have interpreted this rule as allowing changes only caused by transcription errors and prohibiting changes for any other reasons. These courts interpret the federal rule as prohibiting a party from making substantive changes to testimony made under oath at the deposition.^[27]^

Other federal courts permit any change except a change that contradicts the deposition testimony (changing a yes to a no is not allowed). Still other federal courts, and many state courts, allow a deponent to make a change in form or substance supported by a good reason, from typographical errors to misunderstood questions to wrongly answered questions. Some courts may even permit change if the reason to do so is “inadequate."^[28]^

Courts that allow changes generally require a reasonable and legitimate explanation for any changes. These courts have allowed deponents to make the following changes: (1) correct substantive testimony, (2) make testimony one place in the deposition conform with testimony at another place, (3) correct typographical errors, and (4) revise transcription mistakes. The reasonable explanation must accompany the change and must be truthful and may contain exculpatory explanations.^[29]^

The typical manner of making changes is by a witness indicating the change and including the supporting reason(s) in the errata sheet provided by the reporter. This is the procedure commonly used in federal cases. In other jurisdictions, a deponent may make changes by completing a separate statement identifying the changes and including the reasons, or by submitting an affidavit that contains the corrections and reasons, or by making changes on the record or in the margins of the record.

The original transcript or recording and any changes will be usually admissible at trial. The original deposition constitutes a prior statement that the deponent will obviously contest as being inaccurate and replaced by the changed testimony. The fact finder can decide whether to believe the original or the changed testimony.

A reporter may be able to indicate whether the reporter agrees or disagrees with the changes, particularly changes made because of an alleged transcription error. An attorney can, and may want to, ask a reporter to double check the accuracy of the recording involving disputed changes. It is also possible for a reporter to be called as a witness at trial or hearing to rebut allegations of transcript error.

Tactical reasons significantly militate against making changes. Reasonable inferences that may be drawn from changes in the deponent’s testimony will be very unfavorable to the deponent, and changes may appear to be questionable alterations of harmful responses or inconsistent testimony. Deponents cannot evade answering questions during the deposition and later plan artful and helpful responses.

Substantive changes in the record make the deposition incomplete and permit the deposing lawyer to reopen the deposition for further questioning. The lawyer may do so with the agreement of counsel or with an order from a judge, arbitrator, or ALJ. Typographical changes made by the reporter or minor transcription errors that have been changed do not entitle the examining party to conduct a further deposition.

§ 6.8.6 Preserving the Deposition

A deposition transcript or record after being completed by the officer taking the deposition is usually delivered by that officer to the attorney who noticed the deposition. Federal Rule 30(f)(i) requires that the attorney who noticed the deposition must store the deposition in a secure location. Federal courts and many state court jurisdictions do not want depositions filed in the courthouse (because there is no room or server) and require the officer to provide the original transcript or recording to the examining attorney.

Whoever receives it has an obligation to store it under conditions that will protect it against lost, destruction, tampering, or deterioration. Notice is to be given by the reporter or the deposing lawyer to parties of the filing or receipt of the deposition, unless waived in a stipulation. Lawyers have an interest in making sure the deposition has been completed and is being stored in a safe and secure place.

§ 6.9 Written-Question Depositions

Federal Rule 31 and similar state rules allow depositions to be taken by written or printed questions. Rules 31(a), (b), and (c) define the procedural and notice requirements, including the exchange of questions and cross-questions. A convention of practicing attorneys who use this discovery device would be sparsely attended. Though not widely used, written question depositions may serve some useful purposes.

§ 6.9.1 Advantages

What can written-question depositions do effectively?

• These questions can be particularly useful in obtaining information from a person who lives some distance away from the site of the case or if a party or lawyer cannot attend or afford to attend an oral deposition. Travel can be expensive and inconvenient, and retaining local counsel can be costly and time-consuming. In recent years, however, the greater availability and use of remote deposition technology (e.g., Zoom, WebEx) has narrowed the cost differences between written and oral depositions.
• They can be less expensive than oral depositions. An attorney need not be present during the questioning.
• They may be served on a non-party as well as a party. Rule 33 interrogatories can be submitted only to a party.
• They can be used efficiently and economically to secure objective information; obtain sources of non-controversial information; identify and authenticate documents; and discover specific data.
• The discovering lawyer can select the person to respond to the questions. By contrast, Rule 33 allows the responding party to select the spokesperson for response to interrogatories.
• A second or subsequent set of questions can be asked after the answers to the first set have been recorded.

§ 6.9.2 Disadvantages

Part of the reason why written question depositions are used so little is their awkwardness as a discovery device. They can be difficult to comprehensively draft. The submitting attorney must take the time, effort, and care to draft precise questions. There is no flexibility for rewording the questions. Appearing at a deposition by phone or video may produce better results in similar circumstances and may be affordable and efficient.

§ 6.10 Use of the Deposition

The primary use of a deposition is to obtain and preserve the information a witness knows. Discovering what a witness knows assists in evaluating the case for settlement. Attorneys may rely on deposition testimony as they negotiate or mediate a resolution. Preserving what a witness knows allows the deposition to be used at a hearing or in trial. A deposition may be used to support motions, such as summary judgment.

The general rule is that a deposition taken pursuant to the applicable rules or agreement of counsel may be used for any purpose for or against any party as authorized by the rules of evidence. See Federal Rule 32 and related state rules. A properly noticed deposition provides parties with the right to attend and ask questions. This notice and opportunity allows a deposition to be used against any party for any purpose.

Advocates may plan to use the deposition at trial, in an arbitration, or at an administrative hearing for any of the following purposes:

As Admissions. Statements made by a deponent party may be offered against that party as party admissions.

As Testimony. The deposition transcript or recording may be introduced as evidence in lieu of live testimony of the deponent who is unavailable as a witness. A deposition transcript may be read or the deposition recording played in a trial or hearing because the deponent is beyond the court’s subpoena power or otherwise unavailable or incapable of testifying.

For Cross-Examination Purposes. Deponents may be impeached with their own previous deposition testimony being a prior inconsistent statement. Deponents cannot be impeached with prior inconsistent statements made by other persons.

To Refresh a Witness’s Recollection. Witnesses who do not recall may have their memories refreshed with their deposition testimony.

An attorney may or may not know how a deposition will be used when it is taken. Many depositions are taken for purposes of obtaining discovery and not to obtain specific direct and cross-examination answers. Other depositions are specifically taken to preserve the testimony of a witness whom the parties anticipate or know will be unavailable to later testify. The rules of procedure and evidence determine how a deposition will be used and not the intent or purpose of the attorneys taking or defending the deposition. For more detailed discussion, and examples, of the uses of a deposition at trial, see:

Roger Haydock, Discovery Practice § 20.02 (WoltersKluwer)

Roger Haydock, John Sonsteng, and Damien Riehl, Trial: Advocacy Before Judges, Jurors, and Arbitrators, § 9.4 (7th ed. West Academic).

Practice Problems and Assignments

Follow the directions from your professor in completing an assignment.

Practice Problems

1. Prepare to discuss in class:

(a) The various goals of taking depositions.

(b) The scope and timing of depositions.

(c) The number of and time allocated to depositions.

(d) The location of depositions.

(e) Noticing depositions.

(f) Non-party depositions and subpoenas.

(g) Persons present at a deposition.

(h) Recording depositions.

(i) Asserting objections in depositions.

(j) Instructions not to answer deposition questions.

(k) Depositions to preserve testimony.

(l) Deposition introductory statements and questions.

(m) Concluding questions and considerations.

(n) Reading and signing a deposition.

(o) Making changes to deposition answers.

(p) Planning to meet and confer with opposing counsel to resolve differences.

(q) The advantages or disadvantages of having a special master attend depositions.

2. Hot Dog Enterprises sues Tri-Chem in federal district court in Kansas (Case A).

(a) Where may the plaintiff properly notice the following deposition?

(1) Kelsey Lauren, the Tri-Chem vice president of development, who works and resides at corporate headquarters in San Diego, California.

(2) Nicolas Irving, an independent chemist who lives and works full-time for Tri-Chem and its research facilities in Brighton, Massachusetts.

(3) Olivia Marni, a salesperson who sold Bond-Mor and whose office is in Ann Arbor, Michigan and who lives in Columbus, Ohio.

(4) Brooks Maverick, a former employee of Tri-Chem who was director of research at its plant in Georgia and who now lives in Tyler, Texas.

(b) Where may Tri-Chem properly notice the following deposition?

(1) Casey Pozdak, HDE Chairperson, who works and lives in Chicago, Illinois.

(2) Emma Gabrielle, the manager of the HDE Kansas restaurant who works and lives in Topeka, Kansas.

(3) Will James, a professor of chemistry retained by the plaintiff to testify at trial who works and lives in Seattle, Washington.

(4) Chase Jeffrey, a former employee of Hot Dog Enterprises, who was the manager at its R & D Center in Duluth, Minnesota, and who now lives in Spearfish, South Dakota.

3. In Hot Dog Enterprises’ lawsuit against Tri-Chem for product liability (Case A), plaintiff needs to depose a person at Tri-Chem who has information regarding the initial research and development of Bond-Mor. The plaintiff does not know who in Tri-Chem would know this information.

(a) Explain how you would go about noticing this deposition.

(b) Draft a notice of deposition directed to Tri-Chem noticing the deposition of a person who knows this information.

4. In Vasquez v. Hot Dog Enterprises (Case F), the plaintiff notices the deposition of Dan Wankle. At the deposition appear: Gayle Sokowski, a Vice-President of HDE; Maynard Speace, Wankle’s supervisor; Wanda Hemingway, the attorney representing HDE; Bess Wankle, the wife of Dan Wankle; Bernard Kane, the attorney representing Dan Wankle; and Jessie Anastopolis, an expert economist retained by the plaintiff. The plaintiff objects to the attendance of Sokowski, Speace, and Bess Wankle. Hemingway and Kane object to the attendance of Anastopolis.

(a) As the attorney for Vasquez, what arguments would you advance in support of who should attend the deposition?

(b) As the attorney for HDE, what arguments would you advance in support of who should attend the deposition?

(c) As the attorney for Wankle, what arguments would you advance in support of who should attend the deposition?

(d) As a discovery mediator, how would you attempt to resolve the disagreements?

(e) As the judge, decide who may attend and explain why.

5. Pat LaBelle retains your law firm to represent Joyce, her 14-year-old daughter, in her lawsuit against Gloria Mendoza, her singing instructor who sexually abused her. The defendant has scheduled the deposition of Joyce.

(a) You and Pat LaBelle both want Pat LaBelle present during Joyce’s deposition. How would you proceed before the deposition to obtain the attendance of Pat LaBelle.

(b) Presume you do nothing before the deposition but appear at the deposition and the defendant demands that Pat LaBelle leave the deposition room during the deposition of Joyce. How would you proceed?

(c) Presume the defendant seeks to obtain a court order sequestering Pat LaBelle from the deposition. What arguments would you make to oppose the motion?

(d) The lawyer for the defendant plans to bring her client, Gloria Mendoza, to the deposition of Joyce. You want to exclude defendant Mendoza. How would proceed to do so?

(e) Presume you are the judge. How would you decide a motion to exclude everyone but Joyce and her attorney and defense counsel from the deposition? Why or why not would you exclude Gloria Mendoza?

6. You represent an indigent client as part of your continuing pro bono efforts. This client has been sued by a retailer for failure to pay the balance of a retail installment contract. You have answered and counterclaimed claiming the salesperson made fraudulent and deceptive statements during the sale concerning the terms of the contract and the quality of the goods. Your client cannot afford to pay the expense for a traditional deposition of the salesperson complete with a reporter. What alternative ways can you arrange for a deposition? How would you proceed?

7. You represent the defendant in a residential real estate contract for deed dispute. You schedule the deposition of the plaintiff, the individual who owns the house. You begin the deposition:

Q: Mr. Trueblood, have you ever had your deposition taken before?

A: No.

Q: Do you understand how this deposition will proceed?

A: I think so.

Q: You understand that I will be asking you a series of questions and . . .

Plaintiff’s Lawyer: There is no need for you to advise my client about deposition procedures. I have done that already. Ask a fact question.

What alternative responses can you make? How would you respond?

8. You represent a plaintiff in a personal injury case who suffered facial cuts and bruises and other injuries as a result of being hit by defendant’s motor scooter. The defense counsel deposes your client and begins asking:

Q: Are you comfortable Ms. Carter?

A: I’m a little nervous.

Q: You’re feeling better today than you were some months ago, right?

A: Well, yes . . .

Q: You look in good health. In fact, you look quite good. The reporter, Mr. Anderson, has a camera here to take your picture. Would you please stand and we will take 3 photos. A front view and two side views. Proceed Mr. Anderson.

How would you respond to such a demand? Why?

9. Presume Hot Dog Enterprises sues the architect who designed the Kansas restaurant buildings, the general contractor who constructed the buildings, and Tri-Chem. The plaintiff takes the deposition of the architect. Attorneys for the general contractor and Tri-Chem also attend the deposition. As the deposition progresses, each of three lawyers representing the three defendants objects to the same questions and continues to interpose a series of separate objections interrupting the deposition. What options do the lawyers have to resolve this problem?

10. You represent Hot Dog Enterprises in defense of a negligence lawsuit brought by a customer who was injured by falling bricks. The plaintiff’s lawyer conducts the deposition of an eyewitness, not a party, to the case who has information favorable to HDE. During the deposition after a question by the plaintiff’s lawyer inquiring into the deponent’s income and financial status, the deponent turns to you and asks: “Do I have to answer a question like that? What are my rights?” What alternative ways may you respond? How would you respond? Why?

11. You represent a plaintiff who is being deposed by defense counsel. During the deposition what would you do in each of the following situations:

(a) Defense counsel asks your client to look him in the eye when answering and not to look around the room.

(b) Defense counsel points at your client with his index finger.

(c) Defense counsel calls your client a liar and asks why he lied.

(d) Defense counsel asks about your client’s religious beliefs.

(e) Defense counsel raises his voice and begins to shout out loud.

12. You represent a defendant and are taking the plaintiff’s deposition with her attorney sitting next to her. How would you proceed in each of the following instances:

(a) You have asked the plaintiff the date of a key conversation and the defendant has said “July 7.” The plaintiff’s attorney immediately says, “You mean June 7, right?” and the plaintiff replies, “Oh, yeah, yes.”

(b) You ask the plaintiff some questions about lease terms and decide not to show the printed lease to the plaintiff at this time. Plaintiff’s lawyer hands the deponent a copy of the lease and says: “Read this before you answer.”

(c) After you ask a question, the plaintiff’s lawyer leans over and whispers in the deponent’s ear and then the plaintiff answers.

(d) While answering a question, the deponent looks at her attorney who nods her head up and down agreeing with the deponent’s answer.

(e) You begin to ask a series of important questions. After each question you ask the deponent, the plaintiff’s lawyer has a short, several second conference with the deponent.

(f) You continue to probe and after several more questions the plaintiff’s lawyer says to the deponent: “Answer only if you know” and then “Answer if you know for sure.”

(g) The deposition began at 9:00 a.m. and at 9:30 a.m. the plaintiff’s lawyer asks for a break. You very much want to complete a line of questioning and refuse. The lawyer and deponent start to leave.

Deposition Planning

13. Planning a deposition requires consideration of several factors:

• When should the deposition be taken?
• What discovery should be completed before the deposition?
• Where should the deposition be held?
• How should the deposition be recorded?
• How much time should be appropriate for this deposition?
• Who should be present, if anyone, in addition to the deponent, attorneys, reporter/recorder?
• What documents or electronically stored information should the deponent bring to the deposition?
• What should be done about reading and signing the deposition?
• What circumstances may require the services of a court appointed discovery neutral?

Decide what you will do and explain your strategy decisions as counsel:

(a) For the plaintiff in Hot Dog Enterprises v. Tri-Chem (Case A).

(b) For the defendant in Hot Dog Enterprises v. Tri-Chem (Case A).

(c) For the plaintiff in Northern Motor Homes v. Danforth (Case J), deposing John and Joan Danforth.

(d) For the defendants in Northern Motor Homes v. Danforth (Case J), deposing Sara Duncan and Bill Burke.

(e) For the plaintiff in Burris v. Warner (Case K), deposing Jan Warner.

(f) For the plaintiff in Burris v. Warner (Case K), deposing Lauren Fusaro.

(g) For the defendant in Burris v. Warner (Case K), deposing Lynn Burris.

(h) For the defendant in Burris v. Warner (Case K), deposing Gayle Finch.

(i) For the plaintiff in Vasquez v. Hot Dog Enterprises (Case F), deposing Dan Wankle.

(j) For the defendant Hot Dog Enterprises in Vasquez v. Hot Dog Enterprises (Case F), deposing Juanita Vasquez.

(k) For the defendant Arbor Vineyards in *FJE Enterprises v. Arbor Vineyards *(Case L), deposing Farah and Jamal Ehran.

(l) For a party in a case assigned by your professor.

Deposition Preparation

14. Prepare a detailed outline of the topics and questions you will ask at the deposition of the following person(s).

(a) A deponent(s), as selected by your professor, who may be deposed by the plaintiff in Hot Dog Enterprises v. Tri-Chem (Case A).

(b) A deponent(s), as selected by your professor, who may be deposed by the defendant in Hot Dog Enterprises v. Tri-Chem (Case A).

(c) John Danforth by the plaintiff Northern Motor Homes, in Northern Motor Homes v. Danforth (Case J).

(d) Joan Danforth by the plaintiff Northern Motor Homes, in Northern Motor Homes v. Danforth (Case J).

(e) Sara Duncan by the defendants Danforth, in Northern Motor Homes v. Danforth (Case J).

(f) Bill Burke by the defendants Danforth, in Northern Motor Homes v. Danforth (Case J).

(g) Abby Warner by plaintiff Lynn Burris, in Burris v. Warner (Case K).

(h) Lauren Fusaro by plaintiff Lynn Burris, in Burris v. Warner (Case K).

(i) Lynn Burris by defendant Abby Warner, in Burris v. Warner (Case K).

(j) Gayle Finch by defendant Abby Warner, in Burris v. Warner (Case K).

(k) Farah and Jamal Ehran in FJE Enterprises v. Arbor Vineyards (Case L).

(l) For a person in a case assigned by your professor.

Deponent Preparation

15. Prepare your deponent by:

• Reviewing the facts and file with the deponent.
• Discussing and describing deposition procedures.
• Having the deponent read the Client Deposition Instructions that appear in Appendix A.
• Supplementing those general instructions with specific instructions.
• Having the deponent answer questions that you anticipate will be asked during the deposition.
• Reviewing exhibits you anticipate the other lawyer will ask the deponent to identity.

Your instructor may require other preparation. You may be asked to provide a deponent. The factual situations in the Case Files in Appendix B have been designed so that an adult will be qualified and comfortable in assuming the role of a layperson deponent and so that a law student or other qualified person can assume the role of an expert witness. Your instructor may place some restrictions on who can be a deponent. It may be advisable not to have a friend or acquaintance of the deposing lawyer be the deponent.

(a) Prepare a deponent(s), as selected by your professor, who may be deposed by the plaintiff in Hot Dog Enterprises v. Tri-Chem (Case A).

(b) Prepare a deponent(s), as selected by your professor, who may be deposed by the defendant in Hot Dog Enterprises v. Tri-Chem (Case A).

(c) Prepare John Danforth, Northern Motor Homes v. Danforth (Case J).

(d) Prepare Joan Danforth, Northern Motor Homes v. Danforth (Case J).

(e) Prepare Sara Duncan by the plaintiff Northern Motor Homes in Northern Motor Homes v. Danforth (Case J).

(f) Prepare Bill Burke by the plaintiff Northern Motor Homes in Northern Motor Homes v. Danforth (Case J).

(g) Prepare Dan Wankle in Vasquez v. Sunray Electronics (Case F).

(h) Prepare Juanita Vasquez in Vasquez v. Sunray Electronics (Case F).

(i) Prepare Lynn Burris in Burris v. Warner (Case K).

(j) Prepare Abby Warner in Burris v. Warner (Case K).

(k) Prepare Gayle Finch by the plaintiff in Burris v. Warner (Case K).

(l) Prepare Lauren Fusaro by the defendant in Burris v. Warner (Case K).

(m) Prepare Agan Tymons by the plaintiff in *Tymons v. Allgoods and Razzle *(Case M).

(n) Prepare a person in a case assigned by your professor.

Deposition Instructions

16. You will be assigned to take a deposition. Conduct the deposition by thoroughly examining the deponent, using probing questions. Your instructor may place a time limit on the deposition. If so, select a reasonable number of major areas to probe and avoid asking a few broad questions in many areas. Also, avoid asking personal background questions difficult for a mock witness to answer. Focus on asking factual and opinion questions relating to the relevant issues in the case.

There may not be a reporter present during your deposition. The deposing student attorney can assume the role of the reporter and administer the oath and mark documents. Your instructor may advise you to presume that the deponent has been sworn and that all documents have been pre-marked in the order introduced, beginning with Deposition Exhibit No. 1.

Be persistent and insist on responsive answers to questions relating to the subject matter of the case. Because of the mock character of this skills exercise, some marginally relevant questions might unnecessarily confuse the deponent (for example, questions about family, prior life experiences, graduation dates), so ask questions about the relevant facts and events of the case.

Begin the deposition with introductory remarks explaining the deposition. During the deposition have the deponent identify some documents. Conclude the deposition with any closing questions. You may also resolve with the other student lawyer the matter of reviewing and signing the deposition and its preservation. Your professor may alter these concluding remarks.

(a) Depose a deponent(s), as selected by your professor, who may be deposed by the plaintiff in Hot Dog Enterprises v. Tri-Chem (Case A).

(b) Depose a deponent(s), as selected by your professor, who may be deposed by the defendant in Hot Dog Enterprises v. Tri-Chem (Case A).

(c) Depose John Danforth by the plaintiff Northern Motor Homes, in Northern Motor Homes v. Danforth (Case J).

(d) Depose Joan Danforth by the plaintiff Northern Motor Homes, in Northern Motor Homes v. Danforth (Case J).

(e) Depose Sara Duncan by the defendants Danforth, in Northern Motor Homes v. Danforth (Case J).

(f) Depose Bill Burke by the defendants Danforth, in Northern Motor Homes v. Danforth (Case J).

(g) Depose Lynn Burris by the defendant in Burris v. Warner (Case K).

(h) Depose Abby Warner by the plaintiff in Burris v. Warner (Case K).

(i) Depose Lauren Fusaro by the plaintiff in Burris v. Warner (Case K).

(j) Depose Gayle Finch for by defendant in Burris v. Warner (Case K).

(k) Depose a person in a case assigned by your professor.

(l) Depose Agan Tymons by the plaintiff in *Tymons v. Allgoods and Razzle *(Case M).

Written-Question Depositions

17. You represent the plaintiff Terry Labelle in a state court lawsuit brought against the Mitchell Arts Council in Labelle v. Mitchell Arts Council (Case G). Fran Barnoff has left the employment of the defendant and has moved to a distant state. You decide that State Rule 31 (identical to Federal Rule 31) provides the best opportunity to obtain the information you need. Draft a set of written-question interrogatories directed to Fran Barnoff.

18. You represent the defendant Mitchell Arts Council in Labelle v. Mitchell Arts Council (Case G). Review the written questions you or a classmate has drafted for Fran Barnoff in Problem 17 and draft a set of cross-questions on behalf of the defendant.

Alternative Depositions

19. You represent the defendants in Northern Motor Homes v. Danforth (Case J). Bill Burke has left the employment of the plaintiff and has moved to a distant state. You are considering obtaining information from Bill Burke either by taking his deposition by telephone, or by written questions, or by remote video conferencing. Make a list of the advantages and disadvantages of each of these deposition methods. Decide which one you prefer to use in the case and explain your decision.

Depositions to Preserve Testimony

20. Sara Duncan in Northern Motor Homes v. Danforth (Case J) has left the employ of the plaintiff and plans to leave the United States and to live permanently in London.

(a) Presume you represent the plaintiff. Would you take her deposition to preserve her testimony? Why or why not?

(b) Prepare a deposition outline to preserve her testimony for the plaintiff.

(c) Prepare deposition questions to preserve her testimony for the plaintiff.

(d) Conduct a deposition to preserve her testimony for the plaintiff.

(e) Presume you represent the defendants. Would you take Sara Duncan’s deposition before she left? State the reasons for your decision.

(f) Prepare a deposition outline to preserve her testimony for the defendants.

(g) Prepare deposition questions to preserve her testimony for the defendants.

(h) Conduct a deposition to preserve her testimony for the defendants.

21. John Danforth in Northern Motor Homes v. Danforth (Case J) has sadly developed a debilitating case of bone cancer. His condition is such that in a few weeks he will not be able to be deposed. His doctor predicts John will die soon. John is still able to be a deponent and wants his testimony preserved.

(a) Prepare a deposition outline to preserve his testimony for the defendants.

(b) Prepare questions to preserve his testimony for the defendants.

(c) Conduct a deposition to preserve his testimony for the defendants.

(d) Prepare a deposition outline to preserve his testimony for the plaintiff.

(e) Prepare questions to preserve his testimony for the plaintiff.

(f) Conduct a deposition to preserve his testimony for the plaintiff.

Deposition Transcripts

22. This case is a medical malpractice case in which the Plaintiff Marcia Bishop has sued Sophia Momar, a physician specializing in internal medicine, for misdiagnosing an illness and prescribing the wrong medication which allegedly made her violently ill for several months. The defense asserts Dr. Momar was not negligent and followed community medical standards.

James Durkin, the attorney for the defendant doctor, scheduled the deposition of Marcia Bishop. Laura Vlaski, her lawyer, is present. Mehmet Radsan, the reporter has sworn the defendant. The questions are by Mr. Durkin and the answers by Ms. Bishop.

1. Q: Ms. Bishop, when did you first see Dr. Momar?

2. A: The first time was when I became sick about 16 months ago.

3. Q: Why did you see the doctor?

4. A: Because I was sick.

5. Q: How did you learn about Dr. Momar?

6. A: Unfortunately, a friend of mine referred me to her.

7. Q: How did you get to her office?

8. A: When?

9. Q: On that day, when you first went to see her, about your illness.

10. A: That friend of mine drove me. I was too ill to drive and . . .

11. Ms. Vlaski: You have answered that question.

12. Q: You were saying . . .

13. Ms. Vlaski: Next Question counsel.

14. Q: Alright, what did you tell the . . . well, first how long did you wait for the Doctor?

15. A: Oh, I would say around 45 minutes.

16. Q: When you saw the Doctor, what did you tell her?

17. A: That I was feeling sick, very sick, you know.

18. Q: What did Dr. Momar do?

19. A: She asked me some questions and asked me to lie down and then, I think, felt different parts of my body.

20. Q: How long did the physical examination take?

21. Ms. Vlaski: No one called this procedure a physical examination, counsel.

22. Q: That’s what it was, wasn’t it, Ms. Bishop? It was a physical exam, right?

23. A: I’m not sure what you would call it.

24. Q: What would you call it?

25. A: Something like a check-up, to see how ill I was.

26. Q: Like an examination?

27. A: Well, I don’t know.

28. Q: Is there something about the word “examination” that confuses you, Ms. Bishop?

29. Ms. Vlaski: You are confusing my client, not that word. Go on to a new topic, Mr. Durkin.

30. Q: Is it fair to say that Dr. Momar examined you at that time when you were in her office for the first time.

31. A: I suppose so.

32. Q: How long did the examination take?

33. A: No more than 5 or 10 minutes, maximum.

34. Q: How do you know that?

35. A: That’s what it seemed like.

36. Q: It could have taken longer . . . how much longer?

37. Ms. Vlaski: Objection. Multiple questions.

38. Q: You know Ms. Bishop that the examination took a lot longer than that?

39. A: It may have . . . I don’t know for sure.

40. Q: What did you do after the exam?

41. A: I went to the pharmacy to get the prescription filled and then I took an Uber home.

42. Q: How did you feel when you got home?

43. A: I was still sick.

44. Q: What did you do when you got home?

45. A: I took the medicine and went to bed.

46. Q: Then what happened?

47. A: I got sicker.

48. Q: Please describe exactly how you felt?

49. A: I became weak all over my body and nauseous. It was like someone had drained all my energy. Then I got sick to my stomach and vomited in my bed. I had terrible stomach cramps that were incredibly painful.

50. Q: Go on.

51. A: I took some more medicine, the pills the doctor prescribed. And they made me feel that much worse. Then about an hour later the pain got so bad I thought I was dying so I tried to call Dr. Momar, but couldn’t reach her. I called back sometime later and finally got through, after what seemed like forever, and talked to the doctor, who told me to wait another few hours and if the pain didn’t subside to contact her again.

52. Q: But you were not dying were you, really?

53. A: The pain was . . .

54. Q: I’m not asking about the pain. I asked whether you actually were dying or whether that was an exaggeration.

55. Ms. Vlaski: Counsel, allow her to complete her answer before you interrupt.

56. A: No, I obviously didn’t die, you know, but it felt like it.

57. Q: You started to get better after you talked to the doctor, just like she said you would, right?

58. A: I was still in a lot of pain for a while, but it gradually got better, I guess.

59. Q: We don’t want guessing. Later that evening, you recovered and had no lingering pain, correct?

60. A: There came a time when the pain got less, but I can’t say I recovered.

61. Q: Can’t or won’t say you recovered? Which is it?

62. A: I don’t understand.

63. Q: That’s quite true. Let me ask you this: Dr. Momar called you at home later that evening and asked how you were?

64. A: I don’t remember that.

65. Q: Your lawyer must have prepared you to say everything helpful to your case?

66. Objection. . .

(a) Critique the approach and questioning technique of the defense lawyer, James Durkin.

(b) Critique the approach and statements of the plaintiff’s lawyer, Laura Vlaski.

(c) Compose an outline of the areas you would cover based on the last answer of Marcia Bishop.

(d) Draft questions you would ask Marcia Bishop based on her last answer.

(e) If you were appointed as a special master to monitor this deposition, what would you have done and when?

(f) As the judge, what, if any, sanctions would you have imposed and why?

23. This case is a real property dispute in which the plaintiff claims an easement was created on defendant’s property by the plaintiff’s use of a gravel road for over 20 years. The defendant, Dan Lien, claims no easement was created and that the plaintiff can no longer use the gravel road.

Marci Seinfeld, the attorney for the plaintiff, scheduled the deposition of Dan Lien. Mallory Blake, his lawyer, is present. Megan Brady, the reporter, has sworn the deponent. The questions are by Ms. Seinfeld and the answers by Mr. Lien. The deposition begins.

1. Q: Well, good day, Mr. Lien. Here’s my first question: Have you ever been convicted of a crime?

2. A: Do I have to answer that?

3. Q: Yes.

4. A: Ahh, . . . no.

5. Q: Was there some reason you hesitated in answering that question? Do you have something to hide?

6. A: I don’t understand why you can ask that question.

7. Q: Just answer my questions. Have you ever been arrested?

8. A: Does being stopped for driving under the influence count?

9. Ms. Blake: Objection. Irrelevant. That’s enough of this. You do not have to answer that. Let’s proceed.

10. Q: Ms. Brady, please mark that section in case I decide to pursue this matter before a judge. It is fair to say that you hate my client, don’t you?

11. A: No, I wouldn’t say that.

12. Q: Well, what would you say?

13. A: That we’ve had our disagreements.

14. Q: Well, that’s putting it mildly, isn’t it?

15. Ms. Blake: Do you have a relevant question to ask, counsel?

16. Q: On more than one occasion you called my client “a despicable person who deserves the worst in life.”

17. Ms. Blake: Objection. Ambiguous as to time and a multiple question.

18. Q: Alright, Mr. Lien, how long have you owned your lake home property?

19. A: Over 20 years.

20. Q: When you say “over” does that mean you don’t really know how long?

21. A: I’m not positive about the exact date of purchase.

22. Q: Didn’t Ms. Blake prepare you for this deposition?

23. Ms. Blake: Objection. That’s privileged. You can look up the answer to your previous question at the office of the Recorder of Deeds.

24. Q: Let’s see if there is something you do know. On July 4 of this year my client met with you to discuss the use of the gravel road, right?

25. A: I think so.

26. Q: When you say you think so, are you sure or not?

27. A: Yes, we talked that day.

28. Q: During that conversation my client said to you that years before you had granted permission allowing my client to drive across that gravel road, that’s what was said, correct?

29. A: I don’t recall saying that.

30. Q: When you say “I don’t recall” does that mean you made that statement or that you have no present memory of what you said.

31. A: I said something, but I’m not sure what.

32. Q: What would help refresh your memory now, Mr. Lien?

33. Ms. Blake: Your badgering him has confused him.

34. Q: Mr. Lien, you told my client he could use the gravel road anytime just like he has in the past, right?

35. A: I don’t remember saying anything like that.

36. Q: Why are you pretending not to remember?

37. Ms. Blake: Objection. That’s harassing. Enough of that.

38. Q: What is it you and your lawyer are trying to hide . . . or cover up?

39. Ms. Blake: Counsel, that’s improper and unprofessional. You are raising your voice . . . one more outburst from you and we will leave.

40. Q: No need to be so touchy, Counsel. I’m proceeding properly and professionally. It’s your client who’s refusing to answer my questions. And it’s your improper interference—whispering to your client before he answers and interrupting—that’s creating a problem. Let me ask this: Mr. Lien, you have consistently lied about what you told my client to avoid this litigation, right?

41. Ms. Blake: Objection. That makes no sense.

42. Q: Either does your client . . . or you, for that matter.

43. Ms. Blake: That was your last chance. We are leaving this deposition.

44. Q: No way. I’ve done nothing to cause you to leave. You really must be hiding something you don’t want us to know about. So, let’s find out. What. . . .

45. Ms. Blake: That was quite enough. We are now leaving. Good day.

46. Q: Before you leave, Ms. Blake, can we discuss your unprofessional conduct at this deposition to prevent any unnecessary motions and hearings?

(a) Critique the approach and questions asked by the plaintiff’s lawyer, Marci Seinfeld. How would you have proceeded differently?

(b) Critique the approach and statements made by the defense lawyer, Mallory Blake. How would you have proceeded differently?

(c) If you had been appointed as a discovery mediator to monitor this deposition, what would you have done and when?

(d) As the judge, what, if any, sanctions would you have imposed and why?

(e) Presume the plaintiff seeks a court order requiring Dan Lien to testify at a subsequent deposition. The defendant opposes the motion. As the judge how would you rule on the request?

Deposition Reformation

24. The state bar association where your law school is located is conducting a CLE program on “How Depositions Can be Improved in our Civil Justice System.” You have been selected to be one of the panelists. Prepare an outline of suggestions regarding what you would recommend to make depositions in typical civil cases more effective, efficient, and affordable.

25. See **[Watson v. Lemongrass RPP LLC](https://www.westlaw.com/Document/I012527b0ab1111ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I012527b0ab1111ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 345 F.R.D. 247 (S.D. Fla. 2023)](https://www.westlaw.com/Document/I012527b0ab1111ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I012527b0ab1111ee9848c16417012d51/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

26. [In re Chrysler Pacifica Fire Recall Prod. Liab. Litig.](https://www.westlaw.com/Document/I4d68e0202e4311efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I4d68e0202e4311efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 737 F. Supp. 3d 611 (E.D. Mich. 2024)](https://www.westlaw.com/Document/I4d68e0202e4311efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I4d68e0202e4311efa64c8f5bfdd5375d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

27. [Fed. R. Civ. P. 45(f)](https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/NA9FBE4D0B96611D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

28. See, e.g., **[Galella v. Onassis,](https://www.westlaw.com/Document/I3063282a8b8b11d99a6fdc806bf1638e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3063282a8b8b11d99a6fdc806bf1638e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 487 F.2d 986 (2d Cir. 1973)](https://www.westlaw.com/Document/I3063282a8b8b11d99a6fdc806bf1638e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3063282a8b8b11d99a6fdc806bf1638e/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

29. [United States v. I.B.M. Corp.,](https://www.westlaw.com/Document/Ib4cd0c52552811d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib4cd0c52552811d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 82 F.R.D. 183 (S.D.N.Y. 1979)](https://www.westlaw.com/Document/Ib4cd0c52552811d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ib4cd0c52552811d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); *see **also *United States v. United Shoe Machinery Co., 198 F. 870 (D. Mass. 1912). ↑

30. • E.g.*, *Meacham v. Church, *U.S. Dist. LEXIS 38393 (D.Utah 2010); Times Newspapers Ltd. (of Great Britain) v. McDonnell Douglas Corp., 387 F. Supp. 189 (C.D. Cal. 1974). ↑

31. [Nebraska Press Ass’n v. Stuart,](https://www.westlaw.com/Document/Ic1d6c4dd9c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic1d6c4dd9c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 427 U.S. 539 (1976)](https://www.westlaw.com/Document/Ic1d6c4dd9c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic1d6c4dd9c1e11d991d0cc6b54f12d4d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

32. Uniform Audio-Visual Deposition Act, reprinted in 12 Uniform Laws Annotated 11. The act provides useful guidelines, but not particularly authoritative ones—it has been adopted in several states. ↑

33. [United States v. Garcia](https://www.westlaw.com/Document/I521fdec38eeb11da9cfda9de91273d56/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I521fdec38eeb11da9cfda9de91273d56/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 164 Fed.Appx. 785 (10th Cir. 2006)](https://www.westlaw.com/Document/I521fdec38eeb11da9cfda9de91273d56/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I521fdec38eeb11da9cfda9de91273d56/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); Jones v. Morris, 590 F.2d 684 (7th Cir. 1979). ↑

34. • See *Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993); [Schroer v. United States, ](https://www.westlaw.com/Document/I10259454218811ddb6a3a099756c05b7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I10259454218811ddb6a3a099756c05b7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[250 F.R.D. 531 (D. Colo. 2008)](https://www.westlaw.com/Document/I10259454218811ddb6a3a099756c05b7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I10259454218811ddb6a3a099756c05b7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑
35. • See *Nerness v. Johnson, 401 F.3d 874 (8th Cir. 2005); United States v. Banks, 369 F. Supp. 951 (M.D. Pa. 1974). ↑

36. [Wyne v. Medo Industries, Inc.](https://www.westlaw.com/Document/I9ada79c6542611d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I9ada79c6542611d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 329 F. Supp. 2d 584 (D. Md. 2004)](https://www.westlaw.com/Document/I9ada79c6542611d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I9ada79c6542611d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); *see *Bailey v. Meister Brau, Inc., 535 F.2d 982 (7th Cir. 1976). ↑

37. [Stevenson v. Holland,](https://www.westlaw.com/Document/Iff4321b0345b11eb9b44df4904fdd6f7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iff4321b0345b11eb9b44df4904fdd6f7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 504 F. Supp. 3d 1107 (E.D. Cal. 2020)](https://www.westlaw.com/Document/Iff4321b0345b11eb9b44df4904fdd6f7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iff4321b0345b11eb9b44df4904fdd6f7/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

38. Whitlock v. Allstate Fire & Cas. Ins. Co., 635 F. Supp. 3d 371 (E.D. Pa. 2022). ↑

39. [Detective Comics, Inc. v. Fawcett Publications, Inc.,](https://www.westlaw.com/Document/Iddf01adb549911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iddf01adb549911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 4 F.R.D. 237 (S.D.N.Y. 1944)](https://www.westlaw.com/Document/Iddf01adb549911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Iddf01adb549911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

40. [Harlem River Consumers Co-operative, Inc. v. Associated Grocers of Harlem, Inc.,](https://www.westlaw.com/Document/I55e4e0b9550911d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I55e4e0b9550911d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 54 F.R.D. 551 (S.D.N.Y. 1972)](https://www.westlaw.com/Document/I55e4e0b9550911d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I55e4e0b9550911d9bf30d7fdf51b6bd4/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

41. But see, **[Keplar v. Google](https://www.westlaw.com/Document/I2a43aaf0df8b11eeb2c3b6044a269b45/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2a43aaf0df8b11eeb2c3b6044a269b45/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, LLC, 346 F.R.D. 41 (N.D. Tex. 2024)](https://www.westlaw.com/Document/I2a43aaf0df8b11eeb2c3b6044a269b45/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I2a43aaf0df8b11eeb2c3b6044a269b45/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

42. [Sperling v. City of Kennesaw Dept.](https://www.westlaw.com/Document/Ic3cb5b7053e911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic3cb5b7053e911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 202 F.R.D. 325 (N.D. Ga. 2001)](https://www.westlaw.com/Document/Ic3cb5b7053e911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic3cb5b7053e911d9a99c85a9e6023ffa/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); Prucha v. M & N Modern Hydraulic Press Co., 76 F.R.D. 207 (W.D. Wis. 1977). ↑

43. [EEOC v. Continental Airlines, Inc.](https://www.westlaw.com/Document/I3896f941462a11dab072a248d584787d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3896f941462a11dab072a248d584787d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 395 F. Supp. 2d 738 (N.D. Ill. 2005)](https://www.westlaw.com/Document/I3896f941462a11dab072a248d584787d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I3896f941462a11dab072a248d584787d/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); Wheeling-Pittsburgh Steel Corp. v. Underwriters Labs., Inc., 81 F.R.D. 8 (N.D. Ill. 1978). ↑

44. An old joke: Depositions are defined as “seven hours of one person making everyone else in the room confused, bored, or miserable, including the deponent!” ↑

45. Walter Barthold, Attorney’s Guide to Effective Discovery Techniques 111. ↑

46. • See* Roger S. Haydock & John O. Sonsteng, Demonstration Video: Deponent Preparation (National Institute of Trial Advocacy). ↑

47. [Fed. R. Civ. P. 30(d)](https://www.westlaw.com/Document/N2B7CBC20B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/N2B7CBC20B96511D8983DF34406B5929B/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0), Notes of Adv. Comm.—1993 Amends. ↑

48. See [Mitnor Corp. v. Club Condos.,](https://www.westlaw.com/Document/Ifb8a7c7009f411ecaa7cf4d9113e8a97/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifb8a7c7009f411ecaa7cf4d9113e8a97/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 339 F.R.D. 312 (N.D. Fla. 2021)](https://www.westlaw.com/Document/Ifb8a7c7009f411ecaa7cf4d9113e8a97/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ifb8a7c7009f411ecaa7cf4d9113e8a97/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

49. [City of Almaty v. Khrapunov,](https://www.westlaw.com/Document/I5fca740084d711eaae43bd04928ec28a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5fca740084d711eaae43bd04928ec28a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[ 956 F.3d 1129 (9th Cir. 2020)](https://www.westlaw.com/Document/I5fca740084d711eaae43bd04928ec28a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I5fca740084d711eaae43bd04928ec28a/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑

50. [Thomas v. iStar Financial, Inc.](https://www.westlaw.com/Document/I567032cf162b11db99dab759416ba200/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I567032cf162b11db99dab759416ba200/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 438 F. Supp. 2d 348 (S.D.N.Y. 2006)](https://www.westlaw.com/Document/I567032cf162b11db99dab759416ba200/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I567032cf162b11db99dab759416ba200/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); *see *United States v. Garcia, 527 F.2d 473 (9th Cir. 1975). ↑

51. Elsherif v. Mayo Clinic, 2020 WL 5015825 (D. Minn.). ↑

52. [Tingley Sys., Inc. v. CSC Consulting, Inc.](https://www.westlaw.com/Document/Ic60b4b4a53e711d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic60b4b4a53e711d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 152 F. Supp. 2d 95 (D. Mass. 2001)](https://www.westlaw.com/Document/Ic60b4b4a53e711d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/Ic60b4b4a53e711d997e0acd5cbb90d3f/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0); *see *Rogers v. Roth, 477 F.2d 1154 (10th Cir. 1973). ↑

53. [Hernandez v. Rush Enters., Inc.](https://www.westlaw.com/Document/I287ffe7023e211ebb63eea933a64d9ef/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I287ffe7023e211ebb63eea933a64d9ef/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0)[, 336 F.R.D. 534 (E.D. Tex. 2020)](https://www.westlaw.com/Document/I287ffe7023e211ebb63eea933a64d9ef/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0" \o “https://www.westlaw.com/Document/I287ffe7023e211ebb63eea933a64d9ef/View/FullText.html?transitionType=Default&contextData=(sc.Default)&VR=3.0&RS=da3.0). ↑