Introduction: Your Deposition Companion

• Part One: You Are a Deponent
• Part Two: Taking and Defending Depositions
• The Federal Rules of Civil Procedure (FRCP)
• Finding the Deposition Rules That Apply to You
• Local Rules

Part 1: You Are a Deponent

1. An Overview of Deposition Procedures

• Depositions in a Nutshell
• Providing Notice of a Deposition
• Deposition Scheduling Requirements
• Rescheduling Your Deposition
• Avoiding a Deposition Altogether
• Duration of Depositions
• Virtual Depositions
• Deposition Attendees
• Document Production at Depositions
• Reviewing and Signing a Deposition

2.  Using Depositions in a Lawsuit

• Using Depositions Before a Trial
• Using Depositions in a Trial

3. Preparing to Give Deposition Testimony

• Parties Represented by Attorneys
• Parties Representing Themselves
• Nonparty Witnesses

4.   Responding to Questions

• The Golden Rules for Responding to Questions
• Responding to Common Questions
• Responding to Trick Questions
• Responding to Requests for Future Action
• Finishing Interrupted Answers
• Avoiding Sarcastic and Other Emotional Responses
• Handling Fatigue
• Objections
• Reviewing and Signing Your Deposition

5. Beginning a Deposition: “The Usual Admonitions”

• Admonitions Defined
• Purposes of Admonitions
• Admonitions: Examples and Explanations

6. Background Questions

• Hidden Agendas
• Legitimacy of Background Questions
• Your Employment History
• Your Educational Background
• Other Background Topics

7. Questions You Can Refuse to Answer

• Privileged Communications
• The Work Product Privilege
• Evidence of Criminal Activity
• Private Information

8. Expert Witness Deponents

• The Difference Between Expert and Nonexpert (Lay) Witnesses
• Pre-deposition Disclosures
• Typical Pre-deposition Involvement
• The Importance of Thorough Deposition Preparation
• The Pre-deposition Planning Meeting
• Typical Deposition Questioning

Part 2: Taking and Defending Depositions

9. The Discovery Landscape

• The Purposes of Discovery
• Impediments to Achieving  Discovery Goals
• Voluntary Disclosure
• Informal Discovery
• Discovery Plans
• General Rules of Discovery Questioning
• Enforcing Discovery Rules
• An Overview of Formal Discovery Methods
• Electronic Discovery (E-Discovery)

10. Defending a Deposition

• Preparing for the Deposition
• Listening Carefully
• Getting Additional Information After Your Opponent’s Questioning
• Entering Into Stipulations
• Making Objections
• Terminating a Deposition

11. Taking a Deposition: Deposing a Hostile Witness

• Should You Take a Deposition?
• Deciding Whom to Depose
• Subject Matter Depositions (Rule 30(b)(6) Depositions)
• When to Take Depositions
• Preparing to Take a Deposition
• Beginning the Deposition: Preliminary Questioning
• The Two Basic Forms of Questions
• Using the Two Basic Forms of Questions
• Using Documents
• Responding to an Evasive Witness
• Depositions Arranged by Your Opponent

12. Taking a Deposition: Responding to a Defending Attorney’s Roadblocks

• Responding to Objections
• Responding to Instructions Not to Answer
• Responding to an Intimidating Attorney
• The Bottom Line

13. Taking a Deposition: Deposing a Friendly Witness

• When to Depose a Friendly Witness
• Offering Deposition Testimony Into Evidence
• Eliciting All Favorable Evidence
• Complying With Evidence Rules

14. Visually Recorded Depositions

• The Rules of Visually Recorded Depositions
• When Should You Visually Record a Deposition?
• Disadvantages of Visual Recording
• Taking an Effective Visually Recorded Deposition
• Defending a Visually Recorded Deposition
• Virtual Depositions

Glossary

Appendixes

• A. Excerpts From the Federal Rules of Civil Procedure (FRCP)
• B. State Deposition Rules
• C. Sample Forms

Index

Chapter 1: An Overview of Deposition Procedures

his chapter is about deposition procedures. Unless you have had your deposition taken, these procedures will likely be unfamiliar. Most depositions take place in private conference rooms rather than in public courtrooms. You may have seen depositions depicted in films like The Social Network, Class Action, and The Rainmaker, but please don’t base your expectations on movies. Along with other information, this chapter describes how depositions are organized, how you might be able to alter the arrangements if necessary, and what role each person at the deposition will play.

Depositions in a Nutshell

A deposition normally consists of a lawyer (or a self-represented person) questioning the deponent (the person being deposed). The deponent can be a party to the lawsuit or a nonparty witness (someone who may have case-related information, such as a bystander who observes an auto accident). Depositions may seem informal because they typically take place in conference rooms with no judge present. But do not be fooled—they share many characteristics with testimony in court during a trial.

For example, deponents are placed under oath and their testimony is recorded and transcribed by an official court reporter. (Increasingly, depositions are video recorded as well. See Chapter 14.) Moreover, because the overwhelming percentage of cases settle prior to trial, a deposition is often a witness’s only chance to testify. Thus, lawyers often prepare as carefully for depositions as for trial. And because what is said at a deposition can have a major impact on the eventual resolution of a dispute, deponents should be as careful and as accurate when giving deposition testimony as they would be when testifying in a courtroom at trial.

Providing Notice of a Deposition

A deposing party (a party planning to take a deposition) has to give you advance written notice of a deposition’s time and place. This section explains these notice procedures.

Types of Deposition Notices

The deposition process starts with one of two types of notices. If a deponent is a witness and not a party to a lawsuit (plaintiff or defendant), the deponent is personally served with a court order usually called a Subpoena re Deposition. (See Sample Form #1 in Appendix C.)

A party deponent receives a more informal notice called a Notice of Deposition. (See Sample Form #4 in Appendix C.) No court order (subpoena) is necessary to require a party to attend a deposition.

Significance of a Deposition Notice

Both party and nonparty deponents have a legal duty to attend a properly noticed deposition. A party who fails to cooperate can be sanctioned (penalized) by a judge for failing to appear at the time and place established in the Notice of Deposition. The sanction can range from a monetary fine that you must pay to your adversary to dismissal of your legal claims or defenses for repeated failures to attend.

A nonparty witness who fails to obey a Deposition Subpoena can be held in contempt of court, and a bench warrant can be issued for the witness’s arrest. A judge can also impose a hefty fine for failure to attend a deposition.

Contents of a Deposition Notice

Every deposition notice will indicate the place and time of the deposition. In addition, both forms of notice generally include the following information:

• The name, telephone number, and address (including probably the email address) of the attorney taking the deposition, and which party the attorney represents (for example, Attorney for Plaintiff).
• The title of the court in which the lawsuit is pending (for example, Central District Court, Cook County).
• A caption indicating the names of the parties (for example, York vs. Lancaster) and the official case number.
• Whether the witness must bring documents to the deposition. For party deponents, this information may be included in the notice or in an attached separate document often called a Request for Production of Documents. For nonparty deponents, this information will be included in a form of subpoena usually called a Deposition Subpoena Duces Tecum. (See Sample Form #2 in Appendix C.)
• Whether the deposition will be audio or video recorded instead of (or, more likely, in addition to) being transcribed by a court reporter (stenographer).
• Where the deposition will be held. Usually, the attorney who schedules a deposition holds it on home turf, in a conference room in the attorney’s law offices. However, an attorney might also take a deposition in a conference room provided by a court reporting service, especially if the deposition will require equipment that the deposing attorney lacks (such as a a videoconferencing facility for a remote deposition). A deposition may also be “virtual,” meaning that the deposition attendees come together electronically rather than by being in the same room. (See the section “Virtual Depositions,” below, for more information.)

Deposition Scheduling Requirements

The sections below describe the rules that parties must follow when preparing and serving deposition notices.

Travel Requirements

As a general rule, a nonparty witness can’t be forced to attend a deposition more than 100 miles away from the witness’s home or place of business. (FRCP 45(c)(3)(A)(ii).) Parties may have to submit to depositions in more distant locales. A party who thinks that having to be deposed in a distant locale will cause an undue burden or financial hardship might be able to reschedule a deposition (see below).

Length of Advance Notice

A deposition notice must provide reasonable advance warning of a deposition. (FRCP 30(b)(1).) Although the rules do not give a precise definition of “reasonable,” less than ten days’ notice is probably unreasonable (except in rare cases of emergency). As a courtesy, many deposing lawyers will contact a witness or the witness’s attorney before scheduling a deposition, to ensure that the chosen date and place are convenient.

Witness Fees

If you’re a party, you are not entitled to payment for testifying at a deposition. If you’re a nonparty witness, you can be paid a small amount for testifying at a deposition. Normally, a check for a nonparty witness’s fee will be attached to the Deposition Subpoena. If not, a witness can demand payment of fees in advance and may refuse to testify until the fee is paid.

Rescheduling Your Deposition

It is often possible to change the date, time, or place of a deposition, either by personally contacting the deposing lawyer or through an attorney. Explain your inconvenience and suggest alternatives. (Examples of a reasonable justification would include a previously scheduled vacation or an important business meeting.)

Expert Witness Fees
Unlike ordinary nonparty witnesses, expert witnesses are entitled to demand their “usual professional fees” for the time spent testifying at deposition. Experts’ deposition fees may amount to hundreds or even thousands of dollars per hour. For additional discussion of expert witness fees and expert deponents in general, see Chapter 8.

 

Sample Letter to Reschedule a Deposition

October 21, 20xx
Dear Mr. Blasi,

This letter is to follow up on our telephone conversation of October 19. In that conversation, I told you that I am not able to appear for a deposition next Wednesday, October 28. As I told you, I had previously scheduled an important business meeting with three other people on that date that simply cannot be rescheduled.

In addition to the inconvenience of the October 28 date, I was served with a subpoena on October 20, only eight days before I was supposed to be deposed. I don’t think that’s reasonable advance notice, especially for a businessperson such as myself.

I repeat here what I told you on the phone. I will make myself available for a deposition if you give me reasonable advance notice, especially if you select any of the dates discussed: November 17 or 18 or December 1 or 2. Otherwise, please be advised that I will not appear for a deposition on October 28.

Sincerely,
Carson Taylor

Such a letter may convince the deposing lawyer to agree to reschedule your deposition. However, if the lawyer continues to refuse to change the date and you don’t appear, the lawyer might go to court and ask a judge to sanction (penalize) you for failing to show up.

To avoid this slight risk of incurring sanctions, a witness can go to court before a scheduled deposition and seek a protective order rescheduling a deposition. A protective order is an order that a judge makes to protect any party or person from “annoyance, embarrassment, oppression, or undue burden or expense” in connection with any discovery procedure, including depositions. (See FRCP 26(c). For more information about how to seek a protective order, see Chapter 10.)

Example: You observed an automobile accident while on vacation in Florida and gave your name and address to a police officer. Several months after returning home to New York, you receive a Subpoena re Deposition ordering you to attend a deposition in Florida. The subpoena is invalid under Florida Rule of Civil Procedure 1.410, which provides that you can be subpoenaed for examination only in the county where you reside or are employed.

First, you should contact the party that subpoenaed you and indicate that you will not attend the deposition.

The party might respond by offering to reimburse you for any expenses you incur by traveling to Florida. You are free to accept or reject the offer. If you reject the offer to go to Florida, the party could come to New York and subpoena you under New York state law.

If the party insists that you come to Florida at your own expense, you have the right to ignore the subpoena and simply fail to show up. Or you could retain a Florida attorney and have the attorney move to “quash” the subpoena (have it declared invalid). The order should be granted, and you should be reimbursed for your attorney’s fees.

Avoiding a Deposition Altogether

Nonparty witnesses sometimes think that they shouldn’t be deposed at all. For example, witnesses may think that they know so little about a case that a deposition is a waste of time. In this situation, a witness may contact the deposing attorney and try to discuss the case informally.

Attorneys usually don’t want to waste their time and their clients’ money taking unproductive depositions. An informal interview may convince the attorney that you are not worth deposing.

If the attorney insists on taking a deposition, you may refuse to appear at the deposition. However, this is risky, as a judge may hold you in contempt of court. Therefore, you should probably seek legal advice before refusing to be deposed at all. Alternatively, you could go to court and seek a protective order relieving you from having to be deposed.

Example: An independent bookseller has brought suit for unfair business practices against All Books, a book wholesaler, claiming that All Books discriminates against the independent bookshop and in favor of a nearby recently opened bookstore that is part of a national bookstore chain. All Books sends a subpoena for the deposition of Fay Perback, who owns the only other independent bookshop in town.

Fay orders books from a different wholesaler, has no involvement in the lawsuit, and knows nothing about it. Fay thinks that the only reason All Books wants to depose her is to get back at her for not doing business with All Books by exposing her business practices to the other bookstores, making it more difficult for her to compete.

If the deposing lawyer refuses Fay’s request to cancel her deposition, Fay can go to court and seek a protective order. Fay would explain to the court her lack of information and how her answers to deposition questions would waste her time and hurt her business. If the wholesaler can’t satisfactorily explain to a judge what information Fay has that might have a bearing on the case, the judge will quash the subpoena and order that Fay’s deposition not be taken.

Duration of Depositions

If you are a party to a lawsuit, FRCP 30(d)(1) limits your deposition to “one day of seven hours,” unless the time is extended by a court order or you agree to a longer deposition (your state’s rule might include exceptions to this limit). The seven-hour limit does not include breaks for lunch or recesses for the participants to stretch their legs, make phone calls, or see to other personal needs.

The deposition of a nonparty deponent may last more than seven hours if all the parties agree to an extension or if a court orders a longer deposition. A nonparty deponent does not have the power to prevent the parties from agreeing to extending the time of a deposition.

When a deposition lasts longer than a day, a deponent isn’t necessarily closeted away from daily life for several days in a row. For example, a three- day deposition may take place one day per week for three different weeks.

Virtual Depositions

Prior to the 2020 onset of the COVID-19 pandemic, almost all depositions were conducted in-person, with all participants in the same office or conference room. (See the section “Deposition Attendees,” below, for an overview of typical attendees.) Lockdowns and social distancing requirements that often made it impossible for people to be together in closed physical spaces created the need for emergency orders permitting “virtual depositions.”

A deposition is “virtual” when it takes place without all participants present in the same room, instead permitting people who are physically distant to participate electronically. Virtual depositions typically take place using computer software such as Zoom, to enable participants in different locations to see and hear each other in real time. The ability to participate in a deposition remotely rather than having to incur the cost and inconvenience of travel is an advantage of virtual depositions, and they are likely to remain a staple of the discovery process even after the COVID-19 pandemic abates. In fact, some jurisdictions have already made the initial emergency orders permitting virtual depositions permanent. (See, for example, Cal. Civ. Proc. § 2025.310(a).)

While virtual depositions may often be a more cost-effective and convenient option than a traditional in-person deposition, they present several challenges that differ from traditional depositions:

• Technological issues. Virtual depositions depend on everyone involved having a good internet connection. If anyone’s internet cuts out, or if participants confront other technological problems, the questioning will likely not progress as smoothly as it would in person.
• Timing concerns. If participants in a deposition are located in different time zones, scheduling the deposition at a time convenient for everyone can be a challenge. Often, the deposition is going to start earlier than desired for some participants and end later than desired for others.
• Document use. When the participants in a deposition are not physically present in the same room, it can be more difficult to utilize a document or other exhibit. In an in-person deposition, the questioner (a party or the party’s lawyer) who wants to ask questions about a document can hand the document to the deponent and ask the questions. However, when the participants are not in the same room, the questioner cannot simply hand the document across the table. Instead, the questioner needs to plan ahead and choose a way to get desired exhibits to the deponent, such as:
  • providing the court reporter with the documents prior to the deposition to be marked as exhibits, and then instructing the court reporter to share each exhibit with the deponent as a “screen share” at the point the questioner wants to show the deponent each exhibit using a screen share from the questioner’s own computer during the deposition, and then separately sending all documents that were screen shared during the deposition to the court reporter after the deposition, to be marked as exhibits and included with the deposition transcript
  • sending an electronic copy of each document to the deponent during the deposition, if the software used to conduct the deposition permits the sharing of documents among participants, or sending the deponent (and their lawyer) a copy of all exhibits prior to the deposition.
• Difficulty in building rapport. Questioners often try to build rapport with a deponent, in an attempt to get the deponent to feel comfortable and open up more during questioning. But even experienced attorneys find it more difficult to build rapport with someone when limited to distanced conversations through a webcam, compared to face-to-face communication.
• Difficulty in controlling the deponent. Sometimes questioners try to obtain desired testimony through aggressive questioning techniques. Many questioners find it far easier to intimidate a deponent and increase the likelihood of obtaining desired testimony when the deponent is across the table, as opposed to across the country.
• Potential for improper behavior. When a deposition is virtual, it is possible that an unscrupulous defending attorney could improperly instruct the deponent on what to say, what not to say, or both; and this unethical conduct could avoid detection. For example, an attorney could send texts or other forms of electronic communication to the deponent, coaching the deponent on how to answer questions. Such conduct can be more difficult, if not impossible, to catch than when participants are in the same room. As a result, some questioners try to lower this risk by asking the deponent to agree to not use cellphones or any other forms of communication during questioning.

Deposition Attendees

Who are the people who participate in depositions? This section looks at all the significant players who typically are present (and sometimes not present) at a deposition.

The Deponent

The star of the show is the deponent, who can be a party or a nonparty witness who has information concerning the parties’ dispute. The deponent’s testimony will typically influence both parties’ strategies for reaching a settlement or going to trial. (See Chapter 2 for information on how deposition testimony is used in litigation.)

What to Do When a Deposing Lawyer Prolongs Your Deposition

If you believe that a deposing lawyer is prolonging your deposition in bad faith (say, by repeatedly asking about things that have nothing to do with the case or by going over the same ground again and again), you can go to court and ask a judge to issue a protective order to stop further questioning. Or, you could simply tell the lawyer that you’ll continue with the deposition for a limited amount of additional time only. For example, you might say: “This is the second day of this deposition, and for the last two hours you’ve been asking about stuff that has nothing to do with the case. I’m willing to stay for another two hours, but that’s it.” However, you shouldn’t threaten to walk out without good reason. A judge who thinks that you’re trying to avoid answering relevant questions or that you’re being excessively impatient or thin-skinned can require you to reimburse the deposing party for the costs and attorney’s fees it has to spend seeking a court order to resume your deposition.

 

The Parties

Parties have to attend properly noticed depositions, and also have the right to attend all other depositions. Parties foot the bills and may want to know how their lawyers are spending their money. Also, a party might want to voluntarily attend a nonparty witness’s deposition for any of the following reasons:

• The party wants to lend moral support to a deponent who supports the party’s version of events or who is a friend or family member. For example, in a personal injury case, a plaintiff (the party suing) might attend her husband’s deposition taken by the defendant (the party being sued) if her husband was a passenger in the car at the time it was struck by the defendant’s car.
• The party wants to watch the deposition of a deponent who supports the opposing party in order to evaluate the deponent’s demeanor and persuasiveness. This evaluation can help the party decide whether to agree to a settlement or go to trial. For example, a personal injury plaintiff might attend the deposition of the defendant’s accident reconstruction expert witness in order to evaluate how persuasive the expert’s opinions about how the accident took place might be to jurors.
• Parties are quite familiar with the issues involved in a case and might want to suggest questions to their attorney during breaks in the deposition. For example, assume that the party is a loan officer who is suing the bank that formerly employed her for wrongful termination. The party might attend a deposition of her former supervisor and suggest follow-up questions based on her intimate knowledge of the bank’s loan procedures.
• A self-represented party might be either the deposing party (the party who arranged for the deposition and conducts most of the questioning) or the defending party (the party who observes and can participate in a deposition arranged for by the other party).

Should My Lawyer Attend All Depositions?

If you’re a plaintiff or defendant who’s represented by a lawyer, you might wonder whether you really need to pay for your lawyer’s time to defend a deposition taken by the opposing side of a nonparty witness (for example, a bystander to an accident). Normally, the answer is yes, for the following reasons: Your lawyer’s presence can help ensure that your adversary’s lawyer doesn’t use overbearing tactics to goad a helpful but timid witness into changing his or her story. Your lawyer can make legal objections to improper questions and, by doing so, can preserve those objections to keep the testimony out if the case goes to trial. (See Chapter 10 for further discussion of objections.) After your opponent’s lawyer concludes the deposition, your own lawyer can also question the deponent. Your lawyer thus has a chance to try to elicit helpful testimony that your opponent’s lawyer missed or clarify events that became muddled during the opposing lawyer’s questioning. At first blush, you might wonder why this is necessary. After all, if your opponent’s lawyer misses asking about information that’s favorable to you, you may think, ”Great, we’ll surprise them with it at trial.” Think again. Especially if you hope to convince your adversary to settle, having your lawyer bring out additional favorable evidence during a deposition can be quite helpful.

 

Experts

A party who has retained an expert witness may bring that expert to observe the depositions of other witnesses. The expert can suggest questions and can learn factual information to support opinions. For example, in a personal injury case, the accident reconstruction expert for the plaintiff (the party suing) might attend a deposition of the accident reconstruction expert for the defendant (the party being sued), both to suggest questions for the plaintiff’s lawyer to ask based on areas of weakness and to find out whether the defendant’s expert is basing opinions on information not known to the plaintiff. Or, a defense medical expert in a medical malpractice case might attend the plaintiff’s deposition taken by the defendant to observe the plaintiff’s present physical condition firsthand.

Why a Court Might Bar a Party From a Deposition

A court might prevent a party from attending a deposition if (1) the party is a prisoner; (2) the party has previously harassed and threatened to harm a deponent; or (3) the party is the deponent’s business competitor who could use knowledge of the deponent’s trade secrets gained by observing the deposition to harm the deponent’s business. A party seeking to bar the opposing party’s attendance would have to obtain a court order in advance of the deposition. However, because parties presumptively have a right to observe all depositions, a judge will rarely bar a party from observing a deposition.

 

Lawyers for the Parties

Almost always, lawyers representing the two opposing parties will be present at a deposition—one side deposing, the other side defending. If a lawsuit involves many parties (as can occur in lawsuits involving complex property or civil rights issues), the room may be crawling with Esquires.

Despite these potential advantages, a lawyer and client may decide that, if a witness has no important information about the case, the lawyer will not defend a deposition taken by an opponent. The reason for such a decision is to save hundreds if not thousands of dollars in attorney’s fees. Instead, the lawyer can obtain a written or electronically recorded copy of the deponent’s testimony.

Lawyers for Nonparty Witnesses

Nonparty witnesses, such as a bystander who observed an auto accident or an employee who overheard an argument between a supervisor and a former employee suing for wrongful termination, have the right to be represented by an attorney of their own choosing when they are deposed. Nonparty witnesses exercise this right rarely. Normally, with little or no stake in a case’s outcome, nonparty witnesses have little incentive to pay for a lawyer by the hour to sit through a deposition.

If you are a nonparty witness, however, you may want to consider hiring an attorney to attend your deposition in some instances. Here are some circumstances in which, if you are subpoenaed, you may want to ask an attorney to accompany you to a deposition:

• You fear that you might be named as a defendant in the same or a later civil lawsuit, by the same or a different plaintiff. For example, when your employer has been sued based on your alleged carelessness or other misconduct.

  Example: You work for a piano moving company that has been sued by a homeowner after the piano you were moving careened down a long flight of stairs into the homeowner’s garage and car.

• A party (such as your employer) has asked—or strongly suggested—that you lie during your deposition. You are worried that the party will eventually try to shift blame to you, or that perjury charges will be filed against you if you go along with the request.

  Example: You supervised a former employee who is now suing your employer for wrongful termination. Your employer has suggested that you testify untruthfully to corroborate the employer’s claim that the former employee was insubordinate.

• Criminal charges might be filed against you or someone close to you as a result of the same claims involved in a civil lawsuit.

  Example: A city has filed a civil suit against your employer, a contractor, to recover money that the city paid for work that the contractor falsely claimed had been done. Criminal fraud charges could also be filed against several employees, based on the same alleged misdeeds.

In each of these situations, a nonparty deponent may want to have an attorney present during their deposition. In addition to consulting with the deponent during deposition recesses, the attorney can help protect the deponent’s legal rights. For example, an attorney can advise a deponent of the Fifth Amendment right not to answer a question if the answer could incriminate the deponent.

TIP
Employees may be able to obtain legal representation for theirdepositions at no cost to them. If your employer is being sued and you receive a deposition notice, you might be able to secure legal representation at the deposition without paying for it yourself. Advise your supervisor or your employer’s in-house legal counsel that you’ve received a Deposition Subpoena and that you’d like the employer to provide you with legal representation at the deposition. Although the employer is not legally obligated to agree to your request, many employers will be happy to ask the lawyer handling the case on the employer’s behalf to represent you as well. When you and the employer share the same interests, each of you benefits when a lawyer helps you prepare for your deposition and represents you at the deposition.

The Court Reporter

At a deposition, the court reporter places deponents under oath to tell the truth under penalty of perjury, and records all questions, answers, and comments for the duration of the deposition. Most court reporters transcribe testimony on stenography machines or computers, though some will also make an audio or video recording.

Within a few weeks after a deposition concludes, the court reporter will prepare a booklet consisting of a word-for-word transcript of the deposition. which a deponent will have the chance to review (see “Reviewing and Signing a Deposition,” below).

If a deposition will be video recorded, the court reporter might also operate the video equipment. Other times, a separate video operator will be present. (See Chapter 14 for more information on visually recorded depositions.)

Judges

Judges almost never attend depositions. In rare instances, judges appoint judicial officers known as referees or special masters to preside over depositions. This happens when one party goes to court claiming that the other party has repeatedly failed to follow proper deposition procedures. If a judge agrees, the judge appoints a special master to sit in on future depositions and enforce proper procedures. (The judge will also decide which party or parties will pay for the costs of the special master.)

The Deponent’s Friend or Relative

A deponent can often bring a friend or relative along to a deposition for emotional support. Witnesses have the right to do this at trials, and, under FRCP 30(c), deposition examinations are supposed to proceed “as permitted at the trial.” Even in a locality where the right to have a supporter attend is unclear, the deposing attorney will likely agree to a polite request, especially if the deponent is a child, is infirm, or otherwise might have difficulty testifying without a support person in attendance. The companion may not, however, help the deponent answer questions.

CAUTION
Don’t reveal confidential information to a companion. Deponents who bring a companion along to a deposition have to be careful about what they say to the companion before and during breaks in the deposition. What deponents say to their attorneys is protected from disclosure by the attorney-client privilege, and in many states what one spouse says to another is protected by the spousal privilege. In a few jurisdictions the privilege extends to registered domestic partners.

However, no general friend or relative privilege exists—which means your case- related conversations with a companion are fair game for the opposing lawyer. The deposing lawyer can and sometimes does present a Deposition Subpoena to the companion, asking the companion to reveal what the deponent said.

Document Production at Depositions

A Notice of Deposition or Request to Produce Documents (for parties) or a Deposition Subpoena Duces Tecum (for nonparty witnesses) may indicate that a witness is to bring designated documents or records to a deposition.

Example: A deposition notice may state as follows: “Deponent Anne Oying is to bring with her to the deposition the following documents and records: all reports, memoranda, records, or documents of any kind in the (employer’s) possession relating to the dismissal of Mal Treeted.”

If the document request is clear and relatively easy to comply with, Anne can simply show up with the documents. She can bring original documents, but should not allow the deposing party to keep the originals. If the deposing party wants to keep a document, Anne should ask the party to make a copy of the document and return the original to her.

Example: A deposition notice may state as follows: “Deponent Anne Oying is to bring with her to the deposition the following documents and records: all reports, memoranda, records, or documents of any kind in the (employer’s) possession relating to the dismissal of Mal Treeted.”

If the document request is clear and relatively easy to comply with, Anne can simply show up with the documents. She can bring original documents, but should not allow the deposing party to keep the originals. If the deposing party wants to keep a document, Anne should ask the party to make a copy of the document and return the original to her.

CAUTION
Know the rules before turning over documents. If you’ve been asked to bring documents to a deposition, be sure to read Chapter 3 before reviewing those documents or bringing them to the deposition. The document request may be improper under the rules of the discovery process, or some of the requested documents may be privileged and therefore shielded from disclosure—in other words, you might not have to share them.

Reviewing and Signing a Deposition

Some days or weeks after a deposition, the court reporter will make a written, word-for-word transcript of the deposition testimony. The deponent should review the transcript, make corrections if necessary, and return the transcript within a set period of time. For procedures relating to reviewing and correcting the written transcript, see “Reviewing and Signing a Deposition,” in Chapter 4.

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