Oral Depositions

Oral Depositions

An oral deposition is a miniature trial held in a conference room. The witness testifies under oath, a reporter records the testimony, and the lawyers examine and cross-examine. The reporter has authority to administer the oath, so false testimony carries the same perjury penalties as at trial. No judge is present: a lawyer notices the deposition, and the lawyers run the examination themselves.¹

Lawyers reach for the device when informal methods fail. A witness who has not been subpoenaed is generally free to refuse an informal interview, and a refusal may force the lawyer to turn to court and to the formal discovery devices.² Of those devices, the live deposition lets the examiner question the witness directly and follow up on whatever the witness says. Written alternatives cost less, but the strategic value of questioning deponents directly generally outweighs the savings.³

A device that reaches nearly anyone, needs no advance permission, and yields sworn testimony invites waste and abuse. The Rules therefore control it at four points: who may be deposed and when a judge's leave is required, how the notice is given and the record made, how an organization responds, and how long and in what manner the questioning may run. This unit takes those points in order and then turns to depositions on written questions and to testifying experts.

Who May Be Deposed

Rule 30(a)(1) sets the default: a party may depose any person by oral questions without leave of court, except as Rule 30(a)(2) provides, and may compel the deponent's attendance by subpoena under Rule 45.⁴ Leave of court is a judge's advance permission. Without it, the questioner schedules the deposition alone, and a judge appears only if a dispute follows. “Any person” removes every built-in limit on whom the questioner may examine. Rule 30(a)(2) then singles out a few situations in which an open default is easy to abuse, and in each of them the deposition stops being self-service.

The default reaches parties and nonparties by different routes, because a party is already before the court and a nonparty is not. A notice of deposition served on an individual party is normally enough to secure that party's attendance, and no subpoena is needed.⁵ A nonparty has not been served with process, so a notice gives the witness nothing to obey. In Painter's suit against Toyota Co., Gannick is a witness who is not a party. Painter's lawyer therefore had Gannick served with a subpoena, and with a subpoena duces tecum (a subpoena that orders the witness to bring documents) because the lawyer wanted records as well.⁶ Rule 45 lets the court where the action is pending issue the subpoena and permits nationwide service, but the subpoena can command attendance only within 100 miles of where the deponent resides, is employed, or regularly transacts business in person. For a party or a party's officer, the limit is the state where the person resides, is employed, or regularly transacts business in person.⁷ The sections on nonparty subpoenas take up issuing, serving, and challenging them.

The first limit on the default is numerical. Leave is required when the deposition would result in more than 10 depositions taken under Rule 30 or Rule 31 by the plaintiffs, or by the defendants, or by the third-party defendants.⁸ The count runs by side, so the plaintiffs count together, as do the defendants and the third-party defendants. It includes depositions on written questions under Rule 31, so a side that has used several of those on records custodians has already spent part of its allowance. A ceiling set at the side level brings the judge in at the point where added cost is most likely to outrun added value.

The example shows that leave and subpoena answer different questions. Leave asks whether this side may use the device again at all. A subpoena asks whether the court has compelled this particular person, a question that arises only for a nonparty. A nonparty's deposition can therefore need both, and a party's deposition can need leave without ever needing a subpoena.

Leave is also required when the deponent has already been deposed in the case.⁹ The trigger is tied to this action, so a person who testified in a different lawsuit comes under the default. A first deposition is the examiner's scheduled chance. Without the trigger, a lawyer could call the same witness back to retry the examination or to wear the witness down. With it, counsel must tell the court what the second session adds. Documents that surfaced after the first session are the obvious answer, and the court measures that answer against the proportionality limits. A witness whom no one has yet deposed in the action comes under the default and needs no leave.

Leave is also required when the deponent is confined in prison.¹⁰ The likely reason is practical: an inmate cannot choose a time or place to testify, and producing the inmate depends on the institution's custody arrangements, so a judge who can weigh the need for the testimony against those burdens supervises the arrangement in advance. A further trigger turns on timing. Leave is required for a deposition sought before the Rule 26(d) discovery window opens, a question that belongs with the discussion of when discovery may begin.

When leave is required, Rule 30(a)(2) also tells the court how to decide: the court must grant leave to the extent consistent with Rule 26(b)(1) and (2).¹¹ The court acts as a checkpoint on cost and repetition. It applies the scope and proportionality limits that govern every discovery device, and it grants leave to the extent those limits allow. A lawyer who can say what an eleventh or repeat deposition adds should expect the order, and one who cannot risks denial. The usual error is treating a leave requirement as a prohibition.

Notice and Recording Method

A party who wants to take an oral deposition must give reasonable written notice to every other party. The notice states the time and place of the deposition and, if known, the deponent's name and address. If the name is unknown, the notice gives a general description sufficient to identify the person or the particular class or group to which the person belongs.¹³ The alternative keeps a litigant who knows only that a witness exists, such as one of the employees who staffed a loading dock on the night of an accident, from being shut out for want of a roster. The rule states no number of days for what counts as reasonable, so the notice is judged against the circumstances.

Notice and subpoena are different papers addressed to different people. A party-deponent is already within the court's authority, so serving a notice of time and place, with copies to the other parties, is normally enough to secure that party's deposition.¹⁴ A nonparty must also be served with a subpoena, and in practice both documents go to all parties and to the deponent. Sending other counsel a copy of the subpoena shows that the witness has been subpoenaed, as the law requires.¹⁵ The other parties are entitled to the notice so that they can be present, object, and cross-examine. A party who was never told about a deposition could not have used those rights, which explains why Rule 32(a)(1)(A) conditions the use of a deposition against a party on that party's having been present or represented at the taking, or having had reasonable notice of it.¹⁶

The notice must also state the method of recording. Unless the court orders otherwise, testimony may be recorded by audio, audiovisual, or stenographic means, the noticing party bears the recording costs, and any party may arrange to transcribe the deposition.¹⁷ Each part of that rule has a reason. Stating the method up front tells the other parties what kind of record they will live with, so a party who worries about a video record can plan before the deposition begins. Putting the cost on the noticing party gives that party a reason to choose a method worth its price. Letting any party arrange a transcript means no one has to rely on the examiner's copy to know what the witness said. Most depositions are still recorded stenographically, but audio and video recording are expressly permitted and are gaining in popularity.¹⁸ Video also has strategic value, because the examiner can use the recorded testimony against the deponent if the case goes to trial.¹⁹

The noticing party's choice of method does not bind everyone else. With prior notice to the deponent and the other parties, any party may designate another method of recording in addition to the one in the original notice, and that party bears the expense of the additional record or transcript unless the court orders otherwise.²⁰ The prior-notice condition lets the deponent and the other parties prepare for the added equipment, and the expense rule keeps the party who wants the extra record from passing its price to the party who noticed the deposition.

A notice can also demand documents, though the mechanism depends on who the deponent is. When a subpoena duces tecum is to be served on the deponent, the materials designated in the subpoena must be listed in the notice or in an attachment. The notice to a party deponent may instead be accompanied by a Rule 34 request to produce documents and tangible things at the deposition.²¹ The listing requirement lets the deponent gather the materials in advance, so a surprise demand does not derail the examination. A party deponent needs no subpoena for documents, because the Rule 34 request that rides with the notice reaches a party directly. The mechanics of issuing and serving the subpoena itself belong to the sections on nonparty subpoenas.

Parties may also agree to take a deposition remotely. They may stipulate, or the court may on motion order, that a deposition be taken by telephone or other remote means, and the deposition takes place where the deponent answers the questions for purposes of Rule 30 and Rules 28(a), 37(a)(2), and 37(b)(1).²² That last clause fixes the location of a deposition conducted across several places, which the cross-referenced rules on officers, motions to compel, and sanctions need to know. When the deposition is not remote, a party's deposition is usually held in the discoverer's offices within the district where the action is pending, or at a place the parties agree on.²³

A notice that omits the recording method is defective, because the method is a required statement. Silence can still cure the defect: an objection to an error or irregularity in a deposition notice is waived unless it is promptly served in writing on the party giving the notice.²⁴

The waiver rule is practical. A notice defect can usually be fixed at once if the noticing party hears about it, while a party who attends and says nothing would otherwise hold a free option to complain later if the testimony turned out badly.

Organizational Deponents

A lawyer who wants an organization's knowledge usually cannot tell which employee holds it, and Rule 30(b)(6) solves that problem. In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or another entity, and must describe with reasonable particularity the matters for examination.²⁷ An organization acts and knows only through people, and an outsider rarely can tell which employee made a design decision or logged a complaint. Without the rule, the examiner would guess at names, and a wrong guess would cost a full deposition and produce a witness who truthfully says the subject belongs to someone else. The rule moves the search for the right witness to the party that has access to its own people.

Painter's suit against Toyota Co. shows the device at work. Painter's lawyer may not know who inside the company can speak to the matters in dispute, but the lawyer does not need to know. A notice sent to Toyota's lawyer that describes the matters on which examination is requested requires Toyota to designate a deponent knowledgeable about those matters to testify on its behalf.²⁸ Because Toyota is a party, the notice alone is enough, and no subpoena is needed.²⁹

The duty has two halves, and each has its own reason. The examiner's half is particularity: an organization can prepare a witness only for topics it can identify, so a notice that gestures at everything related to the lawsuit gives it nothing to prepare for and invites a dispute. The organization's half is designation. The named organization must designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and it may set out the matters on which each designee will testify.³⁰ The choice of witness belongs to the organization because the organization alone knows its own staff. The examiner therefore cannot insist on a particular person under this paragraph, and the organization can divide the topics among several designees when no single person knows them all.

Two further provisions keep scope disputes away from the deposition table. Before or promptly after the notice or subpoena is served, the serving party and the organization must confer in good faith about the matters for examination.³¹ If the parties disagree about breadth only after the organization has prepared a witness, the preparation is wasted, whereas a conversation at the outset lets both sides correct a topic list while correction is cheap. When the organization is a nonparty, the subpoena itself must advise it of its duty to confer with the serving party and to designate each person who will testify.³² A nonparty has no reason to know the rule exists, so the paper that brings it to the deposition must also tell it what the rule demands.

The standard that governs what the designees say gives the rule its force. The persons designated must testify about information known or reasonably available to the organization.³³ The testimony is the organization's, and it is not limited to what the individual designee saw or did. If the duty were confined to personal knowledge, an organization could answer a notice by sending a witness who knows nothing and then plead ignorance, even though the answers sat in its files or with its other employees. The phrase “reasonably available” closes that gap, and it carries an obligation to prepare, since the designee must learn what the organization's records and personnel can supply.

A designee's lack of firsthand involvement is therefore no defense, and the examiner should expect answers drawn from everything the organization can reasonably obtain. Naming the organization also does not exhaust the examiner's options, because Rule 30(b)(6) does not preclude a deposition by any other procedure the Rules allow.³⁴ A lawyer who already knows that a particular engineer made the decision can depose that engineer directly, and a lawyer who does not know whom to ask can name the organization. The two routes answer different questions: an individual deposition draws out what that person knows, and an organizational deposition draws out what the entity knows.

The usual error is treating a nonparty organization as if it were a party. A notice that binds a corporate defendant has no force on a corporation outside the suit.

The designee's testimony also carries consequences at trial. An adverse party may use for any purpose the deposition of a party or of anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4).³⁵ The designee's words can therefore be offered against the organization that chose the designee, which is one more reason the organization must prepare the witness carefully. The limits on that use belong to the later unit on using depositions at trial.

Time Limits and Conduct

Rule 30(d)(1) sets the clock. Unless the parties stipulate or the court orders otherwise, a deposition is limited to one day of 7 hours, and the court must allow additional time, consistent with Rule 26(b)(1) and (2), if more is needed to examine the deponent fairly or if the deponent, another person, or any other circumstance impedes or delays the examination.³⁷ The two halves of that sentence do different work. The cap controls cost and oppression: no judge is present, every hour brings a reporter's charge and the billable time of every lawyer in the room, and a device that anyone may notice without leave would otherwise let a determined side exhaust a witness or an opponent's budget. The extension clause keeps the cap from rewarding the conduct it exists to discourage. If seven hours were absolute, a witness who rambled or a lawyer who quarreled over every question could run out the clock, so the rule makes added time mandatory once either condition is met. Unlike the interrogatory limit discussed below, which counts questions, this limit counts hours.

The second condition is worded broadly enough that the examiner need not prove bad faith. A deponent's evasion and a lawyer's long speaking objections both impede the examination, and so does any other circumstance that delays it, such as a building evacuation that consumes an hour. The first condition covers a quieter case in which nobody has done anything wrong but the subject is large enough that seven hours will not permit a fair examination. There the court measures the request against Rule 26(b)(1) and (2). In every case the entitlement to more time turns on why the clock ran out.

The time limit assumes a proceeding that the lawyers run themselves, so the rules for conduct matter as much as the clock. Rule 30(c)(1) fills the gap left by the missing judge by importing trial practice. Examination and cross-examination proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated in the notice, personally or through a person acting in the officer's presence and under the officer's direction.³⁹

Because nobody present can rule on an objection, Rule 30(c)(2) answers the question of what an objection accomplishes. An objection to evidence, to a party's conduct, to the officer's qualifications, to the manner of taking the deposition, or to any other aspect of the deposition must be noted on the record, but the examination still proceeds and the testimony is taken subject to the objection.⁴⁰ The ruling waits for a point where a judge exists: if the deposition is used later at trial, the judge must rule on all objections before the testimony is admitted in evidence.⁴¹ A lawyer who could halt the questioning by objecting could obstruct the device at will, so a question that would draw an inadmissible answer at trial can still be put at a deposition, with the objection recorded and the answer given. The same rule requires that an objection be stated concisely in a nonargumentative and nonsuggestive manner.⁴² The testimony is meant to be the witness's own, and a speech that tells the witness how to answer turns the objection into coaching. The trial-use unit returns to what becomes of an objection that is never made.

Defense counsel who thinks a question is irrelevant cannot instruct the deponent not to answer. The rule allows that instruction in only three situations: when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).⁴³ In each of the three, an answer would destroy something that cannot be restored. A privileged communication cannot be undisclosed once the witness speaks, a court-ordered limit would be defeated by the answer it forbids, and a motion to terminate or limit would be pointless if the questioning continued while it was pending. Relevance and most other objections lack that feature, since the answer can be given subject to the objection and excluded later if it is inadmissible.

A narrow instruction power still leaves the deponent or a party with a remedy against a truly abusive deposition, and Rule 30(d)(3)(A) supplies it. At any time during a deposition, the deponent or a party may move to terminate or limit it on the ground that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. The motion may be filed in the court where the action is pending or where the deposition is being taken, and if the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.⁴⁵ The demand gives the motion practical effect, because without it the questioning could finish before a judge had a chance to rule. The court may then order the deposition terminated or may limit its scope and manner as provided in Rule 26(c), and a terminated deposition may be resumed only by order of the court where the action is pending.⁴⁶

The last step in the life of a deposition is the deponent's review of the record. On request by the deponent or a party made before the deposition is completed, the deponent must be allowed 30 days after the officer gives notice that the transcript or recording is available in which to review it and sign a statement of any changes.⁴⁷ Timing controls the right: a request made after the deposition has been completed comes too late to trigger it.

Written-Question Depositions

Two rules put written questions to a distant witness, and the smaller one is Rule 30(c)(3). Instead of participating in an oral deposition that another party has noticed, a party may serve written questions in a sealed envelope on the noticing party, who must deliver them to the officer. The officer must ask the deponent those questions and record the answers verbatim.⁴⁹ Rule 31 carries the idea further by making written questions the entire deposition, an alternative to the oral examination that Rule 30 provides.⁵⁰ A deposition on written questions is testimony given in response to a prepared set of written questions, as opposed to the typical oral deposition.⁵¹

The attraction of the device is that counsel need not go to some distant place to be present when the testimony is taken. The parties serve the questions and cross questions they want put to the witness, the officer puts them to the witness, records the answers, and transcribes and files the deposition as with an oral deposition.⁵² The officer's role is limited to recording what the witness says in answer to the questions. Comments about the witness's demeanor, or about remarks the witness made before the questions began, are improper and will be stricken.⁵³

Because Rule 31 and Rule 33 both put written questions to a person, the two are easy to confuse, and the confusion has a history. As originally adopted, the Rule 31 procedure was called a deposition upon written interrogatories, a name that invited lawyers to treat it as a cousin of the interrogatory. The 1970 amendment renamed it a deposition by written questions for that reason, and the two devices remain different in purpose, in procedure, and in the persons they reach.⁵⁴ A Rule 33 interrogatory is served on another party, who must answer it separately and fully in writing under oath.⁵⁵ A Rule 31 deposition places the witness before an officer, who asks the questions and records what the witness says. The difference in targets follows from the difference in kind. An interrogatory can be addressed only to a party, and information from nonparties must come through depositions.⁵⁶ The written-question variant is still a deposition, so a nonparty can be subpoenaed to answer it.⁵⁷

The custodian example sits where the device works best, since the testimony is routine proof of a formal matter and no one needs to test the witness. Outside that band the promised saving shrinks. The procedure is more cumbersome than oral examination and less suitable for a complicated inquiry or for a searching interrogation of a hostile or reluctant witness. Justice Whittaker, while still a district judge, called a deposition on written questions, except for the proof of formal matters, “a tool of discovery very inferior to oral examination.”⁵⁸ The reason lies in the officer's limited role. Every question is fixed on paper before the witness speaks, and the officer merely records, so no one in the room can press an evasive answer or rephrase a question that missed. The strategic literature adds a second cost: written questions are far cheaper, but a party deponent's answers are likely to be shaped by the opposing attorney, who knows more law than the client does, and the value of questioning deponents directly generally outweighs the savings.⁵⁹

The court also has a say. It may make protective orders where a deposition is to be taken by written questions, and in particular may order that the deposition be taken only by oral examination. It may likewise authorize oral cross-examination in a deposition otherwise taken on written questions, but it usually denies that request at the outset and requires the party to try cross questions first, with leave to apply for oral examination if further cross-examination proves necessary.⁶⁰ A lawyer who proposes to depose an adverse party's chief engineer on written questions to save on travel therefore invites both the criticism of judgment and a possible protective order.

The sealed-envelope option in Rule 30(c)(3) belongs to a different category from Rule 31, because it adds written questions to an oral deposition that some other party has noticed and does not create a separate deposition. A party with only a few questions for a distant witness can take part without paying for counsel's attendance, and the officer must ask the questions and record the answers verbatim.⁶¹ The sealed envelope suggests the noticing party serves only as a conduit and gets no advance look at what the sender intends to ask. A party who instead needs testimony from a nonparty that no one has noticed uses Rule 31 and takes the whole deposition on written questions.

Deposing Testifying Experts

Rule 26(b)(4)(A) adds one condition to the general deposition default. A party may depose any person who has been identified as an expert whose opinions may be presented at trial, but if Rule 26(a)(2)(B) requires a report from the expert, the deposition may be conducted only after the report is provided.⁶⁴ The report requirement attaches to a particular kind of expert. The disclosure must be accompanied by a written report, prepared and signed by the witness, when the witness is retained or specially employed to give expert testimony in the case or is an employee whose duties regularly involve giving expert testimony.⁶⁵ Whether a deposition must wait therefore depends on which group the expert belongs to. Expert disclosure is a topic of its own, so this section takes only the points that affect how an expert deposition is noticed and used.

The report-first condition has a practical reason. A signed report fixes, in the expert's own words, the opinions the expert will offer and the basis for each. An examiner who holds the report can prepare questions aimed at those opinions, test the stated basis, and use fewer of the seven hours the clock allows. Without it, the examiner would learn the opinions only by asking about them in the room, which costs time and leaves room for surprise at trial.

The usual error is reading the report condition as a bar on deposing the expert. The condition postpones the deposition and does not forbid it, and it applies only when Rule 26(a)(2)(B) requires a report at all. The rule also puts the cost of the expert's time on the examiner: the party seeking discovery must pay the expert a reasonable fee for time spent responding to discovery under Rule 26(b)(4)(A) or (D).⁶⁶ An expert's time has a market price, and the side that chooses to question the expert is the side that gains from the answers. As with the reporter's fee for any deposition, the charge gives the examiner a reason to weigh how long the questioning needs to run.

A deposition record also anchors what the expert may say later, and Rule 26(e)(2) protects that anchor. For an expert whose report must be disclosed under Rule 26(a)(2)(B), the duty to supplement extends both to information in the report and to information given during the expert's deposition, and any additions or changes must be disclosed by the time the party's pretrial disclosures under Rule 26(a)(3) are due.⁶⁷ The reason follows from what an opponent does with a deposition, which is to build cross-examination and trial preparation around the opinions the expert has already given under oath. An expert who could add a new opinion after being deposed, and say nothing, would hand the opponent a surprise at the point where the opponent can no longer prepare for it. The duty places the burden of disclosing the change on the side that sponsors the expert and supplies a deadline, the pretrial disclosure date.

Barcai v. Betwee illustrates why the duty matters. In that malpractice case, the plaintiffs offered trial testimony from their expert, Dr. Cohn, that the defendant physician's failure to treat the patient's hypertension fell below the standard of care. The question was whether that was a new opinion or one Dr. Cohn had already given at his deposition. The plaintiffs argued that his deposition testimony that the physician should have recognized hypertension as a sign of the patient's condition included an opinion that the physician should also have treated it. The trial court gave the plaintiffs a chance to show that he had said so, but they pointed to no specific deposition testimony, and the court observed that it was not the trial court's job to comb through pages of testimony to find it.⁶⁸ The court also rejected the idea that the opponent must catch new opinions by redeposing the expert. If every party in every expert case had to redepose experts up to the time of trial to make sure no new opinions had formed since the last deposition, litigation costs and delay would unfairly increase.⁶⁹

Two lessons follow. The party who sponsors an expert must disclose changed opinions, and the opponent need not hunt for them. A party who says an opinion came out at the deposition must point to the testimony. A plaintiff whose expert is deposed in March and develops a second theory of causation by June must therefore disclose the addition by the time the Rule 26(a)(3) pretrial disclosures are due. An expert who repeats at trial the opinions already given at the deposition has changed nothing, so nothing needs supplementing.