Today's roundup of new deposition-related cases focuses on four rulings. One offers a great strategy to exclude hostile deponents' deposition testimony, where they answer your opponents' questions but refuse to let you fully and fairly cross-examine them. A second touches on the age-old question of whether "Form!" or "Objection!" is enough or whether you must articulate the specific evidentiary basis. The third offers an idea for administering a slightly modified oath to immature deponents who might not understand the standard oath. The fourth looks at a novel approach one party took in noticing an individual witness with an attached, lengthy 30(b)(6) list of topics relating to matters that seemed better suited for a corporate representative.

Thanks for listening! And be sure to check out the book upon which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Available on Amazon and almost everywhere else books are sold. Now in it's fourth edition at 600 pages. It's a career-saving resource.

SHOW NOTES

Perrot v. Kelly, et al., Case No. 18-cv-10147, 2023 WL 11873009 (D. Mass. October 27, 2003) (reserving right to exclude deponent's testimony if witness continued to thwart plaintiff's opportunity to fully and fairly examine her, under FRE 804 relating to witness "unavailability"; court appears to equate refusal to give testimony with unavailability)

B.P., et al. v. City of Johnson City, et al., No. 2:23-cv-71-TRM-JEM, 2024 WL 3461408 (E. D. Tenn. July 18, 2024) (refusing to limit lawyer to word "Objection" during depositions, and stating that lawyers have obligation to state the specific basis for the objection and not limit it to "objection" or "form" alone; further declining to sanction lawyer for longer narrative objections about incomplete documents because they were not intended to coach witness as to a particular answer)

People v. Lopez, 550 P.3d 731 (Ct. App. Colo 2024) (affirming conviction of criminal defendant over objection that trial judge conducted modified administration of oath to 10-year old witness; finding that modified oath is appropriate for an immature witness who may not understand standard oath)

Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024) (rejecting plaintiffs' effort to depose individual by serving FRCP 30(b)(6)-style deposition notice with lengthy attached topic list)

See, 30(b)(6)-style Deposition Notice Served on Individual, PACER CM/ECF Doc. No. 135-1 (showing notice with attached topic list and list of documents to be brought by individual deponent) Jacobs, et al. v. Journal Publishing Company, et al., Case No. 21-690-MW/SCY, 2024 WL 3401048 (D. N. M. July 12, 2024)

In this episode, Jim Garrity discusses deposition protocol stipulations, which are agreements between the parties that establish the framework for noticing and conducting depositions. They're common in class-action and multi-district cases, but they're useful - and underutilized - in ordinary litigation as well. They can also be used to create internal deposition guidelines for law firms and legal organizations. Jim lists about three dozen common provisions in such agreements and offers practice tips on proposing and implementing them. Have a listen!

SHOW NOTES

Stipulation and Order Governing Protocol for Fact Depositions and Rule 30(b)(6)/PMQ Depositions [CM/ECF Doc. 742), In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case No. 4:22-md-03047-YGR (S. D. Cal. April 3, 2024) (36 pages)Protocol Governing Depositions, Dennis, et al. v. JPMorgan Chase & Co., et al., Case No. 1:16-cv-6496 (S. D. N. Y. June 23, 2020) [CM/ECF Doc. 419-1) (14 pages)

Stipulation And Order Regarding Remote Depositions [CM/ECF Doc. 108], FTC v. Tapestry, Inc., et al., Case No. 1:24-cv-03109 (S. D. N. Y. June 6, 2024) (15 pages)

Stipulation And [Proposed] Order Regarding Remote Depositions, In the Matter of Tapestry Inc., A Corp., & Capri Holdings Ltd., A Corp., Respondents., No. 9429, 2024 WL 3203213 (MSNET June 13, 2024) (related proceeding before Federal Trade Commission) (11 pages)

Deposition Protocol Order, In Re Terrorist Attacks on September 11, 2001, Case No. 1:03-md-01570-GBD-SN (S. D. N. Y. January 31, 2018) [CM/ECF Doc. 3894) (15 pages)

Fed. R. Civ. P. 29(a) (rule on discovery stipulations between parties)

Episode 22, FRCP 29(a) Stipulations: A Way to Save Time, Money & Headaches, 10,000 Depositions Later Podcast, released December 25, 2020 (30 minutes)

Our depo case digest episodes present a fast roundup of new deposition-related rulings nationwide. Today: (1) Two new rulings on relevance as a basis to instruct a witness not to answer a question, or to halt the deposition for purposes of seeking a protective order; (2) A ruling about a clever way to assure testimony is admissible when you use leading questions in deposing a witness considered "hostile" under rules of evidence; and (3) A case on excluding parties from depositions when their presence may traumatize deponents.

All cases mentioned in this episode are cited in the show notes, with helpful parentheticals. Can't see all the cases? Not all podcast sites allow lengthy show notes. Click through to our home page, where the full notes are always accessible. Thanks for listening!

SHOW NOTES:

Delgado v. Donald J. Trump for President, Inc., et al., No. 19-CV-11764 (AT) (KHP), 2024 WL 3219809, (S.D.N.Y. June 28, 2024) (order denying pro se plaintiff’s motion to compel certain answers that non-party deponent declined to answer following instruction by counsel based on relevance)

Keplar v. Google, LLC, 346 F.R.D. 41, 51 (N.D. Tex. Mar. 8 2024) (“if counsel’s questions go so far beyond the realm of possible revenue relevance where the deposition is being conducted in an abusive manner, i.e., in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party, then it would be permissive to instruct the deponent not to answer and move for a protective order")

Jenkins v. Miller, No. 2:12-CV-184, 2024 WL 3220349, at *2 (D. Vt. Jan. 2, 2024) While the Court cannot issue a general a ruling at this time, it acknowledges that Miller will likely be an important witness for all parties. The Court will therefore make itself available on January 18, 2024, the date on which the deposition is scheduled to take place, to issue rulings as necessary. Plaintiff's motion for leave to ask leading questions (ECF No. 745) is therefore denied at this time without prejudice, and may be renewed at the time of the deposition and/or thereafter as necessary.

Austin v. Fordham University, et al, No. 23 CIV. 4696 (JLR) (GS), 2024 WL 3161854, at *4 (S.D.N.Y. June 25, 2024) (“The Court grants Austin's motion for a protective order preventing Sweeney from attending Austin's deposition in person. However, Sweeney may be present in the same location where the deposition is taken (but in a different office) and permitted to see and hear the deposition in real time via a one-way remote video feed. Sweeney's counsel may consult with his client during normal breaks in the testimony and may also leave the deposition room when he deems it necessary to consult with his client during the deposition”)

Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L. Ed. 2d 443 (1984) (“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials. See generally Fed.Rule Evid. 103(c).”)

Fed.R.Evid. 611(c) (rule allowing the use of leading questions during what would otherwise be direct examination upon a showing the witness meets the test of hostility)

Fed. R. Civ. P. 26(b)(1) (general discovery rule on allowing discovery "regarding any nonprivileged matter that is relevant...")

Fed. R. Civ. P. 26(c)(1) (rule on grounds for protective orders)

Fed. R. Civ. P. 30(d)(3)(A) (rule on terminating depositions for purposes of seeking protective orders)