Depositions: Types and Purposes-Module 3 of 6

Depositions: Types and Purposes 

There are five basic methods of discovery: depositions, interrogatories, requests for production or inspection, physical or mental examinations, and requests for admissions. “Deposition” is defined as “a witness’ sworn out-of-court testimony that is reduced to writing, usually by a court reporter, for later use in court or for discovery purposes.”[1] This module will discuss the different types of depositions: oral,[2] written,[3] discovery,[4] to preserve testimony,[5] and to perpetuate testimony.[6] The next module on depositions will discuss objections and how depositions can be used at trial. 

Oral Depositions

An oral deposition occurs when a party to the litigation sits down with the deponent (person being deposed), whether the opposing party or a witness, and asks the deponent questions. Depositions may be taken without leave, meaning without permission or order of the court.[7] However, there are exceptions.

A party must obtain leave of court before deposing a witness if the party to be deposed is in prison, or if the parties have not stipulated to the deposition and one of three circumstances applies: 

·         The party seeking the deposition has already taken ten depositions;

·         The deponent was already deposed in the case; or

·         The party wants to take a deposition before the discovery conference occurs.[8] 

When a party wants to depose a witness, he must provide both the witness and the other parties to the litigation with “reasonable” notice. Reasonable notice must include the time, date, and place where the deposition is to occur, and the deponent’s name. If the deposing party does not know the deponent’s name, then notice must provide a sufficient description of the deponent or the class of people to which the deponent belongs (for example: “residents of the apartment building at 523 Main Street”). This also applies when the deponent is an organization. In that case, the description would allow the organization to identify what witness or witnesses should be designated for the deposition and would be able to answer the questions.[9] 

Deposition notices are usually accompanied by a subpoena. A subpoena is “a writ commanding a person to appear … subject to a penalty for failing to comply.”[10] Although a subpoena may not always be necessary, it provides incentive for a potentially uncooperative witness to show up for the deposition, and it allows the parties involved to be secure in their scheduling. 

The deposing party also has the option of using a subpoena duces tecum, which requires the deponent to bring documents with him to the deposition. In this case, the deposing party also includes with the notice a list of the materials that the deponent is asked to bring. 

Notice of the deposition must state how the testimony will be recorded. Generally, deposition testimony may be recorded by stenographic, audio, or audiovisual means, but the deposing party must pay for whatever means he chooses, and neither the deponent’s nor the attorney’s demeanor or appearance can be distorted by the recording technique if the deposition is video recorded.[11] If the deposing party chooses a method that another party is unsatisfied with, the other party can choose to have an additional means used. However, that party is responsible for the cost of the additional means of recording.[12] Furthermore, depositions can be taken by remote means, including telephone, in the appropriate circumstances.[13] 

A deposition must be taken before an officer authorized to administer oaths under law or a person appointed by the court.[14] However, the officer cannot be a relative, employee, or attorney of any party to the litigation, cannot be related to or employed by any of the attorneys in the litigation and  cannot have a financial interest in the litigation.[15] 

Before the deposition begins, the officer must provide information, including: the officer’s name and address, the date, time, and place of the deposition, the deponent’s name, and the identity of all people present at the deposition. The officer must also swear-in the deponent.[16] While the exact language of the oath or affirmation may vary by jurisdiction, the gist always that the deponent swears to tell the truth. 

At the end of the deposition, the officer must state on the record that the deposition is complete and must outline any stipulations made by the parties as to pertinent matters, such as possession of the transcript or recording of exhibits.[17] (A stipulation is an agreement by the parties to the litigation.) 

Depositions are limited to one, seven-hour day per witness, unless the parties stipulate otherwise. If, however, additional time is needed because some person or condition delays or impedes the deposition, then the court can allow extra time for a fair examination.[18] Furthermore, the court can sanction anyone who does impede, frustrate, or delay a fair examination of a deponent.[19] 

If a deposition is conducted in bad faith, to harass or embarrass the deponent or a party, any other party can move to terminate or limit the deposition. The moving party can require that the deposition be suspended until the court rules on the motion to limit the deposition.[20] Once the court determines the issue in question, the deposition can reconvene and continue. 

A deponent has the right to review the deposition transcript for accuracy and should note any necessary corrections.[21] The transcript is provided to the attorneys in sealed packages, and the deposing attorney must protect the transcript from destruction, loss, deterioration or tampering.[22] 

If the deposing party requests that the deponent bring documents or tangible things to the deposition for inspection, those items must be marked for identification and attached to the deposition if any party requests it.[23] To be “marked for identification” means that when the item is discussed during the deposition, the deposing attorney will describe the item for the record and assign it an exhibit number, which is then marked on the item. 

Any party present can inspect and copy the items produced by the deponent. However, if the deponent wishes to keep the originals rather than attach them to the transcript, the deponent can offer copies for attachment. In that case, all parties must first be given a fair opportunity to compare the originals and the copies to be certain that they are accurate duplicates.[24] 

Finally, if a deposition does not occur either because the deposing party does not attend or otherwise frustrates the taking of the deposition, then the party who needlessly attends the deposition can obtain reimbursement for the reasonable expenses of attending.[25] 

Written Depositions         

Depositions can also be held in writing, wherein none of the parties or attorneys are present with the deponent when he answers questions. Instead, the deposition officer is present. The officer provides the written questions to the deponent and transcribes the answers.[26] 

As with oral depositions, written depositions may be taken without leave of the court. The exceptions where leave of court is required for written depositions are the same as those for oral depositions: when the deponent is in prison, where the parties have not agreed to the deposition and it would result in more than ten depositions by that party, when the deponent has already been deposed in the case and when the deposition is sought before the discovery conference.[27] 

The notice requirements for written depositions are also the same as those for depositions by oral examination. The party requesting the deposition can subpoena the deponent and must send a copy of the deposition notice to all other parties.[28] 

There are however, special rules regarding the order in which written questions are served on the deponent and opposing counsel. First, the deposing party serves his questions upon the deponent and the other party to the litigation while the notice of the deposition is served. This allows opposing counsel to see the questions that the deposing party is asking. Second, the other party has fourteen days to respond with cross-examination or follow-up questions to deposing party’s questions, which are sent to the deponent and the deposing party. Third, the deposing party has seven days to respond to the cross-examination questions with re-direct questions. Finally, the other party has seven days to respond to re-direct questions with re-cross-examination questions.[29] Each time, questions are sent both to the deponent and opposing counsel. 

The party who noticed the deposition must deliver a copy of the questions to the deposition officer, who then proceeds with the deposition. This means that the deponent has time to review the questions and prepare his or her answers before the deposition is taken. After swearing in the deponent, the deposition officer reads the questions to the deponent and records the responses. Then she prepares the deposition transcript and provides it to the party who noticed the deposition as in the case of oral depositions.[30] 

Depositions for Discovery Purposes Versus Preserving Testimony

Attorneys choose to depose witnesses for different reasons. Sometimes depositions are said to be for discovery; i.e., “discovery depositions.” Other times depositions are used to preserve testimony. It is important for an attorney to know what the purpose of the deposition is because the purpose will shape the tactics and methods of questioning that the attorney should use. 

It should be noted that taking depositions is not always the best discovery strategy. In fact, attorneys should consider not taking depositions in several cases. For instance, is may be unhelpful to depose friendly witnesses, as a deposition would commit them to details that they may deviate from at trial, exposing them to being discredited. It also may be unwise to take the deposition of a hostile witness who already provided a statement that is helpful to your case. In such a situation a deposition may provide another opportunity for the witness to clarify his statement, making it less helpful. Depositions also should not be taken of any witness that is helpful to the other side but is elderly or ill. It is opposing counsel’s job to preserve testimony that is helpful to her case, and preserving such testimony could be harmful to the deposing party. Finally, if it is obvious that the opposition is not preparing for trial, noticing a deposition would only serve as a wake-up call and help him get ready.[31] 

On the other hand, depositions are often of critical importance. For instance, if there is a witness whose testimony is helpful to your case but who you are afraid may not be able to attend trial due to age, infirmity, or distance. In that case, a deposition can be taken to preserve the witness’s testimony and can be sometimes be used at trial like live testimony.[32]

It is also wise to depose a witness to lock in his testimony, for instance, if he made a prior statement that is helpful to your case, but you are afraid he may change his testimony at trial. Furthermore, a deposition can help an attorney determine how a witness may come across to a jury. Finally, depositions can encourage settlement, if they reveal how strong one party’s case is.[33]

Discovery depositions are used to discover information about the case. They can be extremely broad. They are particularly useful if an attorney has had difficulty obtaining information from other sources or if the deponent was unwilling to speak with the attorney without a subpoena. Often the attorney will focus on open-ended questions: who, what, when, where, why and how. These solicit thorough responses. If the attorney needs the information, he is willing to accept a long-winded answer, along with any information that may come out that is detrimental to his case.[34] 

Depositions to Preserve or Perpetuate Testimony

In contrast, depositions to preserve testimony are tools used to save the testimony of a witness that the attorney believes may be unable to testify at trial. The strategy used in depositions to preserve testimony is significantly different. There, the attorney need only ask the questions about which he wants the witness to testify. If the attorney solicits any additional information, the attorney risks the witness providing testimony that is harmful to his case. Narrow and carefully tailored questions are best in these cases.[35] 

In depositions to preserve testimony, the attorney should examine the witness in the same manner he would at trial. If the witness must provide the foundation allowing a piece of evidence to be admitted at trial, then the attorney should obtain this information at the deposition. Any exhibits should be marked and attached to the deposition.[36] 

Furthermore, if the witness were to testify at trial, the jury would be able to see his mannerisms and gestures. The only way these can be reflected in a transcript is if the attorney “makes a record,” meaning he describes the gestures, nods and other forms of non-verbal communication so that the deposition officer transcribes them. It is even better if the jurisdiction allows, that the testimony be video recorded so that it can be played for the jury at trial and they can observe these mannerisms for themselves.[37] 

Where a party wants to ensure that testimony is preserves for future use but where the lawsuit has not been filed yet, Federal Rule 27 allows a deposition to perpetuate testimony. These are only allowed with leave of court. The party who wants to take the deposition must petition the court, showing:

·         That the person expects future litigation, but cannot currently initiate the action;

·         The subject matter of the anticipated litigation and the persons’ interest in it;

·         The facts that the person hopes to establish and why the testimony must be perpetuated;

·         The names and contact information of the anticipated adverse parties; and

·         The names, contact information for, and expected testimony of each requested deponent.[38] 

The deposing party must notify all anticipated adverse parties of the future litigation about the motion to perpetuate testimony. If the party cannot serve other parties because they are unknown, the court can allow other forms of notice.[39] 

If the judge agrees that perpetuating the testimony is necessary in the best interests of justice, he may allow the deposition. The order for deposition must identify or describe the deponents, specify the subject matter of the deposition and state how the deposition should be taken - written or oral. Once the deposition is taken, it can be used at trial just as live testimony would have been used.[40]

In the next module, we will look at objections to deposition questions and using depositions at trial in place of live testimony.