Some examiners will mark a voluminous document as an exhibit and then declare that "we'll go off the record while the deponent reads it." But "going off the record" for this purpose is an unwise practice and is fraught with risks to both the examining and defending lawyer. Jim Garrity explains why.

In this episode, Jim talks about the habit of some deponents of qualifying their answers by using words like think, feel, believe, and presume. These words are known in academic and psychological circles as "linguistic hedges." They're common and harmless in social conversations. But in the unforgiving world of sworn testimony, they create a record suggesting witnesses don't know what they're talking about. Not only do hedges diminish the force of testimony, but they can render it entirely inadmissible. In the wrap-up, Jim provides specific practice strategies for impressing upon clients that the lax and incautious use of hedges can inflict grievous harm on their claims or defenses. He also explains how to train clients to avoid using hedges when testifying.

SHOW NOTES

Strategic Use Of (UN)certainty Expressions, Lorson, Cummins and Rohde, Frontiers in Communications, Mar. 18, 2021, https://www.frontiersin.org/journals/communication/articles/10.3389/fcomm.2021.635156/full

The Use of Hedging in Research Articles on Applied Linguistics, Livytska, I., Journal of Language and Cultural Education (July 2019), https://sciendo.com/article/10.2478/jolace-2019-0003

Hedging and Academic Writing: An Analysis of Lexical Hedges, Demir, C., Journal of Language and Linguistic Studies, 14(4) (2018), https://www.jlls.org/index.php/jlls/article/view/812

Linguistic Hedging In The Light Of Politeness Theory, Vlasyan, G., European Proceedings of Social and Behavioural Sciences (2018), https://www.europeanproceedings.com/article/10.15405/epsbs.2018.04.02.98

A Study of Hedges in Courtroom Oral Arguments from the Perspective of Contextual Adaption, Chen and Zhang, International Journal of Multidisciplinary Research and Publications, https://ijmrap.com/wp-content/uploads/2022/02/IJMRAP-V4N8P114Y22.pdf

Hedging in Courtroom Discourse, Lebedeva and Gribanova, http://ial-journal.org/en/node/53

Middleton v. May, et al., Third Report and Recommendation [CM/ECF Doc. 107], Sherrill, J., Case No. 4:08-cv-452-RH-WCS (N. D. Fla. Feb. 9, 2010) report and recommendation adopted, Order Granting Summary Judgment for Defendants, Hinkle, J., [Doc. 109] (“Plaintiff's statement as incorporated in doc. 93-3 is signed under penalty of perjury, although each material statement of fact is an equivocating statement beginning with "Upon information and belief . . . ." Such a statement is not sufficient as evidence and is inadmissible in its present form. A declaration expressing that statements are "true and correct to the best of my knowledge and belief" carries with it the plain implication that the affiant does not know whether the statements are true or not, and does not wish to be held accountable if they are not.6 While admittedly the phrase "best of my knowledge and belief" or "information and belief" is a part of common speech, it equivocates and, therefore, does not meet the requirements of Rule 56(e) that an affidavit "be made on personal knowledge" and "show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e)'s personal knowledge requirements prevents such statement "from raising genuine issues of fact sufficient to defeat summary judgment." Pace v. Capobiano, 283 F.3d 1275, 1278-79 (11th Cir. 2002). Accordingly, Plaintiff's statement of facts and declaration cannot be considered in response to Defendants' summary judgment motion”)

Have you ever been in a deposition and noticed something improper and prejudicial, but couldn't think of a precise objection to make? There might not be one. For example, many deponents now appear by remote video in unconventional settings - living rooms, hotel lobbies, or their cars - where others are present and may disrupt or influence the testimony. The rules' drafters couldn't possibly anticipate these new challenges. So, for misconduct that isn't squarely covered by a specific objection, Jim provides you with a single broad "super-objection" that will cover virtually any irregularities. This will help protect your right to exclude testimony, or the entire deposition, as needed. (As always, thank you for listening, and please take 30 seconds and leave us a 5-star review wherever you get your podcasts. It's a fast, free, and fantastic way to thank our production crew. We deeply appreciate it.)

SHOW NOTES

Ratliffe v. BRP U.S., INC., et al., No. 1:20-CV-00234-JAW, 2024 WL 4728898 (D. Me. Nov. 8, 2024) (order denying motion in limine to exclude deposition where witness’ mother assisted deponent while testifying; held, objections to alleged impropriety waived)

Fed. R. Civ. P. 30(d)(3)(A) (allows court relief where deposition is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party)

Fed. R. Civ. P. 32(d)(3)(B) (deeming objections waived if not made during the deposition where objection is to any irregularity in the way the deposition is being conducted)

Fed. R. Civ. P. 26(c) (allowing protective order permitting or forbidding discovery if necessary to ensure fair proceedings)

Fed. R. Evid. 403 (allowing exclusion of evidence on grounds of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence)

United States v. Simmons, 515 F. Supp. 3d 1359, 1364 (M.D. Ga. 2021) (“While “unreasonable” and “oppressive” are not defined under Rule 17, they have a common sense meaning, and courts finding a valid and specific privilege may quash subpoenas on that ground”)

Heartland Hotel Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, PA, No. CV 07-2147, 2008 WL 11440623, at *8 (W.D. Ark. Aug. 5, 2008) (“Oppressive ” is defined in Webster's Third New International Dictionary as “unreasonably burdensome” and “unjustly severe, rigorous or harsh”)

Today Jim Garrity tackles the topic of narrative objections, which are objections that go beyond a simple "Form!" or "Objection!" and provide a concise explanation of the grounds for the objection. Some litigators see anything beyond a single word as a speaking objection or as coaching, but that's not so. Jim untangles the spaghetti in this episode.

(By the way, there are a total of 12 cases and rules listed in the show notes. If you don't see them all, click through to our podcast page, and you'll find them there. Some hosting sites truncate show notes to save space. And, if you have a moment, would you please leave us a 5-star rating wherever you're listening to us? It takes less than 30 seconds, but it's a huge incentive for us to put these episodes together. We offer critical expert insights in this podcast, as well as the research to back it up, and it's all free. The 5-star ratings are a great way to send us a thank you back. Thanks!)

SHOW NOTES

B.P. v. City of Johnson City, No. 2:23-CV-71-TRM-JEM, 2024 WL 3461408 (E.D. Tenn. July 18, 2024) (statement that pages were out of order or missing, following objection, wasn’t improper “speaking objection” but, rather, articulated basis for objection; court also found no basis to limit defending lawyers to word “objection” during deposition, as lawyer must state basis for it)

Dino Antolini, Plaintiff, v. Amy McCloskey, et al., Defendants., No. 1:19-CV-09038-GBD-SDA, Not Reported in Fed. Supp., 2021 WL 5411176, (S.D.N.Y. Nov. 19, 2021) (citing cases for proposition that objections should be made using the single word “Objection” unless the basis for the objection is requested; providing numerous examples of alleged speaking objections)

R.D. v. Shohola, Inc., No. 3:16-cv-01056, Not Reported in Fed. Supp., 2019 WL 6134731 (M.D. Pa. Nov. 19, 2019) (in context of pretrial rulings, court declined to grant motion in limine barring speaking objections, saying, “However, because “we deem the question of what constitutes an improper speaking objection, an inappropriate comment on excluded evidence, or an improper ad hominem exchange to be fact bound matters which cannot be determined wholly in the abstract, we will defer further rulings on these motions pending proper objections at trial”)

Fed. R. Civ. P. 30(c)(2) requiring objections to “be stated concisely in a non-argumentative and non-suggestive manner”)

Committee Notes to 1993 Amendments (stating that new paragraph (1) at the time provides that “that any objections during a deposition must be made concisely and in a non-argumentative and non-suggestive manner;” rule does not tell us how to make an objection, such as by word “objection”)

Brent v. Cramer, et al., No. CV JKB-22-1349, 2024 WL 3878145 (D. Md. Aug. 20, 2024), fn. 4 (providing examples of alleged speaking objections)

Christie v. Royal Caribbean Cruises, Ltd, No. 20-22349, 2021 WL 2940251 (S.D. Fla. July 13, 2021) (examples of speaking objections)

State Farm Mutual Automobile Insurance Company v. Dowdy, 445 F. Supp.2d 1289 (N. D. Oklahoma July 21, 2006)

In re Stratosphere Corporation Securities Litigation, 182 F. R. D. 614 (D. Nevada 1998) (“This Court can find no better or more succinct definition or description of what is and is not a valid deposition objection than that found in Rule 30(d)(1): “Any objection to evidence during the deposition shall be stated concisely and in a non-argumentative and non-suggestive manner”)

Mitnor v. Club Condominiums, et al., 339 F.R.D. 312, 317-318 (N.D. Fla. 2021) (describing some of the essential characteristics of an improper speaking objection)

Fed. R. Evid. 103 (providing that in order to preserve and objection, a party must timely object or move to strike and state the specific ground for the objection, and less it is apparent by context)

Fed. R. Civ. P. 32(d) (Waiver of Objections)

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)

As a result of listener requests, today we add a new kind of show—the Depo Digest episode—to our podcast. These new segments will supplement the regular single-topic deep dives for which we're known. The Depo Digest installments, in contrast, will quickly highlight three or four brand-new rulings of interest to you as a litigator. Jim Garrity explains that our team reviews more than 500 deposition-related rulings weekly. Not all justify a full episode by themselves, but many are still of real practical value. So we're passing these along to you in digest form, yet another powerful tool to help you stay at the top of your deposition game. We heard you, and we're acting on your excellent suggestion. Thanks!

SHOW NOTES

Burton v. United States of America, Case No. 1:18-CV-02039 (JHR) (SDA), 2024 WL 305-6940 (S. D. New York June 19, 2024) (finding that 2015 amendments to FRCP 30(b)(6), requiring conferral, can be read to require disclosure of corporate designees and their resumes prior to deposition to facilitate “the efficiency and productivity of the deposition”)

In re Chrysler Pacifica Fire Recall Products Liability Litigation MDL, No. 22-3040, 2024 WL 3048495 (E.D. Mich. June 18, 2024) (finding that routine inconvenience and expense of traveling to forum for deposition is not “good cause” justifying protective order allowing plaintiffs to appear for deposition by remote video)

Williams, et al. v. J.B. Hunt Transport, Inc., No. CV-20-01701 PSG, 2024 WL 2108841 (C.D. Calif. Apr. 30, 2024) (order rejecting taxability of court reporter convenience add-ons for litigation packages, logistics and processing, concierge tech support, and virtual primary participants)

According to current cognitive psychology and neuroscience understanding, our memories are multilayered constructs composed of personal experiences and information acquired from external sources. So, when questioning witnesses about their recollections, it's crucial to understand what those layers are made up of. Is it purely personal recollection? Does it include what they were told by others? Does it include what they were told when their lawyer prepped them for the deposition? Examining the underlying sources or layers of the deponent’s knowledge helps identify the individuals and documents that influenced and possibly biased what the witness says.

Be sure to click through to our home page if you don't see the complete list of cites in the show notes. And - please - leave us a 5-star review wherever you hear this podcast? It's a free, fast, and incredible way to thank our production team for the research and time spent producing this free resource for you. Our whole team thanks you!

SHOW NOTES

In re FirstEnergy Corp. Sec. Litig., No. 2:20-CV-03785-ALM-KAJ, 2024 WL 1984802, at *14 (S.D. Ohio May 6, 2024) (“Seemingly, FirstEnergy argues that all facts about the internal investigation are privileged or protected because, at some point, these facts were communicated by lawyers to various individuals. Time and again, courts have rejected this type of argument. While communications between attorneys and clients are privileged, facts are not. Humphreys, Hutcheson and Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) (citing Upjohn Co., 449 U.S. at 395). And facts do not become privileged or protected because they were provided to witnesses by attorneys or acquired in anticipation of litigation. See, e.g., Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D. Neb. 1989) (“There is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.”); United States v. BAE Sys. Tactical Vehicle Sys., LP, No. 15-12225, 2017 WL 1457493, at *5–6 (E.D. Mich. Apr. 25, 2017); Basulto v. Netflix, Inc., No. 22-21796, 2023 WL 3197655, at *2–3 (S.D. Fl. May 2, 2023) (“[F]act-oriented discovery is permitted even if the witness learned about the facts from her attorneys.”); Clear Cast Grp., Inc. v. Ritrama, Inc., No. 1:09-cv-169, 2011 WL 13334451, at *6 (N.D. Ohio Sept. 15, 2011). So too here. Facts related to the internal investigation are not shielded simply because they were funneled through attorneys to witnesses”)

Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278–79 (D. Neb. 1989) (citing Sedco Intern., S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 379, 74 L.Ed.2d 512 (1982) for the proposition that “No contention can be made that the attorney-client privilege precludes disclosure of factual information. The privilege does not protect facts communicated to an attorney. Upjohn Co. v. United States, 449 U.S. 383, 395–96, 101 S.Ct. 677, 685–86, 66 L.Ed.2d 584 (1981). Clients cannot refuse to disclose facts which their attorneys conveyed to them and which the attorneys obtained from independent sources. Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947); 8 J. Wigmore, Wigmore on Evidence § 2317 (McNaughton rev. 1961).

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008) (quoting In re Linerboard Antitrust Litig., 237 F.R.D. 373, 384 (E.D.Pa.2006) (“ ‘[T]here is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.’ ” (quoting Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D.Neb.1989))).)

State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 215 (E.D. Pa. 2008) (“Contrary to State Farm's contention, the mere fact that counsel for State Farm may have provided such information to the witness in preparation for the Rule 30(b)(6) deposition does not convert the information into attorney work product. Were State Farm's logic followed to its full extent, anytime an attorney is involved in preparing a Rule 30(b)(6) witness, such preparation would be futile because the witness would inevitably be precluded from testifying to anything learned from the attorney. Were this the rule, every Rule 30(b)(6) deposition in which an attorney was involved in preparing the witness would be doomed from the start”)

Palmisano v. Paragon 28, Inc., No. 21-60447-CIV, 2021 WL 1686948, at *6 (S.D. Fla. Apr. 7, 2021) (“Thus, while the privilege applies when a questioner directly asks a deponent about discussions with counsel, the “attorney-client privilege simply does not extend to facts known to a party that are central to that party's claims, even if such facts came to be known through communications with counsel who had obtained knowledge of those facts through an investigation into the underlying dispute.”)

Thurmond v. Compaq Comput. Corp., 198 F.R.D. 475, 483 (E.D. Tex. 2000) (requiring disclosure of facts defendant “only learned through communications with counsel”)

Kansas Wastewater, Inc. v. Alliant Techsystems, Inc., 217 F.R.D. 525, 528, 532 n.3 (D. Kan. 2003) (“It is well established that a party may not withhold relevant facts from disclosure simply because they were communicated to, or learned from, the party's attorney.”).

Elizabeth Loftus, prominent figure in the study of human memory, particularly on malleability of human memory and misinformation effects. Loftus, E.F. (1975). Leading questions and the eyewitness report. Cognitive Psychology, 7, 560–572; Loftus, G.R. & Loftus, E.F. (1976). Human Memory: The Processing of Information. Hillsdale, NJ: Erlbaum Associates; Loftus, E.F. & Doyle, J. (1987). Eyewitness Testimony: Civil and Criminal. NY: Kluwer; Loftus, E.F.; Hoffman, H.G. (1989). Misinformation and memory: The creation of memory. Journal of Experimental Psychology: General, 118(1), 100–104.

Daniel Schacter, research on the “seven sins” of memory and the constructive nature of memory. Books include Searching for Memory: The Brain, the Mind, and the Past (1996); Forgotten ideas, neglected pioneers: Richard Semon and the story of memory. (2001); and The Seven Sins of Memory: How the Mind Forgets and Remembers (2001)

Charan Ranganath, Why We Remember: Unlocking Memory’s Power to Hold On to What Matters

In this episode, Jim tackles the problem of 30(b)(6) witnesses showing up with voluminous notes and documents to use in refreshing their memory about the topics to be addressed. Are these witnesses automatically required to give you those notes and materials ahead of time? If not, is there anything you can do to get them beforehand? And, what about getting copies of documents these and other deponents looked at before the deposition but didn't bring with? For the answers to these and other questions, listen in. And thanks for being a loyal listener of the podcast! We appreciate you!

SHOW NOTES

ChampionX LLC, f/k/a Windrock, Inc. v. Resonance Systems, Inc., et al., Case No. 3:21-CV-288-TAV-JE M (E. D. Tennessee Oct. 19, 2023) (providing that documents used during a deposition to refresh witnesses recollection must be produced to the adverse party while deposition is in progress, and need not be produced ahead of time, barring some other obligation)

Arrowood Indem. Co. The Lubrizol Corp. v. United States Fire Ins. Co., No. 1:10 CV 2871, 2015 WL 12734892, at *2 (N.D. Ohio Mar. 31, 2015) (“Fed. R. Evid. 612. Rule 612 applies to depositions and deposition testimony through Federal Rule of Civil Procedure 30(c)”)

Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) This rule is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c) (“Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence.”)

Antero Res. Corp. v. Tejas Tubular Prod., Inc., 516 F. Supp. 3d 752, 753 (S.D. Ohio 2021) (“Importantly, Rule 612 applies to deposition testimony”)

Antero Resources Corporation v. Tejas Tubular Products, Inc., 2021 WL363550, No. 2:19-CV-804 (S. D. Ohio Feb.2, 2021) (if witness uses documents for a testimonial purpose–as [the corporate representative did ]-any claim of work product protection over those documents is waived; further holding that, where conflict exists between the command of Fed. R. Evid. 612 to disclose materials used to refresh recollection, and protection provided by the attorney-client privilege, the weight of authority holds that privilege is waived).

United States v. Holden, 557 F.3d 698, 703–04 (6th Cir. 2009) (“Rule 612 does not apply where a witness refers to documents for purposes other than refreshing recollection”)

K & S Assocs., Inc. v. Am. Ass'n of Physicists in Med., No. 3:09-1108, 2012 WL 4364087, at *3 (M.D. Tenn. Sept. 21, 2012) (citing Nutramax Lab., Inc., 183 F.R.D. at 468, 473) (finding that documents were used for a “testimonial purpose” where the witness's review of them “unavoidably enhanced his recollection of events”)

Gilbert v. Atlantic Trust Co., N.A., 2005 WL8176938 (D. N.H. Nov. 17, 2005) (order denying motion to compel documents reviewed by deponent prior to deposition, under FRE 612, because of movant's failure to establish predicate during deposition)

FRE 612 - Writings Used to Refresh A Witness