If you haven't already deeply integrated AI into your deposition practice, buckle up! In this episode, Jim Garrity identifies five major use cases for AI when preparing to take or defend depositions. Then he offers cutting-edge tips for preparing winning AI "prompts," which are the instructions you'll give AI programs so they'll give you the exact assistance you need. Incredible topic and incredible tips, all in just 23 minutes. Thanks for listening!

SHOW NOTES:

The three AI apps we use currently are:

ChatGPT.com

https://x.com/i/grok

Perplexity.ai

In this episode, Jim Garrity highlights three brand new deposition-related court rulings. The first presents the question of whether witnesses and their counsel can be prohibited from discussing the witnesses' testimony during recesses. The second addresses the propriety of asking foundational questions of privilege-bearing deponents to determine if the assertion of privilege is legitimate; the opinion explains what "foundational" questions are, gives examples, and details the procedure for deposing such witnesses and then presenting the issue to a court for decision. The third case in the spotlight highlights an avoidable problem when a lawyer seeks to depose an individual who has already testified in a 30(b)(6) capacity. Citations to the cases appear in today's show notes. Thanks for listening.

SHOW NOTES

Villareal v. Texas, Case No. 24-557, __ US __ (Apr. 7, 2025) agreeing to review ruling denying criminal defendant’s request to confer about his testimony with his counsel during overnight breaks) petition for writ of certiorari at https://www.supremecourt.gov/DocketPDF/24/24-557/331695/20241113121417971_cert%20petition%20Villarreal%20v%20Texas.pdf; Brief in Opposition at https://www.supremecourt.gov/DocketPDF/24/24-557/348537/20250225093718236_250219a%20BIO%20for%20efiling.pdf; Reply Brief at https://www.supremecourt.gov/DocketPDF/24/24-557/351275/20250305130135816_cert%20reply%2024-557%20Villarreal%20v%20Texas.pdf

Allergan, Inc. et al. v. Revance Therapeutics, Inc., No. 3:23-cv-00431, 2025 WL 1006372 (M. D. Tenn. Apr. 3, 2025) (outlining the procedure for questioning witnesses claiming privilege, and holding that foundational questions about the allegedly privileged communications must be allowed to determine whether a privilege exists)

In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case Number 22–MD–03047–YGR (PHK), 2025 WL 1009362 (N. D. Calif. Apr. 4, 2025) (denying request for deposition of a witness in an individual capacity, on basis that deposing party should have combined such a deposition with the 30(b)(6) deposition of the same person)

Our roundup episodes summarize brand-new, deposition-related court rulings from around the country. We cover four new rulings in this episode on crucial issues:

• You can successfully oppose even otherwise taxable deposition costs, when an adversary prevails, by making these fairness-based arguments
• FRCP 30(b)(6) topic lists must be proportionate to the case, as a court ruled when refusing to evaluate a list of 503 topics
• The rule of sequestration does not apply in federal civil cases and the majority of states, but you may succeed in getting a court to impose it if you can show one of these "plus" factors
• In-person depositions are still a thing, and should not be treated as unusual or requiring an extraordinary showing

As always, thanks for listening! And remember - these episodes are always free and contain no advertising. What's the catch? Only that we'd ask you to leave us a 5-star rating wherever you download your podcasts. Those ratings are deeply motivating to, and deeply appreciated by, our research and production staff. And be sure to check out the book on which this podcast is based - 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Now in its 4th edition at 625 pages, available on Amazon and almost everywhere books are sold.

SHOW NOTES

LUV N' CARE v. LINDSEY LAURAIN, ET AL, No. CV 3:16-00777, 2025 WL 622334, at *8 (W.D. La. Feb. 26, 2025) (while courts cannot award costs not explicitly identified in 28 U.S.C. § 1920, courts do have discretion to deny award of otherwise recoverable costs where fairness or other considerations dictate)

NATHEN W. BARTON, Plaintiff, v. REAL INNOVATION INC. et al., Defendant., No. 3:24-CV-05194-DGE, 2025 WL 606167, at *1 (W.D. Wash. Feb. 25, 2025) See 36-page notice (Case 3:24-cv-05194-DGE Document 51-1 Filed 01/14/25 Page 1 of 36 (contains 503 actual questions, not topics)

MARK WRIGHT-AHERN, Plaintiff, v. THE CITY OF CLERMONT, Defendant., No. 5:24-CV-173-MMH-PRL, 2025 WL 605059, at *2 (M.D. Fla. Feb. 25, 2025) (rule of sequestration does not apply to depositions, absent particularized showing of specific facts warranting the relief; the correct procedure for seeking to exclude a person from deposition is to seek a protective order); see also Order (from same case, awarding fees and explaining sequestration concept in depositions), CM/ECF Document No. 31, filed Jan. 31, 2025)

UNITED STATES OF AMERICA, Plaintiff, v. The M/Y Amadea, a Motor Yacht Bearing Int'l Mar. Org. No. 1012531, Defendant., No. 23 CIV. 9304 (DEH), 2025 WL 754124, at *1 (S.D.N.Y. Mar. 10, 2025) (ordering witness to travel overseas to United States for in-person deposition, finding that while remote depositions are the new normal, there remains nothing unusual about insisting that a key witness appear in person)

In this episode, Jim Garrity spotlights a new ruling on a little-known but powerful tool: the use of depositions as affidavits. As Garrity discusses, a deposition does not need to meet the requirements of trial-oriented Fed. R. Civ. P. 32 (which requires a showing that the party against whom the deposition is offered had notice and a chance to examine the deposition) when it is offered in proceedings that allow testimony by affidavit, such as at summary judgment.

SHOW NOTES

Surety v. Co. v. Dwight A. Herald, et al., Case No. 1:23-cv-00086-GNS-HBB, 2025 WL 627523 (W.D. Ky. Feb. 26, 2025) (deposition/examination under oath of witness taken in underlying state-court personal injury could be used in federal declaratory judgment actions at summary judgment time, as deposition meets form of affidavit)

Diamonds Plus, Inc. v. Kolber, et al., 960 F. 2d 765 (8th Cir. 1992) (deposition need not be admissible at trial to be properly considered in opposition to motions for summary judgment; deposition inadmissible at trial because one of the defendants did not receive proper notice and did not attend the deposition was properly used to create issues of fact justifying denial of summary judgment)

Hoover v. Switlik Parachute Co., 663 F.2d 964, 966-67 (9th Cir. 1981) (“Rule 56 ... plainly allows consideration of “affidavits” and we find nothing which requires that term to be construed within the limitations of Rule 32(a).”).

First Gaston Bank of North Carolina v. City of Hickory, 691 S.E.2d 715 (Ct. App. N.C. 2010) (citing cases rejecting proposition that FRCP 32 limits use of depositions in proceedings where evidence in affidavit form is admissible; pointing out that to the extent a party objects that they didn’t have an opportunity to cross-examine a witness whose deposition from some other cases being offered, “the same objection can frequently be made as to affidavits filed in connection with motions for summary judgment”)

Tingey v. Radionics, 193 F. App'x 747, 765–66 (10th Cir. 2006) (reversing summary judgment where trial court, relying on FRCP 32, excluded from consideration in opposition to summary judgment a deposition that plaintiff took of physician in separate state proceeding, where defendant was not party to that proceeding and had not been given notice of deposition; depositions can be used as affidavits in proceedings where affidavits are admissible; to illustrate, “[p]arties may file affidavits in support of summary judgment without providing notice or an opportunity to cross-examine the affiant. See Fed.R.Civ.P. 56(c). The “remedy” for this non-confronted affidavit testimony is to file an opposing affidavit, not to complain that one was not present and permitted to cross-examine when the affidavit was signed. For this reason, the Ninth Circuit has permitted a party to introduce deposition testimony for summary judgment purposes against a party who was not present at the deposition, by construing the deposition as an affidavit. Hoover v. Switlik Parachute Co., 663 F.2d 964, 966–67 (9th Cir.1981)”)

Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 751 (11th Cir. 2002) (without analyzing scope and extent of application of FRCP 32, court broadly said that “Depositions are generally admissible provided that the party against whom they are admitted was present, represented, or reasonably noticed, Fed.R.Civ.P. 32(a), and are specifically allowed in consideration of summary judgment. Fed.R.Civ.P. 56(c). A deposition taken in a different proceeding is admissible if the party against whom it is offered was provided with an opportunity to examine the deponent. Fed.R.Evid. 804(b)(1).”)

Fed. R. Civ. P. 56(c)(1)(A) (explicitly allowing citation to depositions for or against summary judgment)

8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2142 (1970))) (as are at least as good as affidavits and should be usable whenever an affidavit would be permissible, even where the conditions or requirements for use at trial under rule 32 are not met) 

In this episode, Jim Garrity applies lessons from a well-known study - on the factors that influence people to cooperate with or resist perceived authority figures - to the deposition process. The lessons will help you better understand deponent perceptions that may be triggering their uncooperativeness. While some elements of the study were considered controversial, other mundane but noteworthy observations can help deter obstructive behavior by deponents.

In this episode, Jim Garrity talks about a tactic of some examining lawyers that should, but often doesn’t, draw objections that their questions are “argumentative.” So, what is an improper, argumentative question or examination? Here, we’re not talking about the questioner’s tone or demeanor, i.e., arguing in the classic sense of yelling and bickering with the deponent. We’re talking about questions where lawyers aren’t really asking a question designed to elicit facts but are instead injecting their own commentary or viewpoint, or injecting insults, taunts, wisecracks, or similar language. "Argumentative" objections are objections to the form, and must be timely made or are waived.

SHOW NOTES

People v. Pawar, No. G037097, 2007 WL 477949, at *2 (Cal. Ct. App. Feb. 15, 2007) (“[W]ere they lying” queries are improper if they are merely argumentative. (Chatman, supra, 38 Cal.4th at pp. 381, 384.) In Chatman, the prosecutor asked the defendant how the safe at a store was opened. (Id. at p. 379.) The defendant replied “he could not say; he never touched the safe,” eliciting the prosecutor's query, “ ‘Well, is the safe lying about you?’ “ (Ibid.) The Supreme Court held the question of whether an inanimate object was “lying” was argumentative , defining argumentative inquiry as “speech to the jury masquerading as a question” which “does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Id. at p. 384.))

Faile v. Zarich, No. HHDX04CV5015994S, 2008 WL 2967045, at *3 (Conn. Super. Ct. July 10, 2008) (Webster's. . . in the closest relevant definition, defines “argumentative” as “consisting of or characterized by argument: containing a process of reasoning: controversial”)

Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) (Steven Goode, et al., Texas Practice Series: Courtroom Handbook on Texas Evidence § 611 cmt. 12 (2012); see United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir.N.Y.2005) (defining argumentative as “summation-like remarks by counsel during the presentation of evidence”); accord Eddlemon v. State, 591 S.W.2d 847, 851 (Tex.Crim.App. [Panel Op.] 1979) (trial court did not abuse discretion in finding the question, “You don't believe your own offense report?” argumentative). In other words, an argumentative objection concerns whether counsel is attempting to “argue” the case, not whether the counsel is “arguing” with the witness”)

United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir. 2005) (“During the presentation of evidence one of the most commonly sustained objections is that a particular question is argumentative, Fed.R.Evid. 611(a) advisory committee's note to Subdivision (a) to 1972 Proposed Rules, and any summation-like remarks by counsel during the presentation of evidence are improper and subject as a routine matter to being stricken, Mauet & Wolfson, supra, at 30”)

Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) ("Many common law objections—including the objection of “argumentative”—are incorporated in the Texas Rules of Evidence. The common law argumentative objection is now governed by Tex.R. Evid. 611 which concerns the mode of interrogation and presentation. The argumentative objection is an objection commonly used, but not commonly understood. Pardee argues the objection should have been sustained because the State was “arguing” with the defendant. Argumentative, though, does not concern counsel's demeanor or tone. Professors Wellborn, Goode, and Sharlot explain the argumentative objection as follows: Counsel may not, in the guise of asking a question, make a jury argument or attempt to summarize, draw inferences from, or comment on the evidence. In addition, questions that ask a witness to testify as to his own credibility are improper.")

People v. Chatman, 38 Cal. 4th 344, 384, 133 P.3d 534, 563 (2006) The prosecutor's question about whether the safe was “lying” requires a different analysis. The question was argumentative. An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. The prosecutor's question whether “the safe [was] lying” is an example. An inanimate object cannot “lie.” Professor Wigmore has called cross-examination the “greatest legal engine ever invented for the discovery of truth.” (5 Wigmore on Evidence (Chadbourne rev. ed.1974) § 1367, p. 32.) The engine should be allowed to run, but it cannot be allowed to run amok. An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all. Defendant had already explained he had no explanation for the safe being open. Asking whether the safe was “lying” could add nothing to this testimony”)

People v. Imbach, No. E040190, 2008 WL 510482, at *7–8 (Cal. Ct. App. Feb. 27, 2008) ("The prosecutor asked, “You found that to be inappropriate but not your other son's addiction to child pornography?” When defendant objected that the question was argumentative, the trial court overruled that objection. Defendant asserted the second “argumentative” objection when defendant's mother said she did not know how to answer that question and the prosecutor asked, “Is that because you didn't want to know?” The trial court sustained the defendant's objection to this second question. Both questions are argumentative, because they both are speeches by the prosecutor masquerading as questions. (Chatman, supra, 38 Cal.4th at p. 384.) The trial court should have sustained both objections. However, we cannot say that by asking those two questions the prosecutor engaged in misconduct.")

People v. Peoples, 62 Cal. 4th 718, 793–94, 365 P.3d 230, 288 (2016) (“Defendant observes that the prosecutor asked numerous argumentative questions when cross-examining defense witnesses. To list a few examples, the prosecutor asked defense expert Dr. Lisak, “how many hours are you into them for?” He said to defense expert Dr. Buchsbaum, “Let's quit guessing for awhile and look at the facts.” He said to defense expert Dr. Wu, “It's a pain in the butt to get these test scores.” And he asked prosecution expert Dr. Mayberg, “Did you have a heart attack last night when you looked at the raw data?”)

People v. Burns, No. D081051, 2024 WL 2144151, at *15–17 (Cal. Ct. App. May 14, 2024), review denied (July 17, 2024) (excessive repetition of a question simply to make a point can cross line into improper argument”; “Burns makes a strong argument that the prosecutor's repetitive questioning regarding the drunk tank incident became argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) “An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Ibid.) Instead, it may be aimed at agitating or belittling the witness (People v. Lund (2021) 64 Cal.App.5th 1119, 1148), or designed to engage the witness in an argument (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236)”)

People v. Mazen, No. B300193, 2021 WL 164356, at *5 (Cal. Ct. App. Jan. 19, 2021) The court overruled defendant's argumentative objection to the following question: “Would [accidentally placing the car in neutral] been important information to tell [Morales]?” The court did not abuse its discretion when it overruled the objection. The question sought to elicit relevant testimony regarding defendant's theory that Mario was hit by accident (CALCRIM No. 510). (See People v. Chatman (2006) 38 Cal.4th 344, 384 [“[a]n argumentative question is a speech to the jury masquerading as a question” and does not seek to elicit relevant testimony].)”

People v. Singh, No. H042511, 2018 WL 1046260, at *28 (Cal. Ct. App. Feb. 26, 2018) (“Each question anticipated an answer and was answerable; none was “a speech to the jury masquerading as a question”)

People v. Basler, No. D068047, 2015 WL 9437926, at *23 (Cal. Ct. App. Dec. 23, 2015) ("Fung appears to identify three categories of objectionable questioning during his cross-examination by the prosecutor. The first category involves apparent sarcasm by the prosecutor. For example, after Fung provided additional details about his fight with another inmate while incarcerated, the prosecutor said, “Okay. You left that part out a couple of minutes ago; right?” Referencing the same fight, the prosecutor made light of Fung's claim of self-defense: “Did you have to defend yourself against him, too?” As another example, when Fung was discussing the extent of his injuries following the fight, the prosecutor said, “So, that's about how badly you were hurt? It looked like something you get by falling off a skateboard?” The court sustained objections to each of these questions, and a number of others, as argumentative." Also from Basler: "As we have noted, Fung contends the first two categories of questions were impermissibly argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even want an answer. The question may, indeed, be unanswerable.... An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (People v. Chatman (2006)”)

People v. Nanez, No. F064574, 2014 WL 1928307, at *14–15 (Cal. Ct. App. May 15, 2014) (citing examples of argumentative examination by prosecutor including (a) the prosecutor’s remark “Convenient” when a witness said they did not remember a particular fact, and (b) when prosecutor commented on witnesses testimony by saying “So that’s the lie you’re going with?”, and (c) when prosecutor asked witness “You wouldn’t tell us if you’re lying, of course, right?” and when witness said he would, prosecutor replied “There’s another lie,” causing court to strike prosecutor’s comment from the record)

People v. Strebe, No. D057947, 2011 WL 2555653, at *7 (Cal. Ct. App. June 28, 2011) (trial courses sustained objection to question as argumentative where prosecutor asked witness “Do you remember anything about that evening that might be detrimental to your case?” In essence arguing to jury that witness was lying and only selectively remembered favorable facts)

People v. Higgins, 119 Cal. Rptr. 3d 856, 873–74 (Ct. App. 2011), as modified (Jan. 21, 2011), as modified on denial of reh'g (Feb. 4, 2011) (guilty verdict reversed in part due to argumentative questions; among other jabs; in case where defendant explained his conduct as motived by depression due to death of his daughter’s friend, prosecutor asked, “You'd agree with me that it's pretty pathetic if you're using the memory of a dead 17–year–old kid as an excuse in this trial, wouldn't you? Would you agree with me? Is that the legacy that you want [the dead teen] to have?”; other examples of prosecutor’s argumentative questions included “Oh, the door was unlocked,” and “Isn't that convenient that all of a sudden, right after you've committed the crimes, that that's when you come to?”; further held, “The rule is well established that the prosecuting attorney may not interrogate witnesses solely ‘for the purpose of getting before the jury the facts inferred therein, together with the insinuations and suggestions they inevitably contained, rather than for the answers”)

People v. Dixon, No. D047342, 2007 WL 2745207, at *10 (Cal. Ct. App. Sept. 21, 2007)  Dixon asked Hernandez who had taken the photographs near the time of the injury. Hernandez testified that the audio-visual person at his school had taken photographs of his injury. Dixon then asked, “Is it computer enhancement? Those could be computer enhanced-.” The prosecutor interrupted, “That's argumentative.” The court sustained the prosecutor's objection")

United States v. Browne, No. SACR 16-00139-CJC, 2017 WL 1496912, at *6 (C.D. Cal. Apr. 24, 2017) (For each witness, the Court did not end Defense counsel's cross-examination until it became excessively cumulative and argumentative, at which time the Court was well within its authority to restrain the questioning pursuant to Federal Rule of Evidence 611(a).”)

Beving v. Union Pac. R.R. Co., No. 3:18-CV-00040, 2020 WL 6051598, at *12 (S.D. Iowa Sept. 8, 2020) (Defendant may object to prejudicial or argumentative references to counsel at trial as permitted by the Federal Rules of Evidence. See Fed. Rs. Evid. 403, 611(a)(3).)

FRE 403: Argumentative questions may be viewed as unfairly prejudicial, misleading, or wasting time.

FRE 611(a)(3), Witnesses and Presenting Evidence ((a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment.

FRCP 30, Depositions, (d) Duration; Sanction; Motion to Terminate or Limit. (3) Motion to Terminate or Limit, (A) Grounds. 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. 

Today Jim Garrity revisits the headaches caused by examining lawyers who frequently interrupt your deponents' answers. To combat this problem, Garrity offers you a six-pronged strategy for stopping this practice and/or creating a strong record that will allow your deponents to later add materially to their interrupted testimony, whether by errata sheet, affidavit, or live testimony. Courts are far more likely to allow that where you've used Garrity's strategies. (By the way, if you have a moment, would you send our production team a small "thank you" by leaving us a five-star rating wherever you listen to our podcast? It takes just 30 seconds - we timed it! - and it's deeply appreciated. Our crew devotes a great deal of time to research and production, and the podcast is not only free, but also uncluttered by pesky advertising. Thank you so much.)

SHOW NOTES

In re Injectafer Prod. Liab. Litig. ALL CASES, No. CV 19-276, 2022 WL 4280491  (E.D. Pa. Sept. 15, 2022) (“Defendants propose. . . changing “It would be one of the—yes” to “It would be one of the sources of information. Yes.” This change is not necessarily inconsistent with the original testimony because it appears that the deponent was cut off or otherwise stopped speaking in the middle of the sentence and is justified as making the answer more complete. See id. While finishing a thought is not necessarily a proper justification for an errata modification, here it appears to be justified and within the flexible scope of the Third Circuit's approach to Rule 30(e)")

Grey v.  Amex Assurance Company, 2002 WL 31242195, No. B152467 (Ct. App. Calif. Oct. 7, 2002) (reversing summary judgment in part because trial court abused discretion in failing to consider errata sheet containing “changes. . . made because the witness was interrupted before completing her answers;” further noting that the defendant “. . .took the risk that [the plaintiff’s] corrections would bring some of its undisputed facts into controversy”)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 512 (N.D. Ill. 2015) (denying, without prejudice, motion to strike errata sheet, as motion failed to specifically discuss many of the 67 changes defendant wanted stricken; noting that “The reason given for the vast majority of the 67 changes was that [Plaintiff] “did not finish” her answer during the deposition, though the transcript does not reflect that she was interrupted and prevented from doing so,” and outlining how various courts and commentators deal with the extent to which changes to testimony can be made on errata sheets)

Arce v. Chicago Transit Authority, F.R.D. 504, 512, fn. 5 (N.D. Ill. 2015) (noting that, if one looks back at the early origins of the rule on errata sheets, quoted in this opinion, it may be argued that the intent of the drafters was indeed to limit changes to clerical-level mistakes, not to allow substantive changes): "One commentator who examined the history of the rule dating back to the original Equity Rule 67, and the twin Equity Rules 50 and 51 that succeeded it, concluded that Rule 30 was never intended to allow for more than the correction of transcription errors: "Appeals to the plain language of Rule 30(e) are incomplete and misleading without reference to the Rule's transcriptive focus. Read in historical context, the Rule appears to be distinctly clerical, ill-equipped—and never intended—to embrace substantive changes. Although its wording has changed over time, Rule 30(e) has retained one modest but steady focus: the who, how, and what of accurate transcription. The Rule is meant to secure an accurate representation of what was said, leaving to another day (and frequently to the mechanisms of Rule 56) the question of the meaning and implication of the deposition content for purposes of material factual disputes. The common understanding of Rule 30(e) has moved far afield from that mild ambition, giving us the confusion and circuit split we know today. Read in light of its history, the Rule clearly embraces a transcriptive focus. Ruehlmann, Jr., supra, at 915. Rule 30(e)’s counterpart in Illinois state court, Supreme Court Rule 207(a), was amended to limit corrections to transcription errors because the “potential for testimonial abuse” had “become increasingly evident as witnesses submit[ted] lengthy errata sheets in which their testimony [was] drastically altered....” Ill. Sup. Ct. R. 207(a), Rules Committee Comment to Paragraph (a) (1995)

Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (citing Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 60 (1998), for its author’s argument that Rule 30(e) permits “opposing counsel, at her choosing, to introduce both versions to the jury”)

Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir.2000) (observing, as to changes in errata sheet, that what the witness “tried to do, whether or not honestly, was to change his deposition from what he said to what he meant;” quoting the common refrain that “a deposition is not a take home examination,” the court remarked that while this was a “questionable basis for altering a deposition.” the court would allow the change under Rule 30(e) since the rule expressly “authorizes ‘changes in form or substance’.”

Tchankpa v. Ascena Retail Group, Inc., No. 2:16-CV-895, 2018 WL 1472527 (S.D. Ohio Mar. 26, 2018) (refusing, based on Sixth Circuit’s strict interpretation of errata sheet changes, to allow “. . .impermissible substantive alterations to Tchankpa's testimony. . .”, including explanations stating “Incomplete; I was cut off,” allegedly because “defense counsel interrupted him;” “In this circuit, a deponent cannot make substantive changes to his deposition testimony under Rule 30(e) based on defense counsel's interruptions. . .”)

Hirsch v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) When a party makes changes to his deposition pursuant to Rule 30(e), the original answers remain part of the record. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[T]he rule requires that the original transcript be retained (it is implicit in the provision of that rule that any changes made by the deponent are to be appended to the transcript) so that the trier of fact can evaluate the honesty of the alteration.”); Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (“Subject to the rules of evidence, the jury is permitted to hear the original answer, the change, and the reasons for the change and decide – in the context of all the other evidence – whether to credit either answer and what weight to assign it.”); Coleman v. Southern Pacific Transportation Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998) (accepting the argument that “a change in a deposition statement does not eradicate the deponent's original answers”); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D. Ill. 1981) (“Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made.”). The reason for this is obvious: “[t]he Rule is less likely to be abused if the deponent knows that ... the original answers[,] as well as the changes and the reasons will be subject to examination by the trier of fact")

Hirsh v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) (court-ordered second deposition of plaintiff did not extend deadline for submitting errata sheet following delivery of transcript from first deposition; counsel claimed he “believed that the first deposition did not ‘count,’ because it was ordered [to] be redone, and therefore corrections were reserved”; errata sheet rejected as untimely)

Neutrion Dev. Corp. v. Sonosite, Inc., 410 F. Supp. 2d 529, 550 (S.D. Tex. 2006) (allowing and considering – without apparent challenge or concern – expert’s substantive changes to errata sheet, necessitated “. . . [because he] began to explain the knowledge that one of ordinary skill in the art would possess, but was interrupted by Neutrino's counsel”)

Trout v. FirstEnergy Generation Corp., 339 F. App'x 560, 565 (6th Cir. 2009) (noting argument made by defendant that plaintiff “. . . is not entitled to benefit from her corrected deposition testimony because her counsel did not rehabilitate her statements during the deposition,” meaning plaintiff’s counsel could and should have asked followup questions while the deposition was in progress)

Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., No. 1:11-CV-4483-SCJ-AJB, 2014 WL 11517837, at fn. 2 (N.D. Ga. Aug. 4, 2014) (Although Plaintiff's brief in response to Defendant's objections discusses a long day and interruptions by Defendant's counsel during the deposition, those reasons were not provided in the errata sheet. The Court also notes that if Defendant's counsel interrupted Plaintiff such that he could not elaborate much as he wished, Plaintiff's counsel had the opportunity afterwards to examine her client on those points and did not do so.”)

Fed. R. Civ. P. 30(e)(1)(B) (federal rule of civil procedure on errata sheets, which expressly contemplates possible changes in form or substance)

Fed. R. Civ. P. 30(c)(2) (requiring objections not just to evidentiary issues but to a party's conduct, to the manner of taking the deposition, and to any other aspect of the deposition)

Fed. R. Civ. P. 32(d)(3)(B)(i) (requiring objections to errors or irregularities at an oral examination if they relate to the manner of taking the deposition, a party's conduct, or other matters that might have been corrected at that time)

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”)