This week’s roundup spotlights four brand-new deposition rulings from across the country. Two address when plaintiffs may appear remotely—what courts require, what constitutes good cause, and the practical showings that move the needle. The other two confront a quiet but consequential trial hazard: deposition testimony that’s read or played for the jury yet never placed into the record. (Many reporters pause their keyboards during read-ins, assuming the material is already transcribed—an easy oversight that can derail an appeal if the missing testimony is essential.) Join us for a concise tour of the standards, the pitfalls, and the simple steps to protect your record before it’s too late. It's another critical episode from the country's leading expert on depositions. Citations and parentheticals to every case discussed appear in our show notes. Have a great week!

SHOW NOTES

North Carolina v. Johnson, No. COA24-451, 2025 WL 2408913 (N.C. Ct. App. Aug. 20, 2025) (court could not consider arguments in favor of reversal that were based on videotaped testimony played at trial but not placed into the trial record)

G.W. Aru LLC, et al. v. W.R. Grace & Co. No. CV JKB-22-2636, 2025 WL 2402194 (D. Md. Aug. 19, 2025) (court ordered parties to transcript deposition excerpts played at trial, and then file those excerpts by stipulation, where they had not been entered into the docket)

Shumaker v. Alarsi, et al., No. 1:23-CV-4-SA-DAS, 2025 WL 2418386 (N.D. Miss. Aug. 20, 2025) (rejecting motion for protective order, to allow plaintiffs to avoid 900-mile trip for in-person deposition, where the motion lacked any meaningful detail showing good cause for such an order)

Shah v. Fortive Corporation, et al., Case No. 1:22-cv-312 (S.D. Ohio Aug. 21, 2025) (rejecting plaintiff's request to appear remotely where travel to the forum of the litigation would require "40,000 miles of flight over 48 hours"; plaintiff failed to show distinct hardship or expense)

Are deposition expenses busting your budget? In this episode, Jim Garrity spotlights a clever strategy conceived by a southern California litigator to sharply cut the costs of deposition transcripts. It's yet another effort by trial lawyers to combat the insane costs of stenographic reporting, and one worth trying. The show notes point to seventeen relevant filings on this issue, four federal rules, and a website for a service that is actively helping lawyers cut deposition costs.

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SHOW NOTES:

Note: All filings listed below are from the case Black v. City of San Diego, Case No. 21-cv-1990-RBM-JLB (S.D. Cal. Mar. 27, 2025)

Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A) (initial application by Plaintiff) PACER Doc. 153

Defendants’ Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 160.

Declaration Of Casey Stark In Support Of Plaintiffs Motion For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP 30(b)(3)(A), PACER DOC. 153-1

Defendant Tutterow’s Notice Of Joinder In Defendant City Of San Diego’s Opposition To Plaintiffs Ex Parte Application For Leave To Conduct Deposition By Video And Prepare Transcript Using Voice Recognition, PACER Doc. 162.

Defendants Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 164

Plaintiffs Reply To Opposition To Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A), PACER Doc. 165

Second Supplemental Declaration Of Casey Stark In Support Of Plaintiff Motion For Leave To Conduct Deposition. Etc., PACER Doc. 170

Defendants Second Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 171

Order (Magistrate Judge) Denying Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology, PACER Doc. 172

Plaintiff’s Notice Of Objection To Order Denying Application For Leave To Conduct Deposition, Etc. PACER Doc. 173 (appealing magistrate judge’s order to district judge)

Defendant’s Response To Plaintiff’s Objection To Magistrate’s Order Denying Claims Application For Leave, PACER Doc. 174

Plaintiffs Opposition To Defendants Response To Player’s Objection To Magistrate’s Order Denying Plaintiff’s Application, Etc., PACER Doc. 175

Order (District Judge) Overruling Plaintiff’s Objections, PACER Doc. 178

Order Granting Joint Motion For Protective Order, PACER Doc. 32 (providing that certain information was to remain confidential)

Modified Protective Order, PACER Doc. 156

Readback.legal (reporting agency dedicated to reducing deposition -related costs; interview of Readback’s Chief Legal Officer in podcast episode 87)

1993 Committee Note to Fed. R. Civ. P. 26 (noting that where a deposition isn't stenographically recorded, transcripts are often later prepared by counsels' own law firms

Fed. R. Civ. P. 30(b)(3)(a) (allowing lawyers to capture deposition testimony by stenographic means only, audio only, video only, or any combination of the three)

FRCP 26(a)(3)(A)(ii) and FRCP 32(c) (providing that if counsel chooses to record a deposition by video only and plan to present it at trial or hearing, they must provide a transcript of the testimony to the other parties and the court)

Readback.legal (innovative and budget-friendly service advertised as "certified, court-admissible deposition service built for legal professionals who need clarity, speed, and accuracy, without relying on outdated stenography")

In this episode, Jim Garrity argues for more frequent videotaping of depositions, especially those of parties and witnesses likely to be unavailable at trial. The reason? Unlike live witnesses - who are generally called once in trial - videotaped testimony can be played two or more times. This technique utilizes one of the most effective tools of persuasion ever invented, repetition, borrowed straight from Madison Avenue, where repetition is everything. Clips played during the trial, during closing, and sometimes in opening by consent or court order, allow you to essentially present the same witness and testimony multiple times. This kind of repetition isn't possible with live witnesses, and is far superior to reading deposition transcripts to the jury. In a world where people are accustomed to getting their information through video, reading a transcript of testimony is likely to test your jurors' attention span (and patience). Garrity discusses a UCLA professor's "7-38-55 rule" to underscore the point. The gist of this rule is that when people communicate, only 7% of the message is conveyed through words, 38% through tone and voice, and a whopping 55% through body language. That's what makes the presentation of deposition testimony by video clips so powerful. Listen in!

SHOW NOTES

Smith, et al. v. City of Chicago, etc., Case No. 21-cv-1159, 2025 WL 1744919 (N. D. Ill. June 24, 2025) (denying use of video depo testimony in opening, but allowing it in closing argument that was admitted into evidence during trial, over objections by defendants that permitting video testimony during closing statements would be “unfairly prejudicial because it emphasizes testimony that is presented by video through repetition, and that opportunity does not exist for a live witness”)

Hynix Semiconductor Inc. v. Rambus Inc., No. C-05-00334 RMW, 2008 WL 190990, at *1 (N.D. Cal. Jan. 21, 2008) (denying use of video depo testimony in opening, but would consider allowing reading from transcript; “If the parties wish to read a portion of a deposition transcript in their opening statement, they are to exchange any excerpt with opposing counsel sufficiently in advance of opening statements so that the court can rule on any dispute over use”)

Doe v. City of San Diego, No. 12CV689-MMA (DHB), 2014 WL 11997809, at *6 (S.D. Cal. July 25, 2014) (collecting cases refusing to allow playing of videotaped deposition testimony during opening statements) (“See In re Ethicon, Inc., 2014 WL 505234, at *8 (S.D. W. Va. Feb. 5, 2014) (“[T]he use of video clips during opening statements is precluded as to all parties ....”) (quoting In re Bard, Inc., 2013 WL 3282926, at *8 (S.D. W. Va. June 27, 2013)); Carpenter v. Forest Meadows Owners Ass'n, 2011 WL 3207778, at *7 (“Video recordings of the deposition will not be permitted.”) (emphasis in original); Chopourian v. Catholic Healthcare W., No. 09–2972 KJM, 2011 WL 6396500, at *7 (E.D. Cal. Dec. 20, 2011) (denying the plaintiff's motion to use portions of videotaped depositions during opening statement); Hynix Semiconductor Inc. v. Rambus, Inc., 2008 WL 190990, at *1 (N.D. Cal. 2008) (“Neither side shall use any videotaped deposition testimony in its opening statement.”); but see Sadler v. Advanced Bionics, LLC, at *3 (W.D. Kent. April 1, 2013) (providing that the court “may” consider allowing the parties to utilize videotaped deposition testimony during opening statements); MBI Acquisition Partners, L.P. v. Chronicle Pub. Co., 2002 WL 32349903, at *2 (permitting party to play segments of video deposition in its opening statement))

Beem v. Providence Health & Servs., No. 10-CV-0037-TOR, 2012 WL 13018728, at *2 (E.D. Wash. Apr. 19, 2012) (rejecting request to play videotaped deposition during opening, and rejecting argument by plaintiff that, under Fed. R. Civ. P. 32(a)(3), she may use the deposition of an adverse party “for any purpose,” stating that “What Plaintiff proposes to do, is to introduce evidence during opening statement. The Court will not allow the showing of video deposition excerpts during opening statement. The motion is denied.”)

K.C. ex rel. Calaway v. Schucker, No. 02-2715-STA-CGC, 2013 WL 5972192, at *7 (W.D. Tenn. Nov. 8, 2013) (“there is no per se ban on the use of video excerpts of depositions in closing arguments”; also citing 88 C.J.S. Trial § 300 (2013) (“[T]here is no blanket prohibition against counsel playing selected portions of a videotaped deposition for a jury during closing argument, and trial courts have discretion to permit, or to refuse, the replaying of videotape segments in closing argument.”)

MBI Acquisition Partners, L.P. v. Chron. Pub. Co., No. 01-C-0177-C, 2002 WL 32349903, at *1 (W.D. Wis. Oct. 2, 2002) (allowing use of video depo excerpt in opening, stating, without further discussion, that “Defendants may use excerpts from the video deposition of David Straden during opening argument. Counsel are to advise plaintiff's counsel promptly of the particular excerpts they intend to show”)

Sadler v. Advanced Bionics, LLC, No. 3:11-CV-00450-TBR, 2013 WL 1340350, at *3 (W.D. Ky. Apr. 1, 2013) (preliminarily allowing use of videotaped deposition testimony in opening statements, saying If this testimony is otherwise admissible at trial and is not unnecessarily lengthy, the Court may consider allowing this procedure for both parties”)

Northfield Ins. Co. v. Royal Surplus Lines Ins. Co., No. SACV 03-0492-JVS, 2003 WL 25948971, at *3 (C.D. Cal. July 7, 2003) (subject to further objection and ruling before trial, “The Court is generally of the view that a party in opening statement may use any piece of evidence which the party in good faith believes will be ultimately received at trial. Rule 32(a)(2) of the Federal Rules of Civil Procedure permits the use of a party deposition “for any purpose”) you like the shoes I wore in high school

Smith v. I-Flow Corp., No. 09 C 3908, 2011 WL 12627557, at *4 (N.D. Ill. June 15, 2011) (“The Court denies I–Flow's request to bar use in opening statement of excerpts from video deposition testimony. The Court will expect plaintiffs to disclose by no later than noon on the Friday before the start of trial any such excerpts they intend to use in opening statements and will expect defendants to make reciprocal disclosures by no later than 5:00 p.m. on the Saturday before the start of trial.”)

Fed. R. Civ. P. 32(a)(3) (providing that "An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee...") (emphasis added)

Now that the pandemic is fading from our memories, courts are showing a renewed willingness to order plaintiffs to appear in person for their depositions, even when a plaintiff has relocated to distant places and will incur considerable expense and inconvenience if forced to travel. In this episode, Jim Garrity dissects a brand-new court ruling on the topic, explains in detail why the plaintiff in that case failed to win a protective order requiring her to travel 2,000 miles back to the litigation forum. Then he offers crucial tactical advices for both plaintiffs and defendants when fighting this battle.

SHOW NOTES

Order Denying Plaintiff's Motion for Protective Order, Krishmar-Junker v. Kingline Equipment, Inc., Case No. 23-0431-KD-B, 2025 WL 1710041 (S.D. Ala. June 18, 2025) (court refused to issue protective order where plaintiff, who moved cross-country since filing her lawsuit, claimed financial and medical hardships but failed to meet her burden of a particularized showing of harm to justify relief)

Traditionally, litigators seeking to understand an individual's or organization's devices - specifically, how they store, access, manage, and delete information - have either asked a deponent to testify from memory or arranged for a costly forensic inspection instead. In this episode, Jim spotlights a fantastic middle ground: requiring a deponent (individual or 30(b)(6) rep) to bring their devices to the deposition and demonstrate their functions and programs or apps during a videotaped examination. This technique was just approved by a federal judge in a pending class action against the ride-sharing company Uber. It's one all litigators should be using. As Jim says in the episode, devices are where information now lives. Lawyers should be more aggressive in their pursuit of discovery related to devices an individual or entity owns and how they access, store, manage, and delete data.

SHOW NOTES

IN RE: UBER TECHNOLOGIES, INC., PASSENGER SEXUAL ASSAULT LITIGATION, No. 23-MD-03084-CRB (LJC), 2025 WL 1393216 (N.D. Cal. May 14, 2025); See Joint Discovery Letter Brief on Plaintiff's 30(b)(6) deposition notice seeking device demonstration is Document 2957; Order Resolving Discovery Letter Regarding Rule 30(b)(6) Depositions is Document 2995.

Section 9.43, Physical Demonstrations By Deponents, p. 357-359, in the book 10,000 Depositions Later - The Premier Litigation Guide For Superior Deposition Practice: A User's Guide and Handbook on Deposition Tips, Tactics and Strategies for Civil, Administrative and Arbitrative Litigation, 4th Edition, 615 pp., by Jim Garrity, Esq., available on Amazon and just about everywhere else books are sold.

Today’s episode showcases four new deposition-related rulings, including one that makes a compelling case for using Rule 31 depositions by written questions; a second that underscores the need to proactively consider limiting deposition transcript distribution; a third that highlights rare exceptions to a party’s right to attend depositions; and a fourth which reinforces the basic principle that deposition subpoenas duces tecum cannot be used to shorten Rule 34’s 30-day document production timeline. Thanks for listening, 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 - A User's Guide and Handbook on Deposition Tips, Tactics & Strategies for Civil, Administrative, Arbitrative and Criminal Litigation. Available on Amazon and just about everywhere else books are sold.

SHOW NOTES

Kilmetis v. Wal-Mart Stores East, LP, No. 24-CV-04452 (JMW), 2025 WL 1332056 (E.D.N.Y. May 7, 2025) (Rule 31 depositions)

Hales v. Cook, et al., No. 1:24-cv45/ZCB, 2024 WL 5690279 (N. D. Fla. December 20, 2024) (on restricting distribution of deposition transcripts)

Rupard, et al. v. County of San Diego, et al., No. 23-CV-1357 CAB (BLM), 2025 WL 1265858 (S. D. Cal. April 30, 2025) (on excluding parties from depositions in their own cases)

Johnson v. Parks Floyd Investments, LLC, No. 2:23-cv-1063 SMD/KRS, 2025 WL 1191785 (D. New Mexico April 24, 2025) (on use of deposition subpoenas duces tecum to parties as a tool to circumvent and shorten the normal period for production of documents)

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)