Did you know? Our show notes - where we list the cases and other authorities on which each episode is based - are dynamic. That means we're constantly updating and adding to them. As we encounter new cases in our daily deposition research that touch on a topic we've covered, we'll add them to that episode's show notes. These notes are a free, incredibly valuable research bank for you when you encounter an issue we addressed. We'll add an asterisk to case citations that were added after an episode was published, so you can easily see what's new since you first listened to a show. Thanks for listening!

What exactly have your remote video deponents placed in front of them - on their screen, on the floor, on sticky notes, on a second monitor and elsewhere - to help them testify and spew the official line? Do you systematically inquire at the start of your remote depositions? In this episode, Jim Garrity recommends that you always ask about devices and information - within the deponent's reach or eyesight - at the start of all remote video depositions. Want the Deponent-Accessible Device and Information Verification checklist Garrity mentions in the podcast? Email us at [email protected] and we'll send it free in PDF and Word formats. Thanks for listening!

Trial is approaching, and you learn a witness you planned to call live now isn’t available. You'll need to read or play their deposition testimony instead. That means that you must prove the witness' "unavailability" under the rules. How do you do it? Which rules do you need to analyze? How far in advance of trial do you have to do it? Can you just tell the judge that, last you heard, Peter, Paul, and Mary were leaving on a jet plane, and you don’t know when they’ll be back again, so you’re probably going to read their depositions? Check out this outstanding episode, which discusses Fed. R. Civ. P. 32, Fed. R. Evid. 804, and others you'll need to know, including Fed. R. Civ. P. 43, 45, and Fed. R. Evid. 402, 403 and 602. The good news is, all the analysis has been done for you here. Sit back and listen! And check out the nearly two dozen authorities on which this episode is based, all cited in the show notes below. You're welcome! ( If you don't see our complete show notes - which end with the words END SHOW NOTES - click wherever you see "Go to episode or podcast homepage. That will contain the complete list. Some sites have line or character limits, but our homepage does not.)

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SHOW NOTES

Castillo-Frias v. Martinez, 2021 WL 2661093 (E. D. New York Jun. 28, 2021) (court allowed witness “who is due to give birth three days before trial” to testimony remotely by video, but denied request to allow use of deposition in lieu of live testimony, in absence of showing of unavailability in fact at the time of trial)

Hopman v. Union Pacific Railroad, 2021 WL 2856607 (E. D. Arkansas July 8, 2021) (six days before start of jury trial, defendant moves for order allowing use of deposition in lieu of live testimony by witness, based on counsel’s unsworn representation in motion that witness lived and worked 400 miles from situs of trial, and would not be within 100 miles of trial location at the time of trial; motion granted, with leave to plaintiff to designate portions of witnesses deposition that plaintiff wants to play)

Fishman v. Liberty Associates, Inc., 196 So.2d 493 (3d DCA 1967) (trial court’s decision to allow deposition in lieu of live testimony based on unsworn representation of counsel affirmed on appeal; held, no error where representations, if made under oath by witness, would have been sufficient to establish unavailability)

Allgeier v. United States, 909 F.2d 869, 876 (6th Cir. 1990) (stating that catchall “exceptional circumstances” clause in rule defining unavailability requires a circumstance as exceptional as the other grounds of unavailability, namely, death, extreme distance, severe infirmity, imprisonment, illness, or age).

United States v. Berkeley Heartlab, Inc., 2017 WL 6015157 (D. South Carolina December 1, 2017) (order denying request to publish deposition testimony of 17 witnesses in lieu of live testimony; held, nationwide subpoena power under the False Claims Act renders all such witnesses within the subpoena power of the court, such that none are “unavailable” and, further, saying “Nor is being a parent an exceptional circumstance.”)

Lefebre v. Remington Arms Company, LLC, 2019 WL 5103492 (W.D. Mich. July 3, 2019) (allowing plaintiff to present expert’s testimony in prior actions where, based on affidavit from expert, said expert was 86 years old, disabled, retired and more than 1,400 miles from site of trial)

Holen v. Jozic, 2018 WL 4518699 (W.D. Washington September 20, 2018) (order allowing plaintiff to take trial depositions of medical providers because plaintiff demonstrated “exceptional circumstances” under rule 32(a)(4), specifically that requiring the doctors to appear live would disrupt their routines, would disrupt patient medical care, and would result in exorbitant expenses to the plaintiff if the doctors had to travel and testify live)

Whyte v. U. S. Postal Service, 280 F.R.D. 700 (S.D. Fla. March 21, 2012) (order denying plaintiff’s request to allow treating surgeon to testify by videotaped deposition in lieu of live appearance at bench trial, because treating experts fee to testify live did not constitute “exceptional circumstance” under FRCP 32(a)(4) )

Forbes v. Villa, 2013 WL 12164779 (C.D. California Dec. 3, 2013) (in case alleging excessive force against former inmate, court rejected request under FRCP 32(a)(4) and FRE 804(a)(5) by plaintiff to use deposition of former cellmate where (a) declaration by plaintiff’s counsel in support of the request was not tendered subject to penalties of perjury, (b) where amended declaration did not assert that the information was true, (c) where the assertion that the “foregoing was true” was the first sentence of the declaration, meaning that it could only apply to the case caption, (d) where plaintiff’s counsel did not properly confer about the requested relief before filing the motion, (e) were plaintiff’s subpoena served on the witness did not tender a check for witness or mileage fees, and was thus defective, and (f) where plaintiff knew that witness was about to be released from facility, but did not properly subpoena him, and could not find him thereafter; held, plaintiff failed to show that he engaged in a good faith effort to obtain the witness’ presence at trial, and fact that release and subsequent disappearance of witness was not an “exceptional circumstance” within the meaning of the rule)

VIIV Healthcare Company v. Mylan, Inc., 2014 WL 2195082 (D. Delaware May 23, 2014) (court rejects plaintiff’s request to submit testimony of two fact witnesses by deposition based on unavailability; held, plaintiffs have failed to demonstrate what steps they took to procure witnesses’ presence for live testimony, and while they need not do so, court can take that into account when exercising discretion whether to allow testimony and, further, plaintiffs have not shown that witnesses have pertinent relevant knowledge)

In re Dwek, 2010 WL 4918974 (D. N. J. Nov. 24, 2010) (court has broad discretion to determine whether proponent has satisfied unavailability requirement, and mere assertion that witness is unavailable is inadequate; held, bankruptcy trustee satisfied showing by demonstrating that process server attempted service on witness on six different occasions, that witness had lawyer call process server to ask questions, but would not open the door, showing the witness was likely evading service)

AmTrust North America, Inc. v.. KF&B, Inc., 2020 WL 5552522 (S. D. N. Y. September 16, 2020) (plaintiff files anticipatory motion seeking approval to use deposition testimony if nonparty witnesses are more than 100 miles from site of trial, or less but fail to appear after being subpoenaed, and advises court that reasonable efforts will be undertaken to procure their attendance; held, motion is granted as to all witnesses except one, where there has been no proof that the witness is beyond the subpoena power or that any effort has been made to procure his testimony live at trial)

Carbotrade SpA v. Bureau Veritas, 1994 WL 9652 at *2 (S.D.N.Y. Jan. 13, 1994) (discussing, as alternative options, admission of deposition testimony under either rule 32 (a) or FRE 804)

Branning v. Wayne County, 2018 WL 1998312 (M.D. Penn. April 27, 2018) (court allows re-deposition by video for trial of key witness despite last-minute nature of request by plaintiff, where witness filed affidavit, with flight information and other travel details, advising he will be out of the country at the time of trial)

Sisneros v. Fisher 2010 WL 965330 (D. N. M. February 20, 2010) (court allowed one daughter of injured plaintiff to testify by deposition because she lived more than 100 miles from location of trial, even though other daughter who lived in same household was going to travel to testify in person; held, upon showing of unavailability, nothing more was required, even if the witness testifying by deposition could ride in same car to trial)

Phoenix Technologies Ltd v. VMWare, Inc., 2017 WL 8069609 (N. D. California June 7, 2017) (court allowed defendant to use deposition in lieu of live testimony, despite multiple representations to plaintiff that defendant would call witness live - up through first day of trial - where witness, who was in town to testify, apparently checked out of her hotel and returned home more than 150 miles away)

Carey v. Bahama Cruise Lines, 864 F.2d 201, 204 (1st Cir. 1988) (saying that under the case law interpreting rule 32, procuring absence and doing nothing to facilitate presence are quite different things)

Livers v. Schenck, No. 8:08cv107, 2013 WL 5676881 at *3 (D. Neb. Oct. 18, 2013) ( noting that courts will sometimes draw a distinction between the “unavailability” of fact witnesses and expert witnesses, and impose greater obligation on proponent to show reasonable means undertaken to enlist the expert’s services by offering the witness the usual expert witness fee and by trying to secure attendance at trial)

Fed. R. Civ. P. 32(a)(4) (witness unavailability)

Fed. R. Evid. 804 (witness unavailability)

Fed. R. Evid. 45 (subpoenas)

Fed. R. Evid. 43 (remote testimony)

Sample Federal Pattern Instruction on Use of Depositions - 2.2 Use of Depositions: A deposition is a witness’s sworn testimony that is taken before the trial. During a deposition, the witness is under oath and swears to tell the truth, and the lawyers for each party may ask questions. A court reporter is present and records the questions and answers. The deposition of [name of witness], taken on [date], [is about to be/has been] presented to you [by a video/by reading the transcript]. Deposition testimony is entitled to the same consideration as live testimony, and you must judge it in the same way as if the witness was testifying in court. [Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.]

END SHOW NOTES

In this episode, Jim Garrity explores the effect of language added by many litigators in their notices that the deposition may be used (apart from discovery purposes) at trial, in lieu of live testimony by the deponent. But does simply declaring this make it so? Does this eliminate the need to prove unavailability before the deposition can be read? Garrity discusses what courts have to say about the ramifications of adding this language, and offers practice pointers both for lawyers who want to maximize their odds of using depositions in lieu of, and for those who want to oppose the use of depositions as a substitute for live testimony. As always, cases upon which this episode is based are in the show notes below. Thanks for following this podcast!

SHOW NOTES

Joseph v. Gibliant, 590 So.2d 841 (1991) (court allowed use of deposition at trial where deposition notice said that it may be used at trial, and where witness had promised to appear without subpoena, but then failed to do so)

Dockery v. State, 504 N.E.2d 291 (Ind. Ct. App. 1977) (allowing deposition at trial where examining party’s notice specifically stated deposition was for use in discovery or at trial)

Descamps v. Kripke, 2000 WL 1434134 (Ohio Ct. App. 2000) (court allowed use of deposition where notice said deposition may be used at trial, where witness had moved to another state, and where there was no evidence proponent of deposition caused witness’ unavailability)

Fishman v, Liberty Associates, Inc., 196 So. 493 (3d DCA 1967) (deposition allowed at trial in lieu of live testimony where notice said deposition may be so used, and where witness traveled beyond reach of court at time of expected testimony)

HCP Properties – Fair Oaks of Fairfax VA LLC v. County of Fairfax, 102 Va. Cir. 160 (deposition allowed at proceeding on merits where notice indicated it may be used in that manner)

Webster v. Holly Hill Lumber Company, 234 S.E.2d 232 (S. Ct. South Carolina 1977) (reversing verdict and remanding for new trial,  finding that there was no agreement to use deposition at trial, even in light of announced “stipulation” at deposition that deposition could be used in lieu of live appearance)

Fed. R. Civ. P. 32, Using Depositions in Court Proceedings, subsection (a)(4), Unavailable Witness

In this episode, Jim Garrity shares a valuable tool for protecting the identities of nonparty deponents and, in the process, protecting their careers, reputations, and families. A deponent who sees that you've taken steps to protect them is a deponent likely to tell you everything they know. Be sure to check out the show notes, as always, for citations supporting the observations in this episode. Please note that not all sites where our podcasts are available will show you the entire list of authorities. If the list you see looks like it's incomplete, click through to our homepage, where you'll be able to get the complete set of citations. Thanks for listening!

SHOW NOTES

Memorandum of Points and Authorities in Support of Plaintiff’s Motion to File Documents Under Seal, In Re: BofI Holding, Inc. Securities Litigation, CM/ECF Document 239-1, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed August 13, 2021) (pages 2-5)

Memorandum of Points and Authorities in Support of Plaintiff’s Motion to File Document Under Seal, In Re: BofI Holding, Inc. Securities Litigation, CM/ECF Document 208-1, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed August 15, 2021) (pages 2-5)

Order Granting in Part and Denying in Part Joint Motion for Determination of Discovery Dispute No. 3 and Granting Motion to Seal, In Re: BofI Holding, Inc. Securities Litigation, CM/ECF Document 227, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed July 27, 2021) (noting that “retaliation is also a significant concern, as employees often rely on connections with, and recommendations or introductions from, former employers throughout their careers”)

Order Reversing in Part the Magistrate Judges Order Granting Motion for Determination of Discovery Dispute, CM/ECF Document 80, Case No. 3:15-CV-02324-GPC-KSC (S. D. Cal. filed November 30, 2016)

Plumbers & Pipefitters Local 572 Pension Fund, 2005 WL 1459555 at *7 (noting that “former whistleblowing employees may be subjected to harassment by new employers or dampen their job-searching efforts”)

Federal Trade Commission v. AAFE Products Corporation, No. 17-cv-00575-AJB-JMA, 2017 WL 3721695 at *1 (S. D. Cal. August 29, 2017) (sealing names and residential addresses of nonparties)

Barnes v. Hershey Company, No. 3:12-CV-01334-CRB, 2015 WL 1814293 at 2-3 (N. D. Cal. April 21, 2015) (“The Court is satisfied that the requested reductions are narrowly tailored to remove only the identities of two of Plaintiffs former employees… Disclosure of this information would infringe the[ir] privacy rights…which constitutes a compelling reason for sealing”)

In this Lessons from the Front Lines episode - where we review brand-new deposition-related cases from around the country - Jim Garrity discusses a new ruling that belongs in your research files (and in your briefcase at depositions) on the right and wrong way to make depositions. The opinion, written by a relatively new federal magistrate who took great pains to catalog cases on this topic, contains more than fifty citations to authority from around the country. So it's an excellent opinion to pull out when opposing counsel starts to make obviously-improper objections during your examinations.

SHOW NOTES:

Mitnor Corporation, d/b/a Servpro of the Seacoast v. The Club Condominiums, etc. 2021 WL 3855819, Case No. 5:20–C –125–TKW–MJF (N. D. Fla. August 11, 2021)

Plaintiffs Emergency Motion to Compel, etc., CM/ECF Document 24

Defendant’s Response In Opposition to Emergency Motion to Compel, CM/ECF Document 35

Order Granting Emergency Motion to Compel, CM/ECF Document 43

In this episode, Jim Garrity concludes the Core Essential Series on preparing your clients for depositions by discussing additional topics to cover with your clients, including the possibility of questions about dishonest or illegal acts, the likelihood of a wide range of personal background questions, inquiries about information your client has obtained and whether anyone associated with the adversary has been providing information behind the scenes, and the critical importance of eating and taking regular breaks during the deposition.

Did you know? You can now follow and listen to this podcast on all the major platforms - Audible.com, Amazon Music, iTunes, Spotify and Google Podcasts. Be sure to like and follow so you don't miss a single episode. And we always appreciate a five star review wherever you get your podcasts. It only takes a second, and it’s a great way to say thank you for the time and energy we put into these shows. Have a great week!

In this episode, Jim Garrity continues the series on preparing your clients for depositions. He’ll wrap up this series in the next segment. Today's episode includes pointers to share with your clients about the importance of giving complete answers to lawyers who constantly interrupt, the importance of listening to the entire question, the need to read all documents with great caution, the significance of appreciating that adversaries sometimes do alter documents (and that it may not be obvious), that your clients should not accept the authenticity of documents at face value, that some questions asked may be very personal, and that the examining lawyer is likely to explore your prior litigation history.

Great news! You can now follow and listen to our podcast on Audible and Amazon Music. That's in addition to Apple iTunes, Google Podcasts and Spotify. The podcast is free everywhere it's available, so be sure to subscribe or follow to ensure that episodes are delivered to your device automatically, so you don’t miss a thing!

In this episode, Jim Garrity shares additional critical insights for preparing your clients for deposition. Today's episode includes pointers to share with your clients about how judges, opposing lawyers, and juries use transcripts; appreciating and understanding the difference between answering questions in a social conversation and in a deposition; the importance of saying "I don't know" and "I don't remember" when your clients don't know or don't remember; the importance of sticking to their guns when a lawyer pressures them to change their answer; and the importance of asking for clarification when a question is unclear. Two more episodes to go in this series!

In this fourth installment of Preparing Your Clients for Deposition, Jim Garrity begins sharing critical insights you need to tell your clients about the deposition process: the layout of the room where the deposition will take place, who will be present and where they will be seated, the importance of taking regular breaks to prevent mental exhaustion, and the differences between depositions as seen on TV and depositions in real life. That includes the general obligation to answer every question asked, examination styles (push questions versus pull questions), the reality about the opposing lawyer's role and goal, and the fact that the deposition is not a practice run and may, in fact, be the only time your clients ever tell their story. Lots to cover, and we are just getting started!