In this third installment of our Core Essential series on preparing your clients for deposition, Jim Garrity covers the three building blocks for effective client deposition prep: explaining the deposition process start to finish, explaining the tricks and traps used by opposing lawyers, and conducting mock depositions in the exact style of the examining lawyer. In other words, train as you fight. As always, thank you for listening. We appreciate your support, and would genuinely appreciate it if you would leave a five-star rating wherever you get your podcasts, as a way of saying thank you to our hard-working production staff.

In episode 47, Jim Garrity spoke about the problems you may encounter when entities produce a large number of 30(b)(6) designees on an equally large number of topics (e.g., 29 designees on 30 topics). Today, Garrity covers the difficulties you'll face when an entity produces just a single designee to cover a large number of topics (e.g., one designee on 33 topics). What complications will this cause for you, and how should you deal with it? As always, Garrity offers practical tips for dealing with it. Today's episode is based on Infernal Technology, LLC, et al. v. Epic Games, Inc., 2021 WL 3493495 (E. D. N. C. Aug. 9, 2021). Thanks for listening, and please send a kind thank-you to our production staff by leaving us a 5-star review wherever you get your podcasts.

In this episode, Jim Garrity stresses the importance of always reserving the right to review the transcript of your client's deposition testimony, and provides a fresh example from one of his own cases about the errors that sometimes creep into the transcription of even the best reporters.

CASE NOTES:

CSC Holdings, Inc. v. Alberto, 379 F.Supp.2d 490, 493 n. 1 (S.D.N.Y.2005) (stating that “original deposition answers constitute the admissions of a party, and as such form part of the record evidence”) 

Dore v. Wormley, 690 F. Supp. 2d 176, 178 (S.D.N.Y. 2010) (“Plaintiff's objections to the use of her deposition transcript are belated, conclusory, and unconvincing. Accordingly, the Court disregards Plaintiff's attempt to disavow her deposition testimony and considers the transcript of Plaintiff's deposition testimony admissible evidence”) 

In re: Kugel Mesh Hernia Repair Patch Litig., No. 07-1842ML, 2010 WL 678092, at *2, 2010 U.S. Dist. LEXIS 16538, at *15–17 (D.R.I. Feb. 23, 2010) (reading Rule 30(e) strictly and finding that initial, timely errata sheets that did not include explanations were deficient when explantions were filed three months later).

Pacheco v. New York Presbyterian Hosp., 593 F.Supp.2d 599, 605 n. 1 (S.D.N.Y.2009) (“The failure of a party to request a copy of his own deposition transcript precludes his right to make changes to his transcript.”)

1993 Advisory Committee Notes ro FRCP 30 (clarifying that pre-filing review by the deponent is required only if requested before the deposition is completed. If review is requested, the deponent will be allowed 30 days to review the transcript or recording and to indicate any changes in form or substance. Signature of the deponent will be required only if review is requested and changes are made. 

Ogbon v. Beneficial Credit Servs., Inc., No. 10 CIV. 3760, 2013 WL 1430467, at *2 n. 2 (S.D.N.Y. Apr. 8, 2013) (“[A] deponent is required to sign the deposition transcript only if review of the transcript is requested before the deposition is completed and changes are made by the deponent.”)

*Maeda v. Kennedy Endeavors, Inc., 2021 WL 4134811 (Sept. 10, 2021) (errata sheet struck on technical grounds)

In this episode, Jim Garrity stresses the importance of beginning your first deposition-specific meeting by understanding what your clients THINK about depositions. What do they think they're for? How long do they think it will take? What do they think the opposing lawyers will do with the transcript? Do they know how judges and juries use them? Your clients will always arrive with at least some beliefs - from films, from TV shows, and from friends and family. It's critical to assess their perceptions about depositions, so you know what to clear up on the way to building a powerful, invincible witness.

In this episode - the first in a new series on preparing your clients for deposition - Jim Garrity outlines the initial, essential steps for creating invincible deponents. That includes a deep dive into your client's background, so you're not caught off guard by side issues that could derail the case.

In this episode, we introduce a new line of episodes that will address core essentials of deposition practice, beginning with preparing clients to be invincible witnesses in their depositions.

In this episode, Jim Garrity asks you to ponder the predictability of your approach to examining witnesses, such as the order in which you cover topics, and the similarity of your questions from deposition to deposition. Garrity refers to the cluster of tactics and styles you use as your "deposition profile," and urges you - through a series of rhetorical questions - to consider whether your predictability is allowing adversaries to more effectively prepare their deponents against you.

A listener shared the following scenario with us, and wants to know what to do. Increasingly, and right in the middle of depositions, opposing lawyers ask, "Do you have her phone number?" or "Do you have texts/emails/pictures?" And, commonly, the answer is yes. Virtually all clients now walk into depositions with a cell-phone loaded with actual or potential evidence. Clients who testify by video from home have even more potential evidence at their fingertips. But is a lawyer who demands (in the middle of a deposition) to see a cell phone or other evidence your client has in their immediate possession entitled to see it? Do you have the right to refuse? Jim Garrity answers these questions and, as always, offers practical tips. The show notes below also contain useful case citation with full parentheticals. If you can't see the full citations of all three cases, click through to our homepage. Some sites limit the length of podcast show notes, but our homepage does not.

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SHOW NOTES

Lafferty, et al. v. Alex Jones, et al., 2022 WL 490381, Sup. Ct. Case No. Xo6UWYCV186046436S (Sup. Ct Connecticut January 28, 2022) (lawyer publicly reprimanded for questions and comments posed to unrepresented, nonparty deponent about whether witness was willing or obligated to search his cell phone during the deposition)

Studio & Partners, s.r.l. v. KI, 2007 WL 896065, at *1 (E.D. Wisc. Mar. 22, 2007 (holding that an informal request for production for documents made at a deposition was not an appropriate discovery request under the federal rules) (citing Roberts v. Americable Intern., Inc., 883 F.Supp. 499, 501 n. 2 (E.D. Cal. 1995)).

Sithon Maritime Co. v. Holiday Mansion, 1998 WL 182785 (D. Kan. April 10, 1998) ("The Federal Rules of Civil Procedure provide necessary boundaries and requirements for formal discovery. Parties must comply with such requirements in order to resort to the provisions of Fed. R. Civ. P. 37, governing motions to compel. Informal requests for production lie outside the boundaries of the discovery rules. Formal requests may be filed under some circumstances, not letter requests. Formal requests require certificates of conferring and service. Letters do not. Formal requests certify representations of counsel under Fed. R. Civ. P. 11(b). Letters do not. Formal requests clearly implicate the duties of opposing parties to respond, pursuant to Fed. R. Civ. P. 34. Letters do not. Formal requests may occasion sanctions. Letters usually do not. To treat correspondence between counsel as formal requests for production under Rule 34 would create confusion and chaos in discovery")

Troutman, Adm'x of the Estate of Charles Troutman, Jr., Deceased, Plaintiff, v. Louisville Metro Department of Corrections et al. No. 3:16-CV-742-DJH, 2018 WL 3873588, at *3 (W.D. Ky. Aug. 15, 2018) ("The common thread throughout Troutman's complained-of discovery requests is that they were all informally made. The informality of the requests serves as the primary basis for defendants' objections, with both defendants essentially stating that they tried to accommodate Troutman's requests as best they could. The informality of the requests is also the reason why Troutman's motion for sanctions based on them must be denied. Federal courts across the country have routinely denied motions to compel on the basis that the discovery requests were informally made. See, e.g., Garrison v. Dutcher, 2008 WL 938159, at *2 (W.D. Mich. April 7, 2008); James v. Wash Depot Holdings, Inc., 240 F.R.D. 693, 695 (S.D. Fla. 2006).) 

In this episode, Jim Garrity discusses a brand-new deposition-related decision from the U.S. Court of Appeals for the Eleventh Circuit, whose jurisdiction spans Florida, Georgia and Alabama. The appeals court held that a party should be able to depose witnesses if there is a reasonable basis to do so, even where the adversary claims the witnesses know nothing, and even if the witnesses themselves file affidavits swearing they know nothing. Witnesses who may have knowledge, the Court held, should be subject to cross-examination, and should not escape scrutiny through the use of an affidavit alone. Garrity ends the episode, as always, with practice tips and observations.

The case is Akridge v. Alfa Mutual Insurance Company, 2021 WL 2520631, Case No.19-10827 (11th Cir. June 21, 2021).

In this episode, Jim Garrity takes a question from one of our listeners. The listener served up a 30(b)(6) topic list covering 30 specific topics. in turn, the entity said, it would produce 29 separate designees. Our listener asks: Can they do this? Is this abusive? Listen in to hear Garrity's response and practice tips. As always, the full citations for cases mentioned in each episode are listed below in the show notes for your quick reference. And if you have questions you would like covered in a future episode, send them in! You can email our production staff at [email protected].

SHOW NOTES:

Grahl v. Circle K Stores, Inc, 2017 WL 3812912 (D. Nev. Aug. 31, 2017) (designation of six or seven 30(b)(6) representatives was not excessive in context of facts, but “[Plaintiff’s] concern "about the potential ‘bandying” from having to depose multiple deponents for multiple topics is not lost on the Court”)

Buie v. D.C., 327 F.R.D. 1, 15 (D.D.C. 2018) (Advisory Committee Notes to 2000 revisions to FRCP 30 Rule 30 make clear that durational limit of seven hours apply to each 30(b)(6) designee; however, court may limit duration in its discretion to ensure proportionality)

Black Horse Lane Assoc., L.P. v. Dow Chem. Corp., 228 F.3d 275, 304 (3d Cir. 2000) (producing an unprepared 30(b)(6) designee is tantamount to producing no witness at all, and is sanctionable)