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)

Your opponent just served its expert disclosures and reports. You then get a deposition notice - they're going to immediately depose their own experts! And since these depositions may be used at trial - experts often meet the test of unavailability - you might be forced to conduct your trial cross-examination prematurely, before you've had a chance to conduct discovery depositions of them. What now? In this episode, Jim Garrity spotlights a June 15, 2021 court ruling in which a federal judge confronted this very situation. The defendant complained the tactic was unfair and thwarted the principles of discovery. The plaintiff disagreed, saying discovery can be conducted in any order, and nothing prevented them from deposing their own experts first. Learn what the judge thought, and listen to Garrity's tips on how to deal with the situation if it arises in one of your cases.

The case in the spotlight is Rebecca Martinez v. Coloplast Corp, et al., 2021 WL 2432156 (N.D. Ind. June 15, 2021).

There are probably few things more irritating, when examining a deponent, than having the defending lawyers repeatedly interrupt and claim they don't understand your questions. It's bad enough when witnesses feign ignorance of the obvious. But the opposing lawyers, too? In this episode, Jim Garrity tackles the subject of lawyers who engage in obstruction-by-colloquy, and how to deal with it. Helpful case citations in the show notes, below. Thanks for listening.

SHOW NOTES

Musto, et al. v. Transport Workers Union of America, AFL – CIO, et al., 2009 WL 116960 (E. D. New York January 16, 2009) (attorney may not “interpret” questions for deponent, or engage in lengthy speaking objections and colloquy; “the witness comes to the deposition to testify, not to indulge in a parody of Charlie McCarthy, with lawyers coaching or bending the witness’s words to mold a legally convenient record”)

Security National Bank of Sioux City Iowa v. Abbott Laboratories, 299 F.R.D. 595 (N. D. Iowa July 28, 2014 (“Lawyers may not object simply because they find a question to be vague, nor may they assume that the witness will not understand the question. The witness—not the lawyer—gets to decide whether he or she understands a particular question”; “[w]hile it is impossible to know for certain what a witness would have said absent Counsel’s objections, I find it inconceivable that the witnesses deposed in this case would so regularly request clarification were they not tipped-off by Counsel’s objections”)

Chesbrough et al. v. Life Care Centers of America, Inc., 31 Mass.L.Rptr. 629 (Sup. Ct. Mass Feb. 14, 2014) (“If the deponent does not understand the question, or the meaning of a word or phrase, or even if the deponent has a question about a document, he or she should ask the questioning attorney”)

Applied Telematics, Inc. v. Sprint Corporation, 1995 WL 79237, Civ. A. No. 94–CV–4603 (E.D. Penn. Feb. 22, 1995) (“In addition, plaintiff’s attorney may not object to a question that the attorney does not understand. As stated in Hall, “a lawyer’s purported lack of understanding is not a proper reason to interrupt a deposition.” Nor may the lawyer state for the record what his understanding of the question is. Id. These types of responses by an attorney are irrelevant and suggestive of a particularly desired answer. Id. If the witness does not understand the question, or needs some language further defined or some documents further explained, the witness can ask the deposing lawyer to clarify or further explain the question”)

Peronis v. United States, 2017 WL 696132, Case No. 2:16-cv-01389-NBF (W.D. Penn. Feb. 17, 2017) “ ‘A deposition is meant to be a question-and-answer conversation between the deposing lawyer and the witness.’ ” Johnson v. Wayne Manor Apartments, 152 F.R.D. 56, 59 (E.D. Pa. 1993) (quoting Hall v. Clifton Precision, 150 F.R.D. 525, 528 (E.D. Pa. 1993)). “ ‘There is no proper need for the witness’s own lawyer to act as an intermediary, interpreting questions, deciding which questions the witness should answer, and helping the witness to formulate answers")

Community Association Underwriters of America, Inc. v. Queensboro Flooring Corp., 2014 WL 3055358, Civil Action No. 3:10–CV–1559. (M. D. Penn. July 3, 2014) (Under the federal rules, an attorney is not permitted to object to form and demand clarification of a question the attorney claims not to understand; the witness should be permitted to answer the question posed, or to ask for clarification herself if she does not understand the question. See Birdine v. City of Coatesville, 225 F.R.D. 157, 159 (E.D.Pa.2004); Hall, 150 F.R.D. at 530 n. 10. Moreover, “lawyers are strictly prohibited from making any comments ...which might suggest or limit a witness’s answer to an unobjectionable question.” Hall, 150 F.R.D. at 531; see also Deville v. Givaudan Fragrances Corp., 419 Fed. App’x 201, 209 (3d Cir.2011) (affirming Rule 30(d)(2) sanctions imposed when attorney “testified on behalf of her witness by way of suggestive speaking objections”); Birdine, 225 F.R.D. at 159 (objection that deponent “already testified that within five feet was the closest he got” was improperly suggestive). Likewise, “counsel are not permitted to state on the record their interpretations of questions, since those interpretations are irrelevant and often suggestive of a particularly desired answer")

Today we introduce a new category of episode, based on your fantastic feedback about things you’d like to get out of the podcast. Episodes in this category will be called Objectionable Objections, and each will focus on a single type of improper objection commonly made by lawyers in depositions.

Today’s episode zeroes in on "If you know" speaking objections and its poisonous cousins, "If you remember," "If you understand the question," "Don’t assume," "Don’t speculate," and so on. They'll wreck your depositions if you don't put an immediate stop to them.

Thanks for listening! And please don't forget to return the favor by leaving us a five-star rating wherever you get your podcast. That's how you can show us the love for this completely free, invaluable podcast series.

SHOW NOTES

In re Zantac (Ranitidine) Products Liability Litigation, 2020 WL 6687777, Case No. 20 – MD – 2924 (S. D. Fla. November 11, 2020) (Pretrial Order setting Deposition Protocol for Defendant’s Witnesses and Third Parties, and specifically ordering counsel to refrain from “all comments that could be perceived as instructive to a witness, such as “you can answer if you understand the question” or “you can answer if you know”)

Latele Television, C.A. v. Telemundo Communications Group, LLC et al., 2014 WL 5816585, Case No. 12 – 2 539 – CIV (S. D. Florida, November 10, 2014) (“To avoid any ambiguity, the Undersigned considers an “if you know” comment to a deponent before he or she answers a deposition question to usually be improper coaching, designed to signal the witness to answer that he or she does not know or remember the answer”)

Mills et al. v. General Motors LLC, 2017 WL 4279651 Case No. 2:17-201-RMG (D. S. C. September 22, 2017) (court authorizes redeposition of corporate representative, for two additional days, due to counsel’s alleged failure to comply with the rules governing deposition conduct; “Defendant’s counsel made over one hundred speaking objections. Many were leading. For example, Defendant’s counsel repeatedly objected that a question was beyond the scope of the notice and then instructed the witness to answer “if you know”—clearly inviting the witness to answer “I don’t know.” (E.g., id. at 10 (three times).)

Natural-Immunogenics Corp. v. Newport Trial Group , et al. 2017 WL 10562691, case number SACV 15 – 02034 (C. D. California August 7, 2017) (finding that Special Master properly awarded sanctions against lawyer who lodged numerous argumentative and suggestive objections that coached witnesss or rephrased the questions, including “if you know” objections)

AKH Company, Inc. v. Universal Underwriters Insurance Company , Order Granting Defendant’s Motion for Sanctions 2016 WL 141629, Case No. 13-2003-JAR-KGG (D. Kansas January 12, 2016) (“Outright coaching occurred (e.g., “It’s a ‘yes’ or ‘no’.” “Do you know that or are you assuming?” “Are you making an assumption now or are you assuming?” “If you’re not sure or you don’t know, just say so.” “That’s a new question.” Answer “if you know”).

Lund v. Matthews, et al. 2014 WL 517569, No. 8:13CV144, Order Granting Defendants Motion for Sanctions (D. Nebraska Feb. 7, 2014) (sanctions awarded against plaintiff, and redeposition allowed, based in part on improper objections; held, “It is unnecessary to add “to the best of your ability,” “if you know,” or any other commentary after an objection. From review of the deposition transcript, Lund apparently had no difficulties understanding or communicating in English and was capable of seeking clarification or stating he did not know an answer”)

Hunter v.. GEICO General Insurance Company, 2018 WL 4352823, Case No. 17-05070 (B. D. Louisiana Sep. 12, 2018) “An objection that a question is ‘vague’ is usually, and in this instance was, a speaking objection disguised as a form objection. It essentially expresses a concern that the witness may not understand the question. Only the witness knows whether [he] understands a question, and the witness has a duty to request clarification if needed”)

Mazzeo v. Gibbons, et al., Order Granting Emergency Motion to Forbid Attorney Walter Cannon from Making Improper Objections at Depositions and for Sanctions , 2010 WL 3020021, No. 2:08–cv–01387–RLH–PAL (D. Nevada July 27, 2010) (“If I was an elementary school teacher instead of a judge I would require both counsel to write the following clearly established legal rules on a blackboard 500 times: I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am an experienced lawyer and know that objections must be concise, nonargumentative and non-suggestive. I understand that the purpose of a deposition is to find out what the witness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the witness’s own words to form a legally convenient record. I know I am prohibited from frustrating or impeding the fair examination of a deponent during the deposition. I know that constant objections and unnecessary remarks are unwarranted and frustrate opposing counsel’s right to fair examination. I know that speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question” are designed to coach the witness and are improper. I also know that counsel’s interjection that he or she does not understand the question is not a proper objection, and that if a witness needs clarification of a question, the witness may ask for the clarification”)

Continental Casualty Company v. Compass Bank, 2005 WL 8158672, CA 04-0766-CB-C (S.D. Ala. Aug. 8, 2005) (order granting motion for sanctions with regard to conduct of plaintiff’s counsel at depositions, including “Don’t speculate,” “Don’t guess”, and numerous other speaking objections)

Martin A. McDonough v. Kenniston, et al., 188 F.R.D. 22 (D. N. Hampshire Nov. 3, 1998) (“Prior to the 1993 Amendments to Rule 30(d), the Federal Rules of Civil Procedure did not contain specific limitations on the conduct of lawyers during depositions. In his concurrence with the Supreme Court’s opinion in Herbert v. Lando, a case involving a 26 volume, 3,000 page deposition taken intermittently over a year, Justice Powell noted that “discovery techniques and tactics have become a highly developed litigation art—one not infrequently exploited to the disadvantage of justice.” 441 U.S. 153, 179, 99 S. Ct. 1635, 60 L.Ed.2d 115 (1979). By the early 90’s reports in the Second and Seventh Circuit flatly stated that methods of taking and defending depositions were “exercises in competitive obstructionism”1 and “abusive and unethical.”2 Improper directions not to answer, suggestive or coaching objections, and “conferences” with the deponent were the primary evils addressed. Multiple and/or unnecessary objections, statements such as “if you know,” “if you remember,” “if you understand”, etc., prolonged deposition and abusive and harassing deposition questioning were among the other deposition tactics in use”)

Security National Bank of Sioux City Iowa, etc. v. Abbott Laboratories, 299 F. R. D. 595 (N. D. Iowa July 28, 2014) (“When a lawyer tells a witness to answer “if you know,” it not-so-subtly suggests that the witness may not know the answer, inviting the witness to dodge or qualify an otherwise clear question. For this reason, “[i]nstructions to a witness that they may answer a question ‘if they know’ or ‘if they understand the question’ are raw, unmitigated coaching, and are never appropriate”)

In re Neurontin Antitrust Litigation, 2011 WL 253434, Master Civil Action No. 02–1390(FSH) (D. N. J. Jan. 25, 2011) (describing improper objections, including “speaking objections such as “if you remember,” “if you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the question”)

In re Fetzima, 2020 WL 6268684, Civil Action No. 2:17-cv-10230 (ES)(SCM) (D. N. J. Oct. 23, 2020) (noting that because “Depositions are the factual battleground where the vast majority of litigation actually takes place,” Court would direct counsel to refrain from objections such as “if you know,” “if you remember,” “don’t guess,” and similar coaching in speaking objections)

You properly subpoenaed the non-party witnesses. You issued the subpoena from the correct court, and you even included a check for mileage. You did everything right. (Yay you!) But they still failed to show up. Now what? Do you ask the court to compel the non-party witnesses to appear for deposition? And/or hold them in contempt? Or should you do nothing more now, but later seek to bar them from testifying at trial because of their failure to cooperate? One of those two options is a best-practices approach. The other is a potential disaster. Jim Garrity tells you which is which, and offers takeaways and practice pointers at the end of the episode.

SHOW NOTES

Torregano v. Cohen, et al., 2021 WL 1997292, __ So. 3d __ (Ct. App. La. May 19, 2021) (verdict in favor of plaintiff reversed where trial court excluded testimony of non-party defense witnesses who failed to appear for depositions; held, error to blame party for actions of non-party witnesses)

Thompson v. Wagner, et al., 2008 WL 5087963, Case No. 3:2005-375 (W.D. Penn. December 2, 2008) (denying motion to exclude witness who failed to appear for deposition, but allowing party to depose witness if he appears for testimony at trial)

Vu v. Fouts, 924 P.2d 1129 (Colo. Ct. App. 1996) (appeals court declined to reverse trial court order barring defense witnesses from testifying at trial solely because witnesses failed to appear for their depositions; held, no reversible error in exclusion, because defendant failed to proffer their anticipated testimony to trial judge, and failed to provide other evidence upon which appeals court could determine importance of the excluded witnesses)

Card Technology Corporation v. DataCard, Inc., et al., 249 F.R.D. 567 (D. Minn. 2008) (where company executive failed to appear for deposition, court limited the topics on which the executive could testify if he eventually appeared at trial).

In this Lessons from the Front Lines episode, where we review brand-new deposition-related cases from around the country, Jim Garrity discusses two decisions that highlight the importance of - and risks associated with - choosing the documents you used to prepare deponents, especially unrepresented non-party witnesses. Garrity shares key insights, and offers practical tips at the end of the episode. The cases upon which this episode is based are cited in the show notes.

SHOW NOTES:

Rodolfo Tecocoatzi-Ortiz, et al. v. Just Salad LLC, 2021 WL 2011913, Case No.: 18-CV-7342-JGK-BCM (S.D.N.Y. May 19, 2021) (judge orders lawyer to produce, for in camera inspection, documents used to prepare his client for deposition, after defense counsel sought court assistance in compelling production)

Johnson v. Baltimore Police Department, et al., 2021 WL 1985014, Case No. ELH-19-698 (D. Maryland May 18, 2021) (lawyer ordered to produce documents used to prepare non-party witness for deposition)