Today's we cover a fascinating topic: What to do when your party opponents assert a Fifth Amendment or similar privilege in their deposition? Unlike diamonds, privileges aren't necessarily forever. Your opponent can later drop, withdraw, or waive an assertion of privilege. And many litigants do, indeed, try to gain unfair advantage by eleventh-hour waivers, surprising adversaries with previously-shielded information. In this episode, Jim Garrity outlines the problem, and identifies six specific steps to take – in order – to stop this kind of misconduct.  As always, our show notes contain the research on which this episode is based. Note that some podcast sites don’t display lengthy show notes.  If you can’t see all fifteen citations in this episode’s notes, click through to our home page for the full list. Thanks!

SHOW NOTES

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, No. 3:18-CV-1506 (S.D. Cal. 2020) (individual defendant in securities fraud case produced no documents at deposition as required, and walked out after 1 hour 45 minutes, during most of which he allegedly refused to answer many questions, launched into profanity-laced tirades, and continuously invoking the Fifth Amendment; held, Plaintiff may re-depose defendant, and “the Court cautions Defendant Fellner that if he invokes the Fifth Amendment privilege with respect to topics on which he later attempts to present argument or testimony, the court may prevent him from doing so, or may issue other evidentiary sanctions such as giving an adverse jury instruction that the jury’s that the jurors may consider his implication of the privilege during his deposition in assessing his credibility”)

Keating v. OTS, 45 F.3d 322, 324 (9th Cir. 1995) (“A defendant has no absolute right not to be forced to choose between testifying in a civil matter and asserting his Fifth Amendment privilege”)

Sheindlin & Orr, The Adverse Inference Instruction After Revised Rule 37 (E): An Evidence-Based Proposal, 83 Fordham L. Rev. Issue 3 (2014) (discussing the history and implications of adverse inference jury instructions)

Order Granting Plaintiff’s Motion for Summary Judgment, SEC v. Premier Holding Corporation, 2020 WL 8099514. No.: SACV 18-00813 (C. D. California Nov. 30, 2020) (“As a preliminary matter, the SEC asserts that Letcavage should be precluded from offering testimony and other evidence in opposition to its motion for summary judgment because he asserted his Fifth Amendment privilege and refused to answer all substantive questions in his deposition; The Court agrees - while Letcavage certainly has the right to assert the privilege, he “cannot have it both ways. By hiding behind the protection of the Fifth Amendment as to his contentions, he gives up his right to prove them”), citing SEC v. Benson, 657 F. Supp. 1122, 1129 (S.D.N.Y. 1987)

Nationwide Life Ins. Co. v. Richards, 541 F.3d 903, 912 (9th Cir. 2008) (trial judge must balance the hardships caused to each party in considering adverse inference instruction, recognizing that there is a tension between one party's Fifth Amendment right and the other party's right to a fair proceeding; decisions when to allow the adverse inference and not to allow it must be determined on a “case-by-case basis under the microscope of the circumstances of that particular civil litigation”)

SEC v. Cutting, 2022 WL 4536816, No. 2:21-cv-00103 (D. Idaho Sept. 28, 2022) (Court grants plaintiff SEC’s motion to preclude defendant, in opposing the SEC’s motion for summary judgment, from introducing evidence, denials, and defenses that he previously withheld by invoking his Fifth Amendment privilege during deposition; “Cutting now attempts to speak on these very matters for which he previously invoked the privilege. ‘But the Fifth Amendment privilege cannot be invoked as a shield to oppose depositions” and then tossed aside to support a party's assertions’ ”), citing In re Edmond, 934 F.2d 1304, 1308 (4th Cir. 1991)

United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 640 (9th Cir. 2012) (holding a court may strike the testimony of a witness in a civil proceeding to avoid a witness's improper use of the Fifth Amendment privilege against selfincrimination as a sword as well as a shield) (collecting cases). “The purpose of this rule is to protect the integrity and truth-seeking function of the judicial system from the distortions that could occur if a witness could testify and then use the Fifth Amendment privilege to prevent any adversarial testing of the truth of that testimony.” $133,420.00 in U.S. Currency, 672 F.3d at 640. “By striking testimony that a party shields from crossexamination, a court can respect the witness's constitutional privilege against self-incrimination while still preventing the witness from using the privilege to mutilate the truth a party offers to tell.” Id. (quoting Lawson v. Murray, 837 F.2d 653, 656 (4th Cir. 1988) (quoting Brown v. United States, 356 U.S. 148, 156 (1958)) (internal quotation marks omitted)

United States v. Certain Real Prop. & Premises Known as 4003-4005 5th Ave., Brooklyn, N.Y., 55 F.3d 78, 85 (2d Cir. 1995) (if litigant in civil proceeding seeks to waive Fifth Amendment privilege only at the “eleventh hour,” and such waiver “appears to be part of a manipulative, ‘cat-and-mouse approach’ to the litigation,” a trial court may bar the litigant “from testifying later about matters previously hidden from discovery through an invocation of the privilege”)

In re 650 Fifth Ave. & Related Properties, No. 08 CIV. 10934 (KBF), 2013 WL 12335766 (S.D.N.Y. Sept. 6, 2013) (order approving adverse inference instruction based on defendant’s assertion of Fifth Amendment privilege and deposition), and  Joint Proposed Requests to Charge, US v. 650 Fifth Avenue and Related Properties, No. 1:08-cv-10934-LAP (PACER Document 1684-6), filed May 5, 2017

Sand, Modern Federal Jury Instructions, Instr. 75-5 (adverse inference instruction)

Libutti v. United States, 107 F.3d 110 (2d Cir. 1997) (pertinent to adverse inference instruction)

Pinnock v. Mercy Medical Center, 180 A.D.3d 1086 (App. Div. New York 2020) (declining to impose sanctions, including preclusion of evidence and adverse inference about assertion of Fifth Amendment privilege, where defendant physician was facing pending criminal charges at the time of his deposition)

Fed. R. Civ. P. 37(b)(2)(i)-(vii) (authorizing sanctions for failure to permit discovery, including but not limited to an order deeming facts as admitted, prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence)

ClearOne Communications, Inc. v. Chiang, 679 F. Supp.2d 1248 (D. Utah 2009) (adverse inference instruction about dishonesty read to jury just before witness took stand, where court had previously found that the witness had not given truthful answers on some topics during his deposition)

Card Technology Corporation v. DataCard, Inc., 249 F.R.D. 567 (D. Minnesota 2008) (following refusal of plaintiff’s currently-employed senior official to appear for deposition, the court deemed some facts admitted, and forbid the witness, if he appeared at trial, from testifying about certain topics that would have been explored in deposition)

ADDED AFTER EPISODE AIRED:

Munger, etc. v. Intel Corporation, No. 3:22-CV-00263-HZ, 2023 WL 3260034, at *3 (D. Ore. May 3, 2023) ("The Court finds Cloud may not invoke the Fifth Amendment privilege as a shield to oppose depositions while discarding it for the limited purpose of making statements to oppose summary judgment. The Court, therefore, grants Plaintiff's requests to strike Cloud's Declaration in support of her Surreponse to Plaintiff's Motion for Summary Judgment")

Parker v. State Farm Mut. Ins. Co., No. 3:23-CV-00139, 2024 WL 1855426, at *3 (S.D. Tex. Apr. 29, 2024) ("As already discussed, the law is clear: State Farm is entitled to argue, and the jury is free to draw, negative inferences from Parker's invocation of the Fifth Amendment" in deposition)

In this episode, Jim Garrity addresses the problem caused by litigators who repeatedly interrupt your deponents’ answers, potentially resulting in a transcript full of half answers. It's a common and serious headache for defending lawyers, and you can only fix the problem one of two ways - either during the deposition, or through an errata sheet.  Garrity explains the pluses and minuses of using an errata sheet to complete interrupted answers, and tells you what courts have to say about that approach.  He then offers practical tips for addressing repeated interruptions during the deposition itself, and identifies four steps to fix the problem.  As always we've got supporting research in the case notes, with parentheticals that allow you to quickly scan the holdings or significance of each decisions. (Remember that if you don't see the full text of the show notes, just click through to our home page for the full list). Thanks for listening!

SHOW NOTES

***(Added after release of episode) 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)

 In this episode, Jim Garrity spotlights a 107-page ruling, issued just three days ago, that offers a sharp reminder about the consequences to deponents who claim memory failure and who then follow up, at summary judgment time, with affidavits or errata sheets containing fantastically-improved recollections of key details. Garrity also discusses another brand-new ruling, likewise issued three days ago, that makes the same point. As always, he offers practical tips and insights - here, to help you avoid the fate suffered by litigants in those cases, which was to have their post-deposition affidavits, errata sheets, and declarations stricken.

As always, the case citations that are mentioned in the episodes or that support the topic appear below in the show notes.

Don't forget to check out the book on which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d Ed. (470 pages), available everywhere you get your books

(One more thing! If you have an extra 60 seconds, would you mind showing our production staff a little love, by leaving a 5-star rating wherever you get your podcast? These episodes take a great deal of time, energy, and research, and they’re always free to our audience. We work hard to make this podcast immediately useful for practicing litigators, and we now include the supporting caselaw in the show notes for every episode, which you can freely cut and paste when you face the same issue. You have no idea how much the staff appreciates that. Thank you!)

SHOW NOTES

Luman v. Diaz, et al., 2022 WL 4001063, No. H-19-4920 (S. D. Tex. Sept. 1, 2022) (rejecting key portions of defendant’s declaration on summary judgment, where declaration appeared to be sham effort to fill in purported memory gaps of defendant at deposition; further rejecting purported defense expert report, which attempted to offer substantive testimony about defendant’s motive that defendant himself could not remember during deposition)

King v. Kings County Sheriff’s Office, 2022 WL 3999485, No. 1:20-CV-00943 (E. D. Calif. Sept. 1, 2022) (rejecting errata sheet from plaintiff’s expert, where entries changed some answers from yes to no, no to yes, added new information, and qualified prior answers)

Sinclair Wyoming Refining Company v. A & B Builders, Ltd, 989 F. 3d 747 (10th Cir. 2021) (rejecting changes to errata sheet, in part because (a) deponent could have been crossed-examined by his own lawyer to correct error during deposition and wasn’t, (b) witness did not appear confused in giving original answers during deposition, and (c) it did not matter, at the end of the day, whether the corrected testimony aligns with objectively-correct information or subjective evidence - what matters is what the deponent testified he or she believed was true)

https://en.wikipedia.org/wiki/Gordian_Knot

There's definitely a right and a wrong way to terminate or suspend a deposition in progress on the grounds it is being conducted in bad faith, or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. In this episode, Jim Garrity spotlights a new court ruling imposing sanctions against a party who failed to do it correctly. As always, Garrity offers you practical guidance, here about exactly how to suspend or terminate a deposition and seek court relief in a way that complies with the governing rule.

(While you're here, can we ask you a small favor? Our production staff deeply appreciates 5-star ratings, and positive comments, on the various sites that host our podcast. Since the podcast is free, would you mind taking 60 seconds of your time, navigating to wherever you get your podcast, and leaving the crew a 5-star rating? It makes all the difference in the world to them, and it's a super motivator to bring you the best possible episodes - always with supporting research you can use - at no charge whatsoever. Thank you so much!)

SHOW NOTES

Fed. R. Civ. P. 30(d)(3)(A) (providing only grounds under the rules for interrupting, terminating, or limiting a deposition in progress)

Daniels v. Dixon, et al., 2022 WL 3574443, No. 8:21-CV-00223-CJC (C. D. Cal. July 12, 2022) (defendant law enforcement officer and counsel walked out of deposition after fifty minutes alleging, among other things, that plaintiff was disrespectful in conducting his deposition; held, “Because Defendant has failed to move for an early termination [under Fed. R. Civ. P. 30(d)(3)], Defendant remains obligated to complete the deposition,” and was ordered to pay $2,031 in costs associated with the terminated deposition)

Coulter v. Paul Lawrence Dunbar Community Center, et al., 2020 WL 13469775, No. 16-CV-0125 (W. D. Penn. Feb. 27, 2020) (granting defense motion for sanctions where plaintiff walked out of deposition without properly suspending and then seeking court order relating to alleged defense harassment)

Highlander Holdings, Inc. v. Fellner, 2020 WL 3498174, at *7 (S. D. Cal., 2020) (“Most significantly, a further deposition is warranted because of Defendant Fellner's decision to leave the deposition after less than two hours had elapsed, without moving for a protective order under Rule 30(d)(3) or otherwise alerting the Court that he was choosing to terminate the deposition. That decision not only “impede[d]” the deposition; it torpedoed it.”)

Omeprazole Patent Litigation, 227 F.R.D. 227, 230 (S. D. N. Y. 2005) (“It is not the prerogative of counsel, but of the court, to rule on objections.... [I]f the plaintiff's attorney believed that the examination was being conducted in bad faith ... or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied immediately to the ex parte judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d).”

*Added after this episode first aired:

Boulder Falcon, LLC v. Brown, No. 222CV00042JNPJCB, 2023 WL 2662187, at *12 (D. Utah Mar. 28, 2023) ("Fed. R. Civ. P. 30(d)(3)(A) provides: “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.” Although the term “bad faith” can have many meanings depending upon the context in which it is used, one of its common connotations is to do something for an “improper purpose.” Bad faith and improper purpose include unnecessarily increasing the costs of litigation. Further, bad faith can arise when the examining attorney lacks a basis for asking questions that allege adverse facts.")

In this episode, Jim Garrity talks about dealing with document requests included within a Notice of Deposition Duces Tecum, and how to determine (a) the due date for service of your responses and objections to those document requests, regardless of the actual upcoming deposition date, and (b) the due date for the actual production of responsive documents. As always, we genuinely appreciate your listenership. If you have a moment, would you please add a five-star rating wherever you get your podcast? It takes just a second, but it's the #1 way to thank our production staff for these free, actionable, practice- oriented episodes. Thanks!

SHOW NOTES

Fed. R. Civ. P. 30(b)(2) authorizing deposition notice to include document requests for production ("at the deposition”)

Fed. R. Civ. P. 34(b)(2)(A) (providing that responses to document requests are due within 30 days after being served)

Gilbert v. E.I. Dupont De Nemours & Co., No. 3:15CV00988 (AWT), 2016 WL 3211682, at *3 (D. Conn. June 9, 2016) (“Rule 30, which allows the deposing party to request that documents be produced at the time of the deposition, does indeed incorporate Rule 34. Rule 34, in turn, states that the party to whom the request is directed must respond in writing within 30 days after being served. The Court has found nothing to indicate that the 30-day limitation is not applicable to document requests incorporated into deposition notices.”)

RM Dean Farms v. Helena Chem. Co., No. 2:11CV00105 JLH, 2012 WL 169889, at *2 (E.D. Ark. Jan. 19, 2012) (Rule 34, in turn, provides that the party to whom a document request is directed “must respond in writing within 30 days after being served.” Fed.R.Civ.P. 34(b)(2)(A). Thus, a party has 30 days within which to respond to a document request, even if the request is included in a notice of deposition, unless the time is shortened by stipulation or court order. Orleman v. JumpKing, Inc., No. Civ. A.99–2522–CM, 2000 WL 1114849, *9 (D.Kan. July 11, 2000))

Olmstead v. Fentress Cnty., Tennessee, No. 2:16-CV-00046, 2018 WL 6198428, at *4 (M.D. Tenn. Nov. 28, 2018), citing Schultz v. Olympic Med. Ctr., No. C07-5377 FDB, 2008 WL 3977523, at *2 (W.D. Wash. Aug. 22, 2008) (“It is well settled that Fed.R.Civ.P. 30(b)(2) provides that any deposition notice which is served on a party deponent and which requests documents to be produced at the deposition must comply with the thirty-day notice requirement set forth in Fed.R.Civ.P. 34.”)

Oldershaw v. Davita Healthcare Partners, Inc., 2017 WL 11688074, No. 15-CV-01964-MSK-NYW (D. Colorado April 13, 2017) (rule says that document request that is part and parcel of a notice of taking deposition requires production of documents at the deposition)

Sandler v. LC. System, Inc. Opinion and Order Granting Defendant’s Motions for Protective Order 2:13-cv-13000-MOB-MCM (S. D. Mich. May 8, 2014) (granting protective order against embedded document request where defendant argued, among other things, that it had produced some documents prior to the deposition date)

Richardson v. Rock City Mech. Co., LLC, No. CV 3-09-0092, 2010 WL 711830, at *4 (M.D. Tenn. Feb. 24, 2010) (Except for concerns about legibility of copies (which should have been addressed earlier), it is not clear to the Court why originals are necessary, citing Fed. R. Evid. 1003)

In this episode, Jim Garrity explains how to seek an order limiting the duration of an upcoming deposition, including the rules you'll rely on and the arguments you'l make (for or against, depending). Occasionally, it's obvious that certain deponents - high-level officials, spouses, children, or privilege-bearing witnesses, to name just a few - have limited knowledge or involvement. If so, a deposition spanning a full day or more simply cannot serve a legitimate purpose. That's when it's time to seek a court order in advance, limiting the length of the deposition. As always, supporting cases are in the show notes below.

And be sure to check out the book upon which this podcast is based,10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice, 3d. Edition, available just about everywhere books are sold. And if you don't mind, would you take a moment and leave our production crew a five-star rating wherever you get your podcast? This podcast requires tremendous time, energy, and research resources, and is completely free. For that reason, the best way to say thank you is with a great rating. Our staff is thrilled every time we see a new 5-star rating show up. As always, thank you!

SHOW NOTES:

Forte Capital Partners, LLC v. Harris Kramer, LLP, 2008 WL 4924724, No. C 07-1237 SBA (N. D. Cal. Nov. 14 2008) (“There is nothing in the Federal Rules of Civil Procedure or case law that legitimizes taking the full seven hours to depose a person when there is no purpose”)

Iron Hawk Technologies, Inc. V. Dropbox, Inc., No. 2:18-CV-01481-DDP-JE M (C. D. Cal. Mar. 20, 2019) (order time-limiting deposition of Dropbox CEO to three hours, in response Dropbox’s motion protective order)

Van Den Eng v. The Coleman Co., Inc., 2005 WL 3776352, No. 05-MC-109-WEB-DWB (D. Kan. Oct. 21, 2005) (rejecting defense demand to block deposition of former CEO, but limiting deposition to four hours; while evidence is weak that former CEO has relevant knowledge, “as a general, a party seeking discovery may test and asserted lack of knowledge”)

Speed RMG Partners, LLC v. Arctic Cat Sales, Inc., 2021 WL 5087280, No. 20-CV-609 (NEB/LIB) (D. Minn. Jun. 14, 2021) (rejecting defense request to time-limit 30(b)(6) deposition to 3.5 hours, saying there had not been a sufficient showing that topics of proposed corporate designee deposition were adequately addressed by prior fact witnesses)

Higginbotham v. KCS International, Inc., 202 F.R.D. 444 (D. Maryland 2001) (in response to plaintiff’s counsel’s alleged intransigence as to duration of deposition, defense counsel “could and should have filed a motion to modify the subpoena and to limit the duration of the deposition”)

Fed. R. Civ. P. 26(b)(2)(A) (authorizing court to limit duration of depositions)

Fed. R. Civ. P. 26(c)(1) (authorizing courts to impose limits on discovery, including depositions)

Fed. R. Civ. P. 45(d)(1) (authorizing courts to issue orders limiting undue burdens caused by subpoenas)

Fed. R. Civ. P. 45(d)(3) (3) (authorizing courts to modify subpoenas to avoid undue burden)

In this episode, Jim Garrity answers a frequent question he gets about Fed. R. Civ. P. 30's seven-hour time limit, namely, "The noticing lawyer questioned the witness for the full seven hours, so wasn't I still entitled to conduct my cross examination?" As always, he concludes the episode with excellent practice tips, here arguments to use when you need more time, and points to make when you're opposing such a request. Thanks for listening!

SHOW NOTES:

Tankersley v. MGM Resorts International and Bellagio LLC, 2022 WL 1395457, No. 22-cv-0 200995-RFP-DJA (D. Nev. Apr. 18, 2022) (discussing factors to consider in allowing more time for cross-examination where noticing party consumes most or all the seven hours allowed under FRCP 30(d)(1); held, plaintiff's lawyer allowed to reopen plaintiff's deposition and conduct four hours of follow-up after defense used all but 35 minutes of the default duration)

Alabama Aircraft Industries, Inc. v. .Boeing Company, 2015 WL 10090631, No. 2:11-CV-03577-RDP (N. D. Ala. Dec. 22, 2015) ( allowing Plaintiff, after deposition in which defendant conducted 5 1/2 hours of examination, and where plaintiff was only able to conduct 55 minutes of cross-examination before witness departed, to continue examination as part of original deposition for one and 1/2 hours)

In this episode, Jim Garrity explains the pitfalls in defending against – or in asking - the common wrap-up question “Have you now told me everything that supports your claims?” (or defenses, as applicable). A deponent who is unprepared for this question is likely to foreclose any opportunity to add additional information. On the other hand, a lawyer who asks this question at the very end of a deposition may open a Pandora's box that cannot be closed. Garrity addresses the situation, as always, from both sides, and offers practice tips to avoid problems.

Supporting cases in the show notes, as always.

And a question for you. Would you help support the podcast by taking a moment and leaving our staff a five-star rating wherever you get your podcasts? It takes no more than 30 seconds, and no more than a minute to add a comment telling us what you love about the podcast, or even sharing a tip of your own about the topic, for the benefit of other litigators. Our listeners love it when they read practice ideas posted by others. And it's very rewarding for our production staff to see those new ratings, especially since we charge nothing for the episodes or the tremendous research our team puts into them. Thank you so much!

SHOW NOTES

Ziehm v. RadioShack Corporation, 2010 WL 2079550, No. 09-69-P (D. Maine May 22, 2010) (portions of plaintiff’s affidavit struck as contradicting deposition testimony, where plaintiff was specifically asked whether they had disclosed everything on a particular topic during the deposition)

Beckel v. Walmart Associates, Inc., 301 F.3d 621 (7th Cir. 2002) (statements in employee’s affidavit in opposition to summary judgment could not be credited because it was consistent with deposition testimony given in response to questions whether the plaintiff “remembered anything else” that had been said, to which she said “No”)

Owens v. TelePerformance USA, 2009 WL 3719411, No. 04 C 3645 (N. D. Illinois November 4, 2009) (portions of affidavit stricken where plaintiff attempted to add additional, new information despite having answered “Yes” in deposition when asked “Have you now told me everything that you felt was unfair or discriminatory?” and “And you’ve told me everything that was said to you at the time?”) 

In this episode, Jim Garrity discusses a question he got from a lawyer whose corporate opponent refused to make the CEO available for deposition under the "apex doctrine." Garrity explains the advice he gave, which was to immediately notice a designated-representative deposition under Fed. R. Civ. P. 30(b)(6). He also discusses the value of designated-representative depositions in arbitration, where - because of sharp restrictions on the number of depositions that can be taken - many witnesses will similarly be off-limits.

In this episode, Jim Garrity highlights a June 17, 2022 court ruling where Fed. R. Civ. P. 56(d) was in play. This rule allows you to ask a court to defer ruling on a prematurely-filed summary judgment motion, in order to allow you more time to complete depositions for use in opposing the motion. Here, Garrity dives deep into the rule, and into the winning and losing ways to draft or oppose FRCP 56(d) motions. Our Lessons from the Front Lines episodes spotlight brand-new deposition-related court rulings from around the country. So it's important to bear in mind that the rulings highlighted in these kinds of episodes are subject to revision, challenge, appeal, modification, or withdrawal. Thank you as always for listening.

SHOW NOTES

Fed. R. Civ. P. 56(d)

Koeppel v. Hartford Accident & Indemnity Co., 2022 WL 2191670 (E. D. La. June 17, 2022) (court declined to reconsider summary judgment motion because upcoming depositions would provide the missing proof where plaintiff’s counsel did not ask the court to defer ruling on summary judgment prior to the ruling)

Ocean Garden Products Inc. v. Blessings Incorporated 2020 WL 3545564, Case No. CV-18-322-TUC-RM (D. Ariz. 2020) (Rule 56(d) motion granted based on showing where good cause shown; excellent example of superior Rule 56(d) motion at Doc. 386 on Pacer.gov)

Patrick v. PHH Mortgage Corp., 2014 WL 713272, 998 F. Supp. 478 (N.D. W. Va. 2014) (Rule 56(d) motion denied where motion made only vague claims about what it would get and from whom)

Bunio Victory Packaging, L.P., 2020 WL 5203446 (E.D. Cal. 2020) (rule 56(d) motion granted in case where pro se plaintiff made legitimate showing)

Intervarsity Christian Fellowship/USA v. The University of Iowa, 2019 WL 9575232, Case No. 3:18-cv-80S-MRS-BJ (S. D. Iowa 2019) (Rule 56(d) motion granted where movant made good-faith showing of need for discovery, and where summary judgment motion was filed very early)

Papineau v. Brake Supply Company, Inc., 2020 WL 6704586, Case No., 4:18-CV-168-JHM (W.D. Ky 2020) (Rule 56(d) motion denied where factors weighed against holding dispositive motion in abeyance, being (a) when movant learned of issue needing more discovery, (b) whether the desired discovery would change potential ruling, (c) how long discovery has been open, (d) whether movant was diligent or dilatory, and (e) whether party filing dispositive motion was responsive to discovery requests)

N.K. Collins, LLC v. Williams Grant & Sons, Inc., 472 F. Supp. 3d 806 (D. Haw. 2020) (Rule 56(d) motion granted)

Hodgin v. UTC Fire & Security Americas Corp, Inc., 2018 WL 1308605, 885 F.3d 243 (4th. Cir. 2018) (affirming denial of 56(d) motion and grant of summary judgment; question on 56(d) motion isn’t whether discovery remained open but whether party seeking to defer ruling had reasonable opportunity to conduct essential discovery)

Federal Housing Finance Agency v. Las Vegas Development Group, LLC, 2021 WL 5359593, Case. No. 20-15658 (9th Cir. 2021) (affirming grant of summary judgment and denial of 56(d) motion where movant’s papers offered no reason to believe additional discovery would uncover evidence contradicting hundreds of pages of records and declarations proving key points)

Avery v. E & M Services, LLC, 2020 WL 4606840, No. 1:18-CV-00258 (D. N. Dakota 2020) (summary judgment denied without prejudice to allow parties to conduct more discovery)

Cimontubo – Tubagens e Soldadura, LDA v. Petroleos de Venezuela, S.A., 2022 WL 2155285, No. 21-875-CV (2d Cir. 2022) (affirming grant of summary judgment and denying 56(d) motion; while due process requires an opportunity to present every available defense, defendant already had opportunity and may not have timely asked for more time)

Junk v. Board of Governors of Federal Reserve System, 2022 WL 363776, Case No. 19-3125-CV (2d. Cir. 2022) (affirming summary judgment and denying 56(d) motion, saying movant didn’t meet applicable standards)

Cline v. Dart Transit Company, 804 Fed. Appx. 307 (6th Cir. 2020) (reversing summary judgment and denial of 56(d) motion where trial judge limited discovery period to 90 days and allowed plaintiff a single deposition)

Smith v. OSF Healthcare System, 933 F. 3d 859 (7th Cir. 2019) (reversing denial of 56(d) motion and grant of summary judgment where movant demonstrated good cause to warrant deferral of ruling on dispositive motion)

Laborers’ Pension Fund v. Midwest Brickpaving, Inc., 2020 WL 264752 (N. D. Ill. 2020) (denying 56(d) motion, in part asserting that six months was more than ample discovery period, given facts of case; court expressed disdain for filing of combination summary judgment response and 56(d) motion)

Huff v. United States, 2021 WL 2533443, Case No. 3:20-CV-00942-MAB (S.D. Ill. 2021) (granting motion to defer ruling on summary judgment)

Furrion Property Holding Limited v. Way Interglobal Network, LLC, 2021 WL 4263757, Case No. 3:19-CV-566-PPS-MGG (N.D. Ind. 2021)

Stroh Die Cast LLC v. StoneRidge Control Devices, Inc., 2022 WL 179338 (W. D. Wisc. 2022) (rejecting 56(d) motion, filed as combination document with opposition to summary judgment, as filed too late)