In this episode, Jim Garrity explains how depositions by written questions work, and when to use them. Many lawyers have never deposed a witness this way. Garrity argues that this tool has value, and that you should experiment with them to gain both a working understanding of this option and to further expand your deposition skill set. There's a bonus PDF with this episode as well, available free upon request, as explained in the audio. And as always, the show notes contain full case citations to every case mentioned and more. Thanks for listening!

SHOW NOTES

Pueblo of Jemez v. United States of America, et al., 2017 WL 6512230, No. CV-12-800 RB/JHR (D. N. M. Dec. 19, 2017) (outlining procedure for depositions by written questions, and ordering that no lawyers would be permitted to attend)

Pace v. Lewis, 2021 WL 1377923, Case No. 19-22928-CV (S.D. Fla. Apr. 12, 2021) (also outlining, in footnote 4, the procedure for depositions by written questions)

Baker v. Immanual Medical Center, 2007 WL 1797642, No. 8:06 – CV – 655 (D. Nebraska June 19, 2007) (in footnote 3, noting that depositions by written questions are not bound by the same provision of rule 33 that limits the number of interrogatories)

Owens v. Degazio, 2019 WL 4929812, No. 2:16- CV-2750-JAMA K – JMP (rule addressing depositions by written questions does not limit the number of deposition questions that may be asked)

Downing v. Pacific Gas & Electric Company, et al., 2017 WL 11630759, Case No. EDCV 17-1047-DMG-KK (C. D. Calif. Oct. 27, 2017) (rejecting plaintiffs demand that defendant be forced to take her deposition by written questions)

Great American Assurance Company, et. al. v. Ride Solution, Inc., 2019 WL 13023801, No. 3:16-cv-372-J-32JBT (M. D. Florida June 7, 2019) (rejecting demand that newly-added defendant seeking to depose a previously-deposed witness and corporate representative be forced to conduct the depositions by written questions)

Fed. R. Civ. P. 31 (depositions by written questions)

Bonus PDF containing select filings from Pueblo of Jemez v. United States of America (available on request as explained in the episode)

**Added after episode was published**

Lee Roy Hernandez v. Groendyke Transport, Inc., Defendant., No. 3:21-CV-0108-D, 2022 WL 2064886 (N.D. Tex. June 8, 2022) (court rejected defense motion to compel non-parties to answer written questions as if they were interrogatories, saying, "[The notices] do not comply with Rule 31's requirements that an officer take the deponent's testimony and prepare and certify the deposition. See Crawford v. U.S. Dep't of Homeland Sec., 245 Fed. Appx. 369, 382 (5th Cir. 2007) (per curiam) (“Rule 31 of the Federal Rules of Civil Procedure clearly states that an officer is to take responses and prepare the record of depositions upon written questions.”); Dall. Buyers Club, LLC v. Doe-70.181.229.254, 2016 WL 3854547, S.D. Cal. July 15, 2016) (“[I]t is clear that depositions by written questions entail more than mailing questions to the deponents and awaiting their written response.” (internal quotation omitted))."

In this episode, Jim Garrity talks about the sequence and timing of your depositions. Who is allowed to go first? What if the opposing lawyers insist on deposing your client first, and won't agree to dates for your depositions unless you consent? What if your opponents won't agree to any depositions until your responses to their interrogatories are complete? And what if they're the first to notice a deposition of a witness you also need to depose, but they set it six months from now? Can you go ahead and notice the same witness for a deposition before then? Insights and tips abound in this episode. Remember the cases upon which this episode is based appear in the show notes below. Thanks for listening!

NOTES

John Doe v. Orchard Lake Schools, 2021 WL 5711101, Case No. 20-13287 (E.D. Mich. Dec. 2, 2021) (third-party witness associated with defendant had no right to determine the order in which the plaintiffs would take his deposition where witness was merely expressing personal preference)

Navient Solutions LLC v. The Law Offices of Jeffrey Lohman PC, 2020 WL 6381256 (E.D. Virginia June 16, 2020) (defendant had no right to decline to appear for deposition because of perception that plaintiff had not properly responded to discovery requests)

Russell v. Maman, 2020 WL 5943844, Case No. 18-cv-06691-RS (AGT) (N.D. Calif. October 7, 2020) (rejecting party’s effort to unilaterally impose sequence or timing of depositions because of, among other things, disagreements about document productions)

Roth v. 2810026 Canada Limited LTD, Case No., 1:13-cv-00901-FPG-LGF (W.D. New York July 18, 2016) (rejecting arguments by defendant that because it noticed deposition first, it got to go first, and rejecting argument that a party can decline to cooperate in scheduling depositions because of alleged noncompliance by opponent)

Banks v. C.R. Bard, Inc., 2021 WL 1342539, Case No. 17-193-SDD-RLB (M.D. Louisiana April 4, 2021) (allowing plaintiff to be deposed before plaintiff’s positions as information revealed by plaintiff’s testimony was likely to be highly relevant to the examination later conducted of plaintiff’s physicians)

Fed. R. Civ. P. 26(d)(e) (determining that there is no sequence or priority of discovery)

Fed. R. Civ. P. 26(c)(1) (authorizing the court to determine that discovery may be had in a particular order or sequence)

Fed. R. Civ. P. 29 (allowing parties to stipulate to the timing and sequence of discovery)

In this episode, Jim Garrity looks at a tactic expressly allowed by the rules, but almost always prohibited by judges, specifically the reading of the entire deposition of an adverse party's witnesses to the jury. The practice seems authorized by Fed. R. Civ. P. 30(a)(3) and similar language in many state court rules, which say the deposition of an adverse party can be used “for any purpose” at trial. Yet while many lawyers have tried, few have succeeded, if those deponents are available to testify live. Hear what the cases say, and learn about the one exception where courts have allowed the entirety of a deposition to be read whether the deponent is available or not. As always, the cases upon which this episode is based are listed below, with citations and parentheticals. You’re welcome!

SHOW NOTES

Short v. Marvin Keller Trucking, Inc., 2021 WL 5410888 (E.D. Kentucky Nov. 18, 2021) (declining to allow party to read entirety of depositions at trial when those deponents are available to testify live)

Gonzalez Production Systems, Inc. v. Martinrea International, Inc., 2015 WL 5439254, 310 F.R.D. 341 (E.D. Mich. 2015) (declining to allow entirety of depositions to be read at trial where deponents can be called live)

Stansbury v. Hopkins Hardwoods, Inc., 2018 WL 2977439 (W. D. Ky. Mar. 2, 2018) (same; declining to allow admission of entirety of depositions, while allowing their use in part as needed for ordinary impeachment)

AWGI, LLC v. Atlas Trucking Company, LLC, 2019 WL 7298766 (E. D. Michigan December 30, 2019 (declining to allow defendants to read entirety of depositions at trial where witnesses are available to testify live)

Dhyne v. Meiners Thriftway, Inc., 184 F.3d 983 (8th Cir. 1999) (affirming trial court rulings, saying, amonther things, that precluding a party from reading the deposition testimony of an available adverse party witness is at worst harmless error)

Kellogg v. Wilcox, 286 P.2d 114 (Wash. S. Ct. 1955 en banc) (even where rule allows party to use deposition of adverse party for any purpose, it is not mandatory for a trial court to admit the deposition in evidence whenever offered by the opponent)

Estate of Thompson v. Kawasaki Heavy Industries, Ltd., 291 F.R.D. 297, 2013 WL 1248675 (N.D. Iowa Mar. 14, 2013) (allowing use of corporate representative deposition in its entirety, notwithstanding availability of designee to testify live at trial)

In this episode, Jim discusses the November 18, 2021 decision of the Florida Supreme Court suspending a lawyer who was allegedly caught text-coaching a deponent while testimony was in progress.

As always, keep in mind that our Lessons from the Front Lines episodes report on brand-new decisions, usually issued within a day or two of the podcast episode discussing them. That means that the decisions may still be challenged, revised, withdrawn, or appealed. Most cases spotlighted in this kind of episode are still pending and working their way through the courts.

SHOW NOTES:

The Florida Bar v. Derek Vashon James, 2021 WL 5365639, No. SC20-128 (Fla. Nov. 18, 2021); also available on the Florida Supreme Court website at https://www.floridasupremecourt.org/content/download/806044/opinion/sc20-128.pdf

ADDED AFTER EPISODE AIRED:

In the Matter of Rosin, 212 N.Y.S. 3d 633 (N. Y. S. S. Ct., App. Div. June 11, 2024) (lawyer publicly reprimanded for coaching deponent during remote deposition)

In this episode, Jim Garrity tackles a sometimes-sticky question: How many times do you have to ask an opponent or witness for deposition dates before you can just set them unilaterally? Garrity tells you (a) exactly how many times you should ask for dates before you set them without agreement, and (b) exactly what to say.

Do you have an extra 60 seconds today? Our show production staff would greatly appreciate it if you would use those 60 seconds to go to wherever you get your podcasts and leave us a five-star review. It's the best thing you can do to say thank you. (And thank you in advance for doing it!)

SHOW NOTES

Avista Management v. , Wausau Underwriters Insurance Company, 2006 WL 1562246 (M.D. Fla. June 6, 2006) (federal judge ordered lawyers to appear on courthouse steps if needed to play the child’s game “rock, paper, scissors” to settle deposition scheduling dispute)

Auto-Owners Insurance Company v. McFarland Equipment and Construction Company, Inc., et al, 2010 WL 11619040, Case No. 09-0315-KD-N (S.D. Ala. Feb 23, 2010) (order declining to compel parties to informally cooperate in scheduling depositions, noting that movant seeking order compelling adversary to cooperate in scheduling depositions had not actually noticed the depositions, but could do so as allowed by rule even absent cooperation). The Order declining to compel the parties to informally cooperate is CM/ECF Document 27. The motion to compel deposition dates is CM/ECF Document 21. The opposition papers are at CM/ECF Document 23.

Leitzke v. Kelsey Nicole F/V, et al., Case No. 2:15-CV-00439-TSZ (W.D. Wash. April 27, 2016) (plaintiff’s counsel’s “notice of unavailability” did not operate as a moratorium on discovery, and judge would not exclude deposition taken while plaintiff’s counsel was unavailable and could not participate in deposition)

Chenevert v. Liberty Mutual Insurance Company, Case No. 3:15-CV-00046-JJB-EWD (M.D. Louisiana Aug. 6, 2015) (rules do not require that depositions be set on convenient dates, but rather only upon reasonable notice)

Jackson v. Calone, Case No. 2:16-CV-00891-TLN-KJN (E.D. Cal. filed Apr. 28, 2016) (federal judge invited defense counsel to renew motion for “terminating sanctions” where plaintiff would not agree for medical reasons to submit to deposition),  The February 23, 2018 Order is Doc. 135 on PACER in this case. The defendants' original motion for terminating sanctions, which is an excellent source of case law on sanctions against a party who refuses to submit to deposition, is Document 102-1.

Fed. R. Civ. P. 30(b)

In this episode - one in a recurring series where we share brand new deposition-related court rulings from around the country - Jim Garrity tells you about a ruling just three days ago, where a judge pondered the question whether a plaintiff's lawyer had violated a discovery stay by using a public-records act request to gather information while the stay was in effect. It's similar to a line of cases where courts have said that gathering witness statements in "deposition-like" settings while a stay is in place may be sanctionable. Cases mentioned in this episode are listed in the show notes below. (Psst! While you're here - can you leave our team a 5-star rating where you get our podcasts? It's a fast, free and hugely-appreciated way to say thanks back!)

CASE NOTES:

Encinias v. Sanders, et. al. 2021 WL 5121167, __ F.3d __ , Case No. CV 20-1005 WJ/SCY (D.N.M. Nov. 4, 2021) (court narrowly denies sanctions where lawyer used extra-judicial means to gather information while discovery stay is in effect)

Clerk's Minutes from hearing on Defendant's Motion for Sanctions, Encinias v. Sanders, et. al. 2021 WL 5121167, __ F.3d __ , Case No. CV 20-1005 WJ/SCY (D.N.M. Nov. 4, 2021) (clerk's notes reflecting argument and court commentary during hearing on Defendant's Motion for Sanctions)

Martinez v. Carson, 697 So.2d F.3d 1252 (10th Cir. 2012) (affirming sanctions against lawyer who took "deposition-like" statements from witnesses while discovery stay was in place, saying the gathering of those statements at minimum violated the spirit of the stay)

*(Added post-publication of this episode) Langston v. Town of Chester, etc., No. 14CIV9474NSRLMS, 2018 WL 11425556, at *1 (S.D.N.Y. Jan. 18, 2018), adopted sub nom. Langton v. Town of Chester, No. 14-CV-9474 (NSR), 2018 WL 1353293 (S.D.N.Y. Mar. 14, 2018) (court refused pro se plaintiff's request to gather affidavits from key witnesses while protective order is in place forbidding depositions of same witnesses)

In this episode, Jim Garrity brings clarity to a quandary experienced by many litigators: Can the non-record lawyers of non-party deponents show up at the deposition and actively participate? By objecting, by asking questions, by giving directions to the court reporter, or engaging in colloquy with record counsel? As always, the cases upon which this episode is based are listed in the show notes below. If it looks like our show notes are cut off wherever you get your podcast, click through to our podcast homepage, or to the page where this episode is hosted, to see the complete list. In these show notes there are four cases, three articles, and five citations to rules.

SHOW NOTES

State ex rel. Naes v. Hart, 548 S.W.2d 870, 871 (Mo. App. 1977) (non-record lawyer may not participate in deposition on behalf of non-party deponent other than to confer and object on matters of privilege or self-incrimination only)

Thompson v. Mather, 70 A.D.3d 1436, 1437, 894 N.Y.S.2d 671 (2010) (non-record lawyer for non-party positioned opponents forbidden from objecting to, or otherwise participating in, videotaped pretrial depositions)

St. Louis v. Hrustich, 35 Misc. 3d 1232(A), 953 N.Y.S.2d 554 (Sup. Ct. 2012) (“generally, though a non-party witness has the right to be represented by counsel at a deposition, counsel may not object or otherwise participate in the deposition and less necessary to invoke a testimonial privilege”)

Sciara v. Surgical Assocs. of W. New York, P.C., 104 A.D.3d 1256, 1257, 961 N.Y.S.2d 640 (2013) (“… It is axiomatic that counsel for nonparty witness is not permitted to object or otherwise participate in a trial”)

May I Please Say Something? Horowitz, D., New York State Bar Journal, 83 AUG N. Y. St. B. J. 82 (July/Aug 2011) (opinion piece on prohibition against deposition participation by non-record counsel on behalf of non-party deponents)

No Role Means No Role, Horowitz, D., New York State Bar Journal, 85 MAY N. Y. St. B. J. 16 (May 2013) (opinion piece on prohibition against deposition participation by non-record counsel on behalf of non-party deponents)

More Than a Potted Plant: Five Tips for a Non-Party Deponents’ Counsel, Schaeffer, J., Practice Points, ABA Committee on Pretrial Practice and Procedure (Nov. 29, 2019) https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2019/more-than-a-potted-plant-five-tips-for-nonparty-deponents-counsel/

Texas Rule of Civil Procedure 199.5(d) (providing that deposition examinations shall proceed as an examination at trial)

New York Civil Practice Law and Rules 3113(c) (providing that deposition examinations shall proceed as an examination at trial)

Fed. R. Civ. P. 30(d)(3)(a) (allowing non-party deponent to terminate deposition being conducted in bad faith)

Fed. R. Civ. P. 26(c)(1) (authorizing non-party deponent to seek protective order on the terms and conditions under which deposition will be conducted)

In this episode, Jim Garrity discusses so-called standing objections, where - in theory - the parties agree that defending lawyers need not make continual objections to a specific line of questioning in order to preserve their rights. What factors should you take into account in offering, or agreeing to, a standing objection? Garrity offers a wide range of practical tips to consider.

Cases upon which this episode are based appear in the show notes below. Cases that begin with a double asterisk were added by our research staff after the episode was first aired.

SHOW NOTES

State versus Riley, 2021 WL 1904878, Ct. App. Iowa May 12, 2021) (criminal defendant objected to alleged evidentiary violation, but did not continue objecting to the same or similar questions; held, defense counsel “did not request nor receive a standing objection to the testimony,”, further stating that “the allowance of standing objections in trials at law is ordinarily not to be recommended”)

Goutis v. Express Transport, Inc., 699 So. 2d 757 (Fla. 4th DCA 1997) (standing objection is narrowly tailored, and is “not sufficient to preserve an objection to statements other than those specific types to which [the standing objection was made]”)

Carlisle v. Normand, 2019 WL 424681 (E.D. La. Feb. 4, 2019) (court noted large number of objections during deposition - 280 form objections in 322 pages - and concluded the objections were “frequent, often unfounded, and were highly disruptive;” held, deponent may be re-examined, questions can be asked that were previously asked, and “if plaintiffs wish to agree to the entry of a standing objection to form, [the defendant] and other participating defendants are required to accept it”)

In re PSE & G Shareholder Litigation, 320 N.J. Super. 112 (Sup. Ct. N.J. 1998) (standing objection resulted in waiver where provisions of procedural rule made assertion of specific grounds for objections mandatory, even though plaintiffs’ counsel offered standing objection and did not ask for specific grounds at any time)

Hosseinzadeh v. Bellevue Park Homeowners Association, 2020 WL 4901674 (W. D. Wash. Aug. 20, 2020) (objections deemed unnecessary considering that defense counsel had been given a standing objection to disputed topics; however, “the objections were also stated concisely in a nonargumentative and nonsuggestive manner, and did not meaningfully interfere with the witness’ ability to answer questions”)

McColm v. Foremost Ins. Co., 2011 WL 3843917 (N.D. Calif. Aug. 30, 2011) (to facilitate depositions in lawsuit filed by pro se plaintiff, court granted plaintiff a standing objection to all questions asked during the deposition)

Rainbow Popcorn Co., Inc. v. Intergrain Specialty Products LLC, 2008 WL 2184116 (D. Neb. May 23, 2008) (court criticized defense counsel because “he would not agree to a standing objection to alleviate the disruption of persistent and unwarranted objections. . .”)

Natural Resources Defense Council, et al. v. Illinois Power Resources Generating, LLC, 2017 WL 6566863 (C.D. Ill. Dec. 14, 2017) (defense counsel’s refusal of an offer of standing objections to a line of questions “did not impede the deposition” and “the court sees no impropriety…”)

Adventist Health System/Sunbelt, Inc. v. Medical Savings Insurance Company, 2005 WL 8159877 (M.D. Fla. Apr. 26, 2005) (court extends right to standing objection to defense counsel as part of broader order imposing conditions on the conduct of depositions)

Synventive Molding Solutions, Inc. v. Husky Injection Molding, 262 F.R.D. 365 (D. Vermont Mar. 13, 2009) (court, noting that plaintiff’s lawyers conduct during deposition “was at times targeted to frustrate the defendant’s attempt to depose a critical witness,” further observed that plaintiff’s counsel “also made repeated references to what was, according to her, a standing objection made at the beginning of the deposition, and found other means by which she could disrupt the questioning, such as by asking that questions be read back on an inordinate number of occasions;” plaintiffs’ counsel objected at least 330 times, and appeared on at least 240 pages of the 350 page transcript, or more than 70% of the pages)

In re Godfrey, et al., 2018 WL 11346518 (S. D. Fla. Sep. 7, 2018) (court noting that witness “could have eliminated the need for a second deposition by answering the deposition questions under a standing objection to questions [on a certain topic]”)

Doe v. Maret, 984 P.2d 980, 985 (Utah 1999), overruled on other grounds by Munson v. Chamberlain, 173 P.3d 848 (Utah 2007) (“at a deposition a question calling for privileged information cannot be answered subject to a later judicial ruling on the propriety of the question”)

**House, et al v. Players' Dugout, et al., 2021 WL 4898071, No. 3:16-CV-00594-RGJ, 2021 WL 4898071, at *9 (W.D. Ky. Oct. 20, 2021) (stressing crucial nature of making of objections at deposition where error is curable, failing which objection is deemed waived)

Fed. R. Evid. 103(b), Rulings on Evidence, Not Needing to Renew an Objection or Offer of Proof (“Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal”)

Why do litigators feel comfortable dismembering emails, and showing deponents only fragments of the actual conversation? More importantly, why do they think it's okay? In this episode, Jim Garrity discusses "rule of completeness" objections, and why you need to make them. As always, be sure to check out the show notes, which contain the authorities on which each episode is based. The show notes below for this episode contain nine references to authorities. If you can't see them all wherever you download your podcasts, be sure to click through to our episode and podcast homepage, where the complete list is always displayed. Thanks for listening!

Cases that begin with a double asterisk (**) were added after the episode was first aired.

SHOW NOTES

**House, et al v. Players' Dugout, et al., 2021 WL 4898071, No. 3:16-CV-00594-RGJ, 2021 WL 4898071, at *9 (W.D. Ky. Oct. 20, 2021) (stressing crucial nature of making of objections at deposition where error is curable, failing which objection is deemed waived)

Fakes v. Eloy, 2014 IL App (4th) 121100, ¶ 88, 8 N.E.3d 93, 110 (“Indeed, the rule of completeness is not limited to discovery depositions but also applies to the following broad range of evidence: “Oral conversations, parts of written or recorded statements or in the nature of addenda thereto, and written or recorded statements neither part of the previously introduced written or recorded statement nor in the nature of addenda thereto may be introduced by an opposing party on his or her next examination of the same witness, whether cross or redirect, provided such evidence tends to explain, qualify, or otherwise shed light on the meaning of the evidence already received”)

Mayor & City Council of Baltimore v. Theiss, 354 Md. 234, 253, 729 A.2d 965, 975 (1999) (to preserve a deposition objection to any error or irregularity that might be cured if a timely objection had been made at deposition, the objecting party must state the ground for the objection before the conclusion of the deposition, so that the opposing party will have a chance to cure or obviate the error or irregularity)

Walker v. Spina, No. CIV 17-0991 JB\SCY, 2019 WL 538458, at *18 (D.N.M. Feb. 11, 2019) (“By allowing the other party to present the remainder of the writing or recorded statement immediately rather than later on cross-examination, this rule avoids the situation where a statement taken out of context “creates such prejudice that it is impossible to repair by a subsequent presentation of additional material”)

Walker v. Spina, No. CIV 17-0991 JB\SCY, 2019 WL 538458, at *19 (D.N.M. Feb. 11, 2019) (nothing that courts have provided guidance on when the rule of completeness applies. See, e.g., United States v. Velasco, 953 F.2d 1467, 1475 (7th Cir. 1992); United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1160 (C.D. Cal. 2008)(Pregerson, J.). The United States Court of Appeals for the Seventh Circuit has applied a four-part test to determine whether to allow evidence under rule 106: “(1) does [the evidence] explain the admitted evidence, (2) does it place the admitted evidence in context, (3) will admitting it avoid misleading the trier of fact, and (4) will admitting it insure a fair and impartial understanding of all of the evidence.” Velasco)

State v. Johnstone, 486 S.W.3d 424, 432–33 (Mo. Ct. App. 2016) (“This ‘rule’ holds that a *433 party may introduce evidence of the circumstances of a writing, statement, conversation, or deposition so the jury can have a complete picture of the contested evidence introduced by the adversary.” State ex rel. Kemper v. Vincent, 191 S.W.3d 45, 49–50 (Mo. banc 2006) (emphasis added). “This rule seeks to ensure that an exhibit is not admitted out of context.” State v. Jackson, 313 S.W.3d 206, 211 (Mo.App.E.D.2010) (emphasis added). “The adverse party is entitled to introduce or to inquire into other parts of the whole exhibit in order to explain or rebut adverse inferences which might arise from the fragmentary or incomplete character of the evidence introduced”)

Fed. R. Civ. P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615”)

Fed. R. Civ. P. 32(a)(6) (“If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts”)

Fed. R. Evid. 106. Remainder of or Related Writings or Recorded Statements (“If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time”)

Fed. R. Civ. P. 30(c)(1) (“The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence, except Rules 103 and 615. After putting the deponent under oath or affirmation, the officer must record the testimony by the method designated under Rule 30(b)(3)(A)” )

In this episode, Jim Garrity addresses the question whether your deposition subpoena, which contains a specific date and time for appearance, in fact expires (requiring the witness to be re-subpoenaed) if the deposition is postponed to a future date. As always, he ends the episode with incredibly insightful practice tips, including sample language to include in your subpoenas to avoid this expiration-date argument. Check the show notes for the cases upon which this episode is based. And if you'd like to see the sample subpoena Jim Garrity uses that contains the language he recommends you add, email us at [email protected]. Put "Send me Sample Non-Expiring Depo Subpoena" - or something similar, so we'll know which bonus publication you're looking for - in the subject line.

SHOW NOTES:

Guild Associates, Inc. v. Bio-Energy (Washington) LLC, 2014 WL 2767605, No.: 2:13-CV-1041 (S. D. Ohio, Eastern Division June 18, 2014) (court rules, without analysis, that because the date for depositions had passed by the time of the court's ruling on a motion to quash deposition subpoenas and to have a protective order issued, the matter was moot)

HEI Resources East OMG Joint Venture v. Evans, 2009 WL 2601368, 09-CV-00028-MSK-DNV (D. Colorado August 20, 2009) (rejecting argument that because compliance date for document subpoena had passed 19 days before the court ruled on motion for protective order, the subpoena had "expired by its own terms” and there was no longer any binding basis for recipient bank to comply with subpoena that court had power to enforce; determining that "[T]he former argument is made without any citation to supporting authority and is patently without merit”)

Kitchen v. Croll, 2020 WL 1465978, No. 1:16-CV-190 (W.D. Mich. March 26, 2020) (order affirming magistrate's denial of prisoner’s motion to enforce records subpoenas, noting that the magistrate denied the motion to enforce the subpoena as moot because it expired months before the inmate filed his motion to compel; held, without analysis or citation to authority, that "[d]espite Kitchen’s arguments to the contrary, once the time for production passed, the subpoena no longer had any effect. By the time Kitchen filed his motion to enforce the subpoena several months later, the issue was moot, and thus this portion of the appeal will be denied")

Clark v. Hercules, Inc., 2021 WL 4318413, 2:13-cv-794-FtM-29-MRM (M.D. Fla. Jan. 19, 2021) (deposition subpoena June 27, 2019,for July 10, 2019 deposition, which was delayed due to the witness’ illness; motion to compel and enforce subpoena filed July 15, 2020; order enforcing subpoena issued January 19, 2021; held, "Plaintiff's argument that the subpoena is stale because the stated date has passed is meritless. While the subpoena set the deposition for July 10, 2019 this Court has found that a "[A] subpoena presents a continuing duty to appear and does not expire upon its stated date. As a result, despite the date passing, the Court finds that the Trust is still under a duty to appear”)

United States Equal Employment Opportunity Commission v. Hospman LLC, No. 2:15 – CV – 419 – FTM – 29CM, 2016 WL 5942386 (M. D. Florida October 13, 2016) (subpoena presents a continuing duty to appear and does not expire upon its stated date; hence, if the party cancels and reschedules a deposition after issuing a subpoena with a specific date, a witness is still under a continuing duty to appear for a rescheduled deposition)

Shulton v. Optel Corp., 126 F.R.D. 80 (S.D. Fla. Feb. 17, 1989) (subpoena represents continuing duty to appear and does not expire upon its stated date, citing cases from various states and federal jurisdictions)

Functional Pathways of Tennessee, LLC v. Wilson Senior Care, Inc., 2010 WL 11474102, No. 3:10-CV-409 (E.D. Tenn. Nov. 10, 2010) (November 10, 2010 quashing deposition subpoena without citing statutory or decisional authority, saying that because authority deposition was set for November 5, 2010, “[t]his date had now expired and, because "the subpoena is now incorrect in its date, the subpoena is hereby quashed")

Williams & Cochrane, LLP v. Quechan Tribe, etc., 2020 WL 2747116, No. 17-cv-1436-GPC (S.D. Cal. May 26, 2020) (rejecting, without deciding, argument that "deposition subpoena is insufficient because the original deposition notices expired and were not reissued; Court noted that "Plaintiff has not put forward any authority for its position that the subpoena has expired…”)

Wright v. Warden, 2019 WL 643486, No. CV154006830S (Superior Ct. Conn. Jan. 18, 2019) (determining that subpoena for appearance in court was no longer valid because of state statute that provides the subpoena is valid for 60 days)

Rosario v. Starbucks Corporation, 2018 WL 333196, No. 2:16-cv-01951 RAJ (W.D. Wash. January 8, 2018) (in response to defense argument that the plaintiff's notice of subpoena set a date certain for deposition, and that any other date would be unenforceable because the subpoena had expired, court said thar "This argument is unpersuasive; [the defendant] offers no authority in support of its contention that Plaintiff is confined to the deposition date set forth in its Notice of Subpoena…”)

FRCP 45(c) (governing service of subpoenas on nonparties)

Fast Company Magazine, Do Google and Bing Actually Return Billions of Search Results? https://www.fastcompany.com/1748616/do-google-and-bing-actually-return-billions-search-results