In this episode, Jim Garrity does a deep dive into Fed. R. Civ. P. 27 (and its state equivalents, because virtually all U.S. states and territories have a similar rule). Rule 27 allows you to take depositions before a lawsuit has been filed - and also when a judgment has been entered and the case is on appeal - in order to perpetuate/preserve testimony. But the rule actually allows so much more. In fact, Garrity says its name, "Depositions To Perpetuate Testimony," would be more accurate if it were renamed "Discovery to Perpetuate Evidence." Listen in for a great explanation how the rule works, and some fantastic practice tips. As always, the cases upon which this episode is based are listed in the show notes, with full case names, citations, and parentheticals. There are 17 cases in the show notes today. If you don't see them all, the site where you get your podcasts may not allow extended notes. Click through to our podcast homepage if that happens, or email us at [email protected]. And if you have a minute, would you please leave us a five-star rating wherever you get your podcast? Our production staff would so deeply appreciate it. Thanks!

SHOW NOTES

In Re Carl David Jones, 2022 WL 102962, Case No. 7:21-mc-00001-BP (N. D. Texas January 11, 2022) (Role 27 petition rejected where sole purpose was to determine whether a claim existed)

Qin v. Deslongchamps, 539 F. Supp. 3d 943, Case No. 21-MC-16 (E.D. Wis. 2021) (petition denied where sole evident purpose was to determine whether diversity jurisdiction existed that would allow federal court to hear case; “[t]he federal courts have held that Rule 27 can only be used to prevent known testimony from being lost, not as a discovery tool to assist in preparing a complaint”)

Freeman v. Equifax, Inc., No. 221-CV-01137-APG-NJK, 2022 WL 195006 (D. Nev. Jan. 20, 2022) (offering examples that might justify perpetuation of testimony, saying “Such circumstances might derive in a particular case where a witness is gravely ill, elderly, or likely to leave the country for a prolonged period.”)

Naswood v. Banks, No. ED-CV-091675-SVW-DTB, 2013 WL 12470383, at *6 (C.D. Cal. Mar. 19, 2013), report and recommendation adopted, No. ED-CV-091675-SVW-DTB, 2014 WL 12962026 (C.D. Cal. July 2, 2014) (inmate filed petition to preserve camera and/or videotaped evidence while exhausting his administrative remedies under the Prison Litigation Reform Act; further, “[a]lthough Fed. R. Civ. P. 27 is entitled, “Depositions to Perpetuate Testimony,” Rule 27 permits a moving party to seek “orders like those authorized by Rules 34 and 35.” See Fed. R. Civ. P. 27(a)(3); see also Martin v. Reynolds Metals Corp., 297 F.2d 49, 56 (9th Cir. 1961) (“[A] party may, in a proper case, proceed under Rule 27 for an order under Rule 34 without taking a deposition at all ....”)

In re Highland Cap. Mgmt., L.P., No. 19-34054-SGJ11, 2022 WL 38310 (Bankr. N.D. Tex. Jan. 4, 2022) (FRCP applies to bankruptcy cases, pursuant to Fed. R. Bankr. Pro. 7027”)

Willis v. PCN Fin. Servs. Grp., Inc., No. 220-CV-01833-DSC-LPL, 2021 WL 6054563 (W.D. Pa. Oct. 27, 2021), report and recommendation adopted sub nom. In re Willis, No. 2:20-CV-1833, 2021 WL 6051558 (W.D. Pa. Dec. 21, 2021) (“Authorizing Petitioner's discovery of the financial information may permit Petitioner to manufacture a cause of action. “[I]t is well settled that Rule 27(a) is not a method of discovery to determine whether a cause of action exists, and if so, against whom action should be instituted.” Id. “Courts generally agree that to allow Rule 27 to be used for the purpose of discovery before an action is commenced to enable a person to fish for some ground for bringing suit would be an abuse of the rule”)

Petition of Ingersoll-Rand Co., 30 5F. R. D. 122 (S. D. New York April 20, 1964) (court denied petition where expectation that action will be filed is hypothetical)

In Re Matzinger Exploration Co., 1995 WL 258279, Case No. 95-525 (E. D. Louisiana April 28, 1995) (court allows limited written discovery prior to perpetuation deposition, finding that because requires “… The District Court to address the interests of justice, [the rule] clearly authorizes the court to issue orders incidental to the perpetuation deposition that are necessary to ensure that the goal of presenting a failure or delay of justice is achieved”)

In re Agent Orange Product Liability Litigation, 96 F. R. D. 587, 588 (E. D. N. Y. 1983) (allowing party adverse to petition to conduct written discovery prior to perpetuation deposition)

In the Matter of Isaac Sims, 389 F. 2d 148 (5th Cir. 1967) (Rule 27 petition justified in part because of key witness’ imminent departure to Peru)

Hawthorn v. Selke, et al., 2016 WL 6462110, Case No. 3:16-cv-246 (S. D. Ohio October 31, 2016 (Rule 27 petition dismissed pursuant to FRCP 12(b)(6) where petitioner merely appeared to seek general discovery, and where there was no extraordinary risk of the loss or spoilation of evidence)

In Matter of Petition of Legg Mason Investment Counsel & Trust Company, N.A., 2011 WL 1533165 (S. D. New York April 19, 2011) (court granted petition where action could be filed by date certain and key witness was 87 years old)

United Heritage Property & Casualty Company, 2018 WL 2437538 ( D. Oregon May 30, 2018) (where insurance carrier sought cell phone records, but counsel conceded he did not know when or how such records would be destroyed, Rule 27 petition would be denied and dismissed)

Martin v. Reynolds Metals Corp. 297 F 2d 49 (9th 1961) (possible loss of proof by company that expected to be accused of causing harm to cattle ranching operations justified Rule 27 petition, where deceased cattle possibly affected by contamination were being discarded, and where contamination in the soil and water might degrade prior to the filing of a lawsuit)

In Re Petition of Elaine Chao, Secretary of Labor, United States Department of Labor, 2008 WL 4471802, No. 08-mc-56-JSS (N. D. Iowa October 2, 2008) (Rule 27 Petition granted where key witnesses were undocumented immigrants who were about to be deported)

Melohn v. Stern, 2021 WL 1178132 No. 20-cv-05536 (PMH) (S. D. New York March 29, 2021) (Rule 27 petition denied where, among other things, petitioner acknowledged wanting to conduct discovery in order to gather information to meet heightened pleading standard for RICO claims)

Washington Mutual, Inc. v. United States of America, 2008 WL 11506727, No. Co6-1550-JCC (W. E. Washington October 10, 2008) (Rule 27 petition granted where testimony of 74-year-old witness may be lost “in the three years that are likely to pass before the appeal is finally resolved”)

In this episode, Jim Garrity discusses an October 21, 2021 ruling granting a protective order blocking plaintiffs' depositions set on short notice. In the case Garrity discusses, the plaintiffs' lawyer sent emails - one 49 days before the close of discovery, and another 42 days before the deadline - seeking deposition dates for specific named witnesses. But the actual Notice of Taking Depositions wasn't served until October 14, just a few days before the October 18, 19, and 20 depositions, and with a discovery deadline of October 21. So while the depositions had been discussed informally by email well in advance, the actual notice violated both a local rule and Fed.R.Civ.P. 32(a)(5)(A) against "short-notice" depositions. Garrity offers practical guidance on how to avoid winding up in this situation, including whether an email could ever serve as the formal deposition notice. The full case citation for the case discussed in the episode appears in the show notes below. And if you haven't left us a five-star rating wherever you get your podcast, would you be so kind as to do so right now? That's a great way to let us know you appreciate the effort that goes into producing these episodes. Thanks!

SHOW NOTES:

Bernstein, et al. v. Town of Jupiter, Florida, 2021 WL 6135188, No. 21-81215-CV (S.D. Fla. Oct. 21, 2021) (order granting defendant's motion for protective order blocking deposition set on short notice; held, while the plaintiff requested dates well in advance of the discovery deadline, the service date of the actual Notice of Taking Deposition was too close to the depositions themselves, violating rules on short-notice depositions)

Fed. R. Civ. P. 30(b)(1), (2), (3), (4); 30(b)(6); (outlining the required content of a proper Notice of Taking Deposition)

Fed. R. Civ. P. 32(a)(5)(A) ( addressing "short-notice" depositions, defined as depositions noticed less than 14 days from the date of the deposition, and providing severe consequences)

In this Lessons from the Front Lines episode, Jim Garrity analyzes Google's opposition to the deposition in a class action of its highest-level official, Sundar Pichai. The fight, which ended in a December 27, 2021 ruling allowing the deposition, implicates the judicially-created "apex witness" doctrine. That doctrine holds that depositions of top corporate, elected, and other government officials - those at the apex of their organization - should be discouraged or even prohibited unless the movant can satisfy the elements of the apex deposition test. As always, relevant case cites are in the show notes. And if you'd like the free bonus PDF containing the filings by Google and the plaintiffs on this issue, email us at [email protected]. In the subject line, make clear you're asking for the Episode 78 bonus PDF. Thanks!

SHOW NOTES:

Joint Submission Re: Deposition of Google Officer Sundar Pichai, Brown et al. v. Google LLC, Case No. 5:20-cv-03664-LHK, Doc. 365 (S. D. Calif. Dec. 27, 2021) (jointly-submitted letter brief containing factual and legal arguments for and against apex deposition of Alphabet and Google CEO, but limiting deposition to two hours)

Order Regarding Deposition of Sundar Pichai, Brown et al. v. Google LLC, Case No. 5:20-cv-03664-LHK, Doc. 365 (S. D. Calif. Dec. 27, 2021) (allowing apex deposition of Alphabet and Google CEO, but limiting deposition to two hours)

Affinity Labs of Texas v. Apple, Inc., 2011 WL 1753982, at *15-16 (N. D. Calif. May 9, 2011) (rejecting efforts to depose Apple CEO Steve Jobs where other witnesses were produced with firsthand knowledge)

Computer Acceleration Corp. v. Microsoft Corp., 2007 WL 768-4605 (E. D. Texas June 15, 2007) (rejecting efforts to depose Microsoft CEO Bill Gates, where he merely directed and encouraged employees to focus on a specific issue)

Anderson v. County of Contra Costa, 2017 WL 930315 at*4 (and. D. Calif. March 9, 2017) (rejecting request for apex deposition, directing plaintiffs to first depose a corporate representative on key topics and, if necessary, to then meet and confer about the necessity and scope of an apex deposition)

In this episode, Jim Garrity answers some listener questions about depositions by written questions, and shares additional thoughts about the technique, which we covered in Episode 76. This will be our last episode of the year, and we wish all of our listeners a safe and happy holiday season and New Year. We're thrilled to report that we added thousands and thousands of new listeners in 2020, our first full year of the podcast, and we're grateful for the rave reviews about the way we structured the podcast: a single topic in each episode, actionable advice, tips and tactics for lawyers on both sides of an issue, and our actual research in the show notes. We have some unbelievable topics to cover in 2022 and look forward to continuing to help you overcome frustrating obstacles in your deposition practice and thoroughly master this critical element of your litigation. Thank you again!

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)