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Depositions, depositions...; what to expect next?
Topic Started: Apr 8 2011, 01:23 PM (4,290 Views)
Quasimodo

Quote:
 
http://www.civilrightsfirm.com/article2.html

DEPOSITIONS: THE MOST IMPORTANT DISCOVERY TOOL
Getting What You Need to Win
BY LEE F. BANTLE

(snip)

THE NEW FEDERAL RULES CONCERNING DEPOSITIONS

Effective December 1, 2000, the Federal Rules of Civil Procedure were amended in several ways which affect the conduct of depositions.

The most important changes are:

A party must obtain leave of court to take more than 10 depositions unless the parties so stipulate. Fed. R. Civ. P. 30(a)(2)(A)

[That's ten PER SIDE, not PER ATTORNEY. ]


No deposition may last more than 7 hours unless authorized by the court or stipulated by the parties. Fed. R. Civ. P. 30(d)(2)

HOWEVER, the above may be enlarged PROVIDED BOTH SIDES AGREE.

So the next step will probably be negotiations as to how many persons can be deposed.

And whether they can be deposed in EACH suit, or only ONCE for all three suits.

As well, since a deposition can last only seven hours total (one day), that is a severe limitation if there
are five or six attorneys (or more) who want to get in questions.

And the more so, if depositions for all the suits are all combined into one session.

I suspect that Gorelick and Co. intend to make this the next battlefield--to limit depositions as much as possible.


The new rules continue the language of the 1993 amendment that : "If the court finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction including the reasonable costs and attorney's fees incurred by any parties as a result thereof." Fed. R. Civ. P. 30(d)(3)

[Wow. I'm sure Duke and Durham are trembling.]
:SarC: [If paying another million in sanctions gets them out of testifying, them I'm sure they'd be glad to pay.]

The new rules also continue the language that objections must be stated "concisely and in a non-argumentative and non-suggestive manner." Instructions not to answer are limited to privilege, enforcing a limitation imposed by the court, or to present a motion to limit or cease the deposition because it is being conducted in bad faith or to annoy, embarrass or oppress. Fed. R. Civ. P. 30(d)(1) and 30(d)(4).

[What limits will the court impose? That's another battlefield for Gorelick and Co. ]


To deal effectively with these changes, the plaintiff's attorney must be ready to negotiate over process. While it may be difficult to complete the deposition of the key decision-maker in seven hours, no doubt defense counsel feels the same way about completing the plaintiff's deposition. A deal can be struck. While plaintiff's counsel may need more than ten depositions, defense counsel may consent if plaintiff's counsel agrees not to contact non-managerial employees of defendant whose interviews may be permitted by ethical rules. Where these issues are disputed, raise them with the judge at the Rule 16 conference to avoid a later application to the court.

(snip)

DEALING WITH THE ADVERSARY WHO INTERFERES OR HARASSES

While most defense counsel conduct themselves professionally at depositions, there are those who cross the line and act improperly. In order to represent the plaintiff effectively, you must not permit unfair tactics to affect the conduct of depositions.

There are various tactics that may be employed to keep you from getting the answers you need from the witness:

Defense counsel may talk his or her way through the deposition. Continual rephrasing of your questions, queries suggesting the ambiguity of questions which are not ambiguous, reminders such as "if you remember" and other defense commentary are all ways to coach the witness and to keep you from making a clean record.

[These tactics also USE UP TIME. You and the attorneys with you will have only seven hours--they may try and run out the clock.]

Defense counsel may be belligerent and intimidating. Counsel may continually criticize your questions as improper and misleading, may resort to yelling and tirades, and may otherwise attempt to cow you into not getting the evidence you need.

[See above.]


Defense counsel may repeatedly give instructions not to answer the question. Oftentimes these instructions will have nothing to do with privilege, but will be purportedly based on the "impropriety" of your questions.

[See above.]

Similarly, when you are defending the deposition of the plaintiff, defense counsel might harass, belittle, embarrass or otherwise attempt to intimidate the plaintiff. This conduct may be strategic or may result from counsel's anger that plaintiff had the temerity to bring the claims.

All of the foregoing tactics are improper and should be dealt with firmly. An escalating response is recommended.

First, refer to Fed. R. Civ. P. 30(d) and summarize generally the import of the rules. Do this on the record.

Second, take out the Federal Rules of Civil Procedure and read the relevant sections to your adversary or ask that he or she read the relevant sections. Note on the record that you have done so.

Third, threaten to call the court for an immediate ruling. Counsel may relent when it is clear that you are looking up the telephone number.

Fourth, call the court for a ruling. If the judge is unavailable, and does not offer to get back to you, discontinue the deposition and proceed with a motion or other application to the court. If the issue is an instruction not to answer, and counsel is not otherwise interfering, you may wish to complete the deposition and then get a ruling on the disputed points.

There are multiple bases for a court's authority to impose sanctions upon counsel who utilize improper tactics or demonstrate gross misconduct during a deposition.

A court may generally award sanctions under §1927, which provides "Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case to increase costs unreasonably and vexatiously may be required by the court to satisfy personally such excess costs." 28 U.S.C. §1927. Codified to deter unnecessary delay in litigation, awards made under §1927 are proper when an attorney's behavior is so egregious and without merit that it indicates bad faith.

[Again, I'm sure Gorelick and Co., and Duke and Durham, will tremble at the possibility of having to dip a little bit deeper into Duke's funds...] :SarC:

Additionally, sanctions may be awarded pursuant to the court's inherent power, "born of the practical necessity that courts be able to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Revson v. Cinque & Cinque, 221 F.3d 71,78 (2d Cir. 2000). Sanctions are also explicitly authorized under Fed R. Civ. P. 30(d)(3) and under Fed. R. Civ. P. 37.

"A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, or to present a motion under 30(d)(4)." Fed.R.Civ.P. 30(d)(1). Thus counsel cannot rely on "generalized assertions of attorney-client privilege but must make reference to specific privileged communications that would be revealed." Bristol-Meyers Squib Co. v. Rhone-Poulenc Rorer, Inc., 1998 U.S. Dist. LEXIS 12, *12 (S.D.N.Y. January 6, 1998) (requiring defendant to make the witnesses available for resumed deposition at its cost and to pay the plaintiff's cost of bringing the motion.)

Attorneys may lawfully invoke privilege during a deposition under the guidelines of the Federal Rules, however they may not "pepper the proceeding with interruptions and directions not to answer." Learning International v. Competence Assurance Systems Inc., 1990 U.S. Dist. LEXIS 16810 (December 13, 1990 S.D.N.Y.) by repeatedly interjecting such comments as "answer if you know" or "if you remember," was sanctioned with an admonishment from the court and the requirement to pay for the cost of the deposition. City of New York v. Coastal Oil New York, Inc., 2000 U.S. Dist. LEXIS 746 (January 28, 2000 S.D.N.Y.)

(snip)

Sometimes behavior of counsel is obstructive, but lacks bad faith and thereby narrowly avoids being sanctioned. Phillips v. Manufacturers Hanover Trust Co., 1994 U.S. Dist. LEXIS 3748 (March 29, 1994 S.D.N.Y.) Where counsel objected or interjected 49 times in an hour and a half deposition, and where at least 60% of the transcript pages contained the interruptions, the court found failure to comply with Rule 30(d)(1) requiring counsel to concisely state their reasons for an objection.

Though the court noted counsel's conduct was "inappropriate and at times even obnoxious," it did not meet the requirements for sanctionable conduct under the court's inherent power or §1927. The repeated interruptions did not completely destroy the deposition, and there was no evidence of bad faith. The court also denied sanctions under F.R.C.P. 30, based primarily on the newness of the amendment at the time the claim was before the court, but put counsel on notice of future sanctions should she engage in a repeat performance. Id.

[We already know that Judge Beaty inserted "but not in bad faith" into his order precluding depositions, (IE, that if the
defendants lost evidence or documents, "but not in bad faith", they wouldn't face sanctions.) I wonder how erasing
all of Durham's emails prior to August 2007 would be viewed...]


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Quasimodo

Quote:
 
http://apps.americanbar.org/litigation/committees/trialpractice/articles/111710-deposition-time-limits.html

Working with the Seven-Hour Time Limit for Depositions in Federal Court

By Yasser Madriz and Ben Allen – November 17, 2010

So you find yourself involved in a complex civil suit, your opponent designates the same witness as both their Rule 30(b)(6) corporate representative and a fact witness, and the seven hours provided under Rule 30(d)(1) to depose her seem woefully inadequate. Worse, you could even have substantially less than seven hours if there are other parties with aligned interests wanting to take a bite at the apple. What do you do? Obviously, the best solution is to extend the time limit by agreement with the other side, but if they refuse to cooperate, how do you ensure that you have sufficient time to examine the witness?

Background

The Federal Rules of Civil Procedure generally limit depositions to seven hours. Prior to the 2000 Amendments, courts had discretion to adopt local rules modifying the seven-hour time limit. Now, however, the seven-hour time limit proscribed under the rules may only be modified by either court order or stipulation of the parties. Specifically, Rule 30 dictates, "the court must allow additional time consistent with Rule 26(b)(2) if needed for fair examination of the deponent or if the deponent or another person, or other circumstance, impedes or delays the examination." Fed. R. Civ. P. 30

[Who decides if Gorelick unfairly delayed the examination? ]

Moving for Additional Time

Generally, and to the surprise of most practitioners, the designation of a witness as both a corporate representative and a fact witness does not automatically allow you to depose the witness twice. To exceed the seven-hour time limit, a deposing lawyer must establish that the need for a fair examination requires more than seven hours. Miller v. Waseca Med Ctr., 205 F.R.D. 537, 540 (D.M.N. 2002).

Moreover, a court may not even consider a request for additional time until the first seven hours have been exhausted. Malec v. Tr. Of Boston Coll., 208 F.R.D. 23, 24 (D.Mass. 2002). Once the court agrees to hear your motion, multiple grounds can be offered to support your request for additional time. Be warned, however, that you have a substantial burden to meet; at least one court has held, "the seven-hour limit was carefully chosen and that extensions of that limit should be the exception, not the rule." Roberson v. Bair, 242 F.R.D. 130, 138 (D.D.C. 2007).

[How would Judge Beaty rule?]

Grounds for Additional Time

Having multiple lawyers aligned with your interests and wanting time to ask the deponent questions, for instance, presents probably the most pressing need for additional time, at least from the lawyers' perspective.


After all, you are accustomed to asking a full day's worth of questions for each witness, and having other parties involved does not necessarily change your needs. Indeed, the Advisory Committee Notes recommends that courts consider the need for each parties’ attorney to depose a witness, subject to the admonition that aligned parties should designate one attorney to depose the witness on topics of common interest.

(snip)

In complex, multi-party litigation, courts will also consider the need to review voluminous documents when considering a motion for more deposition time. Fortunately, in situations where the witness wears two hats (corporate representative and fact witness) or where you have multiple lawyers trying to take a shot at the same deponent, the litigation will often be sufficiently complex to provide this justification for the court to grant you additional time.

(snip)


Anyone expect Gorelick and co. to say, Sure, take all the time you want?


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Quasimodo

SPECULATIONS, merely raw musings that spring to mind (most of which will
probably actually be irrelevant...)


How many attorneys will be able to interview Brodhead?

How many questions will each one get?

How much time will each one get?

Will the attorneys who ask the questions be those most familiar with the case, the head-honchos
of the firms, their deputies, or some lower-level partner who has only just familiarized himself with the case?

What questions will of necessity have to go unasked?

How many defense attorneys will Brodhead have with him (from Duke)?

How much time will be taken up by their objections and interruptions?

Will there be one panel of attorneys arguing with another panel over whether or not the proposed question
extends beyond the limits imposed by the judge? (and thus running out the clock?)

How broadly will the judge permit questioning?

Can Larry Moneta be questioned at all, since a) he is no longer a defendant; and b) using up one of the
ten slots for Moneta therefore seems like a waste of effort? (So will anyone be able to ask about "getting
our stories straight"?)



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Quasimodo

Of course, I expect the plaintiffs' attorneys will be able to work within the
set confines (and I expect Judge Beaty to set them very narrowly; I recall
how the confines for Nifong's bar hearing meant that many questions
could not be asked and certain areas were off limits.)

But I also expect these limits to be another battlefield.

I would assume that the focus will be directed at Gottlieb and Himan
and their lack of probable cause;

but will that exclude their being asked about what went on at DNASI
or in the March 29 meeting and other meetings?

or how often Nifong met with Crystal and whether she discussed the case?

Will there be an attempt to limit the damage done by discovery and to
create a new narrative, which this time replaces the "rogue prosecutor
who acted alone" with the "rogue cops--Gottlieb and Himan--who acted
alone"?

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Quasimodo

Quote:
 
How many attorneys will be able to interview Brodhead?

How many questions will each one get?


OTOH, heck, one reporter from the Chronicle getting to question Brodhead
for ten minutes unimpeded would break the case open...



ETA: or give JSwift one hour with the DPD defendants...
Edited by Quasimodo, Apr 8 2011, 02:16 PM.
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Quasimodo

Actually, the news media should have been asking all these questions for the last
five years...
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Walt-in-Durham

I call it the Mashmeier rule, only one lawyer gets to question a witness. (Named for Judge Mashmeier who came up with the rule.) What happens is all the alligned lawyers meet in advace, decide who is going to take the lead on each deposition. Then everybody gives the lead their deposition outline. The lead lawyer organizes a final outline from all the outlines submitted plus his own. If everybody agrees, then it's a go. Otherwise, we work out our differences.

Walt-in-Durham
Edited by Walt-in-Durham, Apr 8 2011, 03:33 PM.
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Jack_Webb

Quasimodo
Apr 8 2011, 01:37 PM
Can Larry Moneta be questioned at all, since a) he is no longer a defendant; and b) using up one of the ten slots for Moneta therefore seems like a waste of effort? (So will anyone be able to ask about "getting our stories straight"?)
Hell, yes, Moneta should be the first one deposed.

He's an ideologue and a prima facie imbecile, cf. the "get our stories straight and then erase this message" email apparently sent to half the campus.

Therefore I would expect him to be the most potentially dangerous witness, who'll try to defend his and the university's actions, and no telling what he might let slip in his eagerness to justify Duke's actions.

Say what you want about Brodhead (and I have), but he isn't a moron and won't be giving the defense anything they didn't already at least suspect.

On the other hand, I wouldn't be surprised if Moneta were to casually mention that the "Consortium" taped its meetings and that he has the tapes in his office or something.

If I were Duke, I'd send Moneta to Kunshan as a goodwill ambassador. If they're fortunate, there's a good chance he'll get lost on one of the busses or trains from Shanghai and never be heard from again.

Which, come to think of it, may be why they chose a backwater like Kunshan in the first place.
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MikeZPU

Yes, Walt confirmed that Moneta can be deposed even though he is no longer a defendant.

Burness is also an imbecile and could be easily tripped into saying something damaging.
I am sure that he still resents the LAX players. Plus, he attended the Crisis Management
Team meetings. I believe he was Brodhead's primary source for the latest information on the case.
I believe that Nifong befriended Burness, and that Burness bought what Nifong was selling
hook, line, and sinker.

Plus, as we already know, if there's one thing that makes Brodhead break into a cold sweat,
it's the thought of Burness being deposed :)
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chatham
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I guess we are in the dark about when the depositions will start and where they will be held for any individual.
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Payback
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MikeZPU
Apr 8 2011, 04:36 PM


Plus, as we already know, if there's one thing that makes Brodhead break into a cold sweat,
it's the thought of Burness being deposed :)
It's terrible to enjoy the thought of this as much as you do, Mike. Terrible.
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Baldo
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Walt-in-Durham
Apr 8 2011, 03:33 PM
I call it the Mashmeier rule, only one lawyer gets to question a witness. (Named for Judge Mashmeier who came up with the rule.) What happens is all the alligned lawyers meet in advace, decide who is going to take the lead on each deposition. Then everybody gives the lead their deposition outline. The lead lawyer organizes a final outline from all the outlines submitted plus his own. If everybody agrees, then it's a go. Otherwise, we work out our differences.

Walt-in-Durham
There are some very good firms & attorneys on the Plaintiffs side. It will be interesting to see how they divide their depositions. I imagine the preparation and research prior to the depositions can be intense if you only get one chance. Can the other firms have attorneys present and give input to the lead in breaks?

Perhaps you could explain a bit what an attorney is looking for in depositions? What is the stragety in a deposition vs questioning them on a witness stand. Do you hold back info for the trial, etc?
Edited by Baldo, Apr 8 2011, 09:06 PM.
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genny6348
Genny6348
Walt-in-Durham
Apr 8 2011, 03:33 PM
I call it the Mashmeier rule, only one lawyer gets to question a witness. (Named for Judge Mashmeier who came up with the rule.) What happens is all the alligned lawyers meet in advace, decide who is going to take the lead on each deposition. Then everybody gives the lead their deposition outline. The lead lawyer organizes a final outline from all the outlines submitted plus his own. If everybody agrees, then it's a go. Otherwise, we work out our differences.

Walt-in-Durham
Are depositions allowed to be taken more than once from a person? Perhaps something is revealed in another persons deposition that might lead to additional questions from someone already deposed.
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Bill Anderson
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MikeZPU
Apr 8 2011, 04:36 PM
Yes, Walt confirmed that Moneta can be deposed even though he is no longer a defendant.

Burness is also an imbecile and could be easily tripped into saying something damaging.
I am sure that he still resents the LAX players. Plus, he attended the Crisis Management
Team meetings. I believe he was Brodhead's primary source for the latest information on the case.
I believe that Nifong befriended Burness, and that Burness bought what Nifong was selling
hook, line, and sinker.

Plus, as we already know, if there's one thing that makes Brodhead break into a cold sweat,
it's the thought of Burness being deposed :)
I suspect that the attorneys for the players will hold out nice strips of bacon, and every time Burness gives a good answer, a bell rings, and he gets to chomp on another bacon strip. Good boy, John!

:bill:
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Walt-in-Durham

genny6348
Apr 8 2011, 09:15 PM
Are depositions allowed to be taken more than once from a person? Perhaps something is revealed in another persons deposition that might lead to additional questions from someone already deposed.
The general rule is each witness is deposed once. Let's remember that Nifong, Dr. Obfuscations, Levicy, Himan and Gottlieb have already been deposed in Nifong's disciplinary proceeding. They can be deposed again because this is a new case. But, the plaintiffs' lawyers have a lot of ground already covered with those witnesses. Also, there is fertile ground there for perjury traps.

The question I have is will Judge Beaty limit the lawyers in the three cases which were consolidated for the 12(b)(6) motions to separate for discovery now that he has for the most part denied the motions? Or will Judge Beaty keep the cases consolidated for discovery? If he does, I expect him to give the plaintiffs wide latitude in discovery, for example he will probably waive the 10 deposition limit and the seven hour rule. In the Gell litigation the judge waived the 10 deposition limit as well as the seven hour rule with regard to Ransome and perhaps Hoke and Gell.


Quote:
 
Perhaps something is revealed in another persons deposition that might lead to additional questions from someone already deposed.
If that happens, and the defense objects to a second deposition, the plaintiffs will have to go to the judge to get leave for a second deposition. That's why the rules of civil procedure allow incredibly wide deposition questions. Don't count on second depositions unless there is something really earth shaking in a subsequent deposition. Also, don't expect to see the depositions become open record. For the most part they will not come out except as a part of court filings. Remember in the DHC trial, we didn't see any of the depositions until the hearing was under way.



Walt-in-Durham
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