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Depositions, depositions...; what to expect next?
Topic Started: Apr 8 2011, 01:23 PM (4,292 Views)
Walt-in-Durham

Baldo
Apr 8 2011, 09:06 PM
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?

Absolutely, all the aligned counsel can give each other advice during the breaks. Shoot, I TXT ideas to lead counsel. Or if I'm lead, they TXT me. My deps look like a big TXT war.

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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?


I never hold anything back at a fact witness deposition. Now remember, I get to ask the questions, and never have to explain anything. The only objection is to the form of the question. No leading questions. That's it. I don't use leading questions in depositions. I save that for trial when I'm testifying for the witness. But, the deposition is when you ask those questions you don't know the answers to. My typical deposition notebook might be a three inch binder. That same witness might get a quarter inch at trial, if that much.

I don't depose experts. I take their 26(a)(2) disclosure and review it. They have to disclose all their testimony in the last four years, so I may pull an old dep to see how they testify. I will have my expert pick apart their 26(a)(2) disclosure, but any fire I have for their expert, I will save for trial.

Walt-in-Durham
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genny6348
Genny6348
Thanks Walt-in-Durham
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Baldo
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Yea thanks Walt. I appreciate it. I learn so much here.
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kbp

Very much appreciated, Walt. :)
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Quasimodo

Quote:
 
http://books.google.com/books?id=7v8U-dTLE9QC&pg=PA128&lpg=PA128&dq=judge+bias+limit+discovery+depositions&source=bl&ots=CcsVAd7NBO&sig=AI8hzPOCmtFzF82_a4-0CVutsSI&hl=en&ei=K3CgTfOkC6PjiALY-tCQAw&sa=X&oi=book_result&ct=result&resnum=3&ved=0CCYQ6AEwAg#v=onepage&q&f=false


Discovery Problems and Their Solutions,
Grimm, pp. 128ff

Ms. Jackson should also consider the reasons for taking a deposition. They include learning the deponent’s knowledge of the facts (both direct knowledge and hearsay--the rule against hearsay does not apply in depositions); ascertaining the substance of a potential trial witness’s testimony; assessing the witness’s demeanor, character,
and credibility; and freezing the witness’s testimony. If Ms. Jackson locks in the witness’s testimony at deposition and the testimony changes at trial, his recollection can be refreshed by the transcript of the deposition--or he can be effectively impeached.

Another reason to take a deposition is to perpetuate testimony so that if a witness failse to appear at trail for one reason or another (for example, the witness is beyond the reach of the court’s jurisdiction, or the witness dies), the transcript can be read to the judge or the jury--and in the case of a video deposition, the video may be shown.


Obviously Judge Beaty must not have heard of that one...


ETA: I wonder if it would be possible for the depositions to be videotaped, so that the demeanor of the deponents can
be observed?
Edited by Quasimodo, Apr 9 2011, 09:51 AM.
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Quasimodo

Quote:
 
She should also consider the various techniques in asking questions and the applicability of each to the topic at hand. Open-ended questions, for example, are useful in obtaining a narrative answer: ie., “Tell us what you observed that day.” Close-ended or leading questions pin a witness down: ie, “You agree that the traffic light was red at the time of the collision?” As the primary purpose of the deposition of a fact witness is usually to gain as much information as possible, open-ended questions are the norm…

--p 129

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She should also consider the various techniques in asking questions and the applicability of each to the topic at hand. Open-ended questions, for example, are useful in obtaining a narrative answer: ie., “Tell us what you observed that day.” Close-ended or leading questions pin a witness down: ie, “You agree that the traffic light was red at the time of the collision?” As the primary purpose of the deposition of a fact witness is usually to gain as much information as possible, open-ended questions are the norm…

The format of a deposition may vary from case to case. Usually, counsel introduces herself, explains the purpose of the deposition to the witness, and clarifies that if the witness needs to take a break or does not understand the question, he should stop the questioner and say so. Often counsel will begin the questioning with the witness’s background, education, employment, and present occupation, to put the witness at ease and obtain information that may prove useful during courtroom interrogation. ..

Once the prelimiaries are done, counsel will then turn to the specific topics
to be covered in that deposition. Some lawyers, however, prefer to start a deposition by “cutting to the chase”, that is, honing in on one or several critical areas immediately to catch the witness off-guard, and then returning to background questioning and other areas of secondary interest.


--pp. 129-130
Edited by Quasimodo, Apr 9 2011, 10:01 AM.
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Quasimodo

PICK TEN:
Quote:
 

Evans:
Michael B. Nifong, District Attorney
Linwood Wilson, Investigator

Durham Police Department
Mark Gottlieb, Detective,
Benjamin Himan, Investigator
David Addison, Corporal
Steven Chalmers, Chief of Police
Beverly Council, Commander of the Uniform Patrol Bureau
Ronald Hodge, Deputy Chief of Police
Jeff Lamb, Commander of the District Two Uniform Patrol
Stephen Mihaich, Commander of Investigative Services
Michael Ripberger, Lieutenant
Lee Russ, Executive Officer to the Chief of Police

DNA Security, Inc.
Richard Clark, President
Brian Meehan, Laboratory Director

[My picks for "ten". These ten are necessary for the Evans suit; it is unfair to penalize the plaintiffs
by compelling them to include in their "ten" any defendants from Duke, since Duke
is not a part of their suit.]



McFadyen

DUKE UNIVERSITY, DUKE UNIVERSITY POLICE DEPARTMENT, AARON GRAVES, ROBERT DEAN, LEILA HUMPHRIES, PHYLLIS COOPER, WILLIAM F. GARBER, II, JAMES SCHWAB, JOSEPH FLEMING, JEFFREY O. BEST, GARY N. SMITH, GREG STOTSENBERG, ROBERT K. STEEL, RICHARD H. BRODHEAD, TALLMAN TRASK, PETER LANGE, , JOHN BURNESS, LARRY MONETA, DUKE UNIVERSITY HEALTH SYSTEMS, INC., PRIVATE DIAGNOSTIC CLINIC, PLLC, JULIE MANLY, M.D., THERESA ARICO, R.N., TARA LEVICY, R.N., THE CITY OF DURHAM, NORTH CAROLINA, MICHAEL B. NIFONG, PATRICK BAKER, STEVEN CHALMERS, RONALD HODGE, LEE RUSS, STEPHEN MIHAICH, BEVERLY COUNCIL, EDWARD SARVIS, JEFF LAMB, MICHAEL RIPBERGER, LAIRD EVANS, JAMES T. SOUKUP, KAMMIE MICHAEL, DAVID W. ADDISON, MARK D. GOTTLIEB, BENJAMIN W. HIMAN, LINWOOD WILSON, RICHARD D. CLAYTON, DNA SECURITY, INC., RICHARD CLARK, BRIAN MEEHAN, PHD, VICTOR J. DZAU, M.D., ALLISON HALTON, KEMEL DAWKINS, SUZANNE WASIOLEK, STEPHEN BRYAN and MATTHEW DRUMMOND

[My picks. Again, these "ten" do not overlap with the Evans suit--they are not included in the Evans suit. Consolidating the Evans suit and the others and limiting the number of deponents makes no sense.]

Carrington


DUKE UNIVERSITY, DUKE UNIVERSITY HEALTH SYSTEM, INC., RICHARD BRODHEAD, PETER LANGE, LARRY MONETA, JOHN BURNESS, TALLMAN TRASK, SUZANNE WASIOLEK, MATTHEW DRUMMOND, AARON GRAVES, ROBERT DEAN, TARA LEVICY, THERESA ARICO, J. WESLEY COVINGTON, [DECEASED] KATE HENDRICKS, VICTOR DZAU, CITY OF DURHAM, LINWOOD WILSON, MARK GOTTLIEB, BENJAMIN HIMAN, PATRICK BAKER, STEVEN CHALMERS, RONALD HODGE, LEE RUSS, STEPHEN MIHAICH, BEVERLY COUNCIL, JEFF LAMB, MICHAEL RIPBERGER and DAVID ADDISON


[Also deceased: Travis V. Mangum]

I think questions might remain as to whether Brodhead, Burness, etc., can be deposed once for THEMSELVES,
and once as officers of Duke University. (?)
Edited by Quasimodo, Apr 9 2011, 10:23 AM.
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Quasimodo

Since the hearsay rule does not apply in depositions, I think it is also permissible to ask deponents what they
know about the actions of others; what others said; how others responded; what orders they gave, etc.

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Quasimodo

Quote:
 
http://w3.uchastings.edu/plri/fal95tex/discov.html

Discovery Reform

(snip)

A second category of abuse has been defined as resistance to legitimate discovery in the hope of either avoiding disclosure or to simply buy time. Techniques in this second category include: refusing to provide or hiding information, raising frivolous claims of privilege, destroying documents, disingenuously construing discovery requests narrowly, assisting in perjury, coaching witnesses to avoid disclosing information, and providing deliberately evasive answers to discovery requests. The root of this type of abuse is found in the philosophy that good lawyering entails getting as much information as possible while revealing as little as possible.

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Statutory Definition of Discovery Abuse

California Code of Civil Procedure sections 2023(a)(1)-(9) now provide a nonexclusive list of what constitutes discovery abuse:

Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery.

Using a discovery method in a manner that does not comply with it specified procedures.

Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense.

Failing to respond or to submit to an authorized method of discovery.

Making, without substantial justification, an unmeritorious objection to discovery.

Making an evasive response to discovery.

Disobeying a court order to provide discovery.


Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular method of discovery requires the filing of a declaration stating facts showing that such an attempt has been made. Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails to confer as required pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct.


Under these definitions, it is now essentially mandatory that attorneys make a good faith effort to resolve discovery-related disputes informally. This requirement of meet and confer runs throughout the Act and, as is discussed below, failure to do so will result in monetary sanctions. It is important to note that sanctions can be imposed for a failure to meet and confer, even if the party has not actually engaged in discovery abuse. It was thought that the enforcement of a meet and confer requirement would conserve judicial resources by limiting the court's involvement to the resolution of major disputes rather than refereeing minor differences between counsel.

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Quasimodo

Quote:
 
Limitations on Depositions

...it was not uncommon for the non-noticing party to conduct lengthy cross-examination of the deponent at great expense to the noticing party. Under the Act, the court upon motion for good cause shown, can order that the cost be "borne or shared by another party." In addition, the Act limits the parties to one deposition per deponent. Once a party has been deposed, neither side may take another deposition. If a party wishes to depose a witness more than once it must get either permission from the court or a stipulation permitting the subsequent deposition. Some have expressed concern that attorneys may use the one-deposition limit to tactical advantage by deposing their own key people early in the litigation when the opposing side is unprepared to take an intelligent deposition.


The above refers to California law; but the federal rules IIRC also limit the parties to one deposition per deponent.

I have no doubt the plaintiffs' attorneys are prepared; however, if more information is developed through depositions
which might require returning to a previous deponent, that would have to be appealed to the judge.

(The judge was unwilling to permit the plaintiffs to have discovery in order to turn up further evidence supporting their claims,
so I have my doubts he will be willing to grant additional depositions. (MOO))

Edited by Quasimodo, Apr 9 2011, 10:44 AM.
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Quasimodo

I suppose some of the parties might also want to depose records custodians, of
which there are about 50 in these cases.

(IE, who kept the emails).

If the parties do not agree to more than ten deponents, or if the judge refuses to allow
more than ten, then a lot of information relevant to the actions of the defendants is
going to remain undisclosed, IMHO.
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sceptical

From footnote on page 3 of Beaty's decision in Evans et al referring to the overlap in the 3 civil suits:

Quote:
 
Opinions are being entered in those cases contemporaneously with the present Order and
Opinion in this case. These cases have not been formally consolidated, and are still proceeding
as separate cases, although some consolidation of discovery may be appropriate in light of the
overlapping issues raised.
In addition, given the overlapping legal issues, much of the analysis
presented in the three Opinions in these cases is the same. The Court restates the analysis in
each case, however, so that each Opinion can stand alone.
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cks
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I would think that Dean Sue should and would be deposed. Since she was not acting in a legal capacity (as the lawyer of record for the students) it would seem that she can not hide behind the confidentiality screen.
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Walt-in-Durham

Quasimodo
Apr 9 2011, 10:52 AM
I suppose some of the parties might also want to depose records custodians, of
which there are about 50 in these cases.

(IE, who kept the emails).

If the parties do not agree to more than ten deponents, or if the judge refuses to allow
more than ten, then a lot of information relevant to the actions of the defendants is
going to remain undisclosed, IMHO.
Not to worry. Plaintiffs' counsel will simply issue a subpoena duces tecum to the custodians of the records and allow them to comply by furnishing all the records in lieu of being deposed. Common practice in large scale litigation. Given the record retention laws in this country and the rather severe penalties for failing to adhere to appropriate record retention rules, Duke, the city and the DPD will produce more rather than less in the way of records. Further, under the federal rules of civil procedure, the defendants have to make a disclosure to the plaintiffs, before discovery begins with all the records they intend to rely on and the names of all persons who hold those records along with copies of the records. So, discovery in federal court begins with a document dump.

In short, in federal court if the other side turns up something you did not disclose in your document dump, it's hello sanctions time.

Walt-in-Durham
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Walt-in-Durham

cks
Apr 9 2011, 11:25 AM
I would think that Dean Sue should and would be deposed. Since she was not acting in a legal capacity (as the lawyer of record for the students) it would seem that she can not hide behind the confidentiality screen.
I double dog dare Dean Sue to assert the privilege. She got grieved by Walter Abbot and beat the grievance by claiming she was not acting as an attorney. Now if she asserts the privilege, she'll be getting a first hand view of the inside of the Guilford County lockup. Not only will the bar revoke her license for perjury, they will demand she be prosecuted for it. Lying to win your disciplinary case will provoke the bar beyond all comprehension.

Walt-in-Durham
Edited by Walt-in-Durham, Apr 9 2011, 12:28 PM.
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