*Case Law Ltd. Extern and Cornell Law School Student, Class of 2024
What is a deposition and what is its purpose?
A deposition is a form of discovery. In a lawsuit, all parties have the right to conduct discovery, which is a formal investigative process to find out more information about the case before trial. “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case… Information within this scope of discovery need not be admissible in evidence to be discoverable.” Fed. R. Civ. P. 26(b)(1). Ordinarily, discovery is “accorded a broad and liberal treatment.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). This broad right of discovery serves the integrity and fairness of the judicial process by promoting the search for the truth. Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993).
Forms of discovery include deposition by oral examination, deposition by written question, interrogatories, production of documents, and requests for admission. Fed. R. Civ. P. 30, 31, 33, 34, 36. Deposition by written questions is relatively rare, so when we discuss deposition in this article, we refer to deposition by oral examination. This means that the deponent (the person being deposed) will be answering questions orally on the spot, rather than submitting written answers.
A party may depose any person, including a party, without permission from court. Fed. R. Civ. P. 30(a)(1). The deponent’s attendance may be compelled by subpoena. Id. If the court orders the deponent to give a deposition and the deponent fails to obey, the failure may be treated as contempt of court. Fed. R. Civ. P. 37(b)(1). However, this does not mean that depositions are unlimited. A party can typically only take 10 depositions as a maximum; any further depositions would require an agreement with the opposing party or permission from the court. Fed. R. Civ. P. 30(a)(2)(A). Depositions are also expensive, with attorney fees and court reporter fees. Depositions may also be video-taped upon proper notice to the deponent and hiring a professional videographer is another potential expense.
The deposition serves three potential purposes:
(1) to find out more information about the case and about the opposing party’s involvement;
This will include both favorable and unfavorable information. It gives both parties an opportunity to prepare how to best use the favorable information to their advantage at trial, and how to rebut the unfavorable information, thereby avoiding surprises at trial. It helps each party refine their strategies not only for trial, but also for pretrial summary judgment or potential settlement, since many cases are resolved without going to trial. Information discovered during a deposition might make a party decide that it is better to settle than to go to trial, or help narrow down issues to be brought out at trial.
(2) to preserve the testimony and pin down the opposing party;
Generally, all or part of a deposition may be used against a party at a hearing or trial, and any party may use a deposition to contradict or impeach the testimony given by the deponent. Fed. R. Civ. P. 32(a)(1)-(2). This means that once the deponent tells a certain version of the story in a deposition, they must tell the same version of the story at trial, otherwise the opposing party will point out the inconsistencies, and the trial judge or jury (sometimes called the “factfinder”) may find the deponent’s trial testimony unreliable.
To impeach a witness at trial, the following process (informally called the “3 C’s”) is usually used: first, credit the testimony. Specifically, the opposing counsel would establish that the witness is under oath currently in court and was also under oath earlier during the deposition. Second, confirm the testimony. Namely, the opposing counsel would confirm what the witness just testified in court, such as “the car was green.” Third, confront the witness. Specifically, the opposing counsel would show the part of the deposition transcript where the witness had made an inconsistent statement, such as “the car was blue.”
Oral deposition is particularly useful for pinning down the opposing party’s narrative, because unlike in a written deposition or interrogatory where the deponent has time to reflect and carefully craft their answers, in an oral deposition the deponent needs to answer on the spot, so it is important for the deponent to think carefully before answering, and make sure everything they said is the truth.
(3) to substitute for witness testimony at trial if the witness cannot be present.
While it is common for part of it to be played or the transcript read out loud at trial, for purposes of impeaching a witness during cross-examination, as discussed above in part (2), it is generally uncommon to play the entire deposition video at trial. This occurs when the deponent is otherwise expected to testify at trial but cannot, because of illness, job requirements, being out of town, or other unusual circumstances. Such depositions are usually videotaped, and the whole video would be played at trial, to provide a more comprehensive and realistic representation of the deponent’s testimony to the jury. Sometimes at a deposition counsel for either side gets into a long speech about impropriety. These portions of the video deposition would be excised from the video since what counsel says is not evidence.
What to expect for a deposition?
A deposition is essentially a formal interview. It is a recorded live question-and-answer session, where the opposing counsel asks questions, and the deponent answer them under oath. Counsel for other parties or the deponent (i.e. witness) also has the opportunity to ask questions after the party who noticed the deposition has finished questioning the deponent (i.e. witness). Counsel who noticed the deposition then can ask additional questions before completing the deposition. Before the deposition, the deponent should receive a notice which “must state the time and place of the deposition and, if known, the deponent’s name and address.” Fed. R. Civ. P. 30(b)(1).
Where: Depositions usually takes place in attorneys’ offices. They can also take place in a courthouse or in a corporation’s place of business. The deposing party is allowed to unilaterally select the deposition location. If the deponent is a nonparty, the deposition must take place within 100 miles of that person’s residence, place of employment, or place where the person regularly conducts business in person. Fed. R. Civ. P. 45(c). If the deponent is a party to the suit, there are no geographic limitations, but courts expect the parties to be reasonable when arranging depositions, and may order a deposition to be held in a different location when justice requires. During the current COVID-19 pandemic, depositions typically take place over Zoom, so no one needs to travel to attend depositions.
When: Unless otherwise stipulated or ordered by the court, a deposition is limited to 1 day of 7 hours. Fed. R. Civ. P. 30(d)(1). The court must allow additional time if needed to fairly examine the deponent or if the deponent, another person, or any other circumstance impedes or delays the examination. Id. It is assumed that there will be reasonable breaks during the day for lunch and other reasons, and that the only time to be counted is the time occupied by the actual deposition. Id. advisory committee notes (2000 Amendment). Practically, a deposition can last from less than an hour to multiple days, depending on the size of the case and the extent of the deponent’s involvement.
Who: Typically, the deponent, the deponent’s attorney(s), the opposing attorney(s), as well as the court reporter will be present at a deposition. The judge will not be present at the deposition. There are no Rules barring non-parties from attending depositions, so theoretically anyone who wants to attend is allowed to do so. This becomes particularly convenient when depositions are held over Zoom.
How: At the beginning of a deposition, the deponent will be notified of a set of admonitions. This includes Zoom-specific instructions, such as not to record the deposition without permission, not to consult with anyone regarding one’s testimony, not to refer to any documents without permission, and not to use phones or other electronic communications during the deposition. This also includes standard admonitions, which include but are not limited to: inquiry into the deponent’s prior litigation involvements, reminder of the oath effect, instruction about giving clear answers, audible answers, heads up on objections, and information on recording rules.
What are some tips to remember for a deposition?
- You are under oath. Lying under oath is perjury, which is a serious offense that can lead to prosecution, prison sentence, and fines. Therefore, only say what you know to be true.
- A court reporter is recording every word said during the deposition, so you must answer every question verbally, instead of nodding, shaking your head, or using other gestures. Refrain from using ambiguous colloquialisms such as “uh-huh,” and use clear “yes” or “no” instead.
- It is okay to say you don’t know or don’t remember something, as long as that is the truth. Don’t guess, since guesses may turn out to be inaccurate and harmful to your case. That being said, take some time before the deposition to think through the topic(s) on which you will be deposed, and try to remember the relevant facts about which you might be asked.
- If you don’t understand the question, say so and ask the examiner to rephrase. In general, it is a good idea to pause for a couple seconds before answering each question, to make sure that you have fully understood the question, to give the court reporter time to transcribe, and to give your attorney time to make objections if needed.
- Your attorney might interrupt you when you start to answer a question. If your attorney begins to speak, stop talking and allow them to make their objections or comments. If they instruct you (i.e. the witness) to not answer, then you should not answer the question. If they don’t ask you not to answer, or explicitly asks you to answer, then you should answer the question. Most of the time, even if your attorney might make many objections, you will likely still need to answer the questions objected to.
- Don’t overshare and only answer what is asked. The more information you share, the more it helps the opposing party to pin down your testimony, find potential inconsistencies in it, and develop strategies against your party.
- The atmosphere at the deposition can vary from formal to informal, from calm to heated. If the atmosphere get hostile, try to still stay calm and polite. Don’t be rude or aggressive even if you sense an aggressive attitude from the opposing attorney. If the opposing attorney asks an inappropriate question, your attorney will object and let you know if you should try to answer. If you feel uncomfortable or overwhelmed, you can ask to take a break.
- You have an opportunity to review the record after the deposition, and make corrections if needed, but any major corrections will be noted and reflect negatively on your credibility, so it is important to be accurate during the deposition. If you realize you gave an incorrect answer to a previous question during the deposition, it is better to correct it on the spot rather than later when reviewing the record.
- For depositions over Zoom, follow proper Zoom etiquette, which means to dress appropriately, keep a clean physical background or use a virtual background, put away your phone and other devices that might make sounds, and make sure you are alone in the room if possible, or at least in a relatively private and quiet area. Remember that the deposition video could potentially be shown in court.
What is fair game during a deposition?
Remember, discovery is broad. Since deposition is a form of discovery, deposition questions are also broader than what is allowed in court. The deponent’s attorney can make objections to some questions, but the deponent usually still has to answer most if not all questions despite the objections. Any objections and instructions not to answer, if any, are submitted to the judge after the deposition for the judge to rule on, sometimes with a quick turnaround to get timely guidance before the next deposition.
Generally, the examiner is entitled to ask about any “nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). There are a few types of common objections for when a question falls outside of the proper scope.
- Form of the question objection
This category includes but is not limited to compound question, vague and ambiguous question, leading question, and questions calling for speculation. A compound question is when the examiner asks multiple questions at the same time, so when the deponent gives a single answer, it is unclear which part of the question does the answer apply to. A vague and ambiguous question means that the question is too imprecise. For example, a question could be vague as to time if there are several relevant time periods and the question does not specify which time period is being referenced. A question that calls for speculation asks the witness to make guesses rather than relying on known facts.
These objections are mostly proper during the deposition, and are in fact waived if not raised. However, they are usually not grounds to instruct the deponent to not answer. The examiner would sometimes rephrase or simplify the question accordingly, but is entitled to a response from the deponent regardless. If the deponent has trouble understanding the question, however, they should indicate so and ask the examiner to rephrase or clarify, before providing any answer.
- Asked and answered
An asked and answered objection is raised when the examiner asks the same question or a simply rephrased version as what has already been asked and answered during this deposition, usually in an attempt to get the deponent to contradict their own previous answer. This type of objection is proper during a deposition.
- Assumes fact not in evidence
This objection arises when the examiner asks the deponent a hypothetical question involving information that has not yet come into evidence. For example, the examiner might ask the deponent to assume certain facts are true, and then ask for the deponent’s opinion on these facts. The properness of such objection depends on the specific situation, such as whether the question calls for too much speculation from the deponent. Ultimately, a judge will rule on whether the question was proper or not given the totality of admissible facts in the case.
- Privilege objection
This category includes work product privilege, attorney-client privilege, physician-patient privilege, spousal communications privilege, etc. For example, the work product privilege protects from discovery “documents and tangible things that are prepared in anticipation of litigation or for trial by or for another party or its representative.” Fed. R. Civ. P. 26(b)(3)(A). Note that the privileges are not absolute. With the work product privilege, for example, it can be overcome if “the party shows that it has substantial need for the materials to prepare its case and cannot, without undue hardship, obtain their substantial equivalent by other means.” Fed. R. Civ. P. 26(b)(3)(A)(ii).
Privilege objections are proper during the deposition, and are waived if not raised as soon as the question is asked. Unlike some other types of objections, if privilege is raised, the deponent’s attorney would typically instruct the deponent not to answer. If the examiner persists in this line of reasoning, the deponent’s attorney can ask for the questions to be certified and submitted to the judge after the deposition, for the judge to decide whether the question asks for privileged information and whether the privilege can be overcome (usually by a balancing of interests). The risks of instructing a witness not to answer a question are large because a court may order sanctions for obstructing discovery.
- Relevance objection
While the scope of discovery is limited to relevant matters, relevance is usually not a proper objection during the deposition, even though it is proper during trial. Therefore, even if the question might seek information that seems personal or embarrassing to the deponent, the answer may lead to admissible evidence, and so the deponent’s attorney likely will not raise any objections, unless privilege is involved, or unless the question is extremely off-topic and could never lead to any relevant information but aims solely to embarrass the deponent. In any case, the deponent should prepare to answer all such questions. Note that routine background questions about one’s family, education, and work history are commonly asked at the beginning of depositions and are permissible even if they are not directly relevant to the main topics of the depositions. The relevance of such information is that a person’s education, training and experience usually goes to that person’s credibility and/or foundation for the person’s other testimony.
- Hearsay objection
Similar to the logic behind why relevance objections are improper during depositions, hearsay objections are also not proper because answers to hearsay questions may lead to admissible evidence. Unlike in trial, where hearsay is inadmissible because the opposing attorney lacks the opportunity to cross-examine the declarant, in a deposition the goal is to gather as much information as possible, and hearsay is an acceptable source of information. Even if this information itself is not admissible in court, it can lead the examining party to then depose the declarant and seek admissible testimony therefrom.