Use and Conduct of Oral Depositions During a Lawsuit

Once a lawsuit is filed to recover damages for a personal injury, breach of contract, or other cause of action, the case will usually proceed through several phases. The first phase of a lawsuit usually entails the preparation and filing of a “complaint,” which basically sets forth the plaintiff’s reason for bringing forth the lawsuit. The complaint is then usually “served” on the defendants (i.e., delivered personally to the defendants), who then file an answer, providing their version of what transpired, and perhaps may file a “cross-complaint” or “counter-claims.”

Discovery

The next phase of litigation is “discovery,” where the parties to the lawsuit and their attorneys attempt to discover information and evidence that will help them prove their case or establish their defenses. The laws of all states and the Federal Rules of Civil Procedure provide formal procedures for doing this; most attorneys also conduct informal investigation through their clients and witnesses. An important formal method of conducting discovery is taking oral depositions.

A deposition is recorded testimony of a party or third-party witness, taken under oath, outside the courtroom. Questioning usually regards the issues and facts surrounding the lawsuit, although greater latitude is usually given for deposition questioning than court testimony.

Use of Depositions

A deposition may be useful to:

• Preserve the testimony of someone who will not be available at trial.
• Impeach inconsistent testimony at trial.
• Identify facts and evidence for trial and help identify sources of additional evidence.
• Narrow issues, reveal weaknesses in the case, and facilitate a settlement.
• Obtain evidence and testimony from a person or source located out-of-state.

Deponents

The allowable methods and requirements for taking depositions vary among the states and the federal courts. There is also a difference in procedure depending on whether the deponent is a party to the lawsuit or a third party:

• “Party Deponents.” The parties to a lawsuit are the named plaintiffs and defendants, plus any others named in cross-complaints, etc. In most states they may be compelled to submit to a deposition by another party serving on them (usually through their attorneys) a “notice of deposition,” or similar document, stating the date, time, place, etc. of the deposition, and may also request that the deponent bring specified documents to the deposition. Since these persons are already parties to the lawsuit, the court has “jurisdiction” over them; the power to compel them to appear for the deposition.
• “Non-Party Deponents.” “Non-Party Deponents” are typically persons who have knowledge or possess documents regarding the lawsuit and the underlying issues and facts, or are “experts” being called as a witnesses for a party on some issue. Usually a “subpoena” is required for such a deposition. This is usually a printed form giving information on the date, time, place, etc. of the deposition. Typically there are several types of subpoenas (specified on the form): one for testimony only, another for allowing access to documents, and a third for testimony and access to documents to be brought to the deposition. In some states, subpoenas must be issued by the court or a clerk of the court, while in other jurisdictions party attorneys may fill out the form themselves. Subpoenas generally must be served (delivered) personally to deponent. It is this personal service that gives the court the power to compel their attendance, should the non-party deponent refuse to appear.

Deposition Procedure

A deposition is commonly conducted by the attorney for the party serving the subpoena or notice, meaning that person will begin the questioning. A reporter is present to administer an oath that the testimony will be the truth under the penalty of perjury, swear in the deponent and record the testimony. Sometimes, in jurisdictions that allow it, the deposition will be videotaped. Once the first attorney has finished questioning, attorneys for the other parties may ask questions as well.

Party deponents usually attend with their attorney, and non-party deponents may also have their own attorney present. As noted above, questioning during a deposition can be very broad, as opposed to testimony at trial. There are, however, limitations and the deponent’s attorney may interpose objections to improper questions. Questions about privileged information or conversations, such as attorney-client or doctor-patient communications, are typically improper. The deposing attorney is not allowed to verbally abuse the deponent. The deponent’s attorney may object to an improper question and instruct the client not to answer the question.

Motions to Compel or for a Protective Order

Although problems are usually worked out informally between attorneys, if a deponent refuses to appear or testify, or if deponents’ attorneys instruct them not to answer questions, the attorney for the party who noticed or subpoenaed the deposition may file a motion to compel. Procedures and requirements for such a motion vary, but the court may order attendance at a deposition or that questions be answered, or may find certain questions improper. The court may also be able or required to award sanctions against a party and/or their attorneys, often for the costs of bringing the motion.

On the other hand, a party who feels there is a good reason not to appear may file a motion for a protective order in most jurisdictions. A party may also file for a protective order regarding the deposition of a non-party deponent in most jurisdictions. The procedures and requirements for obtaining a protective order vary depending on the jurisdiction, and similar to a motion to compel, the court may award sanctions.

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