How Successful Litigators Use Depositions

Presented by: Jay Safer February 9, 2017 Clear Law Institute | 933 N. Kenmore St, Ste 320 | Arlington | VA | 22201

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CLEAR LAW INSTITUTE

How Successful Litigators Use Depositions

Jay Safer

The Importance of Depositions

How to Use Depositions Effectively in your litigation

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What Rules You Must Know including the Most Recent FRCP Amendments

FEDERAL RULES OF CIVIL PROCEDURE

Federal Rules of Civil Procedure 26 - 32, 45: FRCP 26 relates to the general provisions governing discovery and the duty of disclosure and FRCP 27 - 32 relate to depositions. FRCP 27-29 relate to depositions before action or pending appeal, persons before whom depositions may be taken, and stipulations regarding discovery procedures, FRCP 30 relates to depositions upon oral examination, FRCP 31 relates to depositions upon written examination, FRCP 32 relates to use of depositions in court proceedings and FRCP 45 relates to subpoenas.

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FEDERAL RULES OF CIVIL PROCEDURE

Note FRCP 30(a)(2)(A)(i) prohibits more than 10 depositions being taken without leave of court or the written stipulation of the parties. Note FRCP 30(d)(1) limits depositions to one day of 7 hours.

Recent Amendments to FRCP Effective December 1, 2015

Review new amendments to FRCP effective December 1, 2015, especially FRCP 26(b)(1)(b)(2)(C)(iii), (e)(1)(B), (d)(3), (f)(3)(C), (f)(3)(D), FRCP 30 (a)(2)(d)(1), (d)(2), FRCP 31 (a)(2), as well as Rule 33 (a)(1), interrogatories, 34(b)(2)(A), (b)(2)(B) and (b)(2)(C), relating to document request objections, Rule 37 and 37(a)(1)(2) and (3), (b) and (d) relating to depositions, motions to compel and ESI.

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LOCAL RULES OF THE SDNY AND EDNY

Local Rules of the United States District Courts for the Southern and Eastern Districts of New York: Local Rules 26.2, 26.3, 26.4, 26.5, 30.1, 30.2, 30.3, 30.4, 33.3-37.1, 37.2, and 37.3 relate to depositions and discovery.

NEW YORK CIVIL PRACTICE LAWS AND RULES

New York Civil Practice Law and Rules 3101 - 3117: CPLR 3101 relates to the scope of disclosure; CPLR 3102 to the methods of disclosure, CPLR 3103 - 3105 relates to protective orders, supervision of disclosure, and notice of party in default, CPLR 3106 relates to priority of depositions, CPLR 3107 - 3113 relate to the notice, oral and written questions, where the depositions is taken within the state, production of things at the examination, and errors in the notice for taking depositions, CPLR 3114 relates to the examination of a witness who does not understand the English language, CPLR 3115 - 3116 relate to objections concerning the person taking the deposition and signing depositions, CPLR 3117 relates to the use of depositions and CPLR 3126 relates to penalties for refusal to comply with an order or to disclose.

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NEW YORK STATE SUPREME COURT COMMERCIAL DIVISION RULES

Commercial Division Rules: see Rules 8, 9, 11, 13, 14, 29 and 33, including new rules 11(d), 8(b), 9(c), 13(c), and Appendix A. Note Commercial Division Rule 11(d) has same limits on number of depositions (10) and duration (7 hours) as FRCP 30.

NEW YORK ADMINISTRATIVE ORDER

Rule on the conduct of depositions by Administrative Order of the Chief Administrative Judge of New York State: See in the Uniform Rules for the Trial Courts, Part 221. Uniform Rules for the Conduct of Depositions: § 221.1 Objections at Deposition, § 221.2 Refusal to Answer When Objection is Made, and § 221.3 Communication with the deponent.

Other State and Federal District Court Local Rules

Review practice rules of the Judge in your case for rules on depositions

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What Should You Consider in Planning for a Deposition

Important Logistics

Location

Remember to order and confirm court reporter for deposition

Transcripts

Time for Receipt

Video Tape Deposition

Live Note

Work with reporter on latest technology and uses available

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Preparing for Taking and Defending the Deposition

How and when should you use depositions

How do you best utilize other discovery to maximize the deposition

What should you know about party vs. non-party depositions

What should you know about depositions outside the state or district of the case

What pitfalls and surprises frequently arise

Choosing the best strategies to achieve your goals

How should you ask questions to achieve your objectives

How should you best use documents

What are the practices to use to protect clients

Making objections

Dealing with your adversary

Know the local rules and culture of taking deposition outside your usual jurisdiction – check with local counsel

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Preparing your client for a deposition What do you tell the client

What do’s and don’ts must your clients consider

How should you deal with documents

How do you explain objections

What do you discuss about attorney client-privilege

Other Deposition Issues

What are FRCP 30(b)(6) depositions (see e.g., Spanski Enterprises Inc. v. Telewizja Polska S.A., 2007 WL 1187870 (2007); Keepers Inc. v City of Milford, 944 F. Supp.2d 129 (D. Conn. 2013)). Compare State practice .

Non-party depositions and requests for ESI and other documents.

SANCTIONS

When are sanctions applied

What conduct has resulted in sanctions

Impact of New Federal Rules on Document Preservation and Sanctions on Depositions

Prior federal cases before the new federal rules.

Effect of new federal rules.

Recent federal rules amendments – FRCP 37

State Practice - Pegasus Aviation I, Inc. v. Varig Logistica S.A., 2015 WL 8676955 (2015).

Follow-up After the Deposition

EXPERT WITNESS DEPOSITIONS

Compare, for example, FRCP 26(a)(2)(B) and 26(b)(4) with CPLR 3101(d)(1)(i), (ii), and (iii) and with Commercial Division Rule 13(c). Counsel should be aware of the continuing case rulings following from the decisions in Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), Daubert v. Merrell Dow Pharmaceutical, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997) and Frye v. United States, 293 F.1013 (D.C. Cir. 1923). These relate to the appropriate standards in federal and state courts on the qualification of experts and the admissibility of expert testimony.

Utilization and Best Uses of Deposition Testimony at Trial

TREATISES, ARTICLES, AND TAPES ON DEPOSITIONS

Treatises on depositions in state and federal courts and the process of depositions may be reviewed. See, for example, “Depositions”, Garrard R. Beeney, Chapter 24, Commercial Litigation in New York State Courts, Third Edition (West Group) and “Depositions”, Patrick Lynch and Paul Salvaty, Chapter 23, Business and Commercial Litigation in Federal Courts, Third Edition (West Group).

Questions