Discovery Depositions 1 Part I: Practical Considerations in Planning and Preparing to Take a Discovery Deposition

Transcription

1 Discovery Depositions 1 Part I: Practical Considerations in Planning and Preparing to Take a Discovery Deposition Purpose of Depositions: Perpetuate testimony Discover knowledge of facts and observations made, or establish lack of knowledge Memorialize the knowledge held or the lack of knowledge regarding matters Learn opinions held and basis therefore, and facts relied upon PROFESSIONALISM POINTER: The decision to take a deposition, or not to take one, and whom to be deposed, is a lawyer s decision, not the clients. Sometimes clients want depositions taken just to harass the opposing party. Professionalism demands that discovery not be used for that purpose. See Standards of Professional Courtesy and Courtroom Decorum, Orange County Bar Association, I, 1. Orlando, Florida June 23, Types of Depositions: Oral - in person or by telephone Fla. R. Civ. P (b) (7) [Telephone depositions must be by order of the Court only, and person swearing in witness must be physically with the witness.] Video - Fla. R. Civ. P (b) (4) [notice must include name and address of videographer, and that will be videotaped; also must be stenographically recorded, unless otherwise agreed.] Written Questions - Fla. R. Civ. P [Must use subpoena for witnesses, and utilize an officer to administer questions] Who may record and report the deposition: In Florida: Fla. R. Civ. P (a) & (c) Any notary public, judicial officer, officer authorized to take acknowledgments, or by persons appointed by the Court, or before persons to which the parties stipulate. In Foreign Countries and outside Florida: Fla. R. Civ. P (b) 1- Those authorized to administer oaths in locale of deposition by laws of Florida or United States 2- Before a person commissioned by the Court 3- Pursuant to Letters Rogatory 4- By stipulation of the parties 1 Any cases or authorities cited in the outline should be confirmed, before utilizing, as to validity, or continued validity, of the citation and their application to the principle(s) for which they are cited. 1

2 PROFESSIONALISM POINTER: Many times counsel will cooperate in stipulating to the entity taking the deposition or will take a Florida court reporter with them to the deposition. Usually the local court reporters are familiar with practices and procedures of local counsel and the local courts. When May One Take A Deposition: [Different from when one should take a deposition.] AAfter commencement of the action any party may take the testimony of any party Y.@ Fla. R. Civ. P (a) No order of court is needed unless sought to be taken within 30 days of service on defendant or unless person is in prison. Fla. R. Civ. P (a) However, if Plaintiff is about to go out of state and will be unavailable, can take within time and without order of court. Fla. R. Civ. P (b)(2) PROFESSIONALISM POINTER: Many attorneys will meet and set up a discovery schedule wherein all attorneys will sit down and coordinate when, where and the order in which depositions will be taken. Such a procedure is especially helpful if depositions are being taken either outside of the central Florida area or out of state where travel will be involved. See Standards of Professional Courtesy and Courtroom Decorum, Orange County Bar Association, I, 4, 5,6.,Orlando, Florida June 23, Scheduling the Deposition(s): Depositions should be coordinated with both opposing counsel(s) and the deponent. Local rules suggest that [i]f the time for taking a deposition cannot be coordinated with other counsel in advance, at least ten (10) working days notice should be given. Uniform Administrative Policies and Procedures of the Civil Division of the Circuit Court, Orange County, Florida, Section 14, Deposition Guidelines, (A) Scheduling, Revised November PROFESSIONAL POINTER: Local professionalism rules and practice suggest that attorneys should immediately respond to requests to set deposition dates. Most attorneys are amenable to cooperating in setting dates for depositions. If not, the matter can be brought before the judge, after all efforts to work the matter out have been exhausted. The motion should set forth all efforts made to try and coordinate this matter with opposing counsel. See Standards of Professional Courtesy and Courtroom Decorum, Orange County Bar Association, I, 4, 5, 6., Orlando, Florida June 23, When valid conflicts do subsequently arise, counsel should freely cooperate in rescheduling depositions. Standards of Professional Courtesy 1, 6. Where to take the Deposition: Geographically: See, Fla. R. Civ. P (e) (2) If party bringing the action, in venue where action is brought 2

3 If party responding to action and no relief sought, in home or business venue If party responding but seeking relief also (counterclaim), in venue of action If witness, in location of the their residence Trial court, after hearing may make special findings as to the location of the deposition. Bush v. Schiavo, 866 So.2d 136 (Fla. 2d DCA 2004)) PROFESSIONALISM POINTER: Many times, all counsel will agree that it is more economical both from a time and cost standpoint, and practical, to bring the witness to central Florida for a deposition with the costs being split amongst the parties rather than for all parties flying to remote locations. Alternatively, counsel might agree to a telephone deposition or a deposition by video conferencing. Location of taking deposition: At courthouse At attorneys office At Court reporter s office At place of business PROFESSIONALISM POINTER: Local practice generally allows the party setting the deposition to set the deposition at her or his office assuming the facilities can accommodate all parties. Who to Depose (factors to be considered): Corporation: 1- May name as the deponent a corporation and designate with reasonable particularity the matters on which examination is requested. Fla. R. Civ. P (b) (6) [the corporation shall designate one or more parties, officers or persons to testify; entity must testify about matters known or reasonably available to the organization. 2- Person with most knowledge of 3- Corporate representative 4- Records custodian Individual: Plaintiff(s), Defendant(s), witnesses, expert witnesses By general description sufficient to identify the person or class or group. Fla. R. Civ. P (b)(1) How to obtain Deponent=s appearance: If a party: Notice of deposition served is sufficient to require appearance. A subpoena is not necessary, service of a timely notice is sufficient. Logitech Cargo, U.S.A., Corp v. JW Perry, Inc., 817 So.2d 1033 (Fla. 3 rd DCA 2002) 3

4 May also serve a notice of production of documents and tangible things with notice, but must comply with Fla. R. Civ. P See, Fla. R. Civ. P (b)(5) If a non-party (witness), must serve with a subpoena. Fla. R. Civ. P (a); Fla. R. Civ. P PROFESSIONALISM POINTER: (1) Some times attorneys will serve a subpoena duce tecum for deposition with a list of items to be brought to the deposition, but set the deposition less than 30 days out, thereby not allowing the deponent the time set forth in Fla. R. Civ. P to object or produce the documents. Such a practice is not only potentially improper but unprofessional. (2) Further, many counsel will develop a set of documents with which all parties can agree, place them into notebooks, Bates stamp the pages and use these notebooks at all depositions of all the parties and witnesses in the case. (3) If you learn that your client or another deponent over whom you have some control or contact, is not going to appear, you should let opposing counsel know so they may cancel the deposition and not waste the time on your calendar or theirs. It is not only the professional thing to do, but will also probably save your being taxed costs and attorney s fees if your client fails to appear. How much time to allocate: General Factors: 1- Complexity of the case and facts 2- Number of attorneys involved 3- Past reputation of attorneys practices in taking depositions 4- Need for interpreter or language difficulties 5- Number of exhibits involved with witness/expert 6- Location of deposition 7- Will the deposition be videotaped 8- Is it anticipated that deposition may be used at trial in lieu of witness appearing Lay or fact witnesses (factors): 1- Extent of anticipated knowledge 2- Number of exhibits or demonstrative aids that may be utilized with the witness 3- Complexity of fact situation 4- Number of attorneys for cross 5- Will this be a discovery and/or trial deposition 6- Will witness be a hostile witness 7- Is witness going to be video taped? Expert Witnesses (factors): See Fla. R. Civ. P Area of expertise vis-a-vis the claims and defenses asserted 2- Was there a report prepared that you have reviewed? 3- Have expert s interrogatories been sent and answered? Fla. R. Civ. P.1.280(b)(4) 4

5 4- Is there going to be a Frye issue? 5- Does it appear that expert has sufficient, or insufficient, data to arrive at opinions? 6- What is the fee being charged for expert s testimony? [Court is authorized to set the amount of the reasonable fee and when it must be paid if no agreement.] Fla. R. Civ. P (c) Consideration in and Preparation for the deposition: Considerations: 1- Why take this deposition? 2- Why take this deposition at this time in the proceedings? 3- What do you anticipate learning? 4- Is this the correct person? Entity? 5- What element(s) will this testimony help prove or disprove? 6-What do I gain by taking the deposition? 7- Can it hurt me to take this deposition? Preparation For: 1- Do I have all of the written documents for the deposition? 2- Do I have the policies, procedures, letters, s, contracts, proposals, etc. relevant? 3- Have I narrowed the discovery to determine that this is the best witness to cover this (these) area(s)? (Interrogatories, request to produce, photographs, scene or site views, etc.) 4- Do I have the charts, overheads, photographs I need to properly inquire? 5- Have I deposed (or taken statements from) preliminary witnesses to know the basic facts in controversy? 6- Have I reviewed the elements I have to prove (or disprove)? 7- Have I consulted with my expert about the key areas of controversy and areas for cross? 8- Will this be a focused deposition or a broad based discovery deposition? 9- Has this witness testified before? Have I reviewed those depositions? How many times may you depose the same witness/party: Local rules require that a witness or party shall be deposed only once in a given case. A second deposition of the same witness or party may only be taken by stipulation of the parties or upon order of the court. Generally, a second deposition will be limited to only new matters occurring after the first deposition. Uniform Administrative Policies and Procedures of the Civil Division of the Circuit Court, Orange County, Florida, Section 14, Deposition Guidelines, (E) Multiple Depositions of Same Witness, Revised November However, trial courts are given great latitude in controlling the taking of depositions. See, Rojas v. Ryder Truck Rental, Inc., 625 So.2d 106 (Fla. 3d DCA 1993). The number of and length of depositions: 5

6 Generally, the number of depositions and length of the deposition occur without court involvement. However, the courts have the inherent authority to limit both the number of depositions taken and the length of depositions. In federal court, as opposed to state court, this becomes a more frequent issue. Motion for Protective Order: If a deposition seeks information that should not be disclose, or that is intended to annoy, embarrass, oppress, or create an undue burden or require the expenditure of undue expense, or that that the deposition should not be taken, a party may move for a protective order. Fla. R. Civ. P (c). However, the mere filing of a Motion for Protective order does not suspend or stay the taking of the deposition. Momenah v. Ammache, 616 So.2d 121 (Fla. 2d DCA 1993); Stables v. Rivers, 559 So.2d 440 (Fla. 1 st DCA 1990); Towers v. City of Longwood, 960 So.2d 845 (Fla. 5 th DCA 2007) [Burden is on the parting seeking the protective order.] Revised Judge John Marshall Kest 7/13/102 (Copyrighted) 2 Comments, recommendations, practice tips and professionalism pointers are solely those of Judge John Kest. When appearing in front of a specific judge, each attorney should check with that judge for the individual procedures, policies and requirements of that judicial division or judge. 6