1) Name of deponent; place; time and method of recording (oral/videotaped)

2) If documents must be produced, the notice should be accompanied by a document subpoena asking the deponent to produce such documents at the time of deposition under 34.

Definition: Witness' sworn out-of-court oral testimony used to gather relevant information as part of discovery process and which can be used during discovery or at trial

What does NY call depositions?

What is it referred to in some jurisdictions that do not call it a deposition?

NY refers to deposition as EBT (“Examination Before Trial”)

Some jurisdictions refer to depositions as “affidavits” (if no real deposition Is

taken place) or it is called a “deposition upon written questions”. Deponent

answers certain questions asked in a written statement.

1) Send notices to parties (30(b)(1) and/or 30(b)(6)).

2) Serve subpoenas on witnesses if needed.

3) Prepare proper checks for deponent's fees to appear (travel/miles expenses)

4) Arrange for a court reporter/videographer (make sure you haveclient permission on this as some clients have an exclusive agreement with court reporting companies)

5) Reconfrim deposition date and attendance at least a couple of days before

6) Assist lawyers with documents/exhibits to be used at deposition

7) Attendthe deposition to assist the lawyer in takingnotes (big firms usually have jr. lawywers).

8) summarize deposition transcripts/write an outline for future reference.

9) Load deposition/link exhibits to database after deposition is taken (normally in LiveNote).

Under Rule 30, are depositions conducted with or without leave?

• With Leave (pursuant to rule 26(b)(2)
• Without leave (in most of the cases with a simple notice).

Leave is required if:

A. No stipulations between parties re deposition and

1) more than 10 deposition take place

2) the deponent has already been deposed.

3) If the party is seeking to take deposition before the schedul notied in the discovery plan.

B. Deponent is in prison

Under Rule 30, how are documents produced for deposition?

What kind of subpoena is used.

Production of docs (if subpoena "duces tecum is served) all documents requested must be listed as an attachement to the notice of deposition

A document request under rule 34 may also be served.

Under Rule 30, when must objections be raised?

Must a deponent still respond to a question even if there is an objectioin?

When is this not the case?

Objections to questsion must be raised on time, otherwise they are deemed waived.

Objection is on record but deponent still responds and testimony is taken subject to any objection riased.

Witness need not answer only when it invokes attorney-client privilege communication.

A cour orders sanctions, including attorneys fees on anyone who delays or interferes with the proper examination of a witness.

Witness has the right to review final deposition and

make any changes that are not substantive. Witness then signs the deposition and

the errata sheet and the final version goes to both parties (original including

exhibits marked at deposition go to the party that ordered the deposition, copies

to any other parties).

At deposition the opposing party calling your witness starts the examination; at

trial the party calls its own witness and they start the examination

At deposition: exhibits to be used for the examination are not shared with the

other party before

At trial: parties exchange exhibits to be called during direct examination

(normally a day before testimony – note outline is not shared, as it is attorney

work product)

They may occur by filing a petition with the court stating:

1) Petitioner expects to be a party

2) the subject matter of the case/issue

3) Facts to be established by calling such an expedited testimony

4) Names/addresses of persons expcted to be adverse parties

5) names/addresses and substance of the testimony

Service: at least 21 days before hearing date

Court orders that testimony can be examined in accordance with FRCP rules and

such testimony can be used later at discovery or at trial

Depositions by wirtten Questions may be conducted with leave:

If parties have not stipulated and :

1) Deposition would result in more than 10 depositions

2) Deponent has already been deposed

3) Party seeks to take a deposition before regular schedule of discovery (rule 26(d)) 

Or

4) deponent is in prision

Service: required with questions served and delivered to the person being

deposed and the officer who will administer the deposition

1) If a short notice (less than 14 days) to the deponent is served adn the deposition is taken (while in the meantime a  motion is filed requesting the depositions be take at a later dates, the testimoney can be set aside and its use limited

2) The deponent could not obtain an attorney despite his efforts.

Under Rule 32, when must objections regarding the limitations of use of a deposition be raised?

What kind objection may always be raised?

Objections must be raised on time or deemed waived, as to the following:

1. Error or manner of taking the deposition

2. Officer’s qualifications

3. Notice of deposition itself

4. Form of written questions (if deposition is written not oral)

5. To the final form of transcript by the court reporter/officer

Note: Objections to the deponent’s competence or to the competence,

relevance or materiality of testimony are not waived, and may be presented

at trial even though they were not noted at the deposition.

Types of Deposition Summaries:

Which is the most commonly used

1) Chronological summary (page/line)

2) topic/subject matter (bio data; work/eduction history; specific testimony to the subject matters asked). this is the most commonly used.

3) Narrative summary (main substance of the deposition outlinging pros and cons of testimony).

A Fact wintess is a lay person whose testimony is limited to:

a) witness's perceptions

b) helpful to determine a fact in issue

c) not based on scientific, technical, or specialized knowledge

An exeprt witness is a qualified person who:

1) has the scientific, technical, or specialized knowledge which will be helpful to determine a fact in issue or evidence.

2) Testimony is based on sufficient data/facts

3) testimony is the produce of reliable principles and methos used in the industry;

and 4) Exeprt has reliably applied these principles and methods to the facts of the case

A witness is entitled to attendance fees, transportation fees and other allowances

as applicable.

A Testifying Expert Wintess vs. A Non-Testifying Exper Witness

What happens if a side interviews an expert witness who they don't use?

Why might they not use the witness?

Which witnesses testimony will be disclosed?

Which will not?

1) A party can hire an expert to evaluate its case. If the expert finds soemthign that is against the party's interest, then the party won't used him at trial. This exper opinion is protected like any attorney-client privileged communcaiton and won't be disclosed a part of discovery

2) Testfying expert is the one that is disclosed to the other party and called at trial to testify and be cross-examined on his expert opinion.