INQUISITION: A DEPOSITION EXHIBITION

(AN INTRODUCTION TO THE MECHANICS OF DEPOSITION PRACTICE)

Group 9

(Long Live Group 9)

Purposes of the Deposition

“The truth will set you free, but first it will make you miserable.”

President James A. Garfield, Esq.

Depositions can be a valuable discovery tool.

They can also be burdensome and expensive.

Depositions can be used for several purposes (in furtherance of the case strategy), including to: Obtain information / preview trial testimony Set up / foreclose a dispositive motion Facilitate the parties’ willingness to engage in

ADR Get ammo to cross-examine, impeach,

eliminate witnesses

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Individual / Entity Depositions

“Everything in war is simple. But even the simplest thing is difficult.”

Carl Von Clausewitz (On War)

Fed. R. Civ. P. 30(a) depositions Individual capacity “I don’t know.” “I don’t remember.”

Fed. R. Civ. P. 30(b)(6) depositions 30(b)(6) notice topics Designation of one or more witnesses Consequences of failure to designate and

prepare

Hybrids

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Good Deposition Questions

Prior to the deposition, provide the court reporter with a list of key names and terms.

At the beginning of the deposition, provide the witness with clear instructions/admonitions.

Use short, clear, self-contained questions in plain English.

How will the transcript read? Solicit unambiguous answers. Exceptions:

Where you don’t know how to ask

Where you have a talker (let them run, then get your soundbites later)

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Good Deposition Answers

Listen Pause Answer truthfully and

completely Don’t volunteer Don’t argue (or act crazy) Don’t fill in gaps/speculate Do ask, if you have questions Do follow (your) counsel’s

instructions Do remember to protect

privilege and legal work product

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Working with Exhibits

Selection and arrangement Marking (Ex. #, Bates #) Copies for opposing

counsel and the witness Strategy for prior

exhaustion of testimony Strategy for sequencing Laying the foundation Use to identify unknown

documents

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Deposition Objections

Who can object? What objections are proper

during the deposition? Objections to “form”: to

give the questioner the opportunity to cure (Fed. R. Civ. P. 30(c)(2) and 32(d)(3)(B) ; The NITA Handbook)

Substantive objections: reserved / improper

How to make them (depending on jurisdiction)?

Tactical considerations

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Dealing with Obstreperous Counsel

“I thoroughly disapprove of duels. If a man should challenge me, I would take him kindly and forgivingly by the hand and

lead him to a quiet place … and kill him.” Mark Twain

Improper objections (frivolous, speaking, coaching) Improper “clarifications” (of the examiner, court

reporter, witness) Improper tone / argument / interruptions /

distractions How to deal with interference?

Prepare (videotape, stipulations) Make the record Ignore the defending counsel Intimidate within the rules Punish the witness Opportunities to self-govern In extremes: call the Court (but…)

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Instructions Not to Answer

Who can instruct? Based on?... Attorney-Client Privilege

Communications with counsel Legal Work Product

Includes document compilations (Fed. R. Evid. 612 exception)

Protective orders / other court limitations

To protect the witness from abuse, oppression, harassment, bad faith

File an “immediate” (complete or adjourn?) motion for protective order (Fed. R. Civ. P. 30(c)(2) and 30(d)(3)) “Are you going to follow your

attorney’s advice?” “Could you have answered the

question?”

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Your Turn?

“A lawyer is the shrewdest distance between two points.”

Robert Van Fossen, Esq.

Whether/when to “cross-examine” your own witness: To correct glaringly inaccurate/misleading

testimony To rehabilitate the witness or prevent later

impeachment To avert a dispositive motion or, in the case of

an expert, a motion to strike/exclude. (Self-serving declarations generally cannot overcome deposition testimony.)

To clarify testimony that the transcript errata may not solve.

Better to keep your powder dry?

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Formalities / Ending the Deposition

“Only the dead have seen the end of war.” Plato

Is it really over? (Fed. R. Civ. P. 30(d)’s qualified 1 day/7 hour

limit) “The usual stipulations?” Implementing protective order designations Reserving the Fed. R. Civ. P. 30(e) right to

read and sign Provide an opportunity to

change/clarify/supplement State on the record that the deposition is to

be continued (or is concluded)

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Video Vignettes

Examples of The Good, the Bad, and the Ugly in deposition practice

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Excelsior!

Brought to you by Group 9: Your humble servants

(and undisputed champions

of IP Law Jeopardy)

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2003: Billy and Jane (secret lovers) founded RoboStir LLC

2005: RoboStir LLC obtained US TM in “ROBOSTIR”

2006: RoboStir LLC obtained US Patent in RoboStir device (Jane and Billy named inventors). RoboStir Claim 1: An automatic stirring device for

stirring foodstuffs in a pan, the device comprising: a motor; a drive shaft coupled to the motor; a vertically disposed stirrer; and a means for connecting the stirrer to the drive shaft in a manner so that the stirrer revolves around the inside of the pan in an orbital gyroscopic motion.  

2006-2010: RoboStir is a HUGE success.

Jan. 2010: Jane and Billy break up (over inventorship issues and Jane’s wine consumption). Jane leaves Billy and RoboStir LLC, forever.

RoboStir vs. RotoSHIRR

Mar. 2010: Jane started RotoSHIRR LLC, based on her new RotoSHIRR device (shirr=cooking term). RotoSHIRR = automatic stirring device that stirs as it oscillates laterally (like RoboStir ) and pulses horizontally (mixing in all directions). Jane’s orders are HUGE.

Apr. 2010: Jane files: US Patent and TM apps in “ROTOSHIRR”.

Aug. 2011: Billy/RoboStir is furious and wants to litigate Jane /RotoSHIRR into bankruptcy so she will be miserable and can no longer drink wine.  RoboStir filed suit in fed. ct. and hired Arnold (partner at “Huge, Large, Expensive, LLP”, known as the “IP-Terminator” of litigation).  Jane/RotoSHIRR hired “Small, Little, Cheap, LLP” because her bartender used them once. 

Today: Deposition of Jane (Alina) by Arnold/RoboStir (David), as the examining attorney. Jane’s attorney was just sent to federal prison so the firm sent an eager junior associate: Dirk Murdock (Matt), as the defending attorney.  He brings Allison (Sangmi), a Rule 9 intern.

RoboStir vs. RotoSHIRR