Depositions: To object or not to object – that is the question

Michael Needleman | Philadelphia Business Lawyers Reger Rizzo & Darnall LLP

Michael J. Needleman is a litigator in state and federal courts in Pennsylvania, New Jersey, and the District of Columbia. A former law clerk, he has been actively trying cases for more than a decade.

He has extensive experience handling insurance defense, insurance coverage, employment litigation, and complex commercial litigation matters, including litigating franchise dispute matters. He practices in the United States District Courts for the Middle and Eastern Districts of Pennsylvania; the District of New Jersey; and the United States Court of Appeals for the Third Circuit.

Mr. Needleman also practices in the Commonwealth of Pennsylvania, the State of New Jersey, and the District of Columbia, and has extensive trial experience. Mr. Needleman has delivered lectures to the insurance industry on various topics and has taught several CLE classes on a variety of litigation-related subjects. Mr. Needleman has also conducted training seminars for employers on maintaining harassment-free workplaces and minimizing claims.

I. For what purpose is the deposition being taken? | 11:00am – 11:20am

a. Motion(s)

i. Think about how the transcript will look as an exhibit to the motion
ii. Is this a limited deposition for purposes of investigating jurisdiction?

b. Trial

i. What buttons can be pushed/juror and witness synapses activated?

c. Who is being deposed: party, witness, expert?

II. Fed. R. Civ. P 30 | 11:20am – 11:35am
a. judge’s policies and procedures
b. 30(b)(6) witness

i. Person with knowledge employed by an entity

c. State the “areas of inquiry” in an attachment to the notice/subpoena

i. There could be more than one person implicated by the stated areas of inquiry

d. Does the attorney-client privilege apply?
e. Functional equivalent

III. Instructions | 11:35am – 11:40am

IV. How to secure a deposition | 11:40am – 11:50am
a. Notice to Parties
b. Subpoenas (under Rule 45) to witnesses

i. Subpoena ad testificandum
ii. Subpoena duces tecum

V. Asserting Objections: Why by active? | 11:50am – 12:00pm
a. More narrowly tailor the questions in accordance with your objections
b. Increase the objector’s comfort making objections
c. Increase the discomfort of the interrogator
d. Objection
e. Objecting a question already answered

Break | 12:00pm – 12:10pm

VI. What to say? | 12:10pm – 12:25pm
a. Object to the form – speaking objections are not permitted
b. Statements are not questions
c. Compound questions
d. Clarification
e. Questions
f. If the question asks for the deponent to get in another’s frame of mind
g. If the questions asks the circumstances of a prior conviction beyond establishing what is necessary for impeachment
h. Instructions to answer or not to answer can only be delivered to represented deponents

VII. Defending Objections | 12:25pm – 12:40pm
a. Speaking objections: only “objection,” or “object to the form”

i. Not permitted under the rules but, mostly honored in the breach.

b. Asked and Answered is not an objection
c. Assertion of Privilege

i. Who is asserting the privilege? To whom does the privilege belong, and who can waive it

VIII. To videotape or not to videotape | 12:40pm – 12:50pm
a. Need for the case

i. Court requirement
ii. Case/witness requirement

b. Cost

IX. Can you depose the same deponent more than once? | 12:50pm – 1:00pm

a. Only for “good cause” on application to the court
b. May be limited to the reason the deposition is being authorized

X. Do you want to/need to re-depose? | 1:00pm – 1:10pm