techniques and potential conflicts in the handling of ... · depositions are expensive, can decide...

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By Victoria E. Brieant

Your discovery strategy will probably be the biggest investment in your case. Know the rules and plan it well.

Depositions are expensive, can decide whether the case settles before trial, can raise or lower the settle-ment value, and can be outcome determinative. It is therefore important at the onset of a case to identify the key elements and make it a goal of depositions to estab-lish the factual support for those key elements. Planning discovery strategy includes:

Identifying who to depose and why;•Scheduling depositions after receiving documents •from the other side in response to document re-quests;Identifying how discovery will be used in motion prac-•tice and ultimately at trial; andTiming depositions early on in a case to permit both •sides to evaluate the testimony for settlement pur-poses.

Inaddition,considerhowyoumaybeabletobenefitfromthe oversight of a Special Master to ensure the best uses of your client’s resources. The purpose of taking depositions is to gather infor-mation—tofindoutaboutthecase,identifywhatthefactsare, how the events occurred, what the other side knows, what the strengths and weaknesses of each side are, and show the other side’s weaknesses in the case. You should

Victoria E. Brieantis Of Counsel at Stroock & Stroock & Lavan LLP, resident in the Miami office. She has 25 years of experience in litigation, with a broad range of complex commercial litigation, arbitration, and alternative dispute resolution involving the financial services industry, hospitality industry, healthcare industry, and computer service industry. She also has extensive experience with foreign discovery, including Europe and Japan, as well as e-discovery. The author wishes to acknowledge the assistance of Rebecca Williams, a senior litigation associate in Stroock’s Miami office, in updating this article. © 2008

Techniques And Potential Conflicts In The Handling Of Depositions (Part 1)

28 | The Practical Litigator November 2008

alsousethedepositionprocesstofindoutwhatyoudo not know about your case, confirmwhat youthink you know, test out your legal and factual theo-ries, facilitate settlement, and ultimately as a prepa-ration tool for trial. See generally, David Malone and Peter Hoffman, The Effective Deposition: Techniques and Strategies that Work, 22–23 (NITA, rev. 2nd ed. 2001).

Deposition teCHniQUes • Beginningwith the relevant Rules, Fed. R. Civ. P. 30 governs the taking of depositions. The rule sets forth:

When a deposition may be taken;•The guidelines for the notice of deposition, as •well as requirements for recording and produc-tion of documents and things;The scope and extent of cross-examination and •objections;The schedule and duration of depositions;•Review of the record by the witness;•The duties of the stenographer; and•The respective penalties associated with the •failure to attend a deposition and the failure to serve a subpoena upon the witness.

party admissions The testimony of a witness during a deposition constitutes a party admission. This may be particu-larly helpful in motion practice, including summary judgment or summary adjudication, as well as dur-ing trial. Fed. R. Evid. 801(d)(2).

Depositions of party representatives Federal Rule of Civil Procedure 30(b)(6) per-mits a party to notice the deposition of an orga-nization and specify “the matters on which ex-amination is requested.” Fed. R. Civ. Pro 30(b)(6). The notice need only designate, with reasonable particularity, the topics for examination. See Great American Ins. Co. of New York v. Vegas Construction Co., 2008 WL 818947, at *3 (D. Nev. Mar. 24, 2008), citing Marker v. Union Fidelity Life Ins. Co., 125 F.R.D.

121, 126 (M.D.N.C. 1989). In response to the no-tice, the organization must designate one or more individuals to testify on its behalf, who must have knowledge of the subjects described in the deposi-tion notice. See Sprint Communications, Co., L.P. v. The Globe.com, Inc., 236 F.R.D. 524, 527 n.4 (D. Kan. 2006) citing Starlight Int’l, Inc. v. Herlihy, 186 F.R.D. 626, 639 (D. Kan. 1999) (companies “have a duty to make a conscientious, good-faith effort to desig-nate knowledgeable persons for Rule 30(b)(6) depo-sitions and to prepare them to fully and unevasively answer questions about the designated subject mat-ter”). These designated corporate deponents must be prepared to give complete, knowledgeable, and binding answers. See Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn. 2000)(company has an obligation to prepare those persons designated under Rule 30(b)(6) “in order that they can an-swer fully, completely, [and] unevasively, the ques-tions posed by [the interrogator] as to the relevant subject matters”); see also Starlight Int’l, supra, 186 F.R.D. at 638 (a corporation has a duty under Rule 30(b)(6) to provide someone who is knowledgeable in order to provide “binding answers on behalf of the corporation”); Nevada Power Co. v. Monsanto Co., 891 F. Supp. 1406 (D. Nev. 1995); see also, U.S. v. Massachusetts Indus. Finance Agency, 162 F.R.D. 410 (D. Mass. 1995). The designated individual must be prepared to testify to “matters known or reasonably avail-able to the organization;” Fed. R. Civ. P. 30(b)(6), including beliefs and opinions of the organi-zation with respect to its position in the litigation. See Great American, supra, 2008 WL818947, at *4 (“By its very nature, a Rule 30(b)(6) depositionnotice requires the responding party to prepare a designated representative so that he or she can tes-tify on matters not only within his or her personal knowledge, but also on matters reasonably known by the responding entity”). The standard for des-ignation is not someone with personal knowledge to appear on behalf of the corporation, but rather

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the rule governing corporations only requires that the designated corporate deponent testify regard-ing matters “known or reasonably available to the organization.” See Reed v. Bennett, 193 F.R.D. 689 (D. Kan. 2000); see also Sprint Communications, supra, 236 F.R.D. at 527-528 (“Rule 30(b)(6) explicitly requires a company to have persons testify on its behalf as to all matters reasonably available to it” and that the Rule “implicitly requires persons to review all matters known or reasonably available to [the cor-poration] in preparation for the Rule 30(b)(6) depo-sition”). If the only person available to testify is the or-ganization’s expert, attorney, or investigator, that person must be offered as the organization’s des-ignated deponent and may not claim privilege to refuse to disclose facts. See Exxon Research and Engi-neering Co. v. United States, 44 Fed. Cl. 597, 600 (1999)(If the corporation believes that only an attorney is capable of testifying as a Rule 30(b)(6) deponent for the corporation, then the attorney must testify); see also Sprint Communications, supra, 236 F.R.D. at 529 (“When a corporation produces an employee under Fed. R. Civ. P. 30(b)(6) to testify to corporate knowledge, the employee must provide responsive underlying factual information even though such information was transmitted through or from a firm’s corporate lawyers”); see also Sony Electronics, Inc. v. Soundview Technologies, Inc., 217 F.R.D. 104 (D. Conn. 2002), citing Primetime 24 Joint Venture v. Echostar Communications Corp., 2000 WL 97680, at *2 (S.D.N.Y. Jan. 28, 2000) (“When general counsel is designated by a party as one of its Rule 30(b)(6) witnesses the witness is required to testify about the business operations…, irrespective of the fact that he also serves as legal advisor for the corporation”). Further, a witness may not claim work product pro-tection for the corporation’s position in the litiga-tion and the basis for it. Nutmeg Ins. Co. v. Atwell, Vogel & Sterling, 120 F.R.D. 504, 509 (W.D. La. 1988). The fact that a corporation no longer employs any individual who has a memory of the distant

event at issue, or if that particular individual is deceased, does not relieve the corporation from preparing a designee to the extent matters are rea-sonably available, whether from documents, from past employees, or other sources. See Great American, supra, 2008 WL818947, at *3 citing U.S. v. Taylor, 166 F.R.D. 356 (M.D.N.C. 1996), aff ’d., 166 F.R.D. 367 (M.D.N.C. 1996). Rule 30(b)(6) is only effective before trial. A party may not attempt to end-run Rule 30(b)(6) by issuing a Rule 45 subpoena to a corporation during trial to compel the appearance of unnamedwitnesseswithknowledgeonspecificsubjects. Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir. 1987) (the requirements of Rule 30(b)(6) are not imported into Rule 45 to enable a party to serve a Rule 45 subpoena on a corporation or government agency and thereby obtain a witness to testifyattrialtomattersidentifiedinthesubpoena).Further, a 30(b)(6) deposition only applies to par-ties at the time of depositions. Any party dismissed from the action before the time for the deposition is exempt from Rule 30(b)(6). Cohn v. Wilkes General Hosp., 127 F.R.D. 117 (D.N.C. 1989).

sanCtions•Producinganunpreparedwitnessmay be tantamount to a non-appearance, warrant-ing the imposition of sanctions. See Taylor, supra, 166 F.R.D. 356. In fact, a party’s failure to produce an adequately prepared Rule 30(b)(6) witness may result in severe sanctions ranging from monetary sanctions against the non-complying party and its counsel, see In re Vitamins Antitrust Litigation, 216 F.R.D. 168, 174 (D.D.C. 2003), to costs and fees in-curred in bringing the motion to compel, see Foster-Miller, Inc. v. Babcock & Wilcox Canada, 210 F.3d 1, 17 (1st Cir. 2000); to having adverse facts deemed established, see S.E.C. v. Allison, 35 Fed. R. Serv. 2d 548 (N.D. Cal. 1982), to a preclusion order, see Reilly v. Natwest Markets Group, Inc., 181 F.3d 253, 268 (2d Cir. 1999), cert. denied, 528 U.S. 1119 (2000). Designation of an attorney as a Rule 30(b)(6) witnessmayresultinhisdisqualificationfromthat


action. Eastway Gen. Hosp v. Eastway Women’s Clinic, 737 F.2d 503 (5th Cir. 1984), cert. denied, 470 U.S. 1052 (1985); International Woodworkers v. Chesapeake Bay, 659 F.2d 1259 (4th Cir. 1981). Further, fail-ure of a designated attorney to testify on privilege grounds may result in dismissal of the case. Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577 (7th Cir. 1981). Rule 11 sanctions may be imposed, as well as sanctions pursuant to Rule 30(b)(6). The failure of a party to tender an appropriate Rule 30(b)(6) depo-nentisjustificationforacourttocallintoquestion“theplaintiff ’sgoodfaithinfilingthelawsuit.”AMP, Inc. v. Molex, Inc.,227U.S.P.Q.(BNA)172(N.D.Ill.1985). Attorneys who receive a Rule 30(b)(6) notice should not wait until the scheduled deposition to question or object to it. If the parties cannot reach an adequate stipulation with opposing counsel, the court’s assistance should be promptly sought under Rule 26(c). See Ecclesiastes 9:10-11-12, Inc. v. LMC Holding Company, 497 F.3d 1135, 1147 (10th Cir. 2007), citing E.E.O.C. v. Thurston Motor Lines, Inc., 124 F.R.D. 110, 114-115 (M.D.N.C. 1989).

SPECIAL MASTERS • In Cobell v. Norton, 213 F.R.D. 48 (D.D.C. 2003), a Special Master was ap-pointed to “oversee the discovery process in this case…; to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Pro-cedure and the orders of this Court” and “to regu-late all proceedings in every hearing.” The Special Master supervised the depositions. If you read the case, which I recommend, you will see that the term “Special Master-Monitor” is used. Part of the du-ties included monitoring reform of the Individual IndianMoneytrustsmanagedbytheBureauof In-dian Affairs. It was a dual role. The Special Master in Cobell noted that the plaintiff followed the directions of the Special Mas-terinresponsetoobjectionsatthedeposition.Bycontrast, he noted defendant’s counsel for its “active objection to and refusal to follow” his instructions. Specifically, theSpecialMasteroverruleddefense

objections during the deposition but the defendants refused to answer the questions, despite the ruling. This resulted in a motion to compel. The District Court found that: “…in response to the questions put forth by plaintiffs, defense counsel had repeat-edly made frivolous assertions of attorney-client privilege.” The Court found that defense counsel made other frivolous objections and described de-fense counsel’s conduct as “unscrupulous tactics on the part of defense counsel to obstruct a legitimate inquiry into whether her co-counsel had lied to the Court.” Id. at 58. Ultimately, the District Court found that the power to oversee the discovery process and to regu-late all proceedings in every hearing includes the power to regulate deposition questioning. Thus, the Special Master had authority to issue directions to the parties and their counsel in response to any ob-jections asserted during the depositions at which he presides. Id. at 59. In response to defense counsel’s refusal to follow the Special Master’s directions, the Special Master exercised his authority to order that he would:

Terminate the deposition if the conduct con-•tinued in the future;Recommend that the defendant’s counsel be •referred to the Disciplinary Panel of the U.S. District Court for the District of Columbia for review and appropriate action under the Dis-trict of Columbia Rules of Professional Con-duct—specificallyRule8.4(d)thatprovidesthatit is professional misconduct for a lawyer to en-gage in conduct that seriously interferes with the administration of justice; andRecommend referring defendant’s counsel to •the District Court for sanctions under Rule 37(a)(5)(A), as conduct that required a motion to compel discovery. The District Court held that the Special Master had the authority to make these recommendations.

As noted, this case contains a very good discus-sion on the authority of Court-Appointed Moni-

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tors to request and review documents, including documents claimed by a party as privileged. The decision is also procedurally interesting in its expla-nation of why a party cannot seek a protective or-deragainstajudicialofficer.Thedefendantsmovedfor a protective order under Rule 26(c) to limit the discovery authority of the Special Master. The Dis-trict Court not only denied defendants’ motion, but sanctioned them for their discovery misconduct:“…defendants’ motion represents the culmination of a series of displays of obstinacy, recalcitrance, and unprincipled behavior on the part of defense counsel. The Court fails to discern any circum-stances in relation to the present matter that would make an award of sanctions against defendants and their counsel unjust. In fact, the Court concludes that it would be unjust not to sanction defendants and their counsel for wasting plaintiffs’ time and resources by requiring them to respond to a com-pletely frivolous motion.”Id. at 62. An award of sanctions for discovery abuse was also at issue in Good Stewardship Christian Center v. Empire Bank, 341 F.3d 794 (8th Cir. 2003). In that case, lenders foreclosed on a loan used to purchase property and commenced foreclosure proceed-ings on the properties. One of the properties was residential and appellant Vaughn resided there. Vaughn sued the lenders and related parties under the Equal Credit Opportunity Act, the Fair Hous-ing Act, and for racial discrimination. The suit was dismissedasasanctionfordiscoveryabuse.Beforereaching that level of sanction, the District Court had appointed a Special Master to supervise the taking of depositions. As the Eighth Circuit stated:

“The district court found that ‘Vaughn refused to answer simple and straightforward questions, [and] engaged in non-responsive speeches.’ GSCC’s at-torney also acted inappropriately, by ‘fail[ing] to advise his client of his responsibility to cooperate in discovery ... [and by lodging] constant merit-less and inappropriate objections, speeches, and interruptions.’ As a result, the district court levied various fines and costs of the deposition against

GSCC, Vaughn, and counsel, and appointed a Special Master.”

Id. at 796-97. The District Court observed that: “relations between the parties and attorneys grew contentious.” Id. at 795. The case was dismissed as a sanction for failing to pay the monetary sanc-tions imposed for prior violation of court orders on conduct of the parties. The case never reached the stage where the Special Master actually supervised the taking of any depositions.

special Master By telephone vs. supervised Deposition Sanctionable violations of the Rules will not necessarily result in a deposition supervised by a Special Master. In re Vitamins Antitrust Litigation, 216 F.R.D. 168 (D.D.C.2003) provides a good discus-sion of the scope of the duty to investigate the facts and prepare a Rule 30(b)(6) witness. It is also a good example of a situation in which the Court imposed sanctions on the defendant who did not adequately prepare its corporate witness, while at the same time declining to order that the resumed deposition be taken in the presence of the special master. Plaintiffs argued that it was concerned that the defendant “will again fail to comply with its Rule 30(b)(6) obligations at the retaking of its Rule 30(b)(6) deposition....” Pls. Resp. to BioproductsObj. at 4. Id. at 175. The Special Master noted in his report that the Plaintiff ’s request to have the deposition supervised by the Special Master was reasonable, but the Court should be able to rely on that Defendant and its counsel to comply with the letter and spirit of the May 15 Report and the Court’s Order. The Special Master was available by telephone to rule on issues as they arose in the resumed deposition. There is no reported case sug-gesting that the second deposition required further motions practice.

LiMitations oF Depositions •FederalRule of Civil Procedure 30(d) sets forth the dura-


tion and limit of depositions. A deposition is lim-ited to “one day of seven hours,” unless leave of court is obtained based on a need for “fair exam-ination.” Fed.R.Civ. P. 30(d)(1).Because of thisseverely restricted time frame, it is essential that a deposition is streamlined and prepared in such a way to address all the key elements of the case. Any unnecessary colloquy among counsel merely takes away from the time allotted to substantive questions and answers. To preserve all seven hours for the deponents, any extensive discussion among counsel should be taken off the record with the time clocked. The 2000 Advisory Committee Notes address-ing the purpose of the stringent time limitation in-dicate that it is to reduce “undue costs and delays” that result from overlong depositions. The Com-mittee explained that this “limitation contemplates that there will be reasonable breaks during the day for lunch and other reasons, and that the only time to be counted is the time occupied by the actual deposition.” The Notes also provided that the du-ration may be “extended, or otherwise altered, by agreement. Absent agreement, a court order is needed.” The standard for seeking an alteration of the time limitation is “good cause.” Under Rule 30(a)(2), a litigant may take no more than 10 depositions per side unless the parties have stipulated to a different number or the court has given leave for a greater number. Fed. R. Civ. P. 30(a)(2). See Advanced Sterilization Products, etc. v. Jacob, 190 F.R.D. 284 (D. Mass. 2000) (party must seek leave of court to take more than 10 depositions, in absence of stipulation). Rule 30(a)(2)(A)(ii) imposes a further limitation that a deponent may be deposed only once. Fed. R. Civ. P. 30(a)(2)(A)(ii). Cardenas v. Prudential Insurance Co. of America, 2003 WL 21293757 (D. Minn. May 16, 2003), is also in-structive. The case involved claims of employment discrimination. Following a contentious deposition, the Defendant moved to compel a further deposi-tion of the plaintiffs, on the grounds that they had

been so uncooperative and disruptive during ques-tioning that the depositions were useless. Pruden-tial also sought appointment of a Special Master to supervise the continued depositions. The Magistrate Judge denied Prudential’s mo-tion,findingthatitwouldbe“justandpracticable”to apply the new (and optional in this case) federal rule limiting depositions to one day of seven hours. See Fed. R. Civ. P. 30(d)(1). The Magistrate Judge specifically rejected Prudential’s arguments thatplaintiffs’ conduct rendered the depositions useless. The Magistrate Judge found that the depositions were “contentious,” but assigned blame for the breakdown of the deposition on both parties and denied the defendant further relief. The District Courtaffirmed,findingthattheMagistrateJudge’sconclusions were “not clearly erroneous.” This case is interesting because it suggests that if you have unclean hands or do not approach the deposition with your own good behavior, the Court may use the limit on the number of depositions as a sanc-tion,andyourclientcanbedeniedthebenefitsof an effective deposition despite the improper con-duct of the deponent.

oBJeCtions, instrUCtions not to ansWer, anD rULe 30(c)(2) • “It [has long been] settled that counsel should never instruct a witness not to answer a question during a deposi-tion unless the question seeks privileged information or unless counsel wishes to adjourn the deposition for the purpose of seeking a protective order from what he or she believes is annoying, embarrass-ing, oppressive, or bad faith conduct by opposing counsel.” Mashburn v. Albuquerque Police Dept., 2004 WL 3426419, at *4 (D.N.M. Apr. 1, 2004), citing First Tennessee Bank v. Federal Deposit Ins. Corp., 108 F.R.D. 640 (E.D. Tenn. 1985). See Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697 (S.D. Fla. 1999) (if counsel believes deposition is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress the de-

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ponent, then counsel may instruct the witness not to answer, but may do so only if he intends to move for a protective order). Rule 30(c)(2) provides:“An objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive manner. A person may instruct a depo-nent not to answer only when necessary to preserve a privilege, to enforce a limitation directed by the court, or to present a motion under Rule 30(d)(3).” In Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 175 (S.D.N.Y. 2004), the Court sus-tained defense counsel’s instructions not to answer, finding that:“[t]o theextent thatSeagate’scoun-sel directed him not to answer, the questions posed violated the Special Master’s direction to limit in-quirytospecificSeagatedrives.” Rule30(c)(2)codifiespriorpracticethat,“intheabsence of a showing of some serious harm likely to result from responding to any given question, the policies behind Rule 30 require the answers to be given.” Nutmeg Ins., supra, 20 F.R.D. at 508; see also, Serafino v. Hasbro, Inc., 82 F.3d 515, 518-19 (1st Cir. 1996) (invocation of Fifth Amendment privilege that prevents defendant from mounting an effective defense by obtaining information from the plain-tiff thatisnotavailableelsewherejustifiesdismissalof plaintiff ’s case); Hearst/ABC-Viacom Entertain-ment Services v. Goodway Marketing, Inc., 145 F.R.D. 59 (E.D. Pa. 1992) (instruction not to answer on basis of irrelevance was clearly inappropriate, and client must answer all questions when no privilege impli-cated). Instructions not to answer are often combined with contentiousness. This is addressed neatly by one Magistrate-Judge. In a case also involving a good discussion of the scope of the attorney-client privilege and work product doctrine in the context of government employees, the Magistrate Judge in Banks v. Office of the Senate Sergeant-At-Arms, 222 F.R.D. 1 (D.D.C. 2004), made the following obser-vation, which I believe is worth quoting in full:“The parties have also addressed other problems

that have arisen either during the course of or during the planning for the deposition. I will not speak to hypothetical issues but, in the exercise of myobligationtokeepafirmhandonthediscoveryprocess, I will provide them with guidance so that they cannot argue that they were not aware of my expectations the next time one of them complains. Iwillfirstsaythis.Thepapersinthiscasearealltoofull of the kind of bickering that is costing everyone far too much money. If it does not stop, counsel will be amazed at how much more expensive it will get once I start issuing sanctions. I am denying the motion for sanctions, but a word to the wise is suf-ficient.***Second,directingawitnessnot toan-swer a question on the grounds of relevance is a clear violation of the Federal Rules of Civil Proce-dure (Fed. R. Civ. P. 30(c)(2)) and sanctionable. *** Third, the depositions of all remaining witnesses will be conducted in accordance with the principles elucidated in this opinion. Failure to comply with themwillresultinsanctions.***Ispecificallynotethat Mr. Macon’s deposition may be taken again and conducted in accordance with these princi-ples.” Id. at 6. Instructions to experts not to answer questions also arise during depositions. For example, in Bock-weg v. Anderson, 117 F.R.D. 563 (M.D.N.C. 1987), a medical malpractice action, the plaintiffs argued their experts could be asked only “non-privileged facts known or opinions held by the expert[s] rel-evant to the subject matter of the lawsuit….” Id. at 563. The court disagreed, holding that Rule 26 encouraged “liberal discovery of expert witnesses, including information relevant only for impeach-ment.” The court ordered that the plaintiffs instruct their experts “to answer questions relating to their involvement…in other malpractice actions….” Id. at 565-66. See also contra In re Air Crash Disaster at Sta-pelton Int’l. Airport Denver, Colo., 720 F. Supp. 1442, 1444-45 (D. Colo. 1988) (refusing to allow inquiry into expert’s retention and opinion on other cases, including cases handled by the same attorney.)


Two decisions in the case of In re Omeprazole Pat-ent Litigation, 2005 WL 818821 (S.D.N.Y. Feb. 18, 2005) and 227 F.R.D. 227 (S.D.N.Y. 2005), are also instructive on the appropriate use of instructions not to answer, objections at deposition, and discov-ery of deleted portions of an expert’s report. The defendant instructed an expert not to answer ques-tions concerning deleted portions of the expert’s report (a report that had been “amended” several times). The Special Master recommended and the DistrictCourtconfirmedthat:

Expert reports are not pleadings and are not •therefore “amended” (i.e., they can be changed, but deleted or changed portions are proper ar-eas for deposition examination); andInstructions to an expert not to answer are not •proper. According to the Special Master, coun-sel should have objected and permitted the question to be answered, subject to the objec-tion. Moreover, the expert is not the “client” and the party’s counsel cannot instruct the ex-pert not to answer.

Citing Shapiro v. Freeman, 38 F.R.D. 308, 311-312 (S.D.N.Y. 1965), the District Court stated that:“It is not the prerogative of counsel, but of the court, to rule on objections. Indeed, if counsel were to rule on the propriety of questions, oral examina-tions would be quickly reduced to an exasperating cycle of answerless inquiries and court orders. Alter-natively, if the plaintiff ’s attorney believed that the examination was being conducted in bad faith... or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied immediately to the ex parte judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d). He had no right whatever to impose silence or to instruct the witnesses not to answer, especially so when the wit-nesses were not even his clients.”227 F.R.D. at 230. The Special Master also cited other authorities to show both the impropriety of Eon’s actions and that “counsel’s proper course

would have been to allow the questioning to contin-ue subject to objection.” See Order at 5 (citing 7-30 Moore’s Federal Practice—Civil §30.43[2] (2004)). The actual questions and objections are worth reading, under the warning of “Don’t let this hap-pen to you”:“EonalsoinstructedDr.Blocknottoanswerques-tions directed to the subject matter of the deleted paragraphs, for example:Q. Now, do you think any of the claims of the pat-ents-in-suit are anticipated by any piece of prior art?MR. STUART: Objection. I am going to instruct the witness not to answer that question. That’s been withdrawn from his Expert Report.BlockDepo. at pgs. 115-20, pgs. 152-57.Duringcounsel colloquy, Astra’s counsel attempted to per-suade Eon’s counsel to withdraw his objections, but Eon’s counsel, Mr. Stuart, refused:MR. GRIEM: There is nothing I can say that would allow you to permit the witness to answer my questions since he is here and since we have time to do it?MR. STUART: That’s correct. There is nothing that will make me let him answer those questions.”

2005 WL 818821, at *1. The court in due course did compel answers. It is worth reminding all counsel that there are only three occasions when it is proper to in-struct a witness not to answer a question:

First, to preserve a privilege;•Second, to enforce a limitation directed by a •court; andThird, to present a motion under Rule 30(d)•(3).

Fed. R. Civ. P. 30(c)(2). In all other cases, testimony is taken subject to objection. Fed. R. Civ. P. 30(c). The limitations on objections are confirmed inOmeprazole, supra, 2005 WL 818821, at *2. In a case recently decided by the U.S. District Court for the Southern District of New York, Ven-tura Associates, Inc. v. International Outsourcing Services,

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Inc., 2008 WL 2073628 (S.D.N.Y. May 14, 2008), the defendant sought to have the entire deposition of one of plaintiff ’s employees, Ms. Chandhok, stricken on the grounds that plaintiff ’s counsel in-structed her in her deposition not to answer a ques-tion concerning whether she had been subpoenaed. Defendant claimed that, in the absence of Ms. Chandhok’s testimony, there was no genuine issue of material fact and thus defendant’s motion for summary judgment should be granted. The district court found that defendant’s requested relief was unwarranted in that the proper redress for an al-leged failure to answer a deposition question would have been a motion to compel Ms. Chandhok’s an-swerstothequestionspursuanttoRule37(a)(3)(B)(i). If the motion to compel were granted, sanctions could have been imposed for the costs associated with Ms. Chandhok’s re-deposition. See Fed. R. Civ. P. 30(d)(2); see also Sicurelli v. Jeneric/Pentron, Inc., 2005 U.S. Dist. LEXIS 38943 at 27-28 (E.D.N.Y. Dec. 30, 2005)(ordering plaintiff ’s counsel to pay costs relating to re-deposing witnesses). Other courts have authorized harsh sanctions for failing to answer deposition questions, includ-ing awarding as sanctions against the party or his attorney the costs of the original deposition or a second deposition (if one is ordered). See, e.g., Frazier v. Southeastern Pennsylvania Transp. Auth., 161 F.R.D. 309, 315-16, 321 (E.D. Pa. 1995) (Rule 30(c)(2) is sufficient to support sanctions independent of aprior court order), and the appointment of a spe-cial master to preside at future depositions at the expense of the misbehaving attorney. See also Coca-Cola Bottling Co. of Shreveport. Inc. v. Coca-Cola Co., 123 F.R.D. 97 (D. Del. 1988) (court denied permission for a corporate party that moved to withdraw an admission under Rule 36 (even though the admis-sion later turned out to have been made in error) whereitsofficershadbeeninstructednottoanswerquestions on the subject of the admission and dis-covery had thereafter closed).

timely objection on Grounds of privilege Remember that the failure to object at the depo-sition that the information sought is privileged will result in a waiver of the attorney-client privilege. Such a waiver occurred in The Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d 507, 514-515 (S.D.N.Y. 2003), in which the questions were asked and an-swered and no objection based on the privilege was raised until after the end of the deposition. The Special Master reviewed the transcripts and noted that the defendant had the opportunity to claim the attorney-client privilege during the deposition and failed to do so, thereby waiving the privilege.

Frivolous objections and “Coaching” of Witnesses Objections are reserved until trial, unless they go to the form of the question or other like defect that could be cured if the objection had been im-mediately stated. Fed. R. Civ. P. 30(c); 32(a). It is not uncommon, however, for depositions to be disrupted by objections and colloquy. Such disrup-tions taint the proceeding and deprive the depos-ing party of its right to “a fair opportunity to make discovery.” Unique Concepts, Inc. v. Brown, 115 F.R.D. 292, 294 (S.D.N.Y. 1987)(personal insults and invec-tive against opposing counsel); see also Armstrong v. Hussmann Corp., 163 F.R.D. 299, 302-304 (E.D. Mo. 1995)(frequent interruptions by counsel defend-ing deposition and objections suggesting answers to their clients), Wright v. Firestone Tire & Rubber Co., 93 F.R.D. 491, 493 (W.D. Ky. 1982) (repeated ob-jections by the lawyer that the questions were un-clear, notwithstanding the witness’s understanding of them); see U.S. v. National Medical Center, Inc., 792 F. 2d 906, 909-10 (9th Cir. 1986) (lawyer chastised for interfering with a nonparty deponent’s willing-nesstoretrieveadocumentfromhisfilefortheex-aminer). Meritless objections also violate Rules 3.1 and 3.2 of the Model Rules of Professional Con-duct, which state a lawyer’s duties to avoid mak-ing frivolous claims and to make reasonable efforts


to expedite litigation. For these reasons, the cases have held that a lawyer who objects at deposition on grounds other than privilege or trade secret should do “nothing more than state his objections,” halt the examination, and immediately seek a rul-ing or protective order. Shapiro, supra, at 311–12; see also Odone v. Croda Int’l. PLC, 170 F.R.D. 66 (D.D.C. 1997) (during course of deposition, attorney pro-hibited from attacking each question posed by op-posing counsel for purpose of preventing elicitation of any meaningful testimony from witness, and also may not object to questions in such a way as to “coach” witness or suggest answer). Rule 30(c)(2) strictly prohibits “speaking” or coaching objec-tions, instructing that: “Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.” Fed. R. Civ. P. 30(c)(2). The 1993 Advisory Com-mittee Notes emphasize that the Rule:“[P]rovides that any objections during a deposi-tion must be made concisely and in a non-argu-mentative and non-suggestive manner. Depositions frequently have been unduly prolonged, if not unfairly frustrated, by lengthy objections and col-loquy, often suggesting how the deponent should respond. While objections may, under the revised rule, be made during a deposition, they ordinar-ily should be limited to those which, under Rule 32(d)(3), might be waived if not made at that time, i.e., objections on grounds that might be immedi-ately obviated, removed, or cured, such as to the form of a question or the responsiveness of an an-swer. Under Rule 32(b), other objections can, even without the so-called ‘usual stipulation’ preserving objections,beraised for thefirst timeat trialandtherefore should be kept to a minimum during a deposition.” Courts have become increasingly intolerant of “‘speaking’ objections to questions, [that have] the barely concealed purpose of communicating to the witness how she should answer.” See Armstrong, su-pra, 163 F.R.D. at 303, citing Hall v. Clifton Precision, a

Div. Of Litton Systems, Inc., 150 F.R.D. 525, at 530-31 (because attorneys are prohibited from making any comments, either on or off the record, in the pres-enceof ajudicialofficer,“whichmightsuggestorlimit a witness’s answer to an unobjectionable ques-tion,” such behavior is likewise prohibited at depo-sitions”); see also Heller v. Wofsey, Certilman, Haft, Lebow & Balin, 1989 WL 79386 (S.D.N.Y. July 11, 1989). Some courts proactively prevent such misconduct through standing orders prohibiting such objections from being made in the presence of the deponent. Id., see also Damaj v. Farmers Ins. Co., Inc., 164 F.R.D. 559 (N.D. Okla. 1995) (setting requirements by court order for the conduct of further depositions in order to prevent future deposition misconduct). Whether or not such courts have adopted such proactive measures, they can levy sanctions for improper and disruptive objections similar to those sanctions awarded as a result of improper instructions not to answer. Courts may award the costsof filing themotion tocompelorof re-tak-ing the deposition against the offending party or his attorney. Unique Concepts, supra, 115 F.R.D. at 294 (costs awarded against the attorney under 28 U.S.C. §1927); see also, R.E. Linder Steel Erection Co. Inc. v. United States Fire Ins. Co., 102 F.R.D. 39 (D. Md. 1983) (both attorneys at fault; the court ordered them to pay $5 for each interruption of a question and $5 per transcript line of extraneous remarks). For example, in Hall, supra, 150 F.R.D. at 527, the court went beyond merely prohibiting speak-ing objections; it also precluded the deponent from conferring with counsel before answering a pending question. The court found that discussions between the client and lawyer during breaks taken during depositions, which related to the client’s response to questions, did not qualify as protected from dis-closure under the attorney-client communication privilege nor under the work product doctrine. See also, Refco Inc. v. Troika Investment Ltd., 1989 WL 94326 (N.D. Ill. Aug. 4, 1989) (attorney ordered “not to con-sult with witnesses during the course of their deposi-

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tions except during mutually-agreed-upon breaks in those depositions” or on matters of privilege). Improper and disruptive objections particularly affect video depositions, especially when those ob-jections and colloquy are then edited out of the vid-eotape before playing it to the jury. This procedure:“providesa fertilefield formischief.An irrespon-sible attorney can make any number of objections, ranging from frivolous to spurious. The more he makes, the better things are in his favor. When the time comes to pres-ent the deposition in court, he can withdraw the objections or per-mit them to be over-ruled by the court. In any event, the result is a video presentation where there will be long pauses, a squeal or two from the television set, and the amusing spectacle of a wit-ness jiggling around while the tape is speeded up until the next usable portion of the testimony is reached: That is exactly what happened in this case and the result was that plaintiffs were denied the effective presentation of evidence that was crucial to them.”Kelly v. GAF Corp., 115 F.R.D. 257, 258 (E.D. Pa. 1987) (new trial ordered); see Thomas v. Hoffman-LaRoche, 126 F.R.D. 522, 524 (N.D. Miss. 1989) (sanctions imposed on attorney personally where repeated ob-jections “obstructed the deposition” and “destroyed the value of the videotaped depositions”). The court can levy severe sanctions for perva-sive misconduct at depositions. See Ralston Purina Co. v. McFarland., 550 F.2d 967, 974 (4th Cir. 1977) (vacating a summary judgment on liability and the jury’s subsequent damage award where counsel’s misconduct during deposition prejudiced the losing party); see also, Kelly, supra (new trial ordered because defense attorneys’ objections and interruptions dur-ing a video deposition of the plaintiff ’s trial expert so disrupted the video presentation at trial that the testimony appeared absurd and disjointed; the court

invited a motion for sanctions against the attor-neys).

abusive Conduct and improper interrogation The abused party has two avenues of recourse in response to improper or abusive depositions. First, if the objection is known before the deposi-tion, (e.g., an objection to the deposition notice), the deponent can move pre-deposition for a protec-

tive order. See Nutmeg Ins., supra,120 F.R.D. at 508-09; Coates v. Johnson & Johnson, 85 F.R.D. 731, 733 (N.D. Ill. 1980). If the ob-

jection occurs during the deposition, the injured party may call a halt to the deposition and make an immediate application to the court for relief under Rule 30(d)(3). Depositions may be adjourned only on the grounds provided for in Rule 30(d)(4). See Smith v. Logansport Community School Corp., 139 F.R.D. 637 (N.D. Ind. 1991) (complaint regarding scope of cross-examination exceeding that of direct not val-id objection or cause for Rule 30(d) adjournment). Whether the party invokes Rule 26(c), Rule 30(d)(3), or both, the objection must be made promptly. Hearst/ABC-Viacom, supra, 145 F.R.D. at 62-63. A party’s failure to timely object is construed as an admission of the lack of legitimate Rule 30(d)(4) grounds for adjournment. Id. at 63. Thus, the attorney objecting to the deposition should not wait for his opponent to bring the matter before the court by a motion to compel. A court may sanction, censure, or even order a deposition to be resumed where an attorney waited forhisopponenttofileamotiontocompelinsteadof timely addressing the issue through the proper objections. See Hanlin v. Mitchelson, 623 F. Supp. 452, 455 (S.D.N.Y. 1985), aff ’d in part and rev’d in part on other grounds, 794 F.2d 834 (2d Cir. 1986). Such sanctions may also be invoked against a deposing

Improper and disruptive objections particularly affect video depositions, especially when those objections and colloquy are then edited out of the videotape before playing it to the jury.


lawyer whose opponent is being unfairly disrup-tive. One court suggests that a deposing lawyer’s failure timely to adjourn a deposition disrupted by improper objections to seek assistance under Rule 30(d) risks waiver of the right to seek judicial help. See Lapenna v. Upjohn Co., 110 F.R.D. 15, 18-19 (E.D. Pa. 1986).

speCiaL Masters anD MaGistrate JUDGes • As noted above, SpecialMasters canplay an important and determinative role in the dis-covery process. As explained in Convolve, supra, 223 F.R.D. at 170 (S.D.N.Y. 2004):“The function of a special master and the role of a magistrate judge are to a large extent parallel. Each may be appointed by the district judge to ad-dress pretrial matters. See Fed. R. Civ. P. 53(a)(1)(C) (special masters); (magistrate judges); Fed. R. Civ. P. 72(a) (magistrate judges). Each may issue orders on non-dispositive matters that are then subject to review by the district judge. See Fed. R. Civ. P. 53(g) (special masters); 28 U.S.C. §636(b)(1)(magistrate judges); Fed. R. Civ. P. 72(a) (magistrate judges). Since Magistrate Judges and Special Masters are deemed parallel, an appeal from an order from ei-ther must go to the District Court. It is not proper to appeal the order of the Special Master to the Magistrate Judge.” In Convolve, the Magistrate Judge refused to sanction the defendant for violating an order of the Special Master and misrepresenting whether a type of document (an RFP or RFQ) existed. The Mag-istrate Judge’s rulingwas basedon a finding thatthe defendant’s misconduct was an isolated act, not a systematic abuse. Under the circumstances, the Magistrate Judge found that the appropriate rem-edy was full disclosure of the relevant information, not sanctions.

DisCoVerY oF DoCUMents reVieWeD BY a Deponent BeFore or DUrinG Deposition • This section will focus on the

discovery of documents reviewed by deposition witnesses in the context of:

Claims of attorney/client privilege;•Claims of work product protection; and•Foundational requirements.•

As detailed below, the law in this area has been and remains“inastateof flux.”In re Comair Air Disaster Litig., 100 F.R.D. 350, 353 (E.D. Ky. 1983).

“refreshed recollection” and rule 612 Rule 612 of the Federal Rules of Evidence pro-vides:“... if a witness uses a writing to refresh memory for the purpose of testifying, either—(1) while testifying, or(2) before testifying, if the court in its discretion de-termines it is necessary in the interests of justice, an adverse party is entitled to have the writing pro-duced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.”Rule 612, in conjunction with Rule 30(c), provides that examination and cross-examination in deposi-tion “may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence.” See James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982); see also, Sporck v. Peil, 759 F.2d 312, 317 (3rd Cir. 1985), cert. denied, 474 U.S. 903 (1985) (noting that although Rule 612 is an evidence rule, it is applicable to a deposition and deposition testi-mony by operation of Fed. R. Civ. P. 30(c)).

production of attorney-Client privileged Documents Used to refresh recollection The legislative history of Rule 612 “clearly in-dicates that at least the sponsors in the House of Representatives intended that ‘nothing in the Rule be construed as barring the asserting of a privilege with respect to writings used by a witness to refresh his memory’….” See Fed. R. Evid. 612 advisory committee’s notes; In re Managed Care Litig., 415 F.

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Supp. 2d 1378, 1380 (S.D. Fla. 2006); Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 386 (N.D. Cal. 1991). Regardless, ever since Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977), courts have relied on Rule 612 to compel disclosure under appropriate circumstances of documents shown witnesses before their depositions. Two general rules of practice seem clear in this area:

A lawyer should not permit his client to review •privileged or protected materials in preparation for a deposition unless that lawyer is prepared toproducethem,JackB..Weinstein&Marga-retA.Berger,Weinstein’s Federal Evidence §612.04 (JosephM.McLaughlined.,MatthewBender,2d ed. 2008); andA lawyer should familiarize him- or herself •with the strictest interpretation of the founda-tional requirements of Rule 612. See Sporck v. Peil, supra.

Under a stringent interpretation of Rule 612, it is insufficienttosimplyaskawitnessif heorshere-viewed documents be-fore testifying to them and what those docu-ments were. Instead, the preferred method includes narrowly tai-loredquestionsregardingthespecificsubjectsfirstand then questions to identify all documents known to him regarding that subject matter and, next, what documents he relied on in his testimony. See WilliamSchwarzer&LynnPasahow,Civil Discovery: A Guide to Efficient Practice 123 (Prentice Hall 1988). A testifying party who reviews documents pro-tected by the attorney-client privilege waives the privilege and must produce those documents. S & A Painting Co. v. O.W.B. Corp., 103 F.R.D. 407 (W.D. Pa. 1984); Bailey v. Meister Brau, Inc., 57 F.R.D. 11 (N.D. Ill. 1972). This result is mandated under Rule 612(1), which requires a witness to produce docu-ments he reviews while testifying. See Auto Owners

Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199 (M.D. Fla. 1990). This rule also comports with general waiver principles, in which a party who is not concerned withmaintaining confidentialitydoesnotdeservethe absolute protection the privilege affords. Bailey, supra, at 13. The rule of waiver/automatic production has been extended to materials a witness reviewed be-forethewitnesstestified.See Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc., 81 F.R.D. 8 (N.D. Ill. 1978); see generally, Marshall v. United States Postal Service, 88 F.R.D. 348, 350 (D.D.C. 1980). This rule may not be extended, however, to circumstances in which a witness merely skims a document be-fore being deposed. The courts have found there is a marked difference in the level of disregard of the privilege where a witness actually asks to see and then reviews a privileged document to refresh his recollection during deposition. Cf. Joseph Schlitz Brewing Co. v. Muller & Phipps (Hawaii), Ltd., 85 F. R. D. 118 (W.D. Mo. 1980) (attorney/deponent who reviewed his correspondence file before testifying

did not thereby waive the attorney–client privilege unless actual use of individual doc-uments was shown). A growing number

of courts have departed from Wheeling Pittsburgh and Marshall,findinginsteadthatthewaiverof theat-torney/client privilege by a witness’s pre-deposition review of privileged documents should be restrict-ed to “only when the witness has consulted a writ-ing embodying his own communication to coun-sel, and his testimony at the deposition, or at trial, disclosesasignificantpartof thecommunication.”Baker v. CNA Ins. Co., 123 F.R.D. 322, 327 (D. Mont. 1988);Weinstein&Berger,supra.Therecenttrendis to reject Wheeling-Pittsburgh’s and Marshall’s auto-matic waiver rule and instead favor an approach of pre–deposition review of privileged materials guided by general principles of waiver by voluntary

Under a stringent interpretation of Rule 612, it is insufficient to simply ask a witness if he or she reviewed documents before testifying to them and what those documents were.


disclosure, concern for the opponent’s need for the materials, and overall fairness. See Barrer v. Women’s Nat’l Bank, 96 F.R.D. 202 (D.D.C. 1982) (in camera inspection ordered so the court could compare the document with the testimony to ascertain inconsis-tencies and assess the opponent’s need for access to the document). In the view of these courts, pres-ervationof attorney/clientconfidencesremainsafactor to consider, among others, even if a techni-cal waiver has occurred. Id. at 205. This trendhasbeen refined inLeybold-Heraeus Technologies, Inc. v. Midwest Instrument Co., Inc., 118 F.R.D. 609 (E.D. Wis. 1987) where the court re-viewed a variety of privileged documents and concluded that disclosure of them to “witnesses...to refresh their recollections for...testifying” made them discoverable. The court rejected the notion of selective disclosure, by extended its holdings to include privileged documents that had been par-tially disclosed. Id. at 613–15. Thus, despite the fact that courts have rejected the automatic produc-tion/waiver rule of Wheeling-Pittsburgh and Marshall, litigants should not rely on selective disclosure as an end-run to disclosing privileged documents.

production of Work product Used to refresh recollection Courts have considered the following to fall within the work product protection:

Selection process and distillation of documents, •Berkey Photo, supra; see also James Julian, supra, 93 F.R.D. at 144;Selection and compilation of documents in •preparation for pretrial discovery, Sporck, supra, 59 F.2d at 316;Documents that “reveal counsel’s mental im-•pressions,” Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); andDiscussions between counsel and trial experts. •Haworth, Inc. v. Herman Miller. Inc., 162 F.R.D. 289, 295 (W.D. Mich. 1995).

In a number of cases, courts ordered production

of work product under Rule 612 where a deponent had used the work product in some way to prepare for his deposition. In re Comair Air Disaster Litig., su-pra; Boring v. Keller, 97 F.R.D. 404 (D. Colo. 1983); James Julian, supra, at 144 (discussing cases gener-ally following Berkey Photo). In Berkey Photo, the court found that the four notebooks assembled by the de-fense and furnished to experts before their deposi-tions“tofill indetails”and toprovide themwithan “appreciation” of the underlying facts should be ordered produced under Rule 612(2) because they were used to refresh the witnesses’ recollection or otherwise shape and inform their testimony. Berkey Photo, supra, at 615. As a matter of judicial policy, in the Berkey court’s view, parties should not receive immunity against production when “immunized materials have been deliberately employed to pre-pareandthus,verypossibly,toinfluenceandshapetestimony.” Id. at 616. Compared to the documents in Berkey Photo (“thatrevealed…theevidentresidueandreflectionof interviews, statements, memoranda, correspon-dence, mental impressions, personal beliefs, and other products of the advocate’s professional inter-action with materials of his art”), the documents in Sporck contained only documents counsel conceded did not enjoy independent privileged status or work product immunity, apart from their selection and organization. Sporck, supra, 759 F.2d at 315. The Sporck court nonetheless found that those docu-ments constituted opinion work product, while the court in Berkey Photorejectedsuchafinding. The courts employ their discretion in ordering the production of work product used to prepare a witness for deposition, considering such factors as “the extent to which [the] witness consulted the documents, the extent to which those docu-ments related facts similar to those testified tobythe witness, and the extent to which the attorney’s thought processes would be revealed by disclosure of thedocument.”1StephenSaltzburg&MichaelMartin, Federal Rules of Evidence Manual 707 (Michie,

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5th ed. 1990). Some courts take a hard-line stance, findingthatthemerepossibilitythatthedocumentshavebeenused to shapeand influence testimonyis sufficient toputaside theworkproductprotec-tion. See James Julian,supra,93F.R.D,at146(find-ing that where plaintiff ’s counsel made a decision to educate their witnesses by supplying them with work product, the defendants were entitled to know the content of that education); In re Joint Eastern and Southern District Asbestos Litigation, 119 F.R.D. 4 (S.D.N.Y. 1988). Some courts hold that Rule 612 cannot dis-place the work product privilege. See Omaha Public Power District v. Foster Wheeler Corp., 109 F.R.D. 615 (D. Neb. 1986). Still other courts require a more particularized showing before ordering the produc-tion of work product. See Aguinaga v. John Morrell & Co., 112 F. R. D. 671 (D. Kan. 1986). These courts findthatthepossibilitythatadocumentshapedorinfluencedthewitness’stestimonyisinsufficienttodestroy the work product protection. Instead, the proponent of disclosure must prove, often by an in camera inspection:

That there are discrepancies between the wit-•ness’s testimony and the documents he re-viewed, Al-Rowaishan v. Beatrice Foods, 92 F.R.D. 779, 780-81 (S.D.N.Y. 1982); seeBarrer,supra;That the witness was improperly coached, • Par-ry v. Highlight Indus., Inc., 125 F.R.D. 449 (W.D. Mich. 1989);That the information in the document was not •available elsewhere, In re Comair Air Disaster Lit-ig., supra;That the witness actually consulted the docu-•ment during the deposition, Auto Owners Ins., supra; orThat the work product was unethically obtained •or fell within the crime or fraud exception to the doctrine. Aguinaga, supra.

Foundation requirements of rule 612 A litigant must satisfy three criteria in order to obtain the production of a document reviewed by a witness before testifying:

The document must be identified and a de-•mand for its production made;The witness must have used the writing for the •purpose of refreshing his recollection as to the subject matter of his testimony; andThe court must determine that production “is •necessary in the interests of justice.” Fed. R. Evid. 612(2).

See generally,Weinstein&Berger, supra,at612.05.Recent cases have set forth additional requirements before ordering production of work product, using a balancing test:“a court should weigh (1) any attempt at improper use of the work product doctrine “to exceed the limits of preparation on the one hand and con-cealment on the other,” (2) the degree to which the documents are composed of factual material rather than an attorney’s legal analysis, and (3) “whether thedisclosureconstitutedafishingexpedition.”Bank Hapoalim, B.M. v. American Home Assur. Co., 1993 WL 37506 (S.D.N.Y. Feb. 8, 1993) (citing In re Joint E. & S. Dist. Asbestos Litig., 119 F.R.D. at 6); In re Se-roquel Products Liability Litig., 2008 WL 215707 at *3 (M.D. Fla. Jan. 24, 2008); Nutramax Laboratories, Inc. v. Twin Laboratories, Inc., 183 F.R.D. 458, 468-470 (D. Md. 1998). If the balance tips in favor of disclosure, the documents will be ordered produced. See also, Butler Mfg. Co., Inc. v. Americold Corp., 148 F.R.D. 275, 277 (D. Kan. 1993) (to compel disclosure of work product reviewed by a deponent before testifying requires “[a] showing...that the document actually influenced the witness’ testimony”) (emphasis added).

Discovery Under rules 612 and 702 of Documents shown to experts Generally, discovery of documents shown an expert versus lay deponent is analyzed under Rule 705, rather than Rule 612. See generally, Boring, supra.


Boththecourts inBoring and Berkey Photo ordered the production of attorney work product furnished to a testifying trial expert. The courts found that it would be necessary for cross-examination purposes to compel production of work product where an attorney voluntarily furnished that work product to an expert, thus diminishing, if not destroying, his interestintheconfidentialityof thosedocuments. The Northern District of California in Intermed-ics, supra, emphasized the importance of ensuring full and fair cross-examination of experts as to the bases for their opinions, as provided in Rules 702, 703, and 705. Id. at 395. The court found that, “[I] t would be fundamentally misleading, and could do greatdamagetotheintegrityof thetruthfindingprocess, if testimony that was being presented as the independent thinking of an ‘expert’ in fact was theproduct,inwholeorsignificantpart,of thesug-gestions of counsel.” Id. at 395-96.

ViDeotapeD Depositions •UnderRule30(b)(3)(A), a party may choose to record the depo-sition by various methods, including sound, sound-and-visual, or stenographically. Fed. R. Civ. P. 30(b)(3).Thechosenmethodmustbe identified in thenotice of the deposition and the deposing party shall bear the expense of the recording. Any other party, at its own expense and after giving notice to the deponent and other parties, may designate an-other method of recording in addition to the meth-od identified in thenotice of deposition. Fed.R.Civ.P.30(b)(3)(B).

ForM oF tHe QUestions • Commencethe deposition with a question as wide open as possible, revolving around key questions like: who, what, when, where, why, and how. Follow up with questionsthatallowforthedeponenttofillinthenecessary blanks, like “describe that for me,” or “tell me what happened next.” For example, in a car collision case, ask a gen-eral question, like “what happened on the night of

December 25, 2001”? Then clarify the scope of the question. This will provide the necessary details to build a complete picture. For example, following thecarcollisionscenario,ask“Whendidyoufirstsee the approaching car?” “How fast were you driv-ing”? “How do you know your speed”? “What did you do when you saw the approaching car?” “How closewereyouwhenyoufirstsawtheapproachingcar,” and so on. The next phase is to close off that topic or that particular line of questioning. This stage allows the questioning attorney the chance to make sure that the deponent is not reserving any information. Ask closing questions, like “Anything else?” or “Is there anything you’d like to add?” or “Have you now told me everything about what happened that night?” “Have I exhausted your recollection of that night?” etc. Another method to closing off a particular subject area is to summarize the events and ask forclarification.Forexample,“Letmeseeif Iun-derstand this correctly. On the night of December 25, 2001, you were driving 65 mph, going north on highway 101. It was raining. You saw a car ap-proaching you from the right side and entering into your lane. Once you saw this car, you braked”?

prepare YoUr Witness •Therearemanymethods by which to prepare a witness for an up-coming deposition. According to Malone and Hoff-man, supra, at 157:“About forty percent of attorneys prepare wit-nesses for deposition by extensively reviewing the substantive facts of the case; another forty percent do so by reciting an inordinately long list of “do’s” and “don’ts” that even attorneys cannot remem-ber (and therefore they are presented in writing, or on videotape, for the witness “to take home” after the last preparation session). Only the remaining twenty percent of attorneys realize that neither of these approaches deals with the primary factor af-fecting the witness’s performance at the deposition,

Depositions | 43

whichishislevelof confidenceabouthisabilitytoperform in the deposition environment.”Id.Beginasessionwiththedeponentbygoingoverthe purpose of the deposition, describe the order of the proceedings—that is, the question, possible objections, and answer—and the likely topics that the deposition will cover. Next, discuss how to an-swer questions. Malone and Hoffman suggest seven ideal types of answers:

Type 1, the discrete, short answer—if the de-•posing attorney needs more information, it is up to him or her to follow up;Types 2 and 3, the “yes” “no” answer—most •questions can be answered by responding “yes,” or “no.” Again, if the deposing attorney needs more information, let him/her follow up;Type 4, the “I don’t understand that question” •response—it is perfectly acceptable to ask the attorney to rephrase a question. Caution the witness that it is especially important to fully understand the question before responding to it. Otherwise, the response may not be to the exact question posed, but to a possibly impor-tant variation of it;Type 5, the “I don’t know” response—this is of-•ten the hardest answer for a witness to give, and sometimes the witness will speculate or guess, neither of which make a good record;Type 6, the “I don’t remember” answer—leave •it up to the attorney to attempt to refresh the witness’ recollection with documents; andType 7, the “I’d like to take a break” response—•if the witness is unsure whether his or her re-sponse may be privileged, a break will allow the witness and the counsel to confer. Additionally, it is a good idea to take a mental break from the deposition and come back fresh and revital-ized.

Id. at 164–167. It is important to emphasize to the witness the importance of listening carefully to the question and leaving a pause before responding to allow the defending attorney to make any objec-

tions necessary. Explain to the witness that the ob-jections are made to preserve the record and that the witness will have to respond to the question if she or he can. Enumerate that there are only three discrete circumstances when the witness will not have to respond to the pending question:

Privilege, which should be followed by an in-•struction from the counsel not to answer;Harassment/annoyance/embarrassment; and•Protective orders. The attorney may want to •go through some practice question-and-answer with the witness.

Sometimes there will be critical documents that counsel will want to review with the witness before the deposition. Handing a document over to a wit-ness does not ensure that he or she will review it—instead, the attorney should go over the documents with the witness. It is up to the attorney to organize the documents and go through them in a manner that will help facilitate the witness’s review of it. Documents may be organized chronologically or topically. Sometimes attorneys have employed videotapes to prepare witnesses who need to prevent certain speech habits or mannerisms from distracting from their testimony, especially if it is to be videotaped. It is important to review with the witness what to wear—the same clothes the witness would wear to court. Jackets should not be removed. The air con-ditioning should be adjusted, so that the witness is not too hot. Just as the witness would not remove his or her jacket in court, he or she should not re-move it during the deposition. Also explain that there may be an opportunity for cross-examination. Final housekeeping tips on witness preparation range from reiterating to the witness the time of the deposition, the place of the deposition, the proper mode of attire, what to bring or not bring, who to look at and who to talk to. It is a good idea to meet with the deponent before the deposition to take care of any last-minute ques-


tions he or she might have and to reassure him or her of the process. See also, Daniel Small, Preparing Witnesses: A Practical Guide for Lawyers and Their Clients (ABA,2d.ed.1998). It should go without saying, but it must be said: It is important to stress to your witnesses that they must tell the truth. There is a balance between hon-estly not remembering a fact that the witness once knew. In that circumstance, the deponent should answer “I don’t remember.” Counsel should be sensitive to the effect of dozens or scores of “I don’t remembers” in a deposition. This will not play well with the jury if the witness is then fully prepared at trial and remembers everything, or if the jury believes the witness should have known these facts. “I don’t remember” is not a substitute for prepara-tion.

saMpLe oBJeCtions•Therearecertainob-jections that must be made at or before the deposi-tion to preserve them from waiver. These are objec-tions which are curable, and include objections to the notice, see Fed. R. Civ. P. 32(d)(1), objections to the qualifications of the officer, see Fed. R. Civ. P. 32(d)(2), objections to cure problems (e.g., errors in the taking of the deposition, in the form of the ques-tions or answer, in the oathor affirmation, or theconduct of the parties). See Fed. R. Civ. P. 32(d)(3)(B). It is proper to make objections to the form of the question on grounds that include:

Ambiguous;•Unintelligible;•Complex or confusing question;•Compound;•Misleading;•Question calls for speculation;•Lack of foundation or no showing of authen-•ticity;

Best evidence rule,• see Fed. R. Evid. 1001 et seq.;No showing of personal knowledge, • see Fed. R. Evid. 602;Unfair characterization;•Misstates prior testimony;•Question assumes facts not in evidence;•Argumentative question;•Question calls for an improper lay opinion, • see Fed. R. Evid. 701;Question calls for a legal conclusion;•Asked and answered;•Question calls for an opinion beyond an ex-•pert’squalification;Leading (but only if not an adverse or hostile •witness);Hearsay, if it can be placed within one of the •exceptions and thus the objection conceivably is curable, see Fed. R. Evid. 803, 804; andNon-responsive answer or volunteering.•

Rule 32(d)(3)(A) states that objections to the competency, relevancy or materiality of deposition testimony are not waived by failing to make them at the deposition unless the objection could have been cured. Fed. R. Civ. P. 32(d)(3)(A). These non-waivable objections include:

Relevancy and materiality;•Prejudicial, • see Fed. R. Evid. 403;Hearsay, unless the testimony can be placed •within a hearsay exception, see Fed. R. Evid. 801, 803, 804;Confusion of the issues, misleading the jury, un-•due delay, waste of time, or needless presentation of cumulative evidence, see Fed. R. Evid. 403;Competency, • see Fed. F. Evid. 601.

Wait until the question is completed and then state the objection concisely and in a non-argumen-tative, non-suggestive manner. See Fed. R. Evid. 30(d)(1).

non-partY sUBpoenas•Perhapsinanef-fort to avoid the obstacles that a party can erect in

Depositions | 45

opposing discovery, lawyers are increasingly using third-party or non-party discovery in the federal courts. If your client is served with non-party sub-poenas, there are many options available to mini-mize the burden and expense on your client. If you intend to use a non-party subpoena to obtain discovery, be mindful of the obstacles that the non-party has available to block or reduce the scope of your discovery demands.

standards Under Federal rule of Civil procedure 45(c) Under Federal Rule of Civil Procedure 45(c)(1), a party issuing a subpoena has a duty to minimize the burden imposed on the non-party. Rule 45(c)(1) (Protecting a Person Subject to a Subpoena) pro-vides as follows:“(1) Avoiding Undue Burden or Expense; Sanc-tions. A party or attorney responsible for issuing and serving a subpoe-na must take reason-able steps to avoid im-posing undue burden or expense on a person subject to the subpoe-na. The issuing court must enforce this duty and impose an appro-priate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or at-torney who fails to comply.” A supboena that imposes an undue burden on the subpoenaed person or entity is subject to being quashedormodifiedunderFederalRuleof CivilProcedure 45(c)(3)(A)(iv) (Quashing or Modifying a Subpoena) which provides:“(A) When Required. On timely motion, the issu-ing court must quash or modify a subpoena that:(iv) subjects a person to undue burden. The status of a person or entity as a non-party is a significant factor that a court must consider

when assessing undue burden for the purpose of a Rule 45 motion. See WM High Yield v. O’Hanlon, 460 F. Supp. 2d 891, 895-96 (S.D. Ind. 2006). A person or entity’s status as a non-party is a factor that weighs against disclosure. See Echostar Communi-cations Corp. v. News Corporation Ltd., 180 F.R.D. 391, 394 (D. Colo. 1998). When determining whether to enforce a subpoena under Rule 45, courts give “special weight to the burden on non-parties of producing documents to parties involved in litiga-tion.” Travelers Indem. Co. v. Metropolitan Life Ins. Co., 228 F.R.D. 111, 113 (D. Conn. 2005) (quashing non-party subpoena). In order to obtain discovery from a non-party, the discovering party “must meet a burden of proof heavier than the ordinary bur-den imposed under Rule 26.” See Echostar, supra, 180 F.R.D. at 394 (D. Colo. 1998). A third-party subpoena is unduly burdensome when the discovery sought is “obtainable from some other source that is more convenient, less

burdensome, or less expensive.” See Schaaf v. SmithKline Beecham Corp., 233 F.R.D. 451, 454 (E.D.N.C. 2005). A party to the litiga-tion from which the subpoena issued is a more convenient, less

burdensome source as a matter of law. See Travelers Indem., supra, 28 F.R.D. at 114 (quashing third-par-ty subpoena because issuer could seek the records from another party in the litigation). Before seeking discovery from a non-party, aparty must “show that it has been unable to ob-tain this information from other parties to the underlying litigation.” See WM High Yield, supra, 460 F. Supp. 2d at 896 (granting motion to quash subpoena where issuer failed to show that it was “unable” to obtain the requested materials from other parties in the underlying litigation). See also Moon v. SCP Pool Corp., 232 F.R.D. 633 (C.D. Cal.

Perhaps in an effort to avoid the obstacles that a party can erect in opposing discovery, lawyers are increasingly using third-party or non-party discovery in the federal courts. If your client is served with non-party subpoenas, there are many options available to minimize the burden and expense on your client.


2005) (granting motion to quash subpoena issued tonon-partyfindingthatsubpoenaimposedanun-due burden on non-party on basis, inter alia, that plaintiffs’ requests all related to party defendant from whom plaintiffs could obtain requested doc-uments more easily and inexpensively and plain-tiffs had not shown that they attempted to obtain documents from defendant.) Indeed, it is axiomatic that the duty to minimize the burden imposed on a non-party under Fed. R. Civ. P. 45(c)(1) requires a party to seek discovery materials from other parties in the litigation before seeking those materials from a non-party. See, e.g., WM High Yield, supra, 460 F. Supp. 2d at 896; Echostar, supra, 180 F.R.D. at 395.

standard Under Federal rule of Civil procedure 26 Rule 45 incorporates the rule of relevance for discoveryrequestscodifiedunderRule26(b)(1).See Echostar Comms. Corp. v. News Corporation Ltd., supra, 180 F.R.D. at 394 (D. Colo. 1998) (applying Rule 26 relevance standard in quashing Rule 45 sub-poena). Rule 26(b)(1) (Discovery Scope and Limits) provides:“Scope In General. Unless otherwise limited by court order, the scope of discovery is as follows: Par-ties may obtain discovery regarding any nonprivi-leged matter that is relevant to any party’s claim or defense—including the existence, description, na-ture, custody, condition, and location of any docu-ments or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order dis-covery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery ap-pears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).” Courts are empowered to enter protective or-ders under Rule 26(c) with regard to non-party sub-poenas issued under Rule 45 that do not comply

with the restrictions of Rule 26(b)(1). See, e.g., Travel-ers Indem., supra, 228 F.R.D. 113 (D. Conn. 2005). Courts routinely hold that overly broad requests in subpoenas violate the requirements of Rule 26(b)(1). See, e.g., WM High Yield, supra, 460 F. Supp. 2d at 896 (finding that facially overbroad documentrequests were not “reasonably calculated to lead to the discovery of admissible evidence” on any matter at issue in the underlying litigation). See Schaaf, su-pra, 233 F.R.D. at 455 (quashing subpoena because “[a] large quantity of the documents sought have no connection to anything involved in this case”). Even when the requested information is discov-erable under Rule 26, the court has the discretion to disallow the discovery, pursuant to Rule 26(b)(2)(C). See Schaaf, supra, 233 F.R.D. at 453 (E.D.N.C. 2005). Under Rule 26(b)(2)(C), a court may, in its discretion, limit discovery if it concludes that any of the following factors apply:

The discovery sought is unreasonably cumu-•lative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;The party seeking discovery has had ample op-•portunity to obtain the information by discov-ery in the action; orThe burden or expense of the proposed discov-•eryoutweighsitslikelybenefit,consideringtheneeds of the case, the amount in controversy, the parties’ resources, the importance of the is-sues at stake in the action, and the importance of the discovery in resolving the issues.

See Fed. R. Civ. P. 26(b)(2)(C).

transferring the Motion to Quash a subpoena The issuing court may transfer the motion to quash a subpoena to the trial court only when the non-party consents to transfer. The Federal Rules of Civil Procedure do not confer authority on a federal district court to transfer a motion to quash a subpoena issued from that court where the non-

Depositions | 47

party has not consented to the transfer. In re Sealed Case, 141 F.3d 337 (D.C. Cir. 1998). Indeed, no rule of civil procedure authorizes a transferee court to “enforce or modify” a subpoena issuing from a sis-ter court. See Highland Tank & Mfg. Co. v. PS Int’l, Inc., 227 F.R.D. 374, 381 (W. D. Pa. 2005); see also International Brotherhood of Teamsters v. Eastern Conf. Of Teamsters, 162 F.R.D. 25, 28 (S.D.N.Y. 1995) (The issuing court was the proper jurisdiction to decide motions to quash subpoenas on grounds of undue burden under Rule 45(c)(3). Under Fed. R. Civ. P. 16, presiding court could render “guidance con-cerning the relevance of discovery,” but lacked authority to determine burdensomeness of sub-poena issued by another court). Any controversies regarding discovery “from nonparty witnesses shall be decided in the court which issued the subpoe-na, unless the nonparty consents to determination elsewhere.” Highland Tank, supra, at 381. A district court within the Fourth Circuit has held that non-party subpoena disputes may not be transferred where the non-party has not expressly or implicitly consented to a such a transfer. See Fincher v. Keller Industries Inc., 129 F.R.D. 123, 125 (M.D.N.C. 1990) (discovery matter involving a motion to compel compliance with a non-party deposition subpoena may not be transferred where the non-party has not expressly or implicitly consented to such a trans-fer). The language of Rule 45 strongly suggests that only the issuing court has the power to act on its subpoenas. See Byrnes v. Jetnet Corp., 111 F.R.D. 68, 69 (M.D.N.C. 1986). In essence, these cases pro-vide that the recipient of a non-party subpoena is “privileged” to litigate in its home district, and may waive that privilege at its sole discretion, but not be forced to do so. Id. In In re Sealed Case, supra, the defendant in the underlying suit issued a subpoena from the District Court for the District of Columbia against a non-party residing in the District. When the non-party objectedtothesubpoena,thedefendantfiledamo-tion to compel and the non-party cross-moved to

quash the subpoena. The defendant then moved to transfer the motions to the Eastern District of Arkansas, which had jurisdiction over the underly-ing case, on the ground that “the trial court in Ar-kansas was more familiar with the issues presented” by the subpoena and the motions. The Court of Appeals for the D.C. Circuit held that Fed. R. Civ. P. 45 provided no authority to transfer the motions to Arkansas. Id. at 340-341. The motion to transfer also raised serious issues of constitutional due process. Citing the “elemen-tary” principle that “courts lacking jurisdiction over litigants cannot adjudicate their rights,” the Circuit Court refused to grant a transfer because Fed. R. Civ. P. 45 vests sole jurisdiction over a subpoenaed non-party in the court issuing the subpoena. Id. at 341-42. “The operation of the subpoena rules,” the court held, “grants nonparty witnesses the priv-ilege of choosing to litigate in their home districts regardless of how relief is sought.” Id. at 342. In contrast, in Static Control Components, Inc. v. Darkprint Imaging, 201 F.R.D. 431 (M.D.N.C. 2001), the plaintiff subpoenaed the defendant’s trial coun-sel in the case. The non-party lawyers did not move to quash in the issuing court, but instead the de-fendants moved to quash in the presiding court. Over the objection of the plaintiff, who wanted to litigate the subpoena it issued in the issuing court, the presiding court ruled that it could resolve the is-sue because it had jurisdiction over the defendants, who made the motion to quash, and over the sub-poenaed attorneys, who were admitted to the court pro hac vice in the underlying case. Id. at 434 n.5. Even where the non-party consents to a trans-fer, the issuing court possesses unfettered discretion to deny the motion to transfer. See United States v. Star Scientific, Inc., 205 F. Supp. 2d 482, 485 n.3 (D. Md. 2002). A litigant could never seek transfer of a discovery dispute as a matter of right, over the objection of the court that issued the subpoena. Id. In Star Scientific, the subpoenaed non-party made the motion for transfer. Id. at 485. The court rea-


soned that “[t]he language of Rule 45 clearly con-templates that the court enforcing a subpoena will be the court that issued the subpoena.” Id. at 484. Nevertheless, because the non-party had requested a transfer to the presiding court, and it is “of course the nonparty whose convenience Rule 45 is most concerned about protecting,” the court held that a transfer to suit the non-party’s convenience would promote the purposes of Rule 45. Id. at 485. The Courtspecificallynotedthatthenon-party’shead-quarters were closer to the presiding court (the Dis-trict of Columbia) than the issuing court (the Dis-trict of Maryland). Id. at 487. In the end, the court found that a transfer “would be convenient to and is sought by the nonparty,” and granted the non-party’s motion. District courts would much prefer to have the trial judge, who has more complete knowledge of the underlying case, decide whether the non-party discovery sought should proceed. Whether this is done by transfer or request for an advisory opinion, you should be prepared to pres-ent your positions with two courts in mind: the non-party’s home court and the trial court.

aUtHentiCation oF eLeCtroniC eViDenCe • FederalRule of Evidence 901(a),which applies equally to electronically stored infor-mation,defineswhatauthenticationentails:“[t]herequirementof authenticationor identificationasa condition precedent to admissibility is satisfiedbyevidencesufficienttosupportafindingthatthematter in question is what its proponent claims.” See alsoWeinstein&Berger,supra,at§901.02[3](“aparty seeking to admit an exhibit need only make a prima facie showing that it is what he or she claims it to be”); see U.S. Magistrate Judge Grimm’s Mem-orandum Opinion in Lorraine v. Markel, 241 F.R.D. 534 (D. Md. 2007); see also United States v. Safavian, 435 F. Supp. 2d 36, 38 (D.D.C. 2006) (“the question for the court under Rule 901 is whether the pro-ponent of the evidence has ‘offered a foundation fromwhichthejurycouldreasonablyfindthattheevidence is what the proponent asserts it to be….’

TheCourtneednotfindthattheevidenceisnec-essarily what the proponent claims, but only that thereissufficientevidencethatthejuryultimatelymight do so.”) In In re Vee Vinhnee, 336 B.R. 437, 444-445(B.A.P.9thCir.2005),thecourtaddressed the au-thentication of electronic business records, noting that “[a] uthenticating a paperless electronic record, in principle, poses the same issue as for a paper re-cord, the only difference being the format in which the record is maintained,” but that “the paperless electronic record involves a difference in the format of the record that presents more complicated varia-tions on the authentication problem than for paper records. Ultimately, however, it all boils down to the same question of assurance that the record is what it purports to be.” See, e.g., In re F.P., A Minor, 878 A.2d 91, 95 (Pa. Super. Ct. 2005) (“Essentially, ap-pellant would have us create a whole new body of law just to deal with e-mails or instant messages.…We believe that e-mail messages and similar forms of electronic communications can be properly au-thenticated within the existing framework of [the state rules of evidence]”), see also Manual For Complex Litigation, Fourth, at §11.446 (Federal Judicial Center 2004) (“In general, the Federal Rules of Evidence apply to computerized data as they do to other types of evidence. Computerized data, however, raise unique issues concerning accuracy and authentic-ity. Accuracy may be impaired by incomplete data entry, mistakes in output instructions, programming errors, damage and contamination of storage me-dia, power outages, and equipment malfunctions. The integrity of data may also be compromised in the course of discovery by improper search and re-trieval techniques, data conversion, or mishandling. The proponent of computerized evidence has the burden of laying a proper foundation by establish-ing its accuracy. The judge should therefore con-sider the accuracy and reliability of computerized evidence, including any necessary discovery during pretrial proceedings, so that challenges to the evi-dence are not madeforthefirsttimeattrial.”)

Depositions | 49

Federal Rule of Evidence 901(b) provides 10 non-exclusive examples of how authentication of a docu-ment may be accomplished, providing as follows:Bywayof illustrationonly,andnotbywayof limi-tation, the following are examples of authentication oridentificationconformingtotherequirementsof this rule:(1) Testimony of witness with knowledge. Testi-mony that a matter is what it is claimed to be.(2) Nonexpert opinion on handwriting. Nonex-pert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.(3) Comparison by trier or expert witness. Com-parison by the trier of fact or by expert witnesses with specimens which have been authenticated.(4) Distinctive characteristics and the like. Appear-ance, contents, substance, internal patterns, or oth-er distinctive characteristics, taken in conjunction with circumstances.(5)Voice identification. Identification of a voice,whether heard firsthand or through mechanicalor electronic transmission or recording, by opinion based upon hearing the voice at any time under cir-cumstances connecting it with the alleged speaker.(6) Telephone conversations. Telephone conversa-tions, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person,circumstances, includingself-identification,show the person answering to be the one called, or (B) inthecaseof abusiness, thecallwasmadetoa place of business and the conversation related to business reasonably transacted over the telephone.(7) Public records or reports. Evidence that a writ-ingauthorizedbylawtoberecordedorfiledandinfactrecordedorfiledinapublicoffice,orapur-ported public record, report, statement, or data compilation,inanyform,isfromthepublicofficewhere items of this nature are kept.(8) Ancient documents or data compilation. Evi-dence that a document or data compilation, in any

form, (A) is in such condition as to create no suspi-cionconcerningitsauthenticity,(B)wasinaplacewhere it, if authentic, would likely be, and (C) has been in existence 20 years or more at the time it is offered.(9) Process or system. Evidence describing a pro-cess or system used to produce a result and show-ing that the process or system produces an accurate result.(10) Methods provided by statute or rule. Any meth-odof authenticationoridentificationprovidedbyAct of Congress or by other rules prescribed by the Supreme Court pursuant to statutory authority.” The methods of authentication enumerated in Rule 901(b) are non-exclusive. See Fed. R. Evid. 901(b) 1972 Advisory Committee’s Notes (“The examples are not intended as an exclusive enumer-ation of allowable methods but are meant to guide and suggest, leaving room for growth and develop-ment in this area of the law.”)

authentication Under rule 901(b)(1): testimony of Witness With Knowledge The following cases offer some insights on au-thentication under Fed. R. Evid. 901(b):

See United States v. Kassimu,• 2006 WL 1880335 (5th Cir. July 7, 2006), cert. denied, 549 U.S. 1026 (2006) (copies of a post office’s computer re-cords could be authenticated by a custodian or otherqualifiedwitnesswithpersonalknowledgeof the procedure that generated the records);St. Luke’s Cataract and Laser Institute P.A. v. Sander-•son, 2006 WL 1320242, at *2 (M.D. Fla. May 12, 2006) (“To authenticate printouts from a website, the party proffering the evidence must produce ‘some statement or affidavit fromsomeone with knowledge [of the website]…for example [a] web master or someone else with personalknowledgewouldbesufficient’”);Wad v. Provident Life and Accident Ins. Co. of Am.,• 216 F. Supp. 2d 1060 (C.D. Cal. 2002) (sus-tainingobjectiontoaffidavitof plaintiff ’swit-


ness attempting to authenticate documents taken from the defendant’s Web site because theaffiant lackedpersonalknowledgeof whomaintained the Web site or authored the docu-ments).

rule 901(b)(3): Comparison By trier of Fact or expert Witness The following case illustrates the application of Rule 901(b)(3):

Safian, • supra, 435 F. Supp. 2d 36 at 40 (E-mail messages “that are not clearly identifiable ontheir own can be authenticated…by compari-son by the trier of fact (the jury) with ‘speci-mens which have been [otherwise] authenti-cated’—in this case, those e-mails that already have been independently authenticated under Rule 901(b)(4).”)

authentication Under rule 901(b)(4): Distinctive Characteristics and the Like The following cases are illustrative of Rule 901(b)(4):

United States v. Siddiqui, • 235 F.3d 1318, 1322-23 (11th Cir. 2000), cert. denied, 533 U.S. 940 (2001) (allowing the authentication of an email en-tirely by circumstantial evidence, including the presence of the defendant’s work email address, content with which the defendant was familiar, use of the defendant’s nickname, and testimony by witnesses that the defendant spoke to them about the subjects contained in the email);Perfect 10, Inc. v. Cybernet Ventures, Inc., • 213 F. Supp. 2d 1146, 1153-54 (C.D. Cal. 2002) (admitting Web site postings as evidence due to circum-stantial indicia of authenticity, including dates and presence of identifying Web addresses).

Metadata Electronic evidence may also be authenticated under Rule 901(b)(4) by reviewing the metadata. Appendix F to The Sedona Guidelines: Best Practice

Guidelines & Commentary for Managing Information & Records in the Electronic Agedefinesmetadataas“in-formation about a particular data set which de-scribes how, when and by whom [it] was collected, created,accessed,ormodified…andhowitisfor-matted” (including data demographics such as size, location, storage requirements and media informa-tion.” See also BarbaraRothsteinetal., Managing Dis-covery of Electronic Information: A Pocket Guide for Judges, at 24-25 (Federal JudicialCenter, 2007) (definingmetadata as “information about a particular data set or document which describes how, when and by whom the data set or document was collected, created,accessed,ormodified…”).Sincemetadatashows that date, time, and identity of the creator of an electronic record, as well as all changes made to it, metadata is a distinctive characteristic of all elec-tronic evidence that can be used to authenticate it under Rule 901(b)(4); see U.S. Magistrate Judge Grimm’s Memorandum Opinion in Jack Lorraine v. Markel, supra.

authentication Under rule 901(b)(7): public records or reports “Public records are regularly authenticated by proof of custody, without more. [Rule 901(b)(7)] extends the principle to include data stored in com-puters and similar methods, of which increasing use in the public records area may be expected.” Fed. R. Evid. 901(b)(7) 1972 Advisory Commit-tee Notes. See also Weinstein & Berger, supra, at§901.10[2](“proponent of the evidence need only showthat theoffice fromwhich therecordsweretaken is the legal custodian of the records,” and thatthismaybeaccomplishedby“acertificateof authenticityfromthepublicoffice;thetestimonyof anofficerwhoisauthorizedtoattesttocustodian-ship, or the testimony of a witness with knowledge thattheevidenceisinfactfromapublicofficeau-thorized to keep such a record.”) Id.

Depositions | 51

authentication Under rule 901(b)(9): process or system Rule 901(b)(9) was drafted taking into account recent developments in computer technology. See Fed. R. Evid. 901(b) advisory committee’s note.In re Vee Vinhnee,336B.R.at446(“Rule901(b)(9),which is designated as an example of a satisfac-tory authentication, describes the appropriate au-thentication for results of a process or system and contemplates evidence describing the process or system used to achieve a result and demonstration that the result is accurate. The advisory committee note makes plain that Rule 901(b)(9) was designed to encompass computer-generated evidence…”). In addition to the methods set forth in Rule 901(b)(9) for authentication, electronic documents may be self-authenticating under Rule 902. Ex-amples of documents that are self-authenticating include:

Officialpublications(Rule902(5));•Trade inscriptions (Rule 902(7)); and •Certified domestic records of regularly con-•ducted activity (Rule 902(11)).

These examples have in particular been recog-nized by the courts as applicable to the authenti-cation of electronic evidence. See U.S. Magistrate

Judge Grimm’s Memorandum Opinion in Lorraine v.

Markel, supra, 241 F.R.D. at 551-52, citing Equal Em-

ployment Opportunity Commission v. E.I. DuPont De Nem-

ours and Co., 2004 WL 2347556 (E.D. La. Oct. 18,

2004) (printouts of postings on the Web site of the

United StatesCensusBureau found to be self-au-

thenticating);Weinstein&Berger,supra§900.07[3]

[c] (“…business e-mails often contain information

showing the origin of the transmission and identify-

ingtheemployer-company.Theidentificationmark-

eralonemaybesufficienttoauthenticateane-mail

under Rule 902(7)”); Rambus v. Infineon Technologies

AG, 348 F. Supp. 2d 698, 701 (E.D. Va. 2004) (“…

the most appropriate way to view Rule 902(11) is

as the functional equivalent of testimony offered to

authenticate a business record tendered under Rule

803(6) because the declaration permitted by Rule

902(11) serves the same purpose as authenticating

testimony…”).

Part 2 of this article, which will appear in the January issue,

will discuss the special problems of foreign deponents and the

Hague Convention, and will include Forms for examination

of witnesses internationally.

to purchase the online version of this article, go to www.ali-aba.org.