Deck 8: Discovery: Depositions

Question 1

What are significant ethical and other considerations that you need to be aware of in working with witnesses?

Answer 1

It is unethical for an attorney or attorney's agent to tell a client what to say to answer questions, either at deposition or at trial. To do so greatly influences the witness, and may unintentionally lead to perjury or cause the witness to believe that you or the attorney condones such dishonesty. Even if you or the attorney knows a particular answer is true, specific answers should not be suggested. Any breach of this ethical standard is extremely serious, and the slightest implication of impropriety can be damaging to the case and the reputation of the attorney. This admonition applies to the substantive part of an answer. It does not, however, apply to a nonsubstantive preface to an answer. For example, it is not uncommon for an attorney to ask a question that states facts not yet proven. Rather than have the deponent answer the question as if the facts were true, it would not be unethical to coach the client to say, "assuming your facts are correct," as a preface to a substantive answer.
In going over questions that might be asked the witness, watch for questions that call for privileged information or the attorney's work product. Such matters should be called to the attention of the attorney so the client can be instructed accordingly and any necessary protective orders can be sought.
When working with a witness as opposed to a client, many of the same suggestions apply. One additional suggestion is to stress to the witness the importance of impartiality. If the witness appears too sympathetic to the client or too eager to help, it may cause the jury to question the reliability of the witness and possibly discount the testimony.
It is not a good idea to have witnesses, including clients, review documents and recorded statements prior to depositions or trial. The other side is entitled to a copy of a document that a witness has reviewed to refresh his or her memory of the events. Such a document can be damaging and especially useful to the opposition for impeaching the friendly witness. The best approach is to try to get the client to recall facts by asking questions and discussing information rather than having the client read the document.

Question 2

Draft a checklist on preparing and serving subpoenas and place it and references to the pertinent documents in your systems folder. Include citations to both state and federal rules. Note the time limits for objection to a subpoena in this section of your systems folder. Add a section to the checklist on the relationship between a subpoena duces tecum and HIPAA procedural requirements. Place a copy of or the page reference to the HIPAA-compliant Sample Cover Letter to Records Custodian in your systems folder.

Answer 2

Subpoena Checklist
I. Provide appropriate clerk of court with copy of notice to take deposition and proof of service on parties.
A. Federal: issued by clerk in district where deposition is taken or by the attorney
B. State: sometimes where action is pending
II. Usually clerk will sign in blank, leaving paralegal to fill in information (Rule 45).
A. Name of issuing court and court where action is pending
B. Title and docket number of action
C. Name of attorney
D. Witness's name and address with directions for witness to attend and give testimony
E. Date, time, place for deposition
F. Designation of documents needed, if pertinent, including attorney's declaration that they are necessary.
G. Text of Rule 45 (c) and (d)
H. Method for recording deposition [Rule 45(a)(2)(B)]
I. If subpoena duces tecum, form in which any e-stored information should be produced; note other provisions of Rule 45(c) and (d) on dealing with privileged information and rights to refuse, object to, or compel production.
III. For medical records, follow HIPAA- and state-required procedures [45 C.F.R. § 164.512(e)].
Send HIPAA-compliant Cover Letter to Records Custodian, if needed.
IV. Attach witness and mileage fees, if necessary (28 U.S.C. § 1821) [Rule 45(a)(2)]. V. Serve subpoena personally.
A. Warn witness, with your attorney's approval
B. Federal: person 18 years old who is not a party
C. States: sheriff, special bailiff, person of legal age (check local rules) D. Paralegals, professional servers
E. Personally hand subpoena to deponent F. Explain subpoena and what is expected G. Acknowledge service
VI. Objections served on deposing attorney within fourteen days of service of subpoena or on or before deposition if scheduled less than fourteen days from service. That attorney must
seek court order to have subpoena complied with [Rule 45(c)(3)(A)].

Question 3

What is the purpose of digesting litigation documents? List the techniques for digesting depositions.

Answer 3

Deposition digests are used to do the following:
1. Condense large amounts of material
2. Index testimony and topics
3. Facilitate questioning and cross-examination of witness at trial
4. Lay foundation for production or admissions for discovery
5. Identify items for follow-up investigation or discovery
6. Verify key or disputed facts
7. Reveal inconsistencies in evidence or testimony
8. Review for trial or additional depositions
9. Support summary judgment and other motions
10. Include relevant facts or testimony in briefs
11. Cross-reference topics, witnesses, evidence
12. Bring new attorneys or paralegals up to speed on a case
13. Inform client
14. Prepare correspondence, settlement brochures, and material relevant to pretrial and other hearings
Techniques are chronological, topical and narrative.

Question 4

What are the HIPAA-imposed assurance procedures and pertinent documents that must be employed when using a subpoena to get protected medical information?

Question 5

Why is it important to prepare friendly witnesses or clients for deposition testimony?

Question 6

Write a brief outline on the definition, purpose, scope, and procedure of depositions to place in your systems folder.

Question 7

Why should the deponent's signature on the certified copy of the deposition not be waived in most instances?

Question 8

What should you do to plan and draft an outline for taking a deposition? What should be included in a witness file for the attorney?

Question 9

What is a deposition? What is the purpose of a deposition? What are the advantages and disadvantages of a deposition?

Question 10

What is the time limit on the length of a deposition in federal cases? Your state's cases?

Question 11

What is your role in the deposition process?

Question 12

Draft a checklist for planning and preparing for deposition based on the steps and recommendations made in this chapter, and place it in your systems folder.

Question 13

What are some of the most significant things a witness can be told in preparing for the deposition?

Question 14

Prepare a checklist for attending and reviewing the deposition and place it in your systems folder.

Question 15

Place copies of or page references to the deposition summary examples in this chapter in your systems folder. Add any other examples provided in class.

Question 16

When are witness and mileage fees required under Rule 45?

Question 17

What do you look for when reviewing a deposition?

Question 18

What are the important uses of a deposition summary?

Question 19

How do you obtain a subpoena for a deponent? What should be included on the subpoena?

Question 20

How many kinds of depositions are there, and what are their unique functions?

Question 21

Assume that Herbert Herbert III is the executive officer for Mercury Parcel Service, Inc. Draft a subpoena duces tecum requiring Mr. Herbert to appear at a deposition and to bring the employment and safety records of Mr. Hart. Find information in the Forrester complaint in Chapter 4 and make up remaining information, remembering the rules for deposing persons in another district

Question 22

Add or verify the deadlines for deposition practice from your state and local federal district rules in the Pleadings, Motions, and Time Limits exhibit in Chapter 6 or in your systems folder. Place citations to the pertinent state or federal rules, including those covering scope and other limitations on depositions, in your systems folder.

Question 23

Identify and give the purpose and benefits of the two types of deposition tracking logs.

Question 24

Using any search engine, locate a legal videographer and a court reporter in your area.

Question 25

What limits are imposed on what can be asked in a deposition? What federal and state rules apply?

Question 26

How do you gather a list of persons who might be deposed? How can you narrow that list?

Question 27

Assume that you are working to prepare Mr. Hart for his deposition by Ms. Forrester's attorney. Mr.
Hart says that he is unsure about the road conditions at the time of the accident. You and the attorney know that it works against Hart to appear unsure about important facts.
a. The attorney says to Hart, "It's best not to be unsure and, after all, the road was not very icy." Are there any ethical concerns?

Question 28

Why is it important to prepare a client or witness for a deposition? In what ways can a paralegal assist at such a preparation conference?

Question 29

Name two computer products for digesting depositions.

Question 30

What skills are needed to be a good digester?

Question 31

Assume you represent Mr. Hart. Prepare a deposition outline for your attorney to use in examining Ms.
Forrester. For purposes of this assignment only, limit the scope of your outline to the time immediately before and during the accident. Do not get into injuries or other damages. Try using a tape recorder if one is available to dictate questions or topics. Use the sample outline, your checklist, and Exhibits 8.5 and 8.6 as guides for your work.

Question 32

Prepare examples of several types of deposition digests.

Question 33

What is your most important role at the deposition? Why?

Question 34

Review the text section on digesting the deposition. Create a list of techniques for digesting a deposition.

Question 35

Go to an online search engine and locate real-time deposition transcript services and survey their features and costs.

Question 36

What are some of the ways to take depositions, other than orally, and their governing rules? What are the advantages and disadvantages of such procedures?

Question 37

Place a copy of or a page reference to the Letter to Client Regarding Deposition in your systems folder.

Question 38

List the techniques for digesting depositions.

Question 39

Exhibit 8.12 contains excerpts from a deposition of Mr. Hart. Skim the deposition transcript first.
Then read it and carefully draft the corresponding section of a chronological digest. Prepare a table of contents for the digest. Count lines from top of each page of a deposition, since no lines are provided. Then do a topical summary.

Question 40

What should you check for on receipt of the record of the deposition from the court reporter?

Question 41

An Arrangements Checklist is one type of deposition tracking log.

Question 42

If a witness dies before trial, that witness's deposition may not be used.

Question 43

The party requesting the deposition must pay recording costs.

Question 44

When a deposition may be taken depends only on the deponent.

Question 45

A deposition by written questions is best because the other party cannot ask cross questions.

Question 46

Advantages of depositions include which of the following?

A) Only parties may be questioned.
B) Deponents may be deposed for a full 10 hours.
C) Answers can be used at trial.
D) No notice to parties is needed.

Question 47

A videotape of the deposition is advantageous because

A) a good-quality tape is easy to produce.
B) a laboratory demonstration can be shown.
C) editing can make the testimony more effective.
D) it makes summarizing the deposition easier.

Question 48

An objection to a subpoena can be served at any time before the deposition.

Question 49

Review the text section on digesting the deposition. Create a list of techniques for digesting a deposition.

Question 50

Good objections suggest answers to the deponent.

Question 51

In what ways can a computer assist you in summarizing a deposition?

Question 52

Subpoenas in the federal system are served by a marshal.

Question 53

Normally, no more than 10 depositions are allowed.

Question 54

Generally, deponents may not be required to travel long distances to the deposition site.

Question 55

In the federal system, an attorney can issue a subpoena for a deposition.

Question 56

It is a good idea to interview the witness before a deposition is planned.

Question 57

Depositions are used to evaluate the opposing attorney.

Question 58

Describe a narrative deposition digest and state its advantages.

Question 59

A deposition may be taken without leave of court under Rule 26(a) only if the

A) deponent is not a party.
B) deponent does not have an attorney.
C) deposition takes place outside the jurisdiction of the court.
D) parties' planning meeting has taken place.

Question 60

Because depositions are expensive, they are rarely used.

Question 61

Which of the following is correct regarding preparing witnesses for testimony?

A) They should review all recorded statements.
B) Tell them the answers they should give.
C) Tell them to be impartial.
D) Tell them to answer questions quickly.

Question 62

A party to be deposed must receive a

A) subpoena.
B) court order.
C) notice of deposition.
D) summons.

Question 63

Inconsistencies in deposition testimony

A) are sufficient reason for a second deposition.
B) make the deposition useless.
C) are irrelevant.
D) can be used to impeach a witness.

Question 64

A subpoena is issued by a clerk in the federal system in

A) the district where the deposition is to be taken.
B) any district that has jurisdiction.
C) the location most convenient for the deponent.
D) the district where the action is pending.

Question 65

Documents or photos may be introduced at depositions so that

A) the deponent can be convinced of your client's position.
B) they can be authenticated.
C) they can be verified.
D) all of the above.

Question 66

Why is preparation of your client for a deposition important?

Question 67

List three types of deposition digests.

Question 68

The document needed for commanding a person to bring documents to a deposition is a

A) subpoena duces tecum.
B) subpoena.
C) summons.
D) quasi in rem.

Question 69

Stating the method of recording is required for

A) the Items Sent to Witness log.
B) a topical deposition summary.
C) HIPAA compliance.
D) a subpoena for a deposition.

Question 70

Compare the scope of questioning at a deposition to that at trial.

Question 71

Changes to the deposition transcript can be made by

A) the attorney.
B) the deponent.
C) the court reporter.
D) no one.

Question 72

The person to be examined at a deposition is referred to as the

A) notary.
B) depositor.
C) deposer.
D) deponent.

Question 73

A videotape of the deposition is advantageous because

A) a good-quality tape is easy to produce.
B) a laboratory demonstration can be shown.
C) editing can make the testimony more effective.
D) it makes summarizing the deposition easier.

Question 74

Subpoenas are usually issued

A) in medias res.
B) in toto.
C) in forma pauperis.
D) in blank.

Question 75

A deposition may be taken without leave of court under Rule 26(a) only if the

A) deponent is not a party.
B) deponent does not have an attorney.
C) deposition takes place outside the jurisdiction of the court.
D) parties' planning meeting has taken place.

Question 76

Three types of depositions are:

Question 77

Depositions vary from the scope of most other discovery devices because they

A) are not limited to the other party.
B) are not limited by relevancy.
C) may provide access to documents.
D) are not limited by privilege.

Question 78

If the deponent refuses to sign the deposition transcript, it is signed by

A) the court reporter.
B) the judge.
C) the attorneys.
D) no one.

Question 79

What is the paralegal's role at deposition?

Question 80

A deposition cannot be used against a party

A) for impeachment.
B) who received less than 11 days' notice.
C) who after due diligence obtains counsel.
D) who does not appear with records subject to a subpoena duces tecum.