10,000 Depositions Later Podcast

A must-listen episode with actionable guidance for litigators and trial teams who want to keep depositions moving and the record clean. We break down the “you can answer” interjection: why it is usually unnecessary, how it inserts defending counsel into your Q-and-A, and how repetition disrupts tempo and shifts the witness from answering questions to seeking permission. You will get a ready-to-use preliminary instruction that tells the witness to answer after objections unless counsel clearly instructs “don’t answer” or the witness needs a rephrase. We also cover when to address opposing counsel on the record and how to frame the issue as coaching and delay. If the conduct escalates, we explain how Rule 30(d)(3)(A) supports suspending the deposition and seeking a protective order.SHOW NOTES:Sample preliminary instruction to minimize "You can answer" gatekeeping"During this deposition, the lawyers may make objections from time to time. For example, you may hear one of the lawyers say objection, or object to the form. These objections are mainly for the court reporter and, if necessary, for the judge later. They’re not signals to you to stop or to wait for permission. The only time you may hesitate is if the objection you’ve heard is “don’t answer that question.” Otherwise, after objection, or if theres no objection, go ahead and answer the question that was asked, after you heard the objection. You should not turn to your lawyer after each question, or wait for your lawyer to say you can answer after each question. Just listen to the question, and if you understand it, answer it in your own words. The only time you should stop answering as if your lawyers objection is along the lines of don’t answer that question, or if you yourself don’t understand the question and need me to rephrase it. Otherwise, you should go ahead and answer the question.

They're baaaaack! In-person depositions, that is. In this episode, Jim Garrity discusses two brand-new court rulings that reflect a growing trend among judges to enforce noticed in-person depositions of parties and key witnesses. It's a subtle but striking shift away from remote depositions, which took root during the COVID pandemic. Jim discusses the rulings in detail, as well as an interesting observation by an Illinois federal judge about the behavioral psychology that favors face-to-face confrontations. Finally, Jim offers practical guidance on arguments to make for and against remote depositions in your cases, including the two most powerful arguments to make when seeking an order requiring a deponent to appear in person.SHOW NOTESJames, et al. v. Thomas, Case No. 1:24-CV-00061-RGJ-LLK, 2025 WL 2945597 (W. D. Ky. Oct. 17, 2025) (denying motion for protective order sought by three plaintiffs - who reside in New York, New Jersey, and Florida - to avoid traveling to Kentucky for their depositions)Crutchfield v. Experience Information Solutions, Inc., et al., Case No. 25-CV-5697, 2025 WL 293-8760 (N. D. Ill. Oct. 16, 2025) (denying motion for protective order, filed by Florida-based plaintiff, that sought to avoid an in-person deposition in Chicago)

When a 30(b)(6) representative is deposed, the testimony is that of the organization, not of the individual answering the questions. However, in the heat of battle, it can be challenging to remember this distinction. Questions in 30(b)(6) depos that use words like "you" - and answers that use words like "I" or "me" - can blur the roles and lead an examiner to see the testimony as also being that of the witness individually. But it isn't. Psychologists refer to this confusion as an "attribution error," meaning that we may attribute the testimony to the wrong source.This confusion can be fatal to a claim if the representative is also a key witness individually and wasn't deposed separately. Today, Jim discusses a brand new court ruling where a federal judge dismissed a claim against an individual defendant (and key witness) who was only deposed as a 30(b)(6) deponent. The question there was, when a 30(b)(6) witness says “I,” who’s really speaking—the individual or the entity? Learn how that 30(b)(6) deposition in Ademi wasn't enough to survive summary judgment, and what every litigator must do to avoid the same trap. Essential listening for anyone taking or defending corporate rep depositions.SHOW NOTESAdemi, et al. v. Central Park Boathouse, LLC, and Dean Poll, individually, No. 22-cv-8535 (S.D.N.Y. Sept. 23, 2025) (summary judgment granted in favor of individual defendant where plaintiff’s counsel only deposed defendant in a 30(b)(6) capacity and, thus, had no testimony from the witness himself)Fed. R. Civ. P. 30(b)(6) (designated representative rule)King v. Pratt and Whitney, 161 F. R. D. 275 (S. D. Fla. Apr. 27, 1995) (rule governing representative depositions doesn’t limit scope of questions that can be asked, beyond topic list); Joseph v. Chronister, et al, 2019 WL 8014505, Case No. 8:16-cv-274-T-35CPT (M. D. Florida January 29, 2019) (scope of designated-representative deposition is not strictly confined to topics set forth in notice; further noting the twin benefit of this type of deposition, being that it limits the number of people within a corporation to be deposed, and prevents bandying); See Marksberry v. FCA US LLC, 2021 WL 2142655, No. 19-2724 (D. Kan. May 26, 2021) (lawyers may object to topics as “outside the scope” of that listed on the 30(b)(6) notice, and such objections have been held to be permissible, but the witness “must nevertheless answer the question because Fed. R. Civ. P. 26(b) - not the deposition notice defines the scope of discovery”).

In this episode, Jim Garrity uses a pending bar disciplinary proceeding against a Florida lawyer as a potent reminder of the consequences of failing to ensure that your conversations during breaks in remote (virtual) depositions are not heard by others. As always, he offers practical guidance to help you avoid this potentially career-ending mistake. Citations to the referenced case are in the show notes.SHOW NOTESZoom community forum reporting audio feed despite activation of mute button (https://community.zoom.com/t5/Zoom-Meetings/Participant-on-mute-yet-I-can-still-hear-them/m-p/142674)Excerpt from Zoom’s terms of service at https://www.zoom.com/en/trust/terms/ (You agree [that the software and services are provided “as is” and that Zoom makes no guarantee] . . . .that the services or software will...be...error free. . . . [Y]ou will be solely responsible for any damage to you resulting from the use of the services or software. The entire risk arising out of use or performance of the services or software remains with you”)Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed February 1, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)Respondent’s Response to Complaint, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed March 11, 2024); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)Report of Referee, The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed April 28, 2025); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)Amended Initial Brief (attorney appealing Report & Recommendation of Referee), The Florida Bar v. Ferro, Case No. SC-2024-0156 (Fla. Sup. Ct. filed September 15); Florida Bar File Nos. Case Nos. 2023 – 30,035 (09B), 2023–30,115 (09B), and 2023-30,187(09B)

Today, Jim Garrity examines a critical issue in trial practice: whether an incomplete deposition—cut short when the deponent becomes unavailable—can be admitted at trial, particularly when the opposing party had no opportunity for cross-examination. Drawing on a new Sixth Circuit Court of Appeals decision and Rule 32 of the Federal Rules of Civil Procedure, Jim explores the court’s decision, the key factors trial lawyers should argue for or against exclusion, and the balancing test that should be used when essential testimony hangs in the balance. Discover practical strategies for both offering and opposing use of incomplete deposition transcripts in high-stakes litigation. Thanks for listening!SHOW NOTESInsight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)

This week’s roundup spotlights four brand-new deposition rulings from across the country. Two address when plaintiffs may appear remotely—what courts require, what constitutes good cause, and the practical showings that move the needle. The other two confront a quiet but consequential trial hazard: deposition testimony that’s read or played for the jury yet never placed into the record. (Many reporters pause their keyboards during read-ins, assuming the material is already transcribed—an easy oversight that can derail an appeal if the missing testimony is essential.) Join us for a concise tour of the standards, the pitfalls, and the simple steps to protect your record before it’s too late. It's another critical episode from the country's leading expert on depositions. Citations and parentheticals to every case discussed appear in our show notes. Have a great week!SHOW NOTES**Added after episode aired**White v. Lozano, No. 13-24-00336-CV, 2025 WL 1788040, at *9 (Tex. App. June 30, 2025) (court reporter failed to transcribe the depositions or include the video recordings in the appellate record. This was error, but, because White's counsel did not object to the reporter's failure, he cannot now complain of it on appeal)**Original Case List**Insight Terminal Solutions, LLC v. Cecelia Financial Management, et al., No. 24-5222, 2025 WL 2434894 (6th Cir. August 25, 2025) (reversing trial court’s ruling that deposition was categorically inadmissible because defendants did not have an opportunity to cross-examine a 30 B6 deponent before his death)Fed.R.Civ.P. 32(a) (setting three-part test for admissibility of deposition testimony at trial)Treharne v. Callahan, 426 F.2d 58 (3d Cir. 1970) (court upheld the district court's discretionary admission of written interrogatory answers given by the now-deceased defendant, even though the plaintiff could not cross-examine; under Federal Rules of Civil Procedure 26 and 33, answers to interrogatories can be used to the same extent as depositions, which are admissible if the witness is dead; further, the need for the evidence—being the only defense evidence—outweighed the lack of cross-examination, especially where death was not caused by the party offering the evidence and there was no fault involved)Duttle v. Bandler & Kass, 127 F.R.D. 46 (S.D.N.Y. 1989) (magistrate declined to exclude a deposition taken without defense counsel present, even though the witness died before cross-examination could occur; under Rule 32(a), depositions of deceased witnesses may be admitted if the party had notice and opportunity to participate, and the prejudice to the party proffering the deposition (who would lose critical evidence) outweighed potential prejudice to the opponent. Court proposed that any prejudice could be minimized by stipulating to facts the defense might have developed via cross-examination, reducing the impact of any lost impeachment opportunity)Derewecki v. Pennsylvania R. Co., 353 F.2d 436 (3d Cir. 1965) (trial and appeals courts admitted decedent’s incomplete depositions as evidence, despite the absence of cross-examination by the defendant who had no chance to cross-examine before the witness died; Rule 26 authorized admission of depositions when the deponent is deceased as long as the circumstances justified it, and both parties had agreed the deposition was “completed” for evidentiary purposes; further, the harm in excluding the sole direct evidence of how the accident occurred outweighed the right to cross-examination. Courts must consider whether the lack of cross is due to fault; here, no such fault was shown)Waterman S. S. Corp. v. Gay Cottons, 414 F.2d 724 (9th Cir. 1969) (deposition of a witness who died before any cross-examination by the adverse party was admitted in bench trial; where there was no realistic possibility that cross-examination would have materially aided the party, exclusion was not required. Further, deposition testimony corroborated by other evidence; thus, lack of cross-examination did not affect the outcome)In re Reingold, 157 F.3d 904 (5th Cir. 1998) (testimony excluded at trial level; exclusion reversed. Trial court excluded party-plaintiff’s perpetuation deposition, taken while the plaintiff was gravely ill and ended before cross-examination could be completed due to the witness's declining condition and ultimate death; Fifth Circuit held this exclusion to be a clear abuse of discretion and granted mandamus relief directing admission of the video deposition; FRCP 32(a) creates strong presumption favoring admission of a deceased witness’s deposition. Exclusion is only justified by a specific and particularized showing of prejudice, such as stating what crucial areas would have been dealt with in cross-examination; a mere generalized complaint about the lack of cross is insufficient. Since the opposing party had already conducted a substantial deposition of the witness in prior proceedings, the risks of prejudice were further minimized)North Carolina v. Johnson, No. COA24-451, 2025 WL 2408913 (N.C. Ct. App. Aug. 20, 2025) (court could not consider arguments in favor of reversal that were based on videotaped testimony played at trial but not placed into the trial record)G.W. Aru LLC, et al. v. W.R. Grace & Co. No. CV JKB-22-2636, 2025 WL 2402194 (D. Md. Aug. 19, 2025) (court ordered parties to transcript deposition excerpts played at trial, and then file those excerpts by stipulation, where they had not been entered into the docket)Shumaker v. Alarsi, et al., No. 1:23-CV-4-SA-DAS, 2025 WL 2418386 (N.D. Miss. Aug. 20, 2025) (rejecting motion for protective order, to allow plaintiffs to avoid 900-mile trip for in-person deposition, where the motion lacked any meaningful detail showing good cause for such an order)Shah v. Fortive Corporation, et al., Case No. 1:22-cv-312 (S.D. Ohio Aug. 21, 2025) (rejecting plaintiff's request to appear remotely where travel to the forum of the litigation would require "40,000 miles of flight over 48 hours"; plaintiff failed to show distinct hardship or expense)

Are deposition expenses busting your budget? In this episode, Jim Garrity spotlights a clever strategy conceived by a southern California litigator to sharply cut the costs of deposition transcripts. It's yet another effort by trial lawyers to combat the insane costs of stenographic reporting, and one worth trying. The show notes point to seventeen relevant filings on this issue, four federal rules, and a website for a service that is actively helping lawyers cut deposition costs.Like this podcast? Our production crew LOVES 5-star reviews. They're free, fast to leave, and provide us the kind of appreciative good vibes we crave. Would you mind taking ten seconds and clicking on the five-star rating? Thanks!SHOW NOTES:Note: All filings listed below are from the case Black v. City of San Diego, Case No. 21-cv-1990-RBM-JLB (S.D. Cal. Mar. 27, 2025)Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A) (initial application by Plaintiff) PACER Doc. 153Defendants’ Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 160.Declaration Of Casey Stark In Support Of Plaintiffs Motion For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP 30(b)(3)(A), PACER DOC. 153-1Defendant Tutterow’s Notice Of Joinder In Defendant City Of San Diego’s Opposition To Plaintiffs Ex Parte Application For Leave To Conduct Deposition By Video And Prepare Transcript Using Voice Recognition, PACER Doc. 162.Defendants Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 164Plaintiffs Reply To Opposition To Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology According To FRCP Rule 30(b)(3)(A), PACER Doc. 165Second Supplemental Declaration Of Casey Stark In Support Of Plaintiff Motion For Leave To Conduct Deposition. Etc., PACER Doc. 170Defendants Second Supplement To Opposition To Plaintiffs Application For Leave To Prepare Deposition Transcript Using Voice Recognition Technology, PACER Doc. 171Order (Magistrate Judge) Denying Plaintiff’s Application For Leave To Conduct Deposition By Video And To Prepare Transcript Using Voice Recognition Technology, PACER Doc. 172Plaintiff’s Notice Of Objection To Order Denying Application For Leave To Conduct Deposition, Etc. PACER Doc. 173 (appealing magistrate judge’s order to district judge)Defendant’s Response To Plaintiff’s Objection To Magistrate’s Order Denying Claims Application For Leave, PACER Doc. 174Plaintiffs Opposition To Defendants Response To Player’s Objection To Magistrate’s Order Denying Plaintiff’s Application, Etc., PACER Doc. 175Order (District Judge) Overruling Plaintiff’s Objections, PACER Doc. 178Order Granting Joint Motion For Protective Order, PACER Doc. 32 (providing that certain information was to remain confidential)Modified Protective Order, PACER Doc. 156Readback.legal (reporting agency dedicated to reducing deposition -related costs; interview of Readback’s Chief Legal Officer in podcast episode 87)1993 Committee Note to Fed. R. Civ. P. 26 (noting that where a deposition isn't stenographically recorded, transcripts are often later prepared by counsels' own law firmsFed. R. Civ. P. 30(b)(3)(a) (allowing lawyers to capture deposition testimony by stenographic means only, audio only, video only, or any combination of the three)FRCP 26(a)(3)(A)(ii) and FRCP 32(c) (providing that if counsel chooses to record a deposition by video only and plan to present it at trial or hearing, they must provide a transcript of the testimony to the other parties and the court)Readback.legal (innovative and budget-friendly service advertised as "certified, court-admissible deposition service built for legal professionals who need clarity, speed, and accuracy, without relying on outdated stenography")

In this episode, Jim Garrity argues for more frequent videotaping of depositions, especially those of parties and witnesses likely to be unavailable at trial. The reason? Unlike live witnesses - who are generally called once in trial - videotaped testimony can be played two or more times. This technique utilizes one of the most effective tools of persuasion ever invented, repetition, borrowed straight from Madison Avenue, where repetition is everything. Clips played during the trial, during closing, and sometimes in opening by consent or court order, allow you to essentially present the same witness and testimony multiple times. This kind of repetition isn't possible with live witnesses, and is far superior to reading deposition transcripts to the jury. In a world where people are accustomed to getting their information through video, reading a transcript of testimony is likely to test your jurors' attention span (and patience). Garrity discusses a UCLA professor's "7-38-55 rule" to underscore the point. The gist of this rule is that when people communicate, only 7% of the message is conveyed through words, 38% through tone and voice, and a whopping 55% through body language. That's what makes the presentation of deposition testimony by video clips so powerful. Listen in!SHOW NOTESSmith, et al. v. City of Chicago, etc., Case No. 21-cv-1159, 2025 WL 1744919 (N. D. Ill. June 24, 2025) (denying use of video depo testimony in opening, but allowing it in closing argument that was admitted into evidence during trial, over objections by defendants that permitting video testimony during closing statements would be “unfairly prejudicial because it emphasizes testimony that is presented by video through repetition, and that opportunity does not exist for a live witness”)Hynix Semiconductor Inc. v. Rambus Inc., No. C-05-00334 RMW, 2008 WL 190990, at *1 (N.D. Cal. Jan. 21, 2008) (denying use of video depo testimony in opening, but would consider allowing reading from transcript; “If the parties wish to read a portion of a deposition transcript in their opening statement, they are to exchange any excerpt with opposing counsel sufficiently in advance of opening statements so that the court can rule on any dispute over use”)Doe v. City of San Diego, No. 12CV689-MMA (DHB), 2014 WL 11997809, at *6 (S.D. Cal. July 25, 2014) (collecting cases refusing to allow playing of videotaped deposition testimony during opening statements) (“See In re Ethicon, Inc., 2014 WL 505234, at *8 (S.D. W. Va. Feb. 5, 2014) (“[T]he use of video clips during opening statements is precluded as to all parties ....”) (quoting In re Bard, Inc., 2013 WL 3282926, at *8 (S.D. W. Va. June 27, 2013)); Carpenter v. Forest Meadows Owners Ass'n, 2011 WL 3207778, at *7 (“Video recordings of the deposition will not be permitted.”) (emphasis in original); Chopourian v. Catholic Healthcare W., No. 09–2972 KJM, 2011 WL 6396500, at *7 (E.D. Cal. Dec. 20, 2011) (denying the plaintiff's motion to use portions of videotaped depositions during opening statement); Hynix Semiconductor Inc. v. Rambus, Inc., 2008 WL 190990, at *1 (N.D. Cal. 2008) (“Neither side shall use any videotaped deposition testimony in its opening statement.”); but see Sadler v. Advanced Bionics, LLC, at *3 (W.D. Kent. April 1, 2013) (providing that the court “may” consider allowing the parties to utilize videotaped deposition testimony during opening statements); MBI Acquisition Partners, L.P. v. Chronicle Pub. Co., 2002 WL 32349903, at *2 (permitting party to play segments of video deposition in its opening statement))Beem v. Providence Health & Servs., No. 10-CV-0037-TOR, 2012 WL 13018728, at *2 (E.D. Wash. Apr. 19, 2012) (rejecting request to play videotaped deposition during opening, and rejecting argument by plaintiff that, under Fed. R. Civ. P. 32(a)(3), she may use the deposition of an adverse party “for any purpose,” stating that “What Plaintiff proposes to do, is to introduce evidence during opening statement. The Court will not allow the showing of video deposition excerpts during opening statement. The motion is denied.”)K.C. ex rel. Calaway v. Schucker, No. 02-2715-STA-CGC, 2013 WL 5972192, at *7 (W.D. Tenn. Nov. 8, 2013) (“there is no per se ban on the use of video excerpts of depositions in closing arguments”; also citing 88 C.J.S. Trial § 300 (2013) (“[T]here is no blanket prohibition against counsel playing selected portions of a videotaped deposition for a jury during closing argument, and trial courts have discretion to permit, or to refuse, the replaying of videotape segments in closing argument.”)MBI Acquisition Partners, L.P. v. Chron. Pub. Co., No. 01-C-0177-C, 2002 WL 32349903, at *1 (W.D. Wis. Oct. 2, 2002) (allowing use of video depo excerpt in opening, stating, without further discussion, that “Defendants may use excerpts from the video deposition of David Straden during opening argument. Counsel are to advise plaintiff's counsel promptly of the particular excerpts they intend to show”)Sadler v. Advanced Bionics, LLC, No. 3:11-CV-00450-TBR, 2013 WL 1340350, at *3 (W.D. Ky. Apr. 1, 2013) (preliminarily allowing use of videotaped deposition testimony in opening statements, saying If this testimony is otherwise admissible at trial and is not unnecessarily lengthy, the Court may consider allowing this procedure for both parties”)Northfield Ins. Co. v. Royal Surplus Lines Ins. Co., No. SACV 03-0492-JVS, 2003 WL 25948971, at *3 (C.D. Cal. July 7, 2003) (subject to further objection and ruling before trial, “The Court is generally of the view that a party in opening statement may use any piece of evidence which the party in good faith believes will be ultimately received at trial. Rule 32(a)(2) of the Federal Rules of Civil Procedure permits the use of a party deposition “for any purpose”) you like the shoes I wore in high schoolSmith v. I-Flow Corp., No. 09 C 3908, 2011 WL 12627557, at *4 (N.D. Ill. June 15, 2011) (“The Court denies I–Flow's request to bar use in opening statement of excerpts from video deposition testimony. The Court will expect plaintiffs to disclose by no later than noon on the Friday before the start of trial any such excerpts they intend to use in opening statements and will expect defendants to make reciprocal disclosures by no later than 5:00 p.m. on the Saturday before the start of trial.”)Fed. R. Civ. P. 32(a)(3) (providing that "An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee...") (emphasis added)

Now that the pandemic is fading from our memories, courts are showing a renewed willingness to order plaintiffs to appear in person for their depositions, even when a plaintiff has relocated to distant places and will incur considerable expense and inconvenience if forced to travel. In this episode, Jim Garrity dissects a brand-new court ruling on the topic, explains in detail why the plaintiff in that case failed to win a protective order requiring her to travel 2,000 miles back to the litigation forum. Then he offers crucial tactical advices for both plaintiffs and defendants when fighting this battle. SHOW NOTESOrder Denying Plaintiff's Motion for Protective Order, Krishmar-Junker v. Kingline Equipment, Inc., Case No. 23-0431-KD-B, 2025 WL 1710041 (S.D. Ala. June 18, 2025) (court refused to issue protective order where plaintiff, who moved cross-country since filing her lawsuit, claimed financial and medical hardships but failed to meet her burden of a particularized showing of harm to justify relief)

Traditionally, litigators seeking to understand an individual's or organization's devices - specifically, how they store, access, manage, and delete information - have either asked a deponent to testify from memory or arranged for a costly forensic inspection instead. In this episode, Jim spotlights a fantastic middle ground: requiring a deponent (individual or 30(b)(6) rep) to bring their devices to the deposition and demonstrate their functions and programs or apps during a videotaped examination. This technique was just approved by a federal judge in a pending class action against the ride-sharing company Uber. It's one all litigators should be using. As Jim says in the episode, devices are where information now lives. Lawyers should be more aggressive in their pursuit of discovery related to devices an individual or entity owns and how they access, store, manage, and delete data.SHOW NOTESIN RE: UBER TECHNOLOGIES, INC., PASSENGER SEXUAL ASSAULT LITIGATION, No. 23-MD-03084-CRB (LJC), 2025 WL 1393216 (N.D. Cal. May 14, 2025); See Joint Discovery Letter Brief on Plaintiff's 30(b)(6) deposition notice seeking device demonstration is Document 2957; Order Resolving Discovery Letter Regarding Rule 30(b)(6) Depositions is Document 2995.Section 9.43, Physical Demonstrations By Deponents, p. 357-359, in the book 10,000 Depositions Later - The Premier Litigation Guide For Superior Deposition Practice: A User's Guide and Handbook on Deposition Tips, Tactics and Strategies for Civil, Administrative and Arbitrative Litigation, 4th Edition, 615 pp., by Jim Garrity, Esq., available on Amazon and just about everywhere else books are sold.

Today’s episode showcases four new deposition-related rulings, including one that makes a compelling case for using Rule 31 depositions by written questions; a second that underscores the need to proactively consider limiting deposition transcript distribution; a third that highlights rare exceptions to a party’s right to attend depositions; and a fourth which reinforces the basic principle that deposition subpoenas duces tecum cannot be used to shorten Rule 34’s 30-day document production timeline. Thanks for listening, and be sure to check out the book on which this podcast is based, 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice - A User's Guide and Handbook on Deposition Tips, Tactics & Strategies for Civil, Administrative, Arbitrative and Criminal Litigation. Available on Amazon and just about everywhere else books are sold.SHOW NOTESKilmetis v. Wal-Mart Stores East, LP, No. 24-CV-04452 (JMW), 2025 WL 1332056 (E.D.N.Y. May 7, 2025) (Rule 31 depositions)Hales v. Cook, et al., No. 1:24-cv45/ZCB, 2024 WL 5690279 (N. D. Fla. December 20, 2024) (on restricting distribution of deposition transcripts)Rupard, et al. v. County of San Diego, et al., No. 23-CV-1357 CAB (BLM), 2025 WL 1265858 (S. D. Cal. April 30, 2025) (on excluding parties from depositions in their own cases)Johnson v. Parks Floyd Investments, LLC, No. 2:23-cv-1063 SMD/KRS, 2025 WL 1191785 (D. New Mexico April 24, 2025) (on use of deposition subpoenas duces tecum to parties as a tool to circumvent and shorten the normal period for production of documents)

If you haven't already deeply integrated AI into your deposition practice, buckle up! In this episode, Jim Garrity identifies five major use cases for AI when preparing to take or defend depositions. Then he offers cutting-edge tips for preparing winning AI "prompts," which are the instructions you'll give AI programs so they'll give you the exact assistance you need. Incredible topic and incredible tips, all in just 23 minutes. Thanks for listening!SHOW NOTES:The three AI apps we use currently are:ChatGPT.comhttps://x.com/i/grokPerplexity.ai

In this episode, Jim Garrity highlights three brand new deposition-related court rulings. The first presents the question of whether witnesses and their counsel can be prohibited from discussing the witnesses' testimony during recesses. The second addresses the propriety of asking foundational questions of privilege-bearing deponents to determine if the assertion of privilege is legitimate; the opinion explains what "foundational" questions are, gives examples, and details the procedure for deposing such witnesses and then presenting the issue to a court for decision. The third case in the spotlight highlights an avoidable problem when a lawyer seeks to depose an individual who has already testified in a 30(b)(6) capacity. Citations to the cases appear in today's show notes. Thanks for listening.SHOW NOTESVillareal v. Texas, Case No. 24-557, __ US __ (Apr. 7, 2025) agreeing to review ruling denying criminal defendant’s request to confer about his testimony with his counsel during overnight breaks) petition for writ of certiorari at https://www.supremecourt.gov/DocketPDF/24/24-557/331695/20241113121417971_cert%20petition%20Villarreal%20v%20Texas.pdf; Brief in Opposition at https://www.supremecourt.gov/DocketPDF/24/24-557/348537/20250225093718236_250219a%20BIO%20for%20efiling.pdf; Reply Brief at https://www.supremecourt.gov/DocketPDF/24/24-557/351275/20250305130135816_cert%20reply%2024-557%20Villarreal%20v%20Texas.pdfAllergan, Inc. et al. v. Revance Therapeutics, Inc., No. 3:23-cv-00431, 2025 WL 1006372 (M. D. Tenn. Apr. 3, 2025) (outlining the procedure for questioning witnesses claiming privilege, and holding that foundational questions about the allegedly privileged communications must be allowed to determine whether a privilege exists)In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case Number 22–MD–03047–YGR (PHK), 2025 WL 1009362 (N. D. Calif. Apr. 4, 2025) (denying request for deposition of a witness in an individual capacity, on basis that deposing party should have combined such a deposition with the 30(b)(6) deposition of the same person)

Our roundup episodes summarize brand-new, deposition-related court rulings from around the country. We cover four new rulings in this episode on crucial issues:You can successfully oppose even otherwise taxable deposition costs, when an adversary prevails, by making these fairness-based argumentsFRCP 30(b)(6) topic lists must be proportionate to the case, as a court ruled when refusing to evaluate a list of 503 topicsThe rule of sequestration does not apply in federal civil cases and the majority of states, but you may succeed in getting a court to impose it if you can show one of these "plus" factorsIn-person depositions are still a thing, and should not be treated as unusual or requiring an extraordinary showingAs always, thanks for listening! And remember - these episodes are always free and contain no advertising. What's the catch? Only that we'd ask you to leave us a 5-star rating wherever you download your podcasts. Those ratings are deeply motivating to, and deeply appreciated by, our research and production staff. And be sure to check out the book on which this podcast is based - 10,000 Depositions Later: The Premier Litigation Guide for Superior Deposition Practice. Now in its 4th edition at 625 pages, available on Amazon and almost everywhere books are sold.SHOW NOTESLUV N' CARE v. LINDSEY LAURAIN, ET AL, No. CV 3:16-00777, 2025 WL 622334, at *8 (W.D. La. Feb. 26, 2025) (while courts cannot award costs not explicitly identified in 28 U.S.C. § 1920, courts do have discretion to deny award of otherwise recoverable costs where fairness or other considerations dictate)NATHEN W. BARTON, Plaintiff, v. REAL INNOVATION INC. et al., Defendant., No. 3:24-CV-05194-DGE, 2025 WL 606167, at *1 (W.D. Wash. Feb. 25, 2025) See 36-page notice (Case 3:24-cv-05194-DGE Document 51-1 Filed 01/14/25 Page 1 of 36 (contains 503 actual questions, not topics)MARK WRIGHT-AHERN, Plaintiff, v. THE CITY OF CLERMONT, Defendant., No. 5:24-CV-173-MMH-PRL, 2025 WL 605059, at *2 (M.D. Fla. Feb. 25, 2025) (rule of sequestration does not apply to depositions, absent particularized showing of specific facts warranting the relief; the correct procedure for seeking to exclude a person from deposition is to seek a protective order); see also Order (from same case, awarding fees and explaining sequestration concept in depositions), CM/ECF Document No. 31, filed Jan. 31, 2025)UNITED STATES OF AMERICA, Plaintiff, v. The M/Y Amadea, a Motor Yacht Bearing Int'l Mar. Org. No. 1012531, Defendant., No. 23 CIV. 9304 (DEH), 2025 WL 754124, at *1 (S.D.N.Y. Mar. 10, 2025) (ordering witness to travel overseas to United States for in-person deposition, finding that while remote depositions are the new normal, there remains nothing unusual about insisting that a key witness appear in person)

In this episode, Jim Garrity spotlights a new ruling on a little-known but powerful tool: the use of depositions as affidavits. As Garrity discusses, a deposition does not need to meet the requirements of trial-oriented Fed. R. Civ. P. 32 (which requires a showing that the party against whom the deposition is offered had notice and a chance to examine the deposition) when it is offered in proceedings that allow testimony by affidavit, such as at summary judgment.SHOW NOTESSurety v. Co. v. Dwight A. Herald, et al., Case No. 1:23-cv-00086-GNS-HBB, 2025 WL 627523 (W.D. Ky. Feb. 26, 2025) (deposition/examination under oath of witness taken in underlying state-court personal injury could be used in federal declaratory judgment actions at summary judgment time, as deposition meets form of affidavit)Diamonds Plus, Inc. v. Kolber, et al., 960 F. 2d 765 (8th Cir. 1992) (deposition need not be admissible at trial to be properly considered in opposition to motions for summary judgment; deposition inadmissible at trial because one of the defendants did not receive proper notice and did not attend the deposition was properly used to create issues of fact justifying denial of summary judgment)Hoover v. Switlik Parachute Co., 663 F.2d 964, 966-67 (9th Cir. 1981) (“Rule 56 ... plainly allows consideration of “affidavits” and we find nothing which requires that term to be construed within the limitations of Rule 32(a).”).First Gaston Bank of North Carolina v. City of Hickory, 691 S.E.2d 715 (Ct. App. N.C. 2010) (citing cases rejecting proposition that FRCP 32 limits use of depositions in proceedings where evidence in affidavit form is admissible; pointing out that to the extent a party objects that they didn’t have an opportunity to cross-examine a witness whose deposition from some other cases being offered, “the same objection can frequently be made as to affidavits filed in connection with motions for summary judgment”)Tingey v. Radionics, 193 F. App'x 747, 765–66 (10th Cir. 2006) (reversing summary judgment where trial court, relying on FRCP 32, excluded from consideration in opposition to summary judgment a deposition that plaintiff took of physician in separate state proceeding, where defendant was not party to that proceeding and had not been given notice of deposition; depositions can be used as affidavits in proceedings where affidavits are admissible; to illustrate, “[p]arties may file affidavits in support of summary judgment without providing notice or an opportunity to cross-examine the affiant. See Fed.R.Civ.P. 56(c). The “remedy” for this non-confronted affidavit testimony is to file an opposing affidavit, not to complain that one was not present and permitted to cross-examine when the affidavit was signed. For this reason, the Ninth Circuit has permitted a party to introduce deposition testimony for summary judgment purposes against a party who was not present at the deposition, by construing the deposition as an affidavit. Hoover v. Switlik Parachute Co., 663 F.2d 964, 966–67 (9th Cir.1981)”)Nippon Credit Bank, Ltd. v. Matthews, 291 F.3d 738, 751 (11th Cir. 2002) (without analyzing scope and extent of application of FRCP 32, court broadly said that “Depositions are generally admissible provided that the party against whom they are admitted was present, represented, or reasonably noticed, Fed.R.Civ.P. 32(a), and are specifically allowed in consideration of summary judgment. Fed.R.Civ.P. 56(c). A deposition taken in a different proceeding is admissible if the party against whom it is offered was provided with an opportunity to examine the deponent. Fed.R.Evid. 804(b)(1).”)Fed. R. Civ. P. 56(c)(1)(A) (explicitly allowing citation to depositions for or against summary judgment)8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2142 (1970))) (as are at least as good as affidavits and should be usable whenever an affidavit would be permissible, even where the conditions or requirements for use at trial under rule 32 are not met) 

In this episode, Jim Garrity applies lessons from a well-known study - on the factors that influence people to cooperate with or resist perceived authority figures - to the deposition process. The lessons will help you better understand deponent perceptions that may be triggering their uncooperativeness. While some elements of the study were considered controversial, other mundane but noteworthy observations can help deter obstructive behavior by deponents.

In this episode, Jim Garrity talks about a tactic of some examining lawyers that should, but often doesn’t, draw objections that their questions are “argumentative.” So, what is an improper, argumentative question or examination? Here, we’re not talking about the questioner’s tone or demeanor, i.e., arguing in the classic sense of yelling and bickering with the deponent. We’re talking about questions where lawyers aren’t really asking a question designed to elicit facts but are instead injecting their own commentary or viewpoint, or injecting insults, taunts, wisecracks, or similar language. "Argumentative" objections are objections to the form, and must be timely made or are waived.SHOW NOTESPeople v. Pawar, No. G037097, 2007 WL 477949, at *2 (Cal. Ct. App. Feb. 15, 2007) (“[W]ere they lying” queries are improper if they are merely argumentative. (Chatman, supra, 38 Cal.4th at pp. 381, 384.) In Chatman, the prosecutor asked the defendant how the safe at a store was opened. (Id. at p. 379.) The defendant replied “he could not say; he never touched the safe,” eliciting the prosecutor's query, “ ‘Well, is the safe lying about you?’ “ (Ibid.) The Supreme Court held the question of whether an inanimate object was “lying” was argumentative , defining argumentative inquiry as “speech to the jury masquerading as a question” which “does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Id. at p. 384.))Faile v. Zarich, No. HHDX04CV5015994S, 2008 WL 2967045, at *3 (Conn. Super. Ct. July 10, 2008) (Webster's. . . in the closest relevant definition, defines “argumentative” as “consisting of or characterized by argument: containing a process of reasoning: controversial”)Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) (Steven Goode, et al., Texas Practice Series: Courtroom Handbook on Texas Evidence § 611 cmt. 12 (2012); see United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir.N.Y.2005) (defining argumentative as “summation-like remarks by counsel during the presentation of evidence”); accord Eddlemon v. State, 591 S.W.2d 847, 851 (Tex.Crim.App. [Panel Op.] 1979) (trial court did not abuse discretion in finding the question, “You don't believe your own offense report?” argumentative). In other words, an argumentative objection concerns whether counsel is attempting to “argue” the case, not whether the counsel is “arguing” with the witness”)United States v. Yakobowicz, 427 F.3d 144, 151 (2d Cir. 2005) (“During the presentation of evidence one of the most commonly sustained objections is that a particular question is argumentative, Fed.R.Evid. 611(a) advisory committee's note to Subdivision (a) to 1972 Proposed Rules, and any summation-like remarks by counsel during the presentation of evidence are improper and subject as a routine matter to being stricken, Mauet & Wolfson, supra, at 30”)Pardee v. State, No. 06-11-00226-CR, 2012 WL 3516485, at *6 (Tex. App. Aug. 16, 2012) ("Many common law objections—including the objection of “argumentative”—are incorporated in the Texas Rules of Evidence. The common law argumentative objection is now governed by Tex.R. Evid. 611 which concerns the mode of interrogation and presentation. The argumentative objection is an objection commonly used, but not commonly understood. Pardee argues the objection should have been sustained because the State was “arguing” with the defendant. Argumentative, though, does not concern counsel's demeanor or tone. Professors Wellborn, Goode, and Sharlot explain the argumentative objection as follows: Counsel may not, in the guise of asking a question, make a jury argument or attempt to summarize, draw inferences from, or comment on the evidence. In addition, questions that ask a witness to testify as to his own credibility are improper.")People v. Chatman, 38 Cal. 4th 344, 384, 133 P.3d 534, 563 (2006) The prosecutor's question about whether the safe was “lying” requires a different analysis. The question was argumentative. An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable. The prosecutor's question whether “the safe [was] lying” is an example. An inanimate object cannot “lie.” Professor Wigmore has called cross-examination the “greatest legal engine ever invented for the discovery of truth.” (5 Wigmore on Evidence (Chadbourne rev. ed.1974) § 1367, p. 32.) The engine should be allowed to run, but it cannot be allowed to run amok. An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all. Defendant had already explained he had no explanation for the safe being open. Asking whether the safe was “lying” could add nothing to this testimony”)People v. Imbach, No. E040190, 2008 WL 510482, at *7–8 (Cal. Ct. App. Feb. 27, 2008) ("The prosecutor asked, “You found that to be inappropriate but not your other son's addiction to child pornography?” When defendant objected that the question was argumentative, the trial court overruled that objection. Defendant asserted the second “argumentative” objection when defendant's mother said she did not know how to answer that question and the prosecutor asked, “Is that because you didn't want to know?” The trial court sustained the defendant's objection to this second question. Both questions are argumentative, because they both are speeches by the prosecutor masquerading as questions. (Chatman, supra, 38 Cal.4th at p. 384.) The trial court should have sustained both objections. However, we cannot say that by asking those two questions the prosecutor engaged in misconduct.")People v. Peoples, 62 Cal. 4th 718, 793–94, 365 P.3d 230, 288 (2016) (“Defendant observes that the prosecutor asked numerous argumentative questions when cross-examining defense witnesses. To list a few examples, the prosecutor asked defense expert Dr. Lisak, “how many hours are you into them for?” He said to defense expert Dr. Buchsbaum, “Let's quit guessing for awhile and look at the facts.” He said to defense expert Dr. Wu, “It's a pain in the butt to get these test scores.” And he asked prosecution expert Dr. Mayberg, “Did you have a heart attack last night when you looked at the raw data?”)People v. Burns, No. D081051, 2024 WL 2144151, at *15–17 (Cal. Ct. App. May 14, 2024), review denied (July 17, 2024) (excessive repetition of a question simply to make a point can cross line into improper argument”; “Burns makes a strong argument that the prosecutor's repetitive questioning regarding the drunk tank incident became argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer. The question may, indeed, be unanswerable.” (People v. Chatman (2006) 38 Cal.4th 344, 384.) “An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (Ibid.) Instead, it may be aimed at agitating or belittling the witness (People v. Lund (2021) 64 Cal.App.5th 1119, 1148), or designed to engage the witness in an argument (People v. Johnson (2003) 109 Cal.App.4th 1230, 1236)”)People v. Mazen, No. B300193, 2021 WL 164356, at *5 (Cal. Ct. App. Jan. 19, 2021) The court overruled defendant's argumentative objection to the following question: “Would [accidentally placing the car in neutral] been important information to tell [Morales]?” The court did not abuse its discretion when it overruled the objection. The question sought to elicit relevant testimony regarding defendant's theory that Mario was hit by accident (CALCRIM No. 510). (See People v. Chatman (2006) 38 Cal.4th 344, 384 [“[a]n argumentative question is a speech to the jury masquerading as a question” and does not seek to elicit relevant testimony].)”People v. Singh, No. H042511, 2018 WL 1046260, at *28 (Cal. Ct. App. Feb. 26, 2018) (“Each question anticipated an answer and was answerable; none was “a speech to the jury masquerading as a question”)People v. Basler, No. D068047, 2015 WL 9437926, at *23 (Cal. Ct. App. Dec. 23, 2015) ("Fung appears to identify three categories of objectionable questioning during his cross-examination by the prosecutor. The first category involves apparent sarcasm by the prosecutor. For example, after Fung provided additional details about his fight with another inmate while incarcerated, the prosecutor said, “Okay. You left that part out a couple of minutes ago; right?” Referencing the same fight, the prosecutor made light of Fung's claim of self-defense: “Did you have to defend yourself against him, too?” As another example, when Fung was discussing the extent of his injuries following the fight, the prosecutor said, “So, that's about how badly you were hurt? It looked like something you get by falling off a skateboard?” The court sustained objections to each of these questions, and a number of others, as argumentative." Also from Basler: "As we have noted, Fung contends the first two categories of questions were impermissibly argumentative. “An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even want an answer. The question may, indeed, be unanswerable.... An argumentative question that essentially talks past the witness, and makes an argument to the jury, is improper because it does not seek to elicit relevant, competent testimony, or often any testimony at all.” (People v. Chatman (2006)”)People v. Nanez, No. F064574, 2014 W

Today Jim Garrity revisits the headaches caused by examining lawyers who frequently interrupt your deponents' answers. To combat this problem, Garrity offers you a six-pronged strategy for stopping this practice and/or creating a strong record that will allow your deponents to later add materially to their interrupted testimony, whether by errata sheet, affidavit, or live testimony. Courts are far more likely to allow that where you've used Garrity's strategies. (By the way, if you have a moment, would you send our production team a small "thank you" by leaving us a five-star rating wherever you listen to our podcast? It takes just 30 seconds - we timed it! - and it's deeply appreciated. Our crew devotes a great deal of time to research and production, and the podcast is not only free, but also uncluttered by pesky advertising. Thank you so much.)SHOW NOTESIn re Injectafer Prod. Liab. Litig. ALL CASES, No. CV 19-276, 2022 WL 4280491  (E.D. Pa. Sept. 15, 2022) (“Defendants propose. . . changing “It would be one of the—yes” to “It would be one of the sources of information. Yes.” This change is not necessarily inconsistent with the original testimony because it appears that the deponent was cut off or otherwise stopped speaking in the middle of the sentence and is justified as making the answer more complete. See id. While finishing a thought is not necessarily a proper justification for an errata modification, here it appears to be justified and within the flexible scope of the Third Circuit's approach to Rule 30(e)")Grey v.  Amex Assurance Company, 2002 WL 31242195, No. B152467 (Ct. App. Calif. Oct. 7, 2002) (reversing summary judgment in part because trial court abused discretion in failing to consider errata sheet containing “changes. . . made because the witness was interrupted before completing her answers;” further noting that the defendant “. . .took the risk that [the plaintiff’s] corrections would bring some of its undisputed facts into controversy”)Arce v. Chicago Transit Authority, 311 F.R.D. 504, 512 (N.D. Ill. 2015) (denying, without prejudice, motion to strike errata sheet, as motion failed to specifically discuss many of the 67 changes defendant wanted stricken; noting that “The reason given for the vast majority of the 67 changes was that [Plaintiff] “did not finish” her answer during the deposition, though the transcript does not reflect that she was interrupted and prevented from doing so,” and outlining how various courts and commentators deal with the extent to which changes to testimony can be made on errata sheets)Arce v. Chicago Transit Authority, F.R.D. 504, 512, fn. 5 (N.D. Ill. 2015) (noting that, if one looks back at the early origins of the rule on errata sheets, quoted in this opinion, it may be argued that the intent of the drafters was indeed to limit changes to clerical-level mistakes, not to allow substantive changes): "One commentator who examined the history of the rule dating back to the original Equity Rule 67, and the twin Equity Rules 50 and 51 that succeeded it, concluded that Rule 30 was never intended to allow for more than the correction of transcription errors: "Appeals to the plain language of Rule 30(e) are incomplete and misleading without reference to the Rule's transcriptive focus. Read in historical context, the Rule appears to be distinctly clerical, ill-equipped—and never intended—to embrace substantive changes. Although its wording has changed over time, Rule 30(e) has retained one modest but steady focus: the who, how, and what of accurate transcription. The Rule is meant to secure an accurate representation of what was said, leaving to another day (and frequently to the mechanisms of Rule 56) the question of the meaning and implication of the deposition content for purposes of material factual disputes. The common understanding of Rule 30(e) has moved far afield from that mild ambition, giving us the confusion and circuit split we know today. Read in light of its history, the Rule clearly embraces a transcriptive focus. Ruehlmann, Jr., supra, at 915. Rule 30(e)’s counterpart in Illinois state court, Supreme Court Rule 207(a), was amended to limit corrections to transcription errors because the “potential for testimonial abuse” had “become increasingly evident as witnesses submit[ted] lengthy errata sheets in which their testimony [was] drastically altered....” Ill. Sup. Ct. R. 207(a), Rules Committee Comment to Paragraph (a) (1995)Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (citing Deposition Dilemmas: Vexatious Scheduling and Errata Sheets, 12 Geo. J. Legal Ethics 1, 60 (1998), for its author’s argument that Rule 30(e) permits “opposing counsel, at her choosing, to introduce both versions to the jury”)Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383 (7th Cir.2000) (observing, as to changes in errata sheet, that what the witness “tried to do, whether or not honestly, was to change his deposition from what he said to what he meant;” quoting the common refrain that “a deposition is not a take home examination,” the court remarked that while this was a “questionable basis for altering a deposition.” the court would allow the change under Rule 30(e) since the rule expressly “authorizes ‘changes in form or substance’.”Tchankpa v. Ascena Retail Group, Inc., No. 2:16-CV-895, 2018 WL 1472527 (S.D. Ohio Mar. 26, 2018) (refusing, based on Sixth Circuit’s strict interpretation of errata sheet changes, to allow “. . .impermissible substantive alterations to Tchankpa's testimony. . .”, including explanations stating “Incomplete; I was cut off,” allegedly because “defense counsel interrupted him;” “In this circuit, a deponent cannot make substantive changes to his deposition testimony under Rule 30(e) based on defense counsel's interruptions. . .”)Hirsch v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) When a party makes changes to his deposition pursuant to Rule 30(e), the original answers remain part of the record. See Thorn v. Sundstrand Aerospace Corp., 207 F.3d 383, 389 (7th Cir. 2000) (“[T]he rule requires that the original transcript be retained (it is implicit in the provision of that rule that any changes made by the deponent are to be appended to the transcript) so that the trier of fact can evaluate the honesty of the alteration.”); Arce v. Chicago Transit Authority, 311 F.R.D. 504, 511 (N.D. Ill. 2015) (“Subject to the rules of evidence, the jury is permitted to hear the original answer, the change, and the reasons for the change and decide – in the context of all the other evidence – whether to credit either answer and what weight to assign it.”); Coleman v. Southern Pacific Transportation Co., 997 F. Supp. 1197, 1205 (D. Ariz. 1998) (accepting the argument that “a change in a deposition statement does not eradicate the deponent's original answers”); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D. Ill. 1981) (“Nothing in the language of Rule 30(e) requires or implies that the original answers are to be stricken when changes are made.”). The reason for this is obvious: “[t]he Rule is less likely to be abused if the deponent knows that ... the original answers[,] as well as the changes and the reasons will be subject to examination by the trier of fact")Hirsh v. Humana, Inc., No. CV-15-08254-PCT-SMM, 2017 WL 9991896, at *2 (D. Ariz. Nov. 17, 2017) (court-ordered second deposition of plaintiff did not extend deadline for submitting errata sheet following delivery of transcript from first deposition; counsel claimed he “believed that the first deposition did not ‘count,’ because it was ordered [to] be redone, and therefore corrections were reserved”; errata sheet rejected as untimely)Neutrion Dev. Corp. v. Sonosite, Inc., 410 F. Supp. 2d 529, 550 (S.D. Tex. 2006) (allowing and considering – without apparent challenge or concern – expert’s substantive changes to errata sheet, necessitated “. . . [because he] began to explain the knowledge that one of ordinary skill in the art would possess, but was interrupted by Neutrino's counsel”)Trout v. FirstEnergy Generation Corp., 339 F. App'x 560, 565 (6th Cir. 2009) (noting argument made by defendant that plaintiff “. . . is not entitled to benefit from her corrected deposition testimony because her counsel did not rehabilitate her statements during the deposition,” meaning plaintiff’s counsel could and should have asked followup questions while the deposition was in progress)Bahrami v. Maxie Price Chevrolet-Oldsmobile, Inc., No. 1:11-CV-4483-SCJ-AJB, 2014 WL 11517837, at fn. 2 (N.D. Ga. Aug. 4, 2014) (Although Plaintiff's brief in response to Defendant's objections discusses a long day and interruptions by Defendant's counsel during the deposition, those reasons were not provided in the errata sheet. The Court also notes that if Defendant's counsel interrupted Plaintiff such that he could not elaborate much as he wished, Plaintiff's counsel had the opportunity afterwards to examine her client on those points and did not do so.”)Fed. R. Civ. P. 30(e)(1)(B) (federal rule of civil procedure on errata sheets, which expressly contemplates possible changes in form or substance)Fed. R. Civ. P. 30(c)(2) (requiring objections not just to evidentiary issues but to a party's conduct, to the manner of taking the deposition, and to any other aspect of the deposition)Fed. R. Civ. P. 32(d)(3)(B)(i) (requiring objections to errors or irregularities at an oral examination if they relate to the manner of taking the deposition, a party's conduct, or other matters that might have been corrected at that time)

Some examiners will mark a voluminous document as an exhibit and then declare that "we'll go off the record while the deponent reads it." But "going off the record" for this purpose is an unwise practice and is fraught with risks to both the examining and defending lawyer. Jim Garrity explains why.

In this episode, Jim talks about the habit of some deponents of qualifying their answers by using words like think, feel, believe, and presume. These words are known in academic and psychological circles as "linguistic hedges." They're common and harmless in social conversations. But in the unforgiving world of sworn testimony, they create a record suggesting witnesses don't know what they're talking about. Not only do hedges diminish the force of testimony, but they can render it entirely inadmissible. In the wrap-up, Jim provides specific practice strategies for impressing upon clients that the lax and incautious use of hedges can inflict grievous harm on their claims or defenses. He also explains how to train clients to avoid using hedges when testifying.SHOW NOTESStrategic Use Of (UN)certainty Expressions, Lorson, Cummins and Rohde, Frontiers in Communications, Mar. 18, 2021, https://www.frontiersin.org/journals/communication/articles/10.3389/fcomm.2021.635156/fullThe Use of Hedging in Research Articles on Applied Linguistics, Livytska, I., Journal of Language and Cultural Education (July 2019), https://sciendo.com/article/10.2478/jolace-2019-0003Hedging and Academic Writing: An Analysis of Lexical Hedges, Demir, C., Journal of Language and Linguistic Studies, 14(4) (2018), https://www.jlls.org/index.php/jlls/article/view/812Linguistic Hedging In The Light Of Politeness Theory, Vlasyan, G., European Proceedings of Social and Behavioural Sciences (2018), https://www.europeanproceedings.com/article/10.15405/epsbs.2018.04.02.98A Study of Hedges in Courtroom Oral Arguments from the Perspective of Contextual Adaption, Chen and Zhang, International Journal of Multidisciplinary Research and Publications, https://ijmrap.com/wp-content/uploads/2022/02/IJMRAP-V4N8P114Y22.pdfHedging in Courtroom Discourse, Lebedeva and Gribanova, http://ial-journal.org/en/node/53Middleton v. May, et al., Third Report and Recommendation [CM/ECF Doc. 107], Sherrill, J., Case No. 4:08-cv-452-RH-WCS (N. D. Fla. Feb. 9, 2010) report and recommendation adopted, Order Granting Summary Judgment for Defendants, Hinkle, J., [Doc. 109] (“Plaintiff's statement as incorporated in doc. 93-3 is signed under penalty of perjury, although each material statement of fact is an equivocating statement beginning with "Upon information and belief . . . ." Such a statement is not sufficient as evidence and is inadmissible in its present form. A declaration expressing that statements are "true and correct to the best of my knowledge and belief" carries with it the plain implication that the affiant does not know whether the statements are true or not, and does not wish to be held accountable if they are not.6 While admittedly the phrase "best of my knowledge and belief" or "information and belief" is a part of common speech, it equivocates and, therefore, does not meet the requirements of Rule 56(e) that an affidavit "be made on personal knowledge" and "show affirmatively that the affiant is competent to testify to the matters stated therein." Rule 56(e)'s personal knowledge requirements prevents such statement "from raising genuine issues of fact sufficient to defeat summary judgment." Pace v. Capobiano, 283 F.3d 1275, 1278-79 (11th Cir. 2002). Accordingly, Plaintiff's statement of facts and declaration cannot be considered in response to Defendants' summary judgment motion”)