In this episode, Jim Garrity discusses deposition protocol stipulations, which are agreements between the parties that establish the framework for noticing and conducting depositions. They're common in class-action and multi-district cases, but they're useful - and underutilized - in ordinary litigation as well. They can also be used to create internal deposition guidelines for law firms and legal organizations. Jim lists about three dozen common provisions in such agreements and offers practice tips on proposing and implementing them. Have a listen!

SHOW NOTES

Stipulation and Order Governing Protocol for Fact Depositions and Rule 30(b)(6)/PMQ Depositions [CM/ECF Doc. 742), In re Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, Case No. 4:22-md-03047-YGR (S. D. Cal. April 3, 2024) (36 pages)Protocol Governing Depositions, Dennis, et al. v. JPMorgan Chase & Co., et al., Case No. 1:16-cv-6496 (S. D. N. Y. June 23, 2020) [CM/ECF Doc. 419-1) (14 pages)

Stipulation And Order Regarding Remote Depositions [CM/ECF Doc. 108], FTC v. Tapestry, Inc., et al., Case No. 1:24-cv-03109 (S. D. N. Y. June 6, 2024) (15 pages)

Stipulation And [Proposed] Order Regarding Remote Depositions, In the Matter of Tapestry Inc., A Corp., & Capri Holdings Ltd., A Corp., Respondents., No. 9429, 2024 WL 3203213 (MSNET June 13, 2024) (related proceeding before Federal Trade Commission) (11 pages)

Deposition Protocol Order, In Re Terrorist Attacks on September 11, 2001, Case No. 1:03-md-01570-GBD-SN (S. D. N. Y. January 31, 2018) [CM/ECF Doc. 3894) (15 pages)

Fed. R. Civ. P. 29(a) (rule on discovery stipulations between parties)

Episode 22, FRCP 29(a) Stipulations: A Way to Save Time, Money & Headaches, 10,000 Depositions Later Podcast, released December 25, 2020 (30 minutes)

Our depo case digest episodes present a fast roundup of new deposition-related rulings nationwide. Today: (1) Two new rulings on relevance as a basis to instruct a witness not to answer a question, or to halt the deposition for purposes of seeking a protective order; (2) A ruling about a clever way to assure testimony is admissible when you use leading questions in deposing a witness considered "hostile" under rules of evidence; and (3) A case on excluding parties from depositions when their presence may traumatize deponents.

All cases mentioned in this episode are cited in the show notes, with helpful parentheticals. Can't see all the cases? Not all podcast sites allow lengthy show notes. Click through to our home page, where the full notes are always accessible. Thanks for listening!

SHOW NOTES:

Delgado v. Donald J. Trump for President, Inc., et al., No. 19-CV-11764 (AT) (KHP), 2024 WL 3219809, (S.D.N.Y. June 28, 2024) (order denying pro se plaintiff’s motion to compel certain answers that non-party deponent declined to answer following instruction by counsel based on relevance)

Keplar v. Google, LLC, 346 F.R.D. 41, 51 (N.D. Tex. Mar. 8 2024) (“if counsel’s questions go so far beyond the realm of possible revenue relevance where the deposition is being conducted in an abusive manner, i.e., in bad faith or in a manner that unreasonably annoys, embarrasses or oppresses the deponent or party, then it would be permissive to instruct the deponent not to answer and move for a protective order")

Jenkins v. Miller, No. 2:12-CV-184, 2024 WL 3220349, at *2 (D. Vt. Jan. 2, 2024) While the Court cannot issue a general a ruling at this time, it acknowledges that Miller will likely be an important witness for all parties. The Court will therefore make itself available on January 18, 2024, the date on which the deposition is scheduled to take place, to issue rulings as necessary. Plaintiff's motion for leave to ask leading questions (ECF No. 745) is therefore denied at this time without prejudice, and may be renewed at the time of the deposition and/or thereafter as necessary.

Austin v. Fordham University, et al, No. 23 CIV. 4696 (JLR) (GS), 2024 WL 3161854, at *4 (S.D.N.Y. June 25, 2024) (“The Court grants Austin's motion for a protective order preventing Sweeney from attending Austin's deposition in person. However, Sweeney may be present in the same location where the deposition is taken (but in a different office) and permitted to see and hear the deposition in real time via a one-way remote video feed. Sweeney's counsel may consult with his client during normal breaks in the testimony and may also leave the deposition room when he deems it necessary to consult with his client during the deposition”)

Luce v. United States, 469 U.S. 38, 41, 105 S. Ct. 460, 463, 83 L. Ed. 2d 443 (1984) (“Although the Federal Rules of Evidence do not explicitly authorize in limine rulings, the practice has developed pursuant to the district court's inherent authority to manage the course of trials. See generally Fed.Rule Evid. 103(c).”)

Fed.R.Evid. 611(c) (rule allowing the use of leading questions during what would otherwise be direct examination upon a showing the witness meets the test of hostility)

Fed. R. Civ. P. 26(b)(1) (general discovery rule on allowing discovery "regarding any nonprivileged matter that is relevant...")

Fed. R. Civ. P. 26(c)(1) (rule on grounds for protective orders)

Fed. R. Civ. P. 30(d)(3)(A) (rule on terminating depositions for purposes of seeking protective orders)

As a result of listener requests, today we add a new kind of show—the Depo Digest episode—to our podcast. These new segments will supplement the regular single-topic deep dives for which we're known. The Depo Digest installments, in contrast, will quickly highlight three or four brand-new rulings of interest to you as a litigator. Jim Garrity explains that our team reviews more than 500 deposition-related rulings weekly. Not all justify a full episode by themselves, but many are still of real practical value. So we're passing these along to you in digest form, yet another powerful tool to help you stay at the top of your deposition game. We heard you, and we're acting on your excellent suggestion. Thanks!

SHOW NOTES

Burton v. United States of America, Case No. 1:18-CV-02039 (JHR) (SDA), 2024 WL 305-6940 (S. D. New York June 19, 2024) (finding that 2015 amendments to FRCP 30(b)(6), requiring conferral, can be read to require disclosure of corporate designees and their resumes prior to deposition to facilitate “the efficiency and productivity of the deposition”)

In re Chrysler Pacifica Fire Recall Products Liability Litigation MDL, No. 22-3040, 2024 WL 3048495 (E.D. Mich. June 18, 2024) (finding that routine inconvenience and expense of traveling to forum for deposition is not “good cause” justifying protective order allowing plaintiffs to appear for deposition by remote video)

Williams, et al. v. J.B. Hunt Transport, Inc., No. CV-20-01701 PSG, 2024 WL 2108841 (C.D. Calif. Apr. 30, 2024) (order rejecting taxability of court reporter convenience add-ons for litigation packages, logistics and processing, concierge tech support, and virtual primary participants)