The federal rules and their state equivalents do not authorize reporters to designate a method of recording. But one national court reporting conglomerate has just instructed its reporters to begin videotaping remote depositions as a matter of course, purportedly as "backup media." But given the absence of regulation regarding reporter backup recordings, what should you do to protect your deponents against the use, misuse or even sale of backup video recordings? (At least one reporting organizat...
Sep 15, 2023•23 min•Ep. 127
In today's episode, Jim Garrity discusses the ongoing seismic shift in judicial views about remote video depositions, as reflected in a court ruling four days ago. There, a judge refused to order a plaintiff to travel to the jurisdiction for an in-person deposition. The judge's reasoning? The sharp improvement in technology has made video depositions the functional equivalent, and credibility assessments can be made just as well remotely as in person. Listen in for the details, and for practice ...
Sep 02, 2023•30 min•Ep. 126
In this episode, Jim covers the problem of opposing lawyers who provide little or no notice of their plan to videotape your client's depositions, and explains the procedure for dealing with this kind of ambush. SHOW NOTES Chawla v. Metro. Oral Surgery Associates, P.C., 2014 WL 4678023, Case No. 11-CV-6248 RRM VMS (E.D.N.Y. Sept. 19, 2014) (criticizing plaintiff’s complaint about one days’ notice by defense of intention to videotape deposition, where original notice was served more than a month e...
Aug 25, 2023•18 min
Can you issue a trial subpoena under Fed. R. Civ. P. 45 (or its state equivalents) not to a named person, but instead to a 30(b)(6)-style "Corporate Representative" and attach a list of topics? In this episode, Jim Garrity outlines the leading cases on point and discusses the arguments pro and con. The Show Notes below include a list of the cases upon which this episode is based, as well as a cite to an actual subpoena issued in this manner and the Motion to Quash that the subpoena triggered. (R...
Aug 08, 2023•13 min•Ep. 124
In this episode, Jim Garrity steps up to the plate to take a swing at a controversial tactic: using a request for production to demand an opponent turn over, free, copies of transcripts of depositions taken in the pending case. Is it forbidden by Fed. R. Civ. P. 34 and its state analogues? Is it fair to court reporters and opposing counsels? Does fairness have a role if it's permitted by rule? Get the lowdown, practice tips, and supporting authorities in the Show Notes below. Thanks for listenin...
Aug 02, 2023•31 min•Ep. 123
In this episode, Jim Garrity talks about a new federal appellate decision that affirmed severe sanctions against a party whose lone designated 30(b)(6) representative largely read from lengthy, lawyer-scripted statements, and who was often unable to answer questions without regurgitating the prewritten information. The “scripts” ran hundreds of pages, and the witness sometimes read from them for as much as 45 minutes at a time. Memory aids or notes are an acceptable testimonial aid for 30(b)(6) ...
Jun 21, 2023•18 min•Ep. 122
In this episode, Jim reviews the force-multiplier capabilities of CaseText's new AI-powered software known as Co-Counsel, introduced just 90 days ago. One of its features is "Prepare for a Deposition," which allows litigators to generate a theoretically-unlimited number of deposition topics and questions. Our initial take? It could be a phenomenal and cost-effective tool in your deposition practice. We took a seven-day test run of the software (link below) and now report the results and many cre...
May 20, 2023•27 min•Ep. 121
Many courts have held that a lawyer who makes a technically-improper objection waives the objection. This often arises in jurisdictions where a form objection must include the legal basis (e.g., "Form, compound"). But since a defective objection could be cured during the deposition upon notice, must the examining lawyer object to the objection to lock in the waiver? Fed. R. Civ. P. 32(d)(3)(B) says objections to any errors or irregularities during a deposition are waived unless a timely objectio...
May 17, 2023•16 min•Ep. 117
In this episode, Jim Garrity discusses a brand new court ruling where a judge held that requests to review a transcript before it's finalized must be made before the deposition is completed, failing which the request is untimely, even if made immediately after the deposition concludes. The order says defense counsel claimed to make the "read request" after the reporter announced "We're off the record" but while the reporter and all counsel were still logged in on a Zoom link. Even so, the court ...
Apr 30, 2023•14 min•Ep. 121
In this episode, Jim Garrity discusses the “good cause” standard for seeking a protective order limiting the use of deposition transcripts and recordings beyond the pending case. Some judges continue to misapply the applicable standard for such protective orders. Garrity talks about one such ruling, just issued, that once again applied an outdated and legally erroneous standard. Given the ease with which deposition transcripts and recordings can be instantly posted online - and in light of the f...
Apr 22, 2023•17 min•Ep. 118
In this episode, Jim Garrity tackles the frequent problem of repetitive questions in depositions, and answers the questions "How many of the same questions is too many? What factors should I consider in deciding whether the repetition has transitioned into harassment? And at that point, what do I do?" As always, Jim offers practice tips, identifies the legal grounds for "asked and answered" objections and for instructing deponents not to answer repetitious questions. And don't forget the show no...
Apr 12, 2023•29 min•Ep. 117
In this episode, Jim explains why you'd be well-served to download and use OpenAI's ChatGPT software in your deposition practice, both beforehand and on the fly during depositions. He also offers numerous examples to help you understand how this stunning advance in artificial intelligence can sharpen your skills, whether taking or defending.
Mar 19, 2023•16 min•Ep. 116
In this episode, Jim Garrity and the publisher announce a $5,000 book giveaway - of the newly-release 4th edition of 10,000 Depositions Later - exclusively for our podcast listeners. Garrity explains how to score your free copy of the $70 book in this short episode.
Mar 09, 2023•8 min•Ep. 115
Ever run into deponents who pretend they don't understand even the simplest questions? Of course you have. (Who hasn't?) Today, Jim Garrity explains why you might not want to continue rewording questions for such slippery deponents, instead using their sham "confusion" against them to attack their credibility (or even to seek sanctions). SHOW NOTES Skyline Advanced Tech. Servs. v. Shafer, No. 18-CV-06641-CRB-RMI, 2020 WL 13093877, at *4 (N. D. Cal. July 14, 2020), report and recommendation adopt...
Mar 04, 2023•10 min•Ep. 114
In this episode, Jim Garrity addresses the risk of instant privilege loss - attorney-client, work-product, or any other privilege - in depositions, absent immediate objection and an instruction not to answer (and an immediate demand for return of privileged documents, if applicable). He discusses a decision where a court found that a plaintiff waived the attorney-client privilege by answering just three questions over two minutes, because there had been no objection or instruction not to answer ...
Feb 22, 2023•17 min•Ep. 113
How often are lawyers, deponents, and other participants surreptitiously recording depositions, including conversations during breaks that are meant to be private or privileged? Jim Garrity reports on this troubling conduct and surmises that it happens a lot more than many realize. As always, Garrity offers practice tips at the end of the episode, and our research on the topic appears in the show notes below. Thanks for listening! SHOW NOTES Defendant’s Second Motion for Terminating Sanctions (f...
Feb 16, 2023•24 min•Ep. 112
In this episode, Jim Garrity discusses a new summary judgment ruling against a company based in part on testimony by its 30(b)(6) designee that was outside the scope of the designee's topics. The ruling highlights the risk of choosing designees who possess personal knowledge well beyond the topics about which they will testify. Garrity offers practice tips for litigators on both sides of this issue - for those who select, prepare, and defend 30(b)(6) designees, and for those who schedule and dep...
Dec 30, 2022•19 min•Ep. 111
In this episode Jim Garrity tackles the propriety of a question often heard in depositions when the deponent has just contradicted the testimony of another witness: "Are you calling them a liar?" Is this objectionable? If so, what's the objection? If it's objectionable and you don't object, is it per se reversible error? Is there a better way to ask the question? So many questions, so little time. But Jim answers them all and more, in just 13 1/2 minutes. (And speaking of time, do you have time ...
Dec 16, 2022•14 min•Ep. 110
In this episode, Jim Garrity continues his advocacy for litigators’ active management of every facet of their depositions, this time focusing on two sorely-neglected components of video depositions: background and lighting. Today he talks about ways to gain control of these two elements. He also tells you where we buy our backgrounds and portable lighting, and offers to send you images showing how we set up the lights, and the before-and-after look of the lights on a sample deponent. SHOW NOTES ...
Nov 18, 2022•16 min•Ep. 109
In this episode, Jim Garrity alerts you to a federal decision where the judge catalogued thirty-two factors that courts should consider in resolving disputes about where depositions should take place. It's an excellent decision to have in your arsenal. To this list, Garrity lists several more common location-related things to consider. SHOW NOTES: DeepGulf, Inc. v. Moszkowski, 330 F.R.D. 600 (N. D. Fla. Jan. 30, 2019) (listing 32 factors judges should consider when resolving disputes about where...
Oct 31, 2022•8 min•Ep. 108
If you're like most litigators, you now regularly issue subpoenas that command the deponent to appear “Via Zoom Videoconference,” or something similar. In this episode, Jim Garrity explains why doing that - rather than listing a physical location for the deposition - may render your subpoena fatally defective and unenforceable. SHOW NOTES Order Denying Plaintiffs Motion to Compel General Dynamics’ Compliance with Subpoena, Fed. Ins. Co. v. Tungsten Heavy Powder & Parts, Inc., No. 21CV1197-W-...
Oct 20, 2022•5 min•Ep. 107
In this episode, Jim Garrity offers up a clever idea for turning your skills in choosing 30(b)(6) designees into a deposition superpower. On the flip side, Garrity shares ideas on how to use this same principle to gain compliance from organizations that resist and delay your efforts to set corporate representative depositions. As always, the research on which this episode is based appears in the show notes below. Last point: Do you have 60 seconds to leave us a 5-star review, wherever you get yo...
Oct 14, 2022•11 min•Ep. 106
Today's we cover a fascinating topic: What to do when your party opponents assert a Fifth Amendment or similar privilege in their deposition? Unlike diamonds, privileges aren't necessarily forever. Your opponent can later drop, withdraw, or waive an assertion of privilege. And many litigants do, indeed, try to gain unfair advantage by eleventh-hour waivers, surprising adversaries with previously-shielded information. In this episode, Jim Garrity outlines the problem, and identifies six specific ...
Oct 03, 2022•17 min•Ep. 105
In this episode, Jim Garrity addresses the problem caused by litigators who repeatedly interrupt your deponents’ answers, potentially resulting in a transcript full of half answers. It's a common and serious headache for defending lawyers, and you can only fix the problem one of two ways - either during the deposition, or through an errata sheet. Garrity explains the pluses and minuses of using an errata sheet to complete interrupted answers, and tells you what courts have to say about that appr...
Sep 19, 2022•22 min•Ep. 104
In this episode, Jim Garrity spotlights a 107-page ruling, issued just three days ago, that offers a sharp reminder about the consequences to deponents who claim memory failure and who then follow up, at summary judgment time, with affidavits or errata sheets containing fantastically-improved recollections of key details. Garrity also discusses another brand-new ruling, likewise issued three days ago, that makes the same point. As always, he offers practical tips and insights - here, to help you...
Sep 04, 2022•20 min•Ep. 103
There's definitely a right and a wrong way to terminate or suspend a deposition in progress on the grounds it is being conducted in bad faith, or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent or party. In this episode, Jim Garrity spotlights a new court ruling imposing sanctions against a party who failed to do it correctly. As always, Garrity offers you practical guidance, here about exactly how to suspend or terminate a deposition and seek court relief in a way t...
Aug 24, 2022•12 min•Ep. 102
In this episode, Jim Garrity talks about dealing with document requests included within a Notice of Deposition Duces Tecum, and how to determine (a) the due date for service of your responses and objections to those document requests, regardless of the actual upcoming deposition date, and (b) the due date for the actual production of responsive documents. As always, we genuinely appreciate your listenership. If you have a moment, would you please add a five-star rating wherever you get your podc...
Aug 14, 2022•18 min•Ep. 101
In this episode, Jim Garrity explains how to seek an order limiting the duration of an upcoming deposition, including the rules you'll rely on and the arguments you'l make (for or against, depending). Occasionally, it's obvious that certain deponents - high-level officials, spouses, children, or privilege-bearing witnesses, to name just a few - have limited knowledge or involvement. If so, a deposition spanning a full day or more simply cannot serve a legitimate purpose. That's when it's time to...
Jul 31, 2022•17 min•Ep. 100
In this episode, Jim Garrity answers a frequent question he gets about Fed. R. Civ. P. 30's seven-hour time limit, namely, "The noticing lawyer questioned the witness for the full seven hours, so wasn't I still entitled to conduct my cross examination?" As always, he concludes the episode with excellent practice tips, here arguments to use when you need more time, and points to make when you're opposing such a request. Thanks for listening! SHOW NOTES: Tankersley v. MGM Resorts International and...
Jul 24, 2022•22 min•Ep. 99
In this episode, Jim Garrity explains the pitfalls in defending against – or in asking - the common wrap-up question “Have you now told me everything that supports your claims?” (or defenses, as applicable). A deponent who is unprepared for this question is likely to foreclose any opportunity to add additional information. On the other hand, a lawyer who asks this question at the very end of a deposition may open a Pandora's box that cannot be closed. Garrity addresses the situation, as always, ...
Jul 08, 2022•11 min•Ep. 98