“Rules” for taking a Client Deposition

A deposition is simply the out-of-court oral testimony of any witness under oath for discovery purposes or for use in court. Some states, such as New York, refer to deposition as an “examination before trial,” which aptly describes their purpose. A deposition allows opposing counsel a chance to question a witness prior to trial.

If you or someone you know has filed a Mesothelioma lawsuit, it is likely that depositions will be scheduled.  Depositions allow a claimant to discuss relevant work history and asbestos product identification. 

Under the Federal Rules of Civil Procedure, Rule 30, which the majority of states have adopted to some degree, the number of depositions each side can take is limited to 10 and the deposition of any one deponent is limited to 1 day and 7 hours.

Fed. R. Civ. R. 26(c)(1) states that “the Court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”  Additionally, a court may also preclude a deposition “due to a witness’ failing health or the overly burdensome nature of the request,… particularly where the information is believed to be obtainable from another source.” Ahrens v. Ford Motor Co., 340 F.3d 1142, 1147 (10th. Cir. 2003).  Moreover, under Fed. R. Civ. P. 26(b)(2) a Court may limit the scope of a deposition:

(c) When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

When a case is in state court the rules regarding depositions will vary by venue.

According to Rhode Island Superior Court Civil Rule, Rule 30(d)(2), the court may limit the time permitted for a deposition.  “If  the court finds such an impediment, delay, or other conduct that has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.”

In Connecticut, the court has authority to limit the time available for deposition upon a showing of good cause.  Connecticut Superior Court Civil Rules  §13-27 (e). Additionally, on a showing of bad faith or information that the examination is being conducted so as to annoy, embarrass or oppress the deponent, the court may even terminate the deposition. Conn. Sup. Ct. Civ. Rules 13-30(c).

Some states have implemented strict time limitations.  For example:

  1. Texas.  Plaintiff’s depositions are limited to 6 hours in asbestos cases;
  2. New Jersey.  Plaintiff’s deposition cannot go more than two full days without approval from a Special Master via an Application by telephone;
  3. Oklahoma.  Follows the federal rule and limits depositions to 7 hours;
  4. District of Columbia & Maryland.  Unless otherwise authorized or stipulated, depositions are limited to one seven hour day;
  5. Illinois.  Limits all depositions to three hours absent court authority; and
  6. California.  A new State bill (AB 1875) signed into law last month, would limit depositions to 7 hours absent the court’s permission to extend the limit for complex cases.

Despite the time investment necessary for a successful deposition, the witness’ health should always remain the top priority.  Depositions should always be scheduled so as not to conflict with medical appointments or treatments.  Attorneys should schedule depositions at your home or place of care and strive  to place reasonable time restraints on each day of testimony.

During a deposition counsel may ask any question which may lead to the discovery of admissible evidence. A question, therefore, need not be admissible, but only relevant, in order to pass this burden.

In Mesothelioma lawsuits, relevant areas of questioning may include:  past medical history, employment history, history of residences and/or vehicles owned, family work histories and even the activities and hobbies a person frequently engages in.  

Counsel may issue several objections over the course of a deposition. In most jurisdictions, the types of objections allowable at a deposition are limited to a couple of categories, such as:  form of the question, asked and answered, mischaracterizing testimony of the witness and, of course, counsel may object whenever they feel the questioning attorney is harassing the witness. Despite these objections, unless specifically directed not to answer a question, the witness will still need to respond to the question posed.

When undergoing a deposition it is important that the witness is confident that they understand the question posed. There is an assumption that when a witness answers a question under oath that they understood the question. Whenever a question is unclear or confusing, a witness may ask for clarification.

It is important to remember that a deposition is under oath. At the beginning of a deposition, a court reporter will ask the witness to raise their right hand and swear to the truthfulness of their statements. For a fact witness, as opposed to an expert witness, questions will be straightforward and call on the witness’s personal recollection. Therefore, when questioned about areas outside of the witness’s personal knowledge it is perfectly acceptable to answer, “I don’t know.”

Going through a deposition can be an interesting process that refreshes the memory of the witness regarding events they have not considered for many years.  Although time consuming, going through the effort of preparing for and taking a deposition can be of great financial benefit to your Mesothelioma lawsuit.