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Rules 26 – 37: formal methods of discovery (following preliminary investigation, filing, required
initial disclosures, and discovery planning)
Each side entitled to 10 depos – 7hrs each not including breaks
“Over 98% of all civil cases now resolve without being tried. When a litigator questions a witness
today, it is far more likely to be in a law office at a deposition than in a courtroom at trial.”
“in presenting a client, a lawyer shall not communicate about the subject of representation with a
person the lawyer knows to be represented by another lawyer in the matter unless the lawyer has
the consent of the lawyer or is authorized to do so by a court…” MEP
Depositions are just like trial examinations, but taken subject to objections
 The examinations and cross-examination of a deponent proceed as they would at trial under the
Fed. Rules of Evidence, except Rules 103 and 615. FRCP 30(c)(1)
 An objection at the time of the examination – whether to evidence, to a party’s conduct, to the
officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the
deposition – must be noted on the record, but the examination still proceeds; the testimony is
taken subject to any objection.” FRCP 30(c)(2)
 If objection, instructed not to answer if answer would divulge privileged information
Depositions
 Examination under oath: oral or written questions
 Notice be combined with a request for documents
 Can be taken of any “person”: party or non-parties
 Examination proceeds subject to objections, which are noted on the record
 The witness must answer the questions, subject to instructions not to answer
 Testimony can be offered in evidence
 Testimony can be used for impeachment
 Admissibility determined when offered in evidence
Depo Seating:
Certified short hand reporter
Witness
Defender
Depo-Taker (examiner)
Scoops Case
 Scoops = single dip ice cream shop; also sells its premium ice cream in bulk
 Scoops (founder and owner = Leslie Roberts) has an opportunity to expand its business, but
needs line of credit in order to sell ice cream in bulk
 Business Aid Inc. = plaintiff
 Denied line of credit. Leslie prepares accounting statement that under values her business
(accounted for equipment purchased as line item expense
 Leslie: told business Aid and Frank Fuller (employee) what I needed, and they sold me
accounting software that undervalued my business
 Business Aid: Leslie came in told me what she needed, and I sold her appropriate software
based on what she told me her needs were
Leslie’s claim: negligent misrepresentation of product without due care because employee sold wrong
product. Also breach of warranty/ implied warranty
Video: What did Leslie tell Business Aid she needed?
 Goals/objectives & techniques of taker (examiner)’s questions
o Admission / fact
o Discovery – what was said
o Establish rapport; got talking
o Gain control; make uncomfortable
o Discovery (1) people (2) docs – authors and recipients (witnesses)
o Test opposing counsel – “push limits”
o Assessing defender – knows rules; relationship with witness
o Assessing witness credibility/ quality; prep and relationship quality; sympathy
o Aware of the record objections
o Closure – “no surprises”
 Goals and techniques of defender
 Taker reactions incl. do nothing
 Witness preparation