LEXSTAT USCS FED RULES CIV PROC R 30
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FEDERAL RULES OF CIVIL PROCEDURE
V. DEPOSITIONS AND DISCOVERY
USCS Fed Rules Civ Proc R 30 (2004)
Review expert commentary from The National Institute for Trial Advocacy
Review Court Orders which may amend this Rule.
Rule 30. Depositions Upon Oral Examination
(a) When Depositions May Be Taken; When Leave Required.
(1) A party may take the testimony of any person, including a party, by deposition upon oral examination without
leave of court except as provided in paragraph (2). The attendance of witnesses may be compelled by subpoena as
provided in Rule 45.
(2) A party must obtain leave of court, which shall be granted to the extent consistent with the principles stated in
rule 26(b)(2), if the person to be examined is confined in prison or if, without the written stipulation of the parties,
(A) a proposed deposition would result in more than ten depositions being taken under this rule or Rule 31 by the
plaintiffs, or by the defendants, or by third-party defendants;
(B) the person to be examined already has been deposed in the case; or
(C) a party seeks to take a deposition before the time specified in Rule 26(d) unless the notice contains a
certification, with supporting facts, that the person to be examined is expected to leave the United States and be
unavailable for examination in this country unless deposed before that time.
(b) Notice of Examination: General Requirements; Method of Recording; Production of Documents and Things;
Deposition of Organization; Deposition by Telephone.
(1) A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in
writing to every other party to the action. The notice shall state the time and place for taking the deposition and the
name and address of each person to be examined, if known, and, if the name is not known, a general description
sufficient to identify the person or the particular class or group to which the person belongs. If a subpoena duces tecum
is to be served on the person to be examined, the designation of the materials to be produced as set forth in the subpoena
shall be attached to, or included in, the notice.
(2) The party taking the deposition shall state in the notice the method by which the testimony shall be recorded.
Unless the court orders otherwise, it may be recorded by sound, sound-and-visual, or stenographic means, and the party
taking the deposition shall bear the cost of the recording. Any party may arrange for a transcription to be made from the
recording of a deposition taken by nonstenographic means.
(3) With prior notice to the deponent and other parties, any party may designate another method to record the
deponent's testimony in addition to the method specified by the person taking the deposition. The additional record or
transcript shall be made at that party's expense unless the court otherwise orders.
(4) Unless otherwise agreed by the parties, a deposition shall be conducted before an officer appointed or designated
under Rule 28 and shall begin with a statement on the record by the officer that includes (A) the officer's name and
business address; (B) the date, time and place of the deposition; (C) the name of the deponent; (D) the administration of
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the oath or affirmation to the deponent; and (E) an identification of all persons present. If the deposition is recorded
other than stenographically, the officer shall repeat items (A) through (C) at the beginning of each unit of recorded tape
or other recording medium. The appearance or demeanor of deponents or attorneys shall not be distorted through
camera or sound-recording techniques. At the end of the deposition, the officer shall state on the record that the
deposition is complete and shall set forth any stipulations made by counsel concerning the custody of the transcript or
recording and the exhibits, or concerning other pertinent matters.
(5) The notice to a party deponent may be accompanied by a request made in compliance with Rule 34 for the
production of documents and tangible things at the taking of the deposition. The procedure of Rule 34 shall apply to the
request.
(6) A party may in the party's notice and in a subpoena name as the deponent a public or private corporation or a
partnership or association or governmental agency and describe with reasonable particularity the matters on which
examination is requested. In that event, the organization so named shall designate one or more officers, directors, or
managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated,
the matters on which the person will testify. A subpoena shall advise a non-party organization of its duty to make such a
designation. The persons so designated shall testify as to matters known or reasonably available to the organization.
This subdivision (b)(6) does not preclude taking a deposition by any other procedure authorized in these rules.
(7) The parties may stipulate in writing or the court may upon motion order that a deposition be taken by telephone
or other remote electronic means. For the purposes of this rule and Rules 28(a), 37(a)(1), and 37(b)(1), a deposition
taken by such means is taken in the district and at the place where the deponent is to answer questions.
(c) Examination and Cross-Examination; Record of Examination; Oath; Objections. Examination and
cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of
Evidence except Rules 103 and 615. The officer before whom the deposition is to be taken shall put the witness on oath
or affirmation and shall personally, or by someone acting under the officer's direction and in the officer's presence,
record the testimony of the witness. The testimony shall be taken stenographically or recorded by any other method
authorized by subdivision (b)(2) of this rule. All objections made at the time of the examination to the qualifications of
the officer taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to
any other aspect of the proceedings shall be noted by the officer upon the record of the deposition; but the examination
shall proceed, with the testimony being taken subject to the objections. In lieu of participating in the oral examination,
parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the
deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
(d) Schedule and Duration; Motion to Terminate or Limit Examination.
(1) Any objection during a deposition must be stated concisely and in a non-argumentative and non-suggestive
manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a
limitation directed by the court, or to present a motion under Rule 30(d)(4).
(2) Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven
hours. The court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the
deponent or if the deponent or another person, or other circumstance, impedes or delays the examination.
(3) If the court finds that any impediment, delay, or other conduct 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.
(4) At any time during a deposition, on motion of a party or of the deponent and upon a showing that the examination
is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or
party, the court in which the action is pending or the court in the district where the deposition is being taken may order
the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner
of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it may be
resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party
or deponent, the taking of the deposition must be suspended for the time necessary to make a motion for an order. The
provisions of Rule 37(a)(4) apply to the award of expenses incurred in relation to the motion.
(e) Review by Witness; Changes; Signing. If requested by the deponent or a party before completion of the deposition,
the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to
review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such
changes and the reasons given by the deponent for making them. The officer shall indicate in the certificate prescribed
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by subdivision (f)(1) whether any review was requested and, if so, shall append any changes made by the deponent
during the period allowed.
(f) Certification and Delivery by Officer; Exhibits; Copies.
(1) The officer must certify that the witness was duly sworn by the officer and that the deposition is a true record of
the testimony given by the witness. This certificate must be in writing and accompany the record of the deposition.
Unless otherwise ordered by the court, the officer must securely seal the deposition in an envelope or package indorsed
with the title of the action and marked "Deposition of [here insert name of witness]" and must promptly send it to the
attorney who arranged for the transcript or recording, who must store it under conditions that will protect it against loss,
destruction, tampering, or deterioration. Documents and things produced for inspection during the examination of the
witness must, upon the request of a party, be marked for identification and annexed to the deposition and may be
inspected and copied by any party, except that if the person producing the materials desires to retain them the person
may (A) offer copies to be marked for identification and annexed to the deposition and to serve thereafter as originals if
the person affords to all parties fair opportunity to verify the copies by comparison with the originals, or (B) offer the
originals to be marked for identification, after giving to each party an opportunity to inspect and copy them, in which
event the materials may then be used in the same manner as if annexed to the deposition. Any party may move for an
order that the original be annexed to and returned with the deposition to the court, pending final disposition of the case.
(2) Unless otherwise ordered by the court or agreed by the parties, the officer shall retain stenographic notes of any
deposition taken stenographically or a copy of the recording of any deposition taken by another method. Upon payment
of reasonable charges therefor, the officer shall furnish a copy of the transcript or other recording of the deposition to
any party or to the deponent.
(3) The party taking the deposition shall give prompt notice of its filing to all other parties.
(g) Failure to Attend or to Serve Subpoena; Expenses.
(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party
attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such
other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable
attorney's fees.
(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness
and the witness because of such failure does not attend, and if another party attends in person or by attorney because
that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to
such other party the reasonable expenses incurred by that party and that party's attorney in attending, including
reasonable attorney's fees.
HISTORY: (Amended July 1, 1963; July 1, 1970; July 1, 1971; July 1, 1975; Aug. 1, 1980; Aug. 1, 1987; Dec. 1,
1993.)
(As amended Dec. 1, 2000.)
HISTORY; ANCILLARY LAWS AND DIRECTIVES
Other provisions:
Notes of Advisory Committee on Rules. Note to Subdivision (a). This is in accordance with common practice. See
USC, Title 28, former § 639 (Depositions de bene esse; when and where taken; notice), the relevant provisions of
which are incorporated in this rule; Calif Code Civ Proc (Deering, 1937) § 2031; and statutes cited in respect to notice
in the Note to Rule 26(a). The provision for enlarging or shortening the time of notice has been added to give flexibility
to the rule.
Note to Subdivisions (b) and (d). These are introduced as a safeguard for the protection of parties and deponents on
account of the unlimited right of discovery given by Rule 26.
Note to Subdivisions (c) and (e). These follow the general plan of former Equity Rule 51. (Evidence Taken Before
Examiners, Etc.) and USC, Title 28, former § 640 (Depositions de bene esse; mode of taking), and former § 641
(Same; transmission to court), but are more specific. They also permit the deponent to require the officer to make
changes in the deposition if the deponent is not satisfied with it. See also former Equity Rule 50
(Stenographer--Appointment--Fees).
Note to Subdivision (f). Compare former Equity Rule 55 (Depositions Deemed Published When Filed).
Note to Subdivision (g). This is similar to 2 Minn Stat (Mason, 1927) § 9833, but is more extensive.
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USCS Fed Rules Civ Proc R 30
Notes of Advisory Committee on 1963 amendments. This amendment corresponds to the change in Rule 4(d)(4). See
the Advisory Committee's Note to that amendment.
Notes of Advisory Committee on 1970 amendments. Subdivision (a). This subdivision contains the provisions of
existing Rule 26(a), transferred here as part of the rearrangement relating to Rule 26. Existing Rule 30(a) is transferred
to 30(b). Changes in language have been made to conform to the new arrangement.
This subdivision is further revised in regard to the requirement of leave of court for taking a deposition. The present
procedure, requiring a plaintiff to obtain leave of court if he serves notice of taking a deposition within 20 days after
commencement of the action, is changed in several respects. First, leave is required by reference to the time the
deposition is to be taken rather than the date of serving notice of taking. Second, the 20-day period is extended to 30
days and runs from the service of summons and complaint on any defendant, rather than the commencement of the
action. Cf. Ill S Ct R 19-1, S-H Ill Ann Stat § 101.19-1. Third, leave is not required beyond the time that defendant
initiates discovery, thus showing that he has retained counsel. As under the present practice, a party not afforded a
reasonable opportunity to appear at a deposition, because he has not yet been served with process, is protected against
use of the deposition at trial against him. See Rule 32(a), transferred from 26(d). Moreover, he can later redepose the
witness if he so desires.
The purpose of requiring the plaintiff to obtain leave of court is, as stated by the Advisory Committee that proposed
the present language of Rule 26(a), to protect "a defendant who has not had an opportunity to retain counsel and inform
himself as to the nature of the suit." Note to 1948 amendment of Rule 26(a), quoted in 3A Barron and Holtzoff, Federal
Practice and Procedure 455-456 (Wright ed 1958). In order to assure defendant of this opportunity, the period is
lengthened to 30 days. This protection, however, is relevant to the time of taking the deposition, not to the time that
notice is served. Similarly, the protective period should run from the service of process rather than the filing of the
complaint with the court. As stated in the note to Rule 26(d), the courts have used the service of notice as a convenient
reference point for assigning priority in taking depositions, but with the elimination of priority in new Rule 26(d) the
reference point is no longer needed. The new procedure is consistent in principle with the provisions of Rules 33, 34,
and 36 as revised.
Plaintiff is excused from obtaining leave even during the initial 30-day period if he gives the special notice provided
in subdivision (b)(2). The required notice must state that the person to be examined is about to go out of the district
where the action is pending and more than 100 miles from the place of trial, or out of the United States, or on a voyage
to sea, and will be unavailable for examination unless deposed within the 30-day period. These events occur most often
in maritime litigation, when seamen are transferred from one port to another or are about to go to sea. Yet, there are
analogous situations in nonmaritime litigation, and although the maritime problems are more common, a rule limited to
claims in the admiralty and maritime jurisdiction is not justified.
In the recent unification of the civil and admiralty rules, this problem was temporarily met through addition in Rule
26(a) of a provision that depositions de bene esse may continue to be taken as to admiralty and maritime claims within
the meaning of Rule 9(h). It was recognized at the time that "a uniform rule applicable alike to what are now civil
actions and suits in admiralty" was clearly preferable, but the de bene esse procedure was adopted "for the time being at
least." See Advisory Committee's note in Report of the Judicial Conference: Proposed Amendments to Rules of Civil
Procedure 43-44 (1966).
The changes in Rule 30(a) and the new Rule 30(b)(2) provide a formula applicable to ordinary civil as well as
maritime claims. They replace the provision for depositions de bene esse. They authorize an early deposition without
leave of court where the witness is about to depart and, unless his deposition is promptly taken, (1) it will be impossible
or very difficult to depose him before trial or (2) his deposition can later be taken but only with substantially increased
effort and expense. Cf. S. S. Hai Chang, 1966 AMC 2239 (SD NY 1966), in which the deposing party is required to
prepay expenses and counsel fees of the other party's lawyer when the action is pending in New York and depositions
are to be taken on the West Coast. Defendant is protected by a provision that the deposition cannot be used against him
if he was unable through exercise of diligence to obtain counsel to represent him.
The distance of 100 miles from place of trial is derived from the de bene esse provision and also conforms to the
reach of a subpoena of the trial court, as provided in Rule 45(e). See also SD NY Civ R 5(a). Some parts of the de bene
esse provision are omitted from Rule 30(b)(2). Modern deposition practice adequately covers the witness who lives
more than 100 miles away from place of trial. If a witness is aged or infirm, leave of court can be obtained.
Subdivision (b). Existing Rule 30(b) on protective orders has been transferred to Rule 26(c), and existing Rule 30(a)
relating to the notice of taking deposition has been transferred to this subdivision. Because new material has been
added, subsection numbers have been inserted.
Subdivision (b)(1). If a subpoena duces tecum is to be served, a copy thereof or a designation of the materials to be
produced must accompany the notice. Each party is thereby enabled to prepare for the deposition more effectively.
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Subdivision (b)(2). This subdivision is discussed in the note to subdivision (a), to which it relates.
Subdivision (b)(3). This provision is derived from existing Rule 30(a), with a minor change of language.
Subdivision (b)(4). In order to facilitate less expensive procedures, provision is made for the recording of testimony
by other than stenographic means--e.g., by mechanical, electronic, or photographic means. Because these methods give
rise to problems of accuracy and trustworthiness, the party taking the deposition is required to apply for a court order.
The order is to specify how the testimony is to be recorded, preserved, and filed, and it may contain whatever additional
safeguards the court deems necessary.
Subdivision (b)(5). A provision is added to enable a party, through service of notice, to require another party to
produce documents or things at the taking of his deposition. This may now be done as to a nonparty deponent through
use of a subpoena duces tecum as authorized by Rule 45, but some courts have held that documents may be secured
from a party only under Rule 34. See 2A Barron and Holtzoff, Federal Practice and Procedure § 644.1 n 83.2, § 792 n
16 (Wright ed 1961). With the elimination of "good cause" from Rule 34, the reason for this restrictive doctrine has
disappeared. Cf. NY CPLR § 3111.
Whether production of documents or things should be obtained directly under Rule 34 or at the deposition under this
rule will depend on the nature and volume of the documents or things. Both methods are made available. When the
documents are few and simple, and closely related to the oral examination, ability to proceed via this rule will facilitate
discovery. If the discovering party insists on examining many and complex documents at the taking of the deposition,
thereby causing undue burdens on others, the latter may, under Rule 26(c) or 30(d), apply for a court order that the
examining party proceed via Rule 34 alone.
Subdivision (b)(6). A new provision is added, whereby a party may name a corporation, partnership, association, or
governmental agency as the deponent and designate the matters on which he requests examination, and the organization
shall then name one or more of its officers, directors, or managing agents, or other persons consenting to appear and
testify on its behalf with respect to matters known or reasonably available to the organization. Cf. Alberta Sup Ct R 255.
The organization may designate persons other than officers, directors, and managing agents, but only with their consent.
Thus, an employee or agent who has an independent or conflicting interest in the litigation--for example, in a personal
injury case--can refuse to testify on behalf of the organization.
This procedure supplements the existing practice whereby the examining party designates the corporate official to be
deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subdivision
have added information, he may depose them. On the other hand, a court's decision whether to issue a protective order
may take account of the availability and use made of the procedures provided in this subdivision.
The new procedure should be viewed as an added facility for discovery, one which may be advantageous to both
sides as well as an improvement in the deposition process. It will reduce the difficulties now encountered in
determining, prior to taking of a deposition, whether a particular employee or agent is a "managing agent." See Note,
Discovery Against Corporations Under the Federal Rules, 47 Iowa L Rev 1006-1016 (1962). It will curb the "bandying"
by which officers or managing agents of a corporation are deposed in turn but each disclaims knowledge of facts that
are clearly known to persons in the organization and thereby to it. Cf. Haney v Woodward & Lothrop, Inc. 330 F2d 940,
944 (4th Cir 1964). The provision should also assist organizations which find that an unnecessarily large number of
their officers and agents are being deposed by a party uncertain of who in the organization has knowledge. Some courts
have held that under the existing rules a corporation should not be burdened with choosing which person is to appear for
it. E.g., United States v Gahagan Dredging Corp. 24 FRD 328 (SD NY 1958). This burden is not essentially different
from that of answering interrogatories under Rule 33, and is in any case lighter than that of an examining party ignorant
of who in the corporation has knowledge.
Subdivision (c). A new sentence is inserted at the beginning, representing the transfer of existing Rule 26(c) to this
subdivision. Another addition conforms to the new provision in subdivision (b)(4).
The present rule provides that transcription shall be carried out unless all parties waive it. In view of the many
depositions taken from which nothing useful is discovered, the revised language provides that transcription is to be
performed if any party requests it. The fact of the request is relevant to the exercise of the court's discretion in
determining who shall pay for transcription.
Parties choosing to serve written questions rather than participate personally in an oral deposition are directed to
serve their questions on the party taking the deposition, since the officer is often not identified in advance.
Confidentiality is preserved, since the questions may be served in a sealed envelope.
Subdivision (d). The assessment of expenses incurred in relation to motions made under this subdivision (d) is made
subject to the provisions of Rule 37(a). The standards for assessment of expenses are more fully set out in Rule 37(a),
and these standards should apply to the essentially similar motions of this subdivision.
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Subdivision (e). The provision relating to the refusal of a witness to sign his deposition is tightened through insertion
of a 30-day time period.
Subdivision (f)(1). A provision is added which codifies in a flexible way the procedure for handling exhibits related
to the deposition and at the same time assures each party that he may inspect and copy documents and things produced
by a nonparty witness in response to a subpoena duces tecum. As a general rule and in the absence of agreement to the
contrary or order of the court, exhibits produced without objection are to be annexed to and returned with the
deposition, but a witness may substitute copies for purposes of marking and he may obtain return of the exhibits. The
right of the parties to inspect exhibits for identification and to make copies is assured. Cf NY CPLR § 3116(c).
Notes of Advisory Committee on 1971 amendments. Subdivision (b)(6). The subdivision permits a party to name a
corporation or other form of organization as a deponent in the notice of examination and to describe in the notice the
matters about which discovery is desired. The organization is then obliged to designate natural persons to testify on its
behalf. The amendment clarifies the procedure to be followed if a party desires to examine a non-party organization
through persons designated by the organization. Under the rules, a subpoena rather than a notice of examination is
served on a non-party to compel attendance at the taking of a deposition. The amendment provides that a subpoena may
name a non-party organization as the deponent and may indicate the matters about which discovery is desired. In that
event, the non-party organization must respond by designating natural persons, who are then obliged to testify as to
matters known or reasonably available to the organization. To insure that a non-party organization that is not
represented by counsel has knowledge of its duty to designate, the amendment directs the party seeking discovery to
advise of the duty in the body of the subpoena.
Notes of Advisory Committee on 1972 amendment to Rules. Subdivision (c). Existing Rule 43(b), which is to be
abrogated, deals with the use of leading questions, the calling, interrogation, impeachment, and scope of
cross-examination of adverse parties, officers, etc. These topics are dealt with in many places in the Rules of Evidence.
Moreover, many pertinent topics included in the Rules of Evidence are not mentioned in Rule 43(b), e. g. Privilege. A
reference to the Rules of Evidence generally is therefore made in subdivision (c) of Rule 30.
1975 effective date of 1972 amendment. The amendment of this rule was embraced by the order entered by the
Supreme Court of the United States on November 20, 1972, effective on the 180th day beginning after January 2, 1975;
see Act Jan. 2, 1975, P.L. 93-595, § 3, 88 Stat. 1959, which appears as 28 USCS § 2071 note.
Notes of Advisory Committee on 1980 amendments. Subdivision (b)(4). It has been proposed that electronic
recording of depositions be authorized as a matter of course, subject to the right of a party to seek an order that a
deposition be recorded by stenographic means. The Committee is not satisfied that a case has been made for a reversal
of present practice. The amendment is made to encourage parties to agree to the use of electronic recording of
depositions so that conflicting claims with respect to the potential of electronic recording for reducing costs of
depositions can be appraised in the light of greater experience. The provision that the parties may stipulate that
depositions may be recorded by other than stenographic means seems implicit in Rule 29. The amendment makes it
explicit. The provision that the stipulation or order shall designate the person before whom the deposition is to be taken
is added to encourage the naming of the recording technician as that person, eliminating the necessity of the presence of
one whose only function is to administer the oath. See Rules 28(a) and 29.
Subdivision (b)(7). Depositions by telephone are now authorized by Rule 29 upon stipulation of the parties. The
amendment authorizes that method by order of the court. The final sentence is added to make it clear that when a
deposition is taken by telephone it is taken in the district and at the place where the witness is to answer the questions
rather than that where the questions are propounded.
Subdivision (f)(1). For the reasons set out in the Note following the amendment of Rule 5(d), the court may wish to
permit the parties to retain depositions unless they are to be used in the action. The amendment of the first paragraph
permits the court to so order.
The amendment of the second paragraph is clarifying. The purpose of the paragraph is to permit a person who
produces materials at a deposition to offer copies for marking and annexation to the deposition. Such copies are a
"substitute" for the originals, which are not to be marked and which can thereafter be used or even disposed of by the
person who produces them. In the light of that purpose, the former language of the paragraph had been justly termed
"opaque." Wright & Miller, Federal Practice and Procedure: Civil § 2114.
Effective date of 1980 amendments. Section 2 of the Order of April 29, 1980, 446 US 995, 64 L Ed 2d, xlv, -- S Ct --,
which adopted the 1980 amendments to this Rule, provided "That the foregoing amendments to the Federal Rules of
Civil Procedure shall take effect on August 1, 1980, and shall govern all civil proceedings thereafter commenced and,
insofar as just and practicable, all proceedings then pending.
Notes of Advisory Committee on 1987 amendments. The amendments are technical. No substantive change is
intended.
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Notes of Advisory Committee on 1993 amendments. Subdivision (a). Paragraph (1) retains the first and third
sentences from the former subdivision (a) without significant modification. The second and fourth sentences are
relocated.
Paragraph (2) collect all provisions bearing on requirements of leave of court to take a deposition.
Paragraph (2)(A) is new. It provides a limit on the number of depositions the parties may take, absent leave of court
or stipulation with the other parties. One aim of this revision is to assure judicial review under the standards stated in
Rule 26(b)(2) before any side will be allowed to take more than ten depositions in a case without agreement of the other
parties. A second objective is to emphasize that counsel have a professional obligation to develop a mutual
cost-effective plan for discovery in the case. Leave to take additional depositions should be granted when consistent
with the principles of Rule 26(b)(2), and in some cases the ten-per-side limit should be reduced in accordance with
those same principles. Consideration should ordinarily be given at the planning meeting of the parties under Rule 26(f)
and at the time of a scheduling conference under Rule 16(b) as to enlargements or reductions in the number of
depositions, eliminating the need for special motions.
A deposition under Rule 30(b)(6) should, for purposes of this limit, be treated as a single deposition even though
more than one person may be designated to testify.
In multi-party cases, the parties on any side are expected to confer and agree as to which depositions are most
needed, given the presumptive limit on the number of depositions they can take without leave of court. If these disputes
cannot be amicably resolved, the court can be requested to resolve the dispute or permit additional depositions.
Paragraph (2)(B) is new. It requires leave of court if any witness is to be deposed in the action more than once. This
requirement does not apply when a deposition is temporarily recessed for convenience of counsel or the deponent or to
enable additional materials to be gathered before resuming the deposition. If significant travel costs would be incurred
to resume the deposition, the parties should consider the feasibility of conducting the balance of the examination by
telephonic means.
Paragraph (2)(C) revises the second sentence of the former subdivision (a) as to when depositions may be taken.
Consistent with the changes made in Rule 26(d), providing that formal discovery ordinarily not commence until after
the litigants have met and conferred as directed in revised Rule 26(f), the rule requires leave of court or agreement of
the parties if a deposition is to be taken before that time (except when a witness is about to leave the country).
Subdivision (b). The primary change in subdivision (b) is that parties will be authorized to record deposition
testimony by nonstenographic means without first having to obtain permission of the court or agreement from other
counsel.
Former subdivision (b)(2) is partly relocated in subdivision (a)(2)(C) of this rule. The latter two sentences of the first
paragraph are deleted, in part because they are redundant to Rule 26(g) and in part because Rule 11 no longer applies to
discovery requests. The second paragraph of the former subdivision (b)(2), relating to use of depositions at trial where a
party was unable to obtain counsel in time for an accelerated deposition, is relocated in Rule 32.
New paragraph (2) confers on the party taking the deposition the choice of the method of recording, without the need
to obtain prior court approval for one taken other than stenographically. A party choosing to record a deposition only by
videotape or audiotape should understand that a transcript will be required by Rule 26(a)(3)(B) and Rule 32(c) if the
deposition is later to be offered as evidence at trial or on a dispositive motion under Rule 56. Objections to the
nonstenographic recording of a deposition, when warranted by the circumstances, can be presented to the court under
Rule 26(c).
Paragraph (3) provides that other parties may arrange, at their own expense, for the recording of a deposition by a
means (stenographic, visual, or sound) in addition to the method designated by the person noticing the deposition. The
former provisions of this paragraph, relating to the court's power to change the date of a deposition, have been
eliminated as redundant in view of Rule 26(c)(2).
Revised paragraph (4) requires that all depositions be recorded by an officer designated or appointed under Rule 28
and contains special provisions designed to provide basic safeguards to assure the utility and integrity of recordings
taken other than stenographically.
Paragraph (7) is revised to authorize the taking of a deposition not only by telephone but also by other remote
electronic means, such as satellite television, when agreed to by the parties or authorized by the court.
Subdivision (c). Minor changes are made in this subdivision to reflect those made in subdivision (b) and to
complement the new provisions of subdivision (d)(1), aimed at reducing the number of interruptions during depositions.
In addition, the revision addresses a recurring problem as to whether other potential deponents can attend a
deposition. Courts have disagreed, some holding that witnesses should be excluded through invocation of Rule 615 of
the evidence rules, and others holding that witnesses may attend unless excluded by an order under Rule 26(c)(5). The
revision provides that other witnesses are not automatically excluded from a deposition simply by the request of a party.
Page 8
USCS Fed Rules Civ Proc R 30
Exclusion, however, can be ordered under Rule 26(c)(5) when appropriate; and, if exclusion is ordered, consideration
should be given as to whether the excluded witnesses likewise should be precluded from reading, or being otherwise
informed about, the testimony given in the earlier depositions. The revision addresses only the matter of attendance by
potential deponents, and does not attempt to resolve issues concerning attendance by others, such as members of the
public or press.
Subdivision (d). The first sentence of new paragraph (1) provides that any objections during a deposition must be
made concisely and in a non-argumentative and non-suggestive manner. Depositions frequently have been unduly
prolonged, if not unfairly frustrated, by lengthy objections and colloquy, often suggesting how the deponent should
respond. While objections may, under the revised rule, be made during a deposition, they ordinarily should be limited to
those that under Rule 32(d)(3) might be waived if not made at that time, i.e., objections on grounds that might be
immediately obviated, removed, or cured, such as to the form of a question or the responsiveness of an answer. Under
Rule 32(b), other objections can, even without the so-called "usual stipulation" preserving objections, be raised for the
first time at trial and therefore should be kept to a minimum during a deposition.
Directions to a deponent not to answer a question can be even more disruptive than objections. The second sentence
of new paragraph (1) prohibits such directions except in the three circumstances indicated: to claim a privilege or
protection against disclosure (e.g., as work product), to enforce a court directive limiting the scope or length of
permissible discovery, or to suspend a deposition to enable presentation of a motion under paragraph (3).
Paragraph (2) is added to this subdivision to dispel any doubts regarding the power of the court by order or local rule
to establish limits on the length of depositions. The rule also explicitly authorizes the court to impose the cost resulting
from obstructive tactics that unreasonably prolong a deposition on the person engaged in such obstruction. This sanction
may be imposed on a non-party witness as well as a party or attorney, but is otherwise congruent with Rule 26(g).
It is anticipated that limits on the length of depositions prescribed by local rules would be presumptive only, subject
to modification by the court or by agreement of the parties. Such modifications typically should be discussed by the
parties in their meeting under Rule 26(f) and included in the scheduling order required by Rule 16(b). Additional time,
moreover, should be allowed under the revised rule when justified under the principles stated in Rule 26(b)(2). To
reduce the number of special motions, local rules should ordinarily permit--and indeed encourage--the parties to agree
to additional time, as when, during the taking of a deposition, it becomes clear that some additional examination is
needed.
Paragraph (3) authorizes appropriate sanctions not only when a deposition is unreasonably prolonged, but also when
an attorney engages in other practices that improperly frustrate the fair examination of the deponent, such as making
improper objections or giving directions not to answer prohibited by paragraph (1). In general, counsel should not
engage in any conduct during a deposition that would not be allowed in the presence of a judicial officer. The making of
an excessive number of unnecessary objections may itself constitute sanctionable conduct, as may the refusal of an
attorney to agree with other counsel on a fair apportionment of the time allowed for examination of a deponent or a
refusal to agree to a reasonable request for some additional time to complete a deposition, when that is permitted by the
local rule or order.
Subdivision (e). Various changes are made in this subdivision to reduce problems sometimes encountered when
depositions are taken stenographically. Reporters frequently have difficulties obtaining signatures--and the return of
depositions--from deponents. Under the revision pre-filing review by the deponent is required only if requested before
the deposition is completed. If review is requested, the deponent will be allowed 30 days to review the transcript or
recording and to indicate any changes in form or substance. Signature of the deponent will be required only if review is
requested and changes are made.
Subdivision (f). Minor changes are made in this subdivision to reflect those made in subdivision (b). In courts which
direct that depositions not be automatically filed, the reporter can transmit the transcript or recording to the attorney
taking the deposition (or ordering the transcript or record), who then becomes custodian for the court of the original
record of the deposition. Pursuant to subdivision (f)(2), as under the prior rule, any other party is entitled to secure a
copy of the deposition from the officer designated to take the deposition; accordingly, unless ordered or agreed, the
officer must retain a copy of the recording or the stenographic notes.
Notes of Advisory Committee on 2000 amendments. Subdivision (d). Paragraph (1) has been amended to clarify the
terms regarding behavior during depositions. The references to objections "to evidence" and limitations "on evidence"
have been removed to avoid disputes about what is "evidence" and whether an objection is to, or a limitation is on,
discovery instead. It is intended that the rule apply to any objection to a question or other issue arising during a
deposition, and to any limitation imposed by the court in connection with a deposition, which might relate to duration or
other matters.
Page 9
USCS Fed Rules Civ Proc R 30
The current rule places limitations on instructions that a witness not answer only when the instruction is made by a
"party." Similar limitations should apply with regard to anyone who might purport to instruct a witness not to answer a
question. Accordingly, the rule is amended to apply the limitation to instructions by any person. The amendment is not
intended to confer new authority on nonparties to instruct witnesses to refuse to answer deposition questions. The
amendment makes it clear that, whatever the legitimacy of giving such instructions, the nonparty is subject to the same
limitations as parties.
Paragraph (2) imposes a presumptive durational limitation of one day of seven hours for any deposition. The
Committee has been informed that overlong depositions can result in undue costs and delays in some circumstances.
This limitation contemplates that there will be reasonable breaks during the day for lunch and other reasons, and that the
only time to be counted is the time occupied by the actual deposition. For purposes of this durational limit, the
deposition of each person designated under Rule 30(b)(6) should be considered a separate deposition. The presumptive
duration may be extended, or otherwise altered, by agreement. Absent agreement, a court order is needed. The party
seeking a court order to extend the examination, or otherwise alter the limitations, is expected to show good cause to
justify such an order.
Parties considering extending the time for a deposition--and courts asked to order an extension--might consider a
variety of factors. For example, if the witness needs an interpreter, that may prolong the examination. If the examination
will cover events occurring over a long period of time, that may justify allowing additional time. In cases in which the
witness will be questioned about numerous or lengthy documents, it is often desirable for the interrogating party to send
copies of the documents to the witness sufficiently in advance of the deposition so that the witness can become familiar
with them. Should the witness nevertheless not read the documents in advance, thereby prolonging the deposition, a
court could consider that a reason for extending the time limit. If the examination reveals that documents have been
requested but not produced, that may justify further examination once production has occurred. In multi-party cases, the
need for each party to examine the witness may warrant additional time, although duplicative questioning should be
avoided and parties with similar interests should strive to designate one lawyer to question about areas of common
interest. Similarly, should the lawyer for the witness want to examine the witness, that may require additional time.
Finally, with regard to expert witnesses, there may more often be a need for additional time--even after the submission
of the report required by Rule 26(a)(2)--for full exploration of the theories upon which the witness relies.
It is expected that in most instances the parties and the witness will make reasonable accommodations to avoid the
need for resort to the court. The limitation is phrased in terms of a single day on the assumption that ordinarily a single
day would be preferable to a deposition extending over multiple days; if alternative arrangements would better suit the
parties, they may agree to them. It is also assumed that there will be reasonable breaks during the day. Preoccupation
with timing is to be avoided.
The rule directs the court to allow additional time where consistent with Rule 26(b)(2) if needed for a fair
examination of the deponent. In addition, if the deponent or another person impedes or delays the examination, the court
must authorize extra time. The amendment makes clear that additional time should also be allowed where the
examination is impeded by an "other circumstance," which might include a power outage, a health emergency, or other
event.
In keeping with the amendment to Rule 26(b)(2), the provision added in 1993 granting authority to adopt a local rule
limiting the time permitted for depositions has been removed. The court may enter a case-specific order directing
shorter depositions for all depositions in a case or with regard to a specific witness. The court may also order that a
deposition be taken for limited periods on several days.
Paragraph (3) includes sanctions provisions formerly included in paragraph (2). It authorizes the court to impose an
appropriate sanction on any person responsible for an impediment that frustrated the fair examination of the deponent.
This could include the deponent, any party, or any other person involved in the deposition. If the impediment or delay
results from an "other circumstance" under paragraph (2), ordinarily no sanction would be appropriate.
Former paragraph (3) has been renumbered (4) but is otherwise unchanged.
Subdivision (f)(1): This subdivision is amended because Rule 5(d) has been amended to direct that discovery
materials, including depositions, ordinarily should not be filed. The rule already has provisions directing that the lawyer
who arranged for the transcript or recording preserve the deposition. Rule 5(d) provides that, once the deposition is used
in the proceeding, the attorney must file it with the court.
"Shall" is replaced by "must" or "may" under the program to conform amended rules to current style conventions
when there is no ambiguity.
NOTES:
CROSS REFERENCES
Page 10
USCS Fed Rules Civ Proc R 30
Perpetuation of testimony, USCS Rules of Civil Procedure, Rule 27.
Persons before whom deposition may be taken, USCS Rules of Civil Procedure, Rule 28.
Power of person appointed by court to take deposition to administer oaths and take testimony, USCS Rules of Civil
Procedure, Rule 28.
Stipulations regarding discovery procedure, USCS Rules of Civil Procedure, Rule 29.
Orders for protection of party on written interrogatories, USCS Rules of Civil Procedure, Rule 33.
Discovery and production of documents and things for inspection, copying, or photographing, USCS Rules of Civil
Procedure, Rule 34.
Motion for order compelling discovery, USCS Rules of Civil Procedure, Rule 37(a).
Penalties against party failing to appear on notice, USCS Rules of Civil Procedure, Rule 37(d).
Place of examination, USCS Rules of Civil Procedure, Rule 45.
Subpoena for taking depositions, USCS Rules of Civil Procedure, Rule 45(d).
Subpoena for producing documents and tangible things, USCS Rules of Civil Procedure, Rule 45(d).
Witness' failure to obey subpoena as contempt, USCS Rules of Civil Procedure, Rule 45(f).
Proceedings on and in aid of execution of judgment, USCS Rules of Civil Procedure, Rule 69.
RESEARCH GUIDE
Federal Procedure:
MFEDPR5.33USCSTREAT.
MFEDPR16.33USCSTREAT, MFEDPR16.36USCSTREAT.
MFEDPR26.05USCSTREAT, MFEDPR26.06USCSTREAT, MFEDPR26.25USCSTREAT,
MFEDPR26.41USCSTREAT, MFEDPR26.60USCSTREAT, MFEDPR26.102USCSTREAT,
MFEDPR26.105USCSTREAT, MFEDPR26.121USCSTREAT, MFEDPR26.152USCSTREAT.
MFEDPR27.12USCSTREAT, MFEDPR27.16USCSTREAT.
MFEDPR28.03USCSTREAT, MFEDPR28.32USCSTREAT.
MFEDPR29.04USCSTREAT, MFEDPR29.05USCSTREAT.
MFEDPR30.02USCSTREAT-,MFEDPR30.06USCSTREAT,
MFEDPR30.20USCSTREAT-,MFEDPR30.25USCSTREAT,
MFEDPR30.40USCSTREAT-,MFEDPR30.45USCSTREAT, MFEDPR30.51USCSTREAT,
MFEDPR30.60USCSTREAT-,MFEDPR30.64USCSTREAT,
MFEDPR30.71USCSTREAT-,MFEDPR30.73USCSTREAT.
MFEDPR31.02USCSTREAT, MFEDPR31.03USCSTREAT, MFEDPR31.10USCSTREAT,
MFEDPR31.12USCSTREAT-,MFEDPR31.15USCSTREAT.
MFEDPR32.02USCSTREAT, MFEDPR32.21USCSTREAT, MFEDPR32.42USCSTREAT,
MFEDPR32.43USCSTREAT, MFEDPR32.47USCSTREAT, MFEDPR32.61USCSTREAT, MFEDPR32.64USCSTREAT.
MFEDPR33.05USCSTREAT.
MFEDPR34.02USCSTREAT, MFEDPR34.11USCSTREAT, MFEDPR34.15USCSTREAT.
MFEDPR37.02USCSTREAT, MFEDPR37.06USCSTREAT, MFEDPR37.23USCSTREAT,
MFEDPR37.51USCSTREAT, MFEDPR37.91USCSTREAT, MFEDPR37.95USCSTREAT, MFEDPR37.96USCSTREAT.
MFEDPR45.02USCSTREAT-,MFEDPR45.04USCSTREAT.
MFEDPR54.171USCSTREAT.
MFEDPR71.04USCSTREAT.
MFEDPR83.04USCSTREAT.
MFEDPR107.30USCSTREAT.
CIPES615.11USCSTREAT.
WEUSR402.04USCSTREAT.
WEUSR603.02USCSTREAT.
WEUSR612.02USCSTREAT, WEUSR612.07USCSTREAT.
WEUSR1001.06USCSTREAT.
WEUSR1004.21USCSTREAT.
5 Fed Proc L Ed, Bankruptcy § 9:720.
6A Fed Proc L Ed, Class Actions § § 12:333, 335.
7A Fed Proc L Ed, Court of Claims § § 19:208, 213, 216.
10 Fed Proc L Ed, Discovery and Depositions § § 26:6, 7, 17, 37, 54, 58, 70, 166, 178, 191, 195, 199, 211, 217,
238-242, 260-321, 323, 324, 329, 334, 335, 337, 340, 341, 354, 374.
Page 11
USCS Fed Rules Civ Proc R 30
10A Fed Proc L Ed, Discovery and Depositions § § 26:441, 443, 468, 476, 497, 602, 605, 608, 620, 621, 638, 648,
669, 679, 681, 699, 711-715, 717, 718, 787.
10A Fed Proc L Ed, Elections and Elective Franchise § 28:325.
12 Fed Proc L Ed, Evidence § 33:119.
12A Fed Proc L Ed, Evidence § § 33:539, 557, 578, 612.
15 Fed Proc L Ed, Freedom of Information § 38:513.
22A Fed Proc L Ed, Labor and Labor Relations § 52:1749.
23A Fed Proc L Ed, Monopolies and Restraints of Trade § 54:306.
27 Fed Proc L Ed, Pleadings and Motions § § 62:52, 55, 115.
27A Fed Proc L Ed, Pleadings and Motions § § 62:423, 870.
28 Fed Proc L Ed, Process § § 65:255, 259, 261, 263, 278.
32 Fed Proc L Ed, Trademarks § § 74:273, 277.
33A Fed Proc L Ed, Witnesses § 80:51.
Am Jur:
Bankruptcy22.
Bankruptcy980.
DEPO_DISC2, DEPO_DISC15, DEPO_DISC19, DEPO_DISC61, DEPO_DISC79, DEPO_DISC80,
DEPO_DISC81, DEPO_DISC85, DEPO_DISC86, DEPO_DISC90-DEPO_DISC101, DEPO_DISC104,
DEPO_DISC203.
Evidence303.
Evidence1040, Evidence1048, Evidence1189.
EXECUTIONS_ENFORCEMENT715.
Job_Discrimination2345.
Labor_Labor_Relations3675, Labor_Labor_Relations4596.
MONOPOLIES547.
Pleading648.
PRETRIAL27.
PRIV_FRANCH847, PRIV_FRANCH856.
Am Jur Trials:
4 Am Jur Trials, Discovery--Written Interrogatories, p. 1.
4 Am Jur Trials, Discovery--Oral Depositions, p. 119.
12 Am Jur Trials, Actions on Life Insurance Policies, p. 549.
21 Am Jur Trials, Franchise Litigation, p.453.
21 Am Jur Trials, Employment Discrimination Action Under Federal Civil Rights Acts, p. 1.
21 Am Jur Trials, Preparation and Trial of Federal Class Action, p. 625.
65 Am Jur Trials, Taking the Deposition of the Sexual Harassment Plaintiff, p. 65.
72 Am Jur Trials, Paralegals as Exhibit Specialists, p. 309.
84 Am Jur Trials, Litigating Against the Firearm Industry, p. 109.
91 Am Jur Trials, When Clergy Fail Their Flock: Litigating the Clergy Sexual Abuse Case, p. 151.
Am Jur Proof of Facts:
13 Am Jur Proof of Facts 2d, Client's Ratification Of Stipulation Made By Counsel, p. 505.
Forms:
8 Fed Procedural Forms L Ed, Discovery and Depositions (2001) § § 23:120-23:128, 23:132-23:135, 23:137,
23:141-23:149, 23:156-23:158, 23:182, 23:183, 23:197-23:199, 23:208-23:217, 23:220-23:222, 23:243.
9 Fed Procedural Forms L Ed, Enforcement of Judgments (1999) § 28:115.
12A Fed Procedural Forms L Ed, Labor and Labor Relations (1998) § 46:333.
8A Am Jur Pl & Pr Forms (2004), Deposition and Discovery, § § 29, 54, 55, 79, 138, 178-180, 185-188, 197, 198,
213, 235, 239, 246-252, 255, 294, 320, 322, 342, 347, 349, 350, 696.
11A Am Jur Pl & Pr Forms (1998), Federal Practice and Procedure, § § 773-783, 785-787, 790, 791, 793-804, 815,
816, 827-832, 847-851, 854, 860.
11B Am Jur Pl & Pr Forms (1998), Federal Practice and Procedure, § 1520.
Page 12
USCS Fed Rules Civ Proc R 30
Annotations:
Recording of testimony at deposition by other than stenographic means under Rule 30(b)(4) of Federal Rules of Civil
Procedure. 16 ALR Fed 969.
Discovery, under Federal Rules of Civil Procedure, in actions brought by private plaintiffs under equal employment
opportunity provisions of Civil Rights Act of 1964, as amended (42 USCS § § 2000e et seq.). 31 ALR Fed 657.
Permissibility and standards for use of audio recording to take deposition in state civil case. 13 ALR4th 775.
Dismissal of state court action for failure or refusal of plaintiff to appear or answer questions at deposition or oral
examination. 32 ALR4th 212.
Admissibility of visual recording of event or matter other than that giving rise to litigation or prosecution. 41
ALR4th 877.
Construction and effect of Rule 30(b), (d), 31(d), of the Federal Rules of Civil Procedure, and similar state statutes
and rules, relating to preventing, limiting, or terminating the taking of depositions. 70 ALR2d 685.
Taxation of costs and expenses in proceedings for discovery or inspection. 76 ALR2d 953.
Texts:
Danner, Pattern Discovery: Employment Discrimination.
Danner, Pattern Deposition Checklists 2d.
Danner, Pattern Discovery: Securities.
Schweitzer, Cyclopedia of Trial Practice (2d ed).
Speiser, Attorney's Fees.
Law Review Articles:
Blumenkopf. Deposition Strategy and Tactics. 5 Am Journal of Trial Advocacy 231, Fall 1981.
Massey. Depositions of Corporations: Problems and Solutions--Fed. R. Civ. P. 30(b)(6). 1986 Ariz St L J 81.
Federal Discovery Rules: Effects of the 1970 Amendments. 8 Columbia J of L & Social Problems 623.
Panzer. New Federal Discovery Rules in Civil Cases. 37 DC Bar J 49.
Smith; Kelleher. Dealing with the EEO Officer Who Files A Discrimination Complaint. 8 Employee Relations L J
92, Summer 1982.
Berch. A proposal to amend rule 30(b) of the Federal Rules of Civil Procedure: cross-disciplinary and empirical
evidence supporting presumptive use of video to record depositions. 59 Fordham L Rev 347, December 1990.
Sloan. Eliminating the 100 miles limit for civil trial witnesses: a proposal to modernize civil trial practice. 140 FRD
33, March 1992.
Maciszewski. Pretrial Discovery: Change in the Federal Rule. 7 Hawaii Bar J 48.
Sales. Discovery Problems in Aviation Litigation. 38 J of Air L & Commerce 101.
Thomas; Goheen; Vasos. Changes in Federal Rules of Civil Procedure Relating to Depositions, Interrogatory
Practice, and Request. 40 J of Bar Association of State of Kansas 127.
Johnston. Discovery in Illinois and Federal Courts. 15 John Marshall L Rev 1, Winter 1982.
Cymrot. The forgotten rule. 18 Litig 6.
Zweifach. Depositions under the new Federal Rules, 23 Litig 6, Winter 1997.
Swartz. New Federal Rules on Discovery. 55 Mass LQ 345.
Peters; Rosenbloom. Preparing the Medical Malpractice Defendant for Deposition. 34 Prac Law 71, July 1988.
Kinsler. Location of party-depositions under Federal Rules of Civil Procedure. 37 Res Gestae 358, February 1994.
Henke; Margolis. The taking and use of video depositions: an update. 17 Rev Litig 1, Winter 1998.
A symposium on the 1993 amendments to the Federal Rules of Civil Procedure. 29 Tort & Ins LJ 467, Spring 1994.
Groves. Depositions and interrogatories under the Federal Rules of Civil Procedure: before and after the 1993
amendments. 29 Tort & Ins LJ 483, Spring 1994 .
Wilson. Rules Pertaining to Discoverability of Expert Opinion Evidence in Federal Court. 27 Tr Law Guide 411,
Fall 1983.
Greenwald. Deposing medical experts. 26 Trial 54.
Graham. Discovery of Experts Under Rule 26(b)(4) of the Federal Rules of Civil Procedure: Part One, An Analytical
Study. 1976 U Ill L F 895.
Federal Rule 30(b)(4) and the Use of Videotaped Depositions. XXXIII NY L Sch L Rev 145, 1988.
INTERPRETIVE NOTES AND DECISIONS
Page 13
USCS Fed Rules Civ Proc R 30
I. IN GENERAL
1. Generally
2. Purpose
3. Construction
4. Relationship to other laws
5. Telephonic depositions [Rule 30(b)(7)]
6. Substitution for written interrogatories
7. Compelling attendance of parties and witnesses
8. Failure to attend
9. Testimony compelled
II. WHEN AND FROM WHOM DEPOSITIONS MAY BE TAKEN [RULE 30(a)]
A. In General
10. Generally
11. Leave of court
12. Miscellaneous
B. Timing of Deposition
13. After close of discovery
14. After motion for summary judgment
15. During trial
16. Second deposition
17. Miscellaneous
C. Persons Who May Be Examined
18. Party
19. Attorney
20. Witness
21. Public official
22. Prisoner
23. Miscellaneous
III. NOTICE OF EXAMINATION [RULE 30(b)(1), (2), (5)]
24. Reasonableness of notice
25. Sufficiency of notice
26. Time and place of examination, generally
27. Service of notice
28. Subpoena duces tecum; production of documents
29. Motion to vacate notice
IV. MODIFICATION OF TIME [RULE 30(b)(3)]
30. Generally
31. Pendency of state action
V. NON-STENOGRAPHIC RECORDING [RULE 30(b)(4)]
32. Generally
33. Discretion of court
34. Assuring accuracy of recording
35. Videotape recording
36. Miscellaneous
VI. DEPOSITION OF ORGANIZATION [RULE 30(b)(6)]
37. Generally
Page 14
USCS Fed Rules Civ Proc R 30
38. Relationship to other rules
39. Specifying matters to be examined
40. Designation of organization's deponent
41. --Duty of non-party organization
42. Time and place of examination
43. Deposition of government agency
44. Miscellaneous
VII. RECORD OF EXAMINATION; OATH; OBJECTIONS [RULE 30(c)]
45. Generally
46. Recording testimony
47. Oath requirement
48. Objections
VIII. MOTION TO TERMINATE OR LIMIT EXAMINATION; SCHEDULE AND DURATION [RULE 30(d)]
49. Generally
50. Examination taken in bad faith
51. Requests for irrelevant materials
52. Privilege asserted
53. Multiple or lengthy examinations
54. Testimony available from other sources
55. Direction not to answer question
56. Suspension of proceedings
57. Motion for protective order
58. Miscellaneous
IX. SUBMISSION TO WITNESS; CHANGES; SIGNING [RULE 30(e)]
A. In General
59. Generally
60. Changes by witness
61. Re-examination of witness
62. Motion to suppress unsigned deposition
B. Failure of Witness to Sign
63. Generally
64. Waiver of signing
65. Illness of witness
66. Absence of witness
67. Refusal by witness
68. Miscellaneous
X. CERTIFICATION AND FILING; COPIES [RULE 30(f)]
69. Generally
70. Relationship to other rules
XI. FAILURE TO ATTEND OR SERVE SUPOENA; COSTS AND EXPENSES [RULE 30(g)]
71. Generally
72. Who may be awarded costs and fees
73. Counsel fees
74. Costs of copies
75. Filing fees
76. Stenographic and transcribing fees
77. Travel expenses
78. Judicial review
Page 15
USCS Fed Rules Civ Proc R 30
79. Miscellaneous
I. IN GENERAL
1. Generally
United States as litigant is subject to discovery rules. United States v Procter & Gamble Co. (1958) 356 US 677, 2
L Ed 2d 1077, 78 S Ct 983.
Federal discovery rules may not be expanded by disregarding plainly-expressed limitations. Guilford Nat'l Bank v
Southern R. Co. (1962, CA4 NC) 297 F2d 921, 5 FR Serv 2d 575.
No reason exists justifying different rules for depositions taken on written interrogatories and on oral questions or to
testimony at trial. Hamdi & Ibrahim Mango Co. v Fire Asso. of Philadelphia (1957, DC NY) 20 FRD 181.
Stipulation between parties, whether or not so ordered by court, relating to dissemination of discovery materials
including deposition transcripts would not be enforced and stipulation did not preclude plaintiff from disclosing
deposition to government agency, absent compelling reason for denying public access. Sharjah Inv. Co. v P.C.
Telemart, Inc. (1985, SD NY) 107 FRD 81, 11 Media L R 2383, CCH Fed Secur L Rep P 92292, 2 FR Serv 3d 1200.
District court has broad discretion to determine appropriate location for deposition and may attach conditions as it
finds appropriate. Armsey v Medshares Mgmt. Servs., Inc. (1998, WD Va) 184 FRD 569.
2. Purpose
Deposition-discovery procedure advances stage at which disclosure can be compelled from time of trial to period
preceding it, thus reducing possibility of surprise. Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34
Ohio Ops 395 (superseded by statute on other grounds as stated in Hawkins v District Court of Fourth Judicial Dist.
(1982, Colo) 638 P2d 1372) and (superseded by statute on other grounds as stated in Graham v Gielchinsky (1991) 126
NJ 361, 599 A2d 149).
Various instruments of discovery under federal rules serve as device to narrow and clarify basic issues between
parties and also to ascertain facts, or information as to existence or whereabouts of facts, relative to those issues.
Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395 (superseded by statute on other
grounds as stated in Hawkins v District Court of Fourth Judicial Dist. (1982, Colo) 638 P2d 1372) and (superseded by
statute on other grounds as stated in Graham v Gielchinsky (1991) 126 NJ 361, 599 A2d 149); Mitchell v Roma (1959,
CA3 Pa) 265 F2d 633, 36 CCH LC P 65361, 2 FR Serv 2d 513; Fidelis Fisheries, Ltd. v Thorden (1952, DC NY) 12
FRD 179.
Utility and necessity for deposition is not alone measured by whether all or any part of it is formally offered in
evidence as such; conservation of precious court and judge time is one object of effective pretrial discovery. United
States v Kolesar (1963, CA5 Fla) 313 F2d 835, 6 FR Serv 2d 1019.
3. Construction
Deposition-discovery rules are to be accorded broad and liberal treatment, to end that either party may obtain in
advance of trial knowledge of all relevant facts in possession of other party. Hickman v Taylor (1947) 329 US 495, 91
L Ed 451, 67 S Ct 385, 34 Ohio Ops 395 (superseded by statute on other grounds as stated in Hawkins v District Court
of Fourth Judicial Dist. (1982, Colo) 638 P2d 1372) and (superseded by statute on other grounds as stated in Graham v
Gielchinsky (1991) 126 NJ 361, 599 A2d 149).
Broad and liberal construction of rules concerning deposition-discovery is intended to effectuate purpose of rules that
civil trials in federal courts be no longer carried on "in the dark." Schlagenhauf v Holder (1964) 379 US 104, 13 L Ed 2d
152, 85 S Ct 234, 9 FR Serv 2d 35A.1, Case 1.
Procedure under rule is entitled to be liberally construed to secure just, speedy and inexpensive determination of
every action. National Bondholders Corp. v McClintic (1938, CA4 W Va) 99 F2d 595.
Government was entitled to take depositions of former union officials as non-party witnesses since government was
party to prior action which created union trusteeship and court had designed trusteeship to oversee union's day-to-day
operations and eradicate residual impact of past racketeer domination, so that ongoing maintenance and protection of
trusteeship constitutes action for purposes of Rule 30. United States v Sciarra (1988, CA3 NJ) 851 F2d 621, 128 BNA
LRRM 2878, 109 CCH LC P 10584, 12 FR Serv 3d 249.
There is nothing in FRCP 30, which governs conduct of oral depositions, to suggest that deposition of represented
party cannot go forward in absence of such party's attorney where such counsel has been duly noticed and affirmatively
states he will not appear. Fisher v Goord (1999, WD NY) 184 FRD 45.
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USCS Fed Rules Civ Proc R 30
4. Relationship to other laws
Statute making irreconcilable contradictory declarations in proceeding before or ancillary to court or grand jury
criminal offense (18 USCS § 1623(c)) applies to civil depositions taken under Rule 30; there is no real substantive
difference between federal civil and criminal depositions. United States v McAfee (1993, CA5 Tex) 8 F3d 1010.
Although Rule 26(b)(4) applies only to discovery of facts and opinions acquired or developed in anticipation of
litigation or preparation for trial, discovery of prior knowledge may be obtained under Rules 30 and 45. In re "Agent
Orange" Product Liability Litigation (1985, ED NY) 105 FRD 577, 1 FR Serv 3d 469.
Fact that FRE 612 (which deals with use of document by trial witness to refresh her memory and waiver thereby of
attorney-client privilege as to such document) is rule of evidence, and not rule of discovery, does not conflict with
applying it to depositions. Hiskett v Wal-Mart Stores (1998, DC Kan) 180 FRD 403.
Objections during deposition preferably should be limited to those under FRCP 32(d)(3); other objections should be
kept to minimum during deposition. Quantachrome Corp. v Micromeritics Instrument Corp. (1999, SD Fla) 189 FRD
697.
Where there is no claim of privilege in relation to questions asked on deposition, FRCP 30(d)(1) and FRCP 26
(relating to scope of discovery) should be strictly applied. Pilates, Inc. v Georgetown Bodyworks Deep Muscle Massage
Ctrs., Inc. (2000, DC Dist Col) 201 FRD 216.
Court can impose sanctions for behavior by counsel that disrupts deposition pursuant to FRCP 30(d), 28 USCS §
1927, and its inherent power. Higginbotham v KCS Int'l, Inc. (2001, DC Md) 202 FRD 444.
5. Telephonic depositions [Rule 30(b)(7)]
Telephonic depositions of two of plaintiff corporation's officers who resided in Europe would be ordered where there
was no reason why anticipated full-day deposition could not be conducted by conference call or indication that integrity
of discovery process would be compromised, and there was no reason to add cost of two trans-Atlantic flights and hotel
accommodations to already high expenses in suit. Rehau, Inc. v Colortech, Inc. (1993, WD Mich) 145 FRD 444, 25 FR
Serv 3d 484.
Party seeking to depose witness telephonically must present legitimate reason for its request; burden then shifts to
opponent to show why deposition should proceed by more traditional method. Cressler v Neuenschwander (1996, DC
Kan) 170 FRD 20.
Court, in deciding whether to allow party to depose witness telephonically, must consider whether use of telephonic
means would reasonably ensure accuracy and trustworthiness, and whether opposing party would be prejudiced.
Cressler v Neuenschwander (1996, DC Kan) 170 FRD 20.
Plaintiff, unlike witness, cannot invoke mere fact of inconvenience or expense as legitimate reason to refuse to
appear and submit himself to questioning by defendant regarding basis for claim. United States v Rock Springs Vista
Dev. (1999, DC Nev) 185 FRD 603.
Plaintiff's motion requesting telephonic deposition under Rule 30(b)(7) is granted where defendant has not come
forward with particularized showing as to why telephonic deposition would prejudice it, subject to approval of
stipulation between parties as to mechanics of conducting telephonic deposition. Jahr v IU International Corp. (1986,
MD NC) 109 FRD 429, 4 FR Serv 3d 943.
Plaintiff who lived in California and had previously filed employment discrimination suit in Alabama was entitled to
protective order prohibiting taking of her deposition in California since she lacked funds to fly her attorney to
California; defendant would be ordered to take her deposition by telephone or by written interrogatories. De Petro v
Exxon, Inc. (1988, MD Ala) 118 FRD 523, 46 BNA FEP Cas 60, 47 CCH EPD P 38367, 10 FR Serv 3d 178.
6. Substitution for written interrogatories
If detailed information sought by numerous interrogatories to party can be better and more conveniently discovered
by oral examination, court may order that discovery be had only by taking party's deposition upon oral examination.
New England Terminal Co. v Graver Tank & Mfg. Corp. (1940, DC RI) 1 FRD 411.
If proposed interrogatories are too numerous and seek too many details and are therefore not allowed, matters to be
covered, if relevant, may be inquired into through oral depositions. Brightwater Paper Co. v Monadnock Paper Mills
(1942, DC Mass) 2 FRD 547.
Where interrogatories involve thorough inquiry into vital and highly controversial phases of case, resort should be
had to oral examination of witnesses. Hartford-Empire Co. v Glenshaw Glass Co. (1943, DC Pa) 4 FRD 210.
In civil rights action brought by state prison inmate who alleges that he was deprived of medical treatment as result
of prison riot, inmate's request to take deposition of non-party who was allegedly physician in charge at prison during
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USCS Fed Rules Civ Proc R 30
period in question is properly denied where inmate has not used means available to him, such as service of written
interrogatories, to obtain information he seeks. Ronson v Commissioner of Correction (1985, SD NY) 106 FRD 253.
7. Compelling attendance of parties and witnesses
Mere notice to attend taking of deposition is insufficient to compel attendance of person not party; subpoena is
required. El Salto, S.A. v PSG Co. (1971, CA9 Or) 444 F2d 477, 1971 CCH Trade Cases P 73580, 15 FR Serv 2d 107,
cert den (1971) 404 US 940, 30 L Ed 2d 253, 92 S Ct 273; Sunbeam Corp. v Payless Drug Stores (1953, DC Cal) 113 F
Supp 31, 97 USPQ 373.
One who is not party to action may not be required to appear for taking of his deposition without service of
subpoena. Millinocket Theatre, Inc. v Kurson (1940, DC Me) 35 F Supp 754; Spaeth v Warner Bros. Pictures, Inc.
(1941, DC NY) 1 FRD 729; Czuprynski v Shenango Furnace Co. (1942, DC NY) 2 FRD 412.
Party to action need not be served with subpoena to compel appearance at taking of his deposition. Spaeth v Warner
Bros. Pictures, Inc. (1941, DC NY) 1 FRD 729.
Motion to require depositions of defendant's employees to be taken and requiring defendant to give notice of arrival
of his vessel in port and to compel attendance of said employees as witnesses was denied. Jensen v Buckeye S.S. Co.
(1942, DC NY) 2 FRD 411.
Party may not be required to compel attendance of employee for oral examination. Czuprynski v Shenango Furnace
Co. (1942, DC NY) 2 FRD 412.
Subpoena need not be served upon party for taking of his deposition pursuant to notice. O'Neill v Blue Comet Cab
Corp. (1953, DC NY) 21 FRD 161.
Deposition of officer of nonparty corporation, which corporation is doing business within district, may be taken and
may be compelled by subpoena served upon corporation within district. Less v Taber Instrument Corp. (1971, WD NY)
53 FRD 645, 15 FR Serv 2d 1269.
Except where employee of corporate party has been designated by corporation under FRCP 30(b)(6), or is officer,
director or managing agent, employee is treated in same way as any other witness, and his presence must be obtained by
subpoena rather than notice. Archer Daniels Midland Co. v Aon Risk Servs. (1999, DC Minn) 187 FRD 578.
8. Failure to attend
Refusals and failures of defendants to appear for depositions after proper notice has been served on their attorney,
under predecessor of Rule 30(b), are sufficient to warrant trial in striking their answers in previous testimony on
question of exemplary damages in tort action. Peitzman v Illmo (1944, CA8 Mo) 141 F2d 956, cert den (1944) 323 US
718, 89 L Ed 577, 65 S Ct 47, reh den (1944) 323 US 813, 89 L Ed 647, 65 S Ct 112.
Non-party cannot be awarded costs and attorneys' fees under provision of Rule 30(g) which authorizes award of fees
and expenses to "party" attending deposition where party giving notice fails to attend and proceed. Westmoreland v
CBS, Inc. (1985, App DC) 248 US App DC 255, 770 F2d 1168, 2 FR Serv 3d 1451.
Remedy for failure to appear for taking of deposition by party to action who has been properly served with notice
thereof is motion to strike his pleading. Spaeth v Warner Bros. Pictures, Inc. (1941, DC NY) 1 FRD 729.
Defendant's motion for dismissal of complaint was granted where plaintiff, after appearing for deposition noticed by
defendant for 2 days, failed to appear for continuation of examination rather than exercise right to seek protective order
under Rule 30(d). Bourgeois v El Paso Natural Gas Co. (1957, DC NY) 20 FRD 358, affd (1958, CA2 NY) 257 F2d
807.
9. Testimony compelled
Deponent may not invoke blanket Fifth Amendment privilege prior to hearing questions; deponent improperly
refused deposition where he offered to screen questions in advance for possibly incriminating questions, invoked
blanket Fifth Amendment privilege prior to deposition and summarily left deposition after reciting name and address.
National Life Ins. Co. v Hartford Acci. & Indem. Co. (1980, CA3 Pa) 615 F2d 595, 28 FR Serv 2d 1165.
Judgment creditor was entitled to motion to compel judgment debtor to comply with discovery requests since it had
right to conduct reasonable post-judgment discovery to inquire into judgment debtor's assets and judgment debtor and
its corporate officer failed to appear for their depositions. Credit Lyonnais, S.A. v SGC Int'l (1998, CA8 Mo) 160 F3d
428.
Under Rule 30, deposition testimony may be compelled if information sought is reasonably calculated to lead to
discovery of admissible evidence; it is not adequate objection that questions posed may not themselves produce
admissible evidence. Carr v New York Stock Exchange, Inc. (1976, ND Cal) 414 F Supp 1292, CCH Fed Secur L Rep
P 95563, 21 FR Serv 2d 1079.
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USCS Fed Rules Civ Proc R 30
As general rule, instructing witnesses not to answer questions is improper; although exceptions to rule exists for
questions which deal with trade secrets and privileged information, it is duty of attorney instructing witness not to
answer to immediately seek protective order. American Hangar, Inc. v Basic Line, Inc. (1985, DC Mass) 105 FRD
173, 1 FR Serv 3d 1086.
II. WHEN AND FROM WHOM DEPOSITIONS MAY BE TAKEN [RULE 30(a)]
A. In General
10. Generally
Although, when defendant moves to dismiss for lack of jurisdiction, either party should be permitted to take
deposition on issues of fact raised by motion, discovery rules vest broad discretion in trial court so that, where court
found no issue of fact raised by motion to dismiss, it denied discovery. H. L. Moore Drug Exchange, Inc. v Smith,
Kline & French Laboratories (1967, CA2 NY) 384 F2d 97, 1967 CCH Trade Cases P 72231, 11 FR Serv 2d 739.
Taking of depositions by party who is guilty of laches should be conditioned on its causing no delay in the trial.
Norton v Cooper Jarrett, Inc. (1938, DC NY) 1 FRD 92.
That party has answered interrogatories does not preclude subsequent taking of his deposition. Howard v States
Marine Corp. (1940, DC NY) 1 FRD 499.
Purpose of formerly prescribed 20-day period was to allow defendants sufficient time to inform themselves of nature
of claim against them. Netter v Ashland Paper Mills, Inc. (1956, DC NY) 19 FRD 529.
Counsel for both sides, as matter of professional courtesy, and as means to avoid future scheduling conflicts, when
making arrangements for third party depositions, should jointly call third party deponent to schedule that person's
deposition; when such calls cannot be made due to third party's unavailability, refusal to cooperate, or otherwise,
counsel for both sides should contact each other and jointly agree to deposition date. Seabrook Medical Sys. v Baxter
Healthcare Corp. (1995, SD Ohio) 164 FRD 232.
11. Leave of court
Court abused its discretion in denying permission to depose prisoner on basis that discovery period had closed where
requested deposition was to have been taken not for purposes of discovery but as testimony of witness unavailable for
trial. Charles v Wade (1982, CA5 Ga) 665 F2d 661, 33 FR Serv 2d 276, cert den (1983) 460 US 1036, 75 L Ed 2d 787,
103 S Ct 1426.
Civil rights plaintiff who alleged that she was raped by police officer when she was minor was not entitled to take
additional depositions of city council members whom she had not yet deposed and other witnesses where she had
already been permitted to take twelve depositions, two more than permitted without leave of court, and there was no
merit in her contention that she was entitled to more. Andrews v Fowler (1996, CA8 SD) 98 F3d 1069, 36 FR Serv 3d
711.
District court did not abuse its discretion in refusing motion by plaintiff, who alleged sexual abuse by former police
officer, to take additional depositions of city council members where she was permitted to take 12 depositions already
and presented no good reason why additional depositions were necessary. Bell v Fowler (1996, CA8 SD) 99 F3d 262, 36
FR Serv 3d 657.
Although court reporters were present and nonparty witnesses presumably were questioned under oath, RICO
plaintiff's interviews of witnesses in fact were not depositions because plaintiff had not complied with rule's
requirements, but that did not mean that party was not entitled to take witness's statements and transcribe them without
giving defendant notice and opportunity to attend; there is nothing in federal rules that would support such restriction on
counsel's private inquiry into facts underlying client's claim. Corley v Rosewood Care Ctr. (1998, CA7 Ill) 142 F3d
1041, RICO Bus Disp Guide (CCH) P 9485, 40 FR Serv 3d 1101.
No answer having been filed, plaintiff's motion for voluntary dismissal without prejudice is treated as abandonment
of his prior motion for leave to take oral deposition before answer. Sperry Products, Inc. v Association of American
Railroads (1941, DC Dist Col) 2 FRD 48, 50 USPQ 450.
Motions judge may review and vacate order granting leave to take depositions which was issued ex parte by
colleague. Hillside Amusement Co. v Warner Bros. Pictures, Inc. (1941, DC NY) 2 FRD 98.
Plaintiff is not given leave to serve notice of deposition within statutorily-prescribed period unless he can show that
he will be prejudiced by having to wait required period. Brause v Travelers Fire Ins. Co. (1956, DC NY) 19 FRD 231.
In action by stockholder against bank and its officers and directors alleging that defendants issued false and
misleading proxy solicitation, leave to conduct expedited discovery by way of deposition will be denied where basis for
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USCS Fed Rules Civ Proc R 30
request for expedited discovery is scheduling of annual shareholders meeting little more than 2 weeks from date of
filing suit and where complete relief can be afforded by setting vote aside. Pearce v Southeast Banking Corp. (1983,
SD Fla) 97 FRD 535, CCH Fed Secur L Rep P 99201, 38 FR Serv 2d 1526.
Abuse of discretion is not found where magistrate refuses to allow plaintiffs extension of deadline for completion of
experts' deposition where plaintiff knew of deadline for several months but did not retain expert until one month before
expiration of deadline. Chigro v Texaco, Inc. (1983, DC Colo) 558 F Supp 75, 36 FR Serv 2d 22.
Plaintiff would not be granted leave to set aside ten deposition limit since his failure to indicate number and/or names
of additional depositions sought made it difficult for court to assess reasonableness of his request and he had not even
commenced discovery; local rule requires party to exhaust available discovery before seeking leave for additional
discovery events. Whittingham v Amherst College (1995, DC Mass) 163 FRD 170.
Injured construction worker would be entitled to redepose owner of various entities named as defendants since there
were many unanswered questions regarding ownership and relationship of various companies relevant to litigation and
defendant and non-defendant movants did not demonstrate undue burden or expense from taking second deposition.
Hurley v JARC Builders (1995, ED Pa) 164 FRD 39.
When party appeals magistrate judge's decision concerning leave to take depositions in excess of number allowed by
FRCP 30(a)(2)(A), court reviews for clear error factual findings on which ruling is based, and reviews de novo any legal
conclusions that are challenged; court reviews only for abuse of discretion magistrate judge's ultimate decision
concerning number of depositions to be allowed. Barrow v Greenville Indep. Sch. Dist. (2001, ND Tex) 202 FRD 480.
When party, who has already taken maximum number of depositions that FRCP 30(a)(2)(A) allows, moves for, but
is denied, leave to take additional depositions, to show abuse of discretion with respect to that denial, party must
demonstrate necessity for each deposition party took without leave of court pursuant to presumptive limit of FRCP
30(a)(2)(A). Barrow v Greenville Indep. Sch. Dist. (2001, ND Tex) 202 FRD 480.
Absent some showing of need or good reason for doing so, deponent should not be required to appear for second
deposition. Melhorn v New Jersey Transit Rail Operations (2001, ED Pa) 203 FRD 176.
FRCP 30(a)(2)(A) requires that, in absence of stipulation, party seeking to take more than ten depositions must
explicitly seek and obtain leave of court before that party can commence any depositions in excess of ten-deposition
limit. Advanced Sterilization Prods. v Jacob (2000, DC Mass) 190 FRD 284.
12. Miscellaneous
When judge has judicial discretion in making order and plaintiffs can have testimony taken before master, plaintiffs
are not entitled, on ground that judge acted arbitrarily, to writ to vacate interlocutory order staying taking of depositions
where case had been pending for nearly two years with several extensions of time. National Bondholders Corp. v
McClintic (1938, CA4 W Va) 99 F2d 595.
In action to recover estate taxes wrongfully collected, court did not abuse its discretion in staying the taking of
deposition of defendant's witness on value where the circumstances showed shortness of the time before the cause was
to come to trial; the prior continuance at defendant's request; and the great distance of the place of taking from the place
of trial and the residence of the plaintiff. Allen v First Nat'l Bank (1948, CA5 Ga) 169 F2d 221, 48-2 USTC P 10630,
37 AFTR 164.
Claim that taking oral depositions would violate attorney-client privilege, unfairly force claimant to disclose
information obtained from experts, and unreasonably burden claimant if taken at places noted, is insufficient to warrant
ruling that deposition should not be taken. United States v 38 Cases, etc. (1964, WD Pa) 35 FRD 357, 8 FR Serv 2d
26B.411, Case 1, app dismd (1966, CA3 Pa) 369 F2d 399.
There is nothing in FRCP 30, which governs conduct of oral depositions, to suggest that deposition of represented
party cannot go forward in absence of such party's attorney where such counsel has been duly noticed and affirmatively
states he will not appear. Fisher v Goord (1999, WD NY) 184 FRD 45.
By voluntarily appearing at deposition, nonparty witness waived any objection to subpoena duces tecum based upon
lack of service. Judicial Watch, Inc. v United States DOC (2000, DC Dist Col) 196 FRD 1, motion den, motion gr,
remanded, sanctions disallowed (2000, DC Dist Col) 2000 US Dist LEXIS 14014.
In action brought under Employee Retirement Income Security Act, individual's motion to compel employer to
comply with individual's request for unlimited depositions was denied where individual had not supplied adequate
reason to exceed time limits for and number of depositions allowed under Fed. R. Civ. P. 30(a)(2)(A) and (d)(2).
Nankivil v Lockheed Martin Corp. (2003, MD Fla) 216 FRD 689.
B. Timing of Deposition
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USCS Fed Rules Civ Proc R 30
13. After close of discovery
In wrongful conception case against surgeon who had performed laparoscopic cauterization in order to prevent
pregnancy of patient who later became pregnant and gave birth to healthy child, District Court did not abuse its
discretion in allowing plaintiff to depose defendant's expert after close of discovery and in refusing to allow defendant
to depose plaintiff's experts at that time where plaintiff notified defendant of experts she expected to have testified
almost 2 weeks before close of discovery and defendant failed to notify plaintiff of his experts' names until 3 months
later. Hartke v McKelway (1983, App DC) 228 US App DC 139, 707 F2d 1544, cert den (1983) 464 US 983, 78 L Ed
2d 360, 104 S Ct 425.
14. After motion for summary judgment
Deposition taken by plaintiff subsequent to hearing on defendant's motion for summary judgment is not prohibited.
Pittsburgh Hotels Asso. v Urban Redevelopment Authority (1962, DC Pa) 29 FRD 512, 5 FR Serv 2d 603.
15. During trial
In action attacking allegedly fraudulent transfer of stock, trial court properly denied plaintiffs' request to depose
defense expert witness during trial, notwithstanding that defendants had been permitted to depose plaintiffs' expert
witness during trial, where plaintiff's expert witness presented for first time during his testimony at trial complex new
exhibit (which defendants' expert did not) and where defendants' expert witness confined his testimony almost entirely
to critical analysis of testimony of plaintiffs' expert witness. Havee v Belk (1985, CA4 NC) 775 F2d 1209.
Deposition may be taken during trial not as of right but within court's discretion. Knox v Anderson (1957, DC
Hawaii) 21 FRD 97.
16. Second deposition
Defendants' motion to take plaintiff's deposition was denied on grounds that plaintiff had previously been examined
and cross-examined at taking of his deposition for purpose of perpetuating his testimony, that he had served bill of
particulars funishing additional information, and the defendants' motion for production of documents was being granted.
Welty v Clute (1940, DC NY) 1 FRD 446.
Absent some showing of need or good reason for doing so, court will generally not require deponent to appear for
second deposition; scheduling second deposition of same person without showing of good reason will generally support
finding of annoyance and undue burden or expense. Sentry Ins. v Shivers (1996, DC Kan) 164 FRD 255, 34 FR Serv 3d
563.
Propriety of deposing someone for second time addresses discretion of court; absent some showing of need or good
reason for doing so, court will generally not require deponent to appear for second deposition. Dixon v Certainteed
Corp. (1996, DC Kan) 164 FRD 685.
Absent some showing of need or good reason for doing so, deponent should not be required to appear for second
deposition. Melhorn v New Jersey Transit Rail Operations (2001, ED Pa) 203 FRD 176.
17. Miscellaneous
At pretrial conference of case in which issue had been joined for more than seven years, court emphasizing its
purpose of clearing any preliminary matters preceding date of trial, and plaintiff indicating no purpose to take
deposition, his motion to do so, made two days before trial date, was denied. Stornelli v United States Gypsum Co.
(1942, DC NY) 2 FRD 345.
Postjudgment deposition will not purge judgment debtor of contempt where debtor testifies that he is supported
totally by wife but refuses to answer questions regarding source of her income or assets. Cerami v Robinson (1980, SD
NY) 85 FRD 371.
Motion by plaintiffs members and officers of political party against candidate for governor for leave to take
candidate's deposition within 30 days following commencement of action is denied since plaintiffs failed to sufficiently
show irreparable injury, connection between relief sought and avoidance of irreparable harm and to show that
irreparable injury looms greater than injury to defendant of expedited discovery. Notaro v Koch (1982, SD NY) 95
FRD 403, 35 FR Serv 2d 580.
C. Persons Who May Be Examined
18. Party
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USCS Fed Rules Civ Proc R 30
United States as litigant is subject to discovery rules. United States v Procter & Gamble Co. (1958) 356 US 677, 2
L Ed 2d 1077, 78 S Ct 983.
Party may take own deposition. Richmond v Brooks (1955, CA2 NY) 227 F2d 490; Smith v Morrison-Knudsen Co.
(1958, SD NY) 22 FRD 108, 1 FR Serv 2d 441.
Party to action in state court who has unsuccessfully attempted to take deposition of adversary should not be
permitted to circumvent that ruling by filing suit in federal court and serving notice to take deposition of same person.
Snap Lite Corp. v Stewart Warner Corp. (1941, DC NY) 40 F Supp 776.
Party to suit in admiralty has right to take testimony of other party by deposition upon oral examination for purpose
of discovery. Brown v Isthmian S.S. Corp. (1948, DC Pa) 79 F Supp 701.
Plaintiffs may serve and file discovery demands for production of corporate records and books, and deposition of
individual in complaint seeking damages by personal representatives of 15 alien seamen who died or were lost at sea
while engaged in performance of their duties on board, or following orders to abandon merchant vessels belonging to
defendants, where in view of jurisdictional claims made, clear evidence from affidavits of defendants' crew agent,
representative of corporation, and owner of vessel involved, and plaintiffs' counsel, that plaintiffs have adequate basis to
believe they can prove applicability of American law as to validity of claimed releases after discovery, and dispositive
nature of contrary conclusion. Chen Chun Mei Chang v Zenith Navigation S.A. (1979, SD NY) 83 FRD 439.
Fact that proposed deponent is attorney for one of parties in case is not enough by itself to justify granting of motion
for protective order; Rule 30(a), providing that any party may take testimony of any person, includes attorney for party
to action. In re Arthur Treacher's Franchisee Litigation (1981, ED Pa) 92 FRD 429, 33 FR Serv 2d 227.
There is nothing in FRCP 30, which governs conduct of oral depositions, to suggest that deposition of represented
party cannot go forward in absence of such party's attorney where such counsel has been duly noticed and affirmatively
states he will not appear. Fisher v Goord (1999, WD NY) 184 FRD 45.
Plaintiff's motion to have defendants product documents in another action does not restrict defendants' right to take
plaintiff's deposition. Evans v Schlein (1946, Mun Ct App Dist Col) 51 A2d 472.
19. Attorney
While recognizing that Rule 30 does not specifically prohibit taking deposition of opposing counsel and while not
holding that opposing counsel is absolutely immune from being deposed, court stated that opposing counsel's deposition
should be taken only where party seeking to take deposition has shown that (1) no other means exist to obtain
information sought, (2) information sought is relevant and nonprivileged, and (3) information is crucial to preparation of
case. Shelton v American Motors Corp. (1986, CA8 Ark) 805 F2d 1323, 22 Fed Rules Evid Serv 125, 6 FR Serv 3d
568, reh den, en banc (1987, CA8 Ark) 1987 US App LEXIS 2002.
In action pursuant to Securities Exchange Act of 1934 alleging that prospectus contained material falsehoods and
omissions, defendant may depose attorney of plaintiff because attorney has knowledge of discoverable matter given fact
that plaintiff stated during deposition that his information concerning prospectus came from attorney. Trockman v
Duddy's, Inc. (1975, DC Mass) 21 FR Serv 2d 58.
No special privilege or immunity shields person from deposition simply because he or she is attorney, or even
attorney for party to suit; however, discovery may be restricted for good cause and where testimony of attorney is
sought only to establish credibility of other witnesses, any value to person requesting such testimony is outweighed by
risk of delay and serious infringement upon right to counsel; short of prohibiting such deposition, it is hard to imagine
how to protect attorney's mental impressions, opinion, legal theories, or litigation strategy; depositions which might
provide such revelations should not be permitted absent strong showing of necessity or prejudice or hardship in
preparation of case. Walker v United Parcel Services (1980, ED Pa) 87 FRD 360, 23 BNA FEP Cas 1493, 31 FR Serv
2d 407.
Absent application for protective order, mall tenant would be entitled to depose attorney for defendant regarding his
communications with tenant concerning defendant mall owner/operator's decision not to renew tenant's lease, allegedly
in violation of anti-retaliation provision of settlement of tenants' class action against mall owner/operator, with
instructions that, when privilege is claimed, witness should answer questions relevant to existence, extent, or waiver of
privilege and disclose information such as date of communication, who made statement to whom and in whose
presence, names of other persons to whom content of statement have been disclosed, and general subject matter of
statement. Tuerkes-Beckers, Inc. v New Castle Assocs. (1993, DC Del) 158 FRD 573.
Taking of deposition of counsel is not specifically prohibited; consequently, party seeking protective order to
preclude his attorney's deposition bears burden under FRCP 26(c) of demonstrating good cause to preclude or limit
testimony. Rainbow Investors Group v Fuji Trucolor (1996, WD La) 168 FRD 34.
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USCS Fed Rules Civ Proc R 30
Attorney, even attorney for party to suit, is subject to being deposed, and courts, which do not favor thwarting
deposition, rarely grant protective order which totally prohibits deposition, unless extraordinary circumstances are
present; request to take deposition of attorney for party may, however, constitute circumstance justifying departure from
normal rule. Mike v Dymon, Inc. (1996, DC Kan) 169 FRD 376.
Taking opposing counsel's deposition should be limited to where party seeking to take deposition has shown that no
other means exist to obtain information than to depose opposing counsel, that information sought is relevant and
non-privileged, and that information is crucial to preparation of case. Jones by & Through Jones v Board of Police
Comm'rs (1997, WD Mo) 176 FRD 625.
Since FRCP 30(a) provides that depositions may be taken of "any person," there is no express prohibition against
taking of attorney depositions. Massachusetts Mut. Life Ins. Co. v Cerf (1998, ND Cal) 177 FRD 472.
In general terms, party seeking to depose opposing counsel has to establish legitimate basis for requesting deposition
and demonstrate that deposition will not otherwise prove overly disruptive or burdensome. Dunkin' Donuts v
Mandorico, Inc. (1998, DC Puerto Rico) 181 FRD 208.
Burden is on party seeking to depose opposing counsel to demonstrate propriety and need for such deposition.
Dunkin' Donuts v Mandorico, Inc. (1998, DC Puerto Rico) 181 FRD 208.
Depositions of opposing counsel, which are disfavored, should be limited to where party seeking to take deposition
has shown that no other means exist to obtain information than to depose counsel, that information sought is relevant
and nonprivileged, and that information is crucial to preparation of case. Central Vt. Pub. Serv. Corp. v Adriatic Ins. Co.
(1998, DC Vt) 185 FRD 179.
Party cannot prevent material witness from being deposed by hiring that witness as trial attorney. Pamida, Inc. v E.S.
Originals, Inc. (2001, DC Minn) 199 FRD 633.
Although Federal Rules of Civil Procedure do not prohibit attorney depositions, courts generally regard such
depositions unfavorably because they may interfere with attorney's case preparation and risk disqualification of counsel
who may be called as witness. Jennings v Family Mgmt. (2001, DC Dist Col) 201 FRD 272.
20. Witness
Fact that one of defendants has been dismissed as party to action does not prevent taking of his deposition as witness.
Samuel Goldwyn, Inc. v United Artists Corp. (1940, DC NY) 35 F Supp 633.
Examination of witnesses in action instituted in federal court for purpose of using rules to prepare for trial of state
court action is oppressive. Empire Liquor Corp. v Gibson Distilling Co. (1941, DC NY) 2 FRD 247.
Motion to require depositions of defendant's employees to be taken and requiring defendant to give notice of arrival
of his vessel in port and to compel attendance of said employees as witnesses was denied. Jensen v Buckeye S.S. Co.
(1942, DC NY) 2 FRD 411.
Absent estoppel, authority of plaintiff's counsel to take depositions of witnesses terminates upon plaintiff's death.
Talbot v Ledgewood Circle Shopping Center, Inc. (1961, ED NY) 194 F Supp 189, 4 FR Serv 2d 462.
Where plaintiff failed to establish that three of defendant's employees subpoenaed by him for taking of depositions
were officers or managing agents of defendant corporation, plaintiff had right to take depositions of those individuals as
witnesses. Galley v Pennsylvania R. Co. (1962, SD NY) 30 FRD 556, 5 FR Serv 2d 509.
Subject to prescribed conditions for protection of third-party defendant, third-party plaintiff is permitted to take
deposition of out-of-state witness who was claimed by third-party defendant to be mentally incompetent. Clark v
Geiger (1962, ED Pa) 31 FRD 268, 6 FR Serv 2d 576.
When party offers affidavit of expert witness in opposition to, or in support of, motion for summary judgment, it
waives its right not to have deposition of said expert taken. Cox v Commonwealth Oil Co. (1962, SD Tex) 31 FRD 583,
6 FR Serv 2d 518.
In admiralty case plaintiff would be allowed to depose crew members of foreign vessel because it was about to leave
port, despite defendant's claim that contract provided for resolution by arbitration in England, where depositions would
be brief, completed in one day, and defendant had made no assurances that crew members would be made available to
plaintiff in the future. Koch Fuel International, Inc. v M/V South Star (1987, ED NY) 118 FRD 318, 1988 AMC 1226.
By voluntarily appearing at deposition, nonparty witness waived any objection to subpoena duces tecum based upon
lack of service. Judicial Watch, Inc. v United States DOC (2000, DC Dist Col) 196 FRD 1, motion den, motion gr,
remanded, sanctions disallowed (2000, DC Dist Col) 2000 US Dist LEXIS 14014.
21. Public official
Subjecting cabinet officer, such as Secretary of Agriculture, to oral deposition concerning official actions is not
normally countenanced. Peoples v United States Dep't of Agriculture (1970) 138 US App DC 291, 427 F2d 561.
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USCS Fed Rules Civ Proc R 30
Where department store, victim of rioting, is unable to prove any set of facts entitling it to judicial relief in support of
its third-party claim against District of Columbia for indemnity for all sums recovered against it by lessor, who under
lease brought action against department store for repairs to property destroyed during riot, and for loss of inventory,
other personal property, and profits, dismissal of third-party action before department store had finished taking
depositions of District's officials was not error. Westminster Investing Corp. v G. C. Murphy Co. (1970) 140 US App
DC 247, 434 F2d 521.
Motion to take testimony of income tax agent prior to trial of suit to recover taxes will be granted where government
has ignored request by attorney of taxpayer for permission to take examination for period of three months. O'Keefe v
Shaughnessy (1951, ND NY) 95 F Supp 900, 51-1 USTC P 9134, 40 AFTR 388.
Where defendant's in-court examination of government officials possessing knowledge concerning internal revenue
investigation relating to suit would be severely curtailed by government's decision to call only one revenue agent, and
consequently, where denial of pre-hearing discovery would drastically diminish respondent's ability to prepare defense,
government's motion to quash notice of depositions was denied. United States v Lomar Discount, Ltd. (1973, ND Ill)
61 FRD 420, 18 FR Serv 2d 1253, affd without op (1974, CA7 Ill) 498 F2d 1404.
In action challenging order of Construction Industry Stabilization Committee, plaintiff is entitled to take oral
deposition of former chairman where it appears that he may have been chairman at time decision was made and where
decision was not accompanied by adequate administrative findings. Carpenters 46 County Conference Bd., etc. v
Construction Industry Stabilization Committee (1974, ND Cal) 18 FR Serv 2d 1042.
Bald assertions of bad faith are insufficient to require agency officials to submit to depositions. Friends of
Shawangunks, Inc. v Watt (1983, ND NY) 97 FRD 663, 36 FR Serv 2d 705.
Subpoena duces tecum for physician employed by VA would not be quashed in former employee's handicap
discrimination action against VA in which he sought physician as expert witness; VA's ethics regulation requiring
agency authorization of employees to serve as expert witnesses could not curb federal district court's power to compel
discovery. Dean v Veterans Admin. (1993, ND Ohio) 151 FRD 83, 2 ADD 1066, 2 AD Cas 1290, 63 CCH EPD P
42710, 27 FR Serv 3d 19.
High ranking government officials are generally not subject to depositions unless they have some personal
knowledge about matter and party seeking deposition makes showing that information cannot be obtained elsewhere.
Alexander v FBI (1998, DC Dist Col) 186 FRD 1.
22. Prisoner
Where federal prisoner, presently confined in Missouri, had not been proceeding in forma pauperis, his tort action for
personal injuries earlier received while confined as prisoner in mental hospital in Washington, D. C., was dismissed
when he could not be present at trial in Washington, D. C. or have his deposition taken because of lack of financial
resources; however, since obtaining status of pauper, he can have deposition taken with assistance of public agencies so
that earlier dismissal was vacated and case remanded. Hannah v United States (1969) 133 US App DC 350, 410 F2d
1049.
Sanction of dismissal that was entered against plaintiff inmate based on inmate's refusal to be deposed absent court
order under Fed. R. Civ. P. 30(a), and on inmate's refusal to sign medical release, was vacated because refusal to be
deposed could not be basis for sanction, and case was remanded to district court for reconsideration of whether sanction
was otherwise too high for offense. Ashby v McKenna (2003, CA10 Colo) 331 F3d 1148.
Good cause existed for short postponement of plaintiff's deposition where plaintiff was minor confined to youth
facility, plaintiff was allegedly sexually assaulted by former juvenile detention officer, there were nine months
remaining for parties to complete discovery, and forcing plaintiff to recount details of alleged sexual assault in same
environment where incident occurred could have exacerbated potential harm to plaintiff. Williams v Greenlee (2002,
ND Tex) 210 FRD 577.
Neither fact that prisoner was party plaintiff nor defendant's representation that prisoner's deposition was being taken
to aid in preparation for trial obviated defendant's procedural obligation to ask for leave per Rule 30(a). Miller v Bluff
(1990, MD Pa) 131 FRD 698, 18 FR Serv 3d 37.
23. Miscellaneous
Counsel is entitled to take deposition of client. Sokolin v Estes (1942) 76 US App DC 357, 131 F2d 351.
Under Rule 30(c) and Rule 32(d)(3)(b), trial by deposition in case involving witnesses from foreign country was
proper, where parties' attorneys had consented to trial by videotaped depositions, and where no formal objections had
been entered in District Court with regard to deposition proceedings. Sims Consol., Ltd. v Irrigation & Power
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USCS Fed Rules Civ Proc R 30
Equipment, Inc. (1975, CA10 Colo) 518 F2d 413, 20 FR Serv 2d 709, cert den (1975) 423 US 913, 46 L Ed 2d 141, 96 S
Ct 218.
In bankruptcy case, creditor's interest in proceeding to authorize trustee to accept offer for part of bankrupt's property
is collateral, and trustee's request to take creditor's depositions should not be granted; creditor does not become direct
participant until he files his claim and his deposition may not be taken by trustee until that time. In re Pittsburgh
Terminal Coal Corp. (1942, DC Pa) 2 FRD 568.
Court permitted third-party plaintiff to take deposition of out-of-state witness who was claimed by third-party
defendant to be mentally incompetent subject to prescribed conditions for protection of third-party defendant. Clark v
Geiger (1962, ED Pa) 31 FRD 268, 6 FR Serv 2d 576.
Where third-party plaintiff in opposition to motion by third-party defendant for summary judgment attached affidavit
of expert to its brief in opposition to motion for summary judgment, third-party defendant is entitled to take deposition
of expert. Cox v Commonwealth Oil Co. (1962, SD Tex) 31 FRD 583, 6 FR Serv 2d 518.
President of corporation may not be called for deposition where it is clear that information party wants is available
through other employees of defendant, request borders on harassment and would result in duplication of testimony.
Hughes v General Motors Corp. (1974, SD NY) 18 FR Serv 2d 1249.
Arbitrator may not be deposed in order to a certain bases of award or to impeach such award but where deposition is
requesting information in possession of arbitrator which has directly relevant and probative evidence concerning some
unrelated matter which does not impeach correctness of his decision, arbitrator may be deposed. Bliznik v
International Harvester Co. (1980, ND Ill) 87 FRD 490, 31 FR Serv 2d 151.
Except where employee of corporate party has been designated by corporation under FRCP 30(b)(6), or is officer,
director or managing agent, employee is treated in same way as any other witness, and his presence must be obtained by
subpoena rather than notice. Archer Daniels Midland Co. v Aon Risk Servs. (1999, DC Minn) 187 FRD 578.
Party need not be permitted to wear out or harass corporation with number of futile Fed. R. Civ. P. 30(a)(1)
depositions; consequence of plaintiff's excessive use of Rule 30(a)(1) instead of using Fed. R. Civ. P. 30(b)(6) can be
granting of protective order against further Rule 30(a)(1) corporate depositions. Folwell v Sanchez Hernandez (2002,
MD NC) 210 FRD 169.
Court did not find good cause for non-party pilot association's failure to act timely in objecting to subpoena because
subpoena was not overbroad; two categories of subpoena at issue were narrowly drawn, seeking relevant information
within bounds of fair discovery. McCoy v Southwest Airlines Co. (2002, CD Cal) 211 FRD 381.
III. NOTICE OF EXAMINATION [RULE 30(b)(1), (2), (5)]
24. Reasonableness of notice
Where in proceeding on fire insurance policies defendant insurer served notice on plaintiff insurer on October 2 of its
intention to take 15 depositions on October 6, in various cities of United States, such notice was not reasonable; hence,
trial court erred in admitting depositions into evidence over objections of plaintiff. Mims v Central Mfrs. Mut. Ins. Co.
(1949, CA5 Ala) 178 F2d 56.
Taking of deposition by attorney for defendants in bankruptcy proceeding is not violation of specific and
unequivocal order of bankruptcy court and does not amount to contempt where order of court vacating notice of
deposition on grounds that time given parties by notice was insufficient to satisfy reasonable notice requirements of
Federal Rules of Civil Procedure was not addressed specifically to attorney and contained no explicit direction that
deposition was not to take place. In re Baum (1979, CA5 La) 606 F2d 592, 5 BCD 1062, 21 CBC 747, 28 FR Serv 2d
1228.
District Court erred in admitting deposition of physician, notwithstanding that need for testimony was great and time
was short, where plaintiff's counsel gave defendants only 2 or 3 hours notice of deposition which was to be taken 35
miles away and to begin after 7:30 p.m., since testimony involved complicated medical reports of several doctors over
period of time, substitute attorneys could not have prepared adequately in 2 to 3 hours, and plaintiff's counsel knew for
some time that physician might be unavailable on last day of 2-week stand-by period but did not take precautionary
measures, thus partially creating emergency situation which arose. Hart v United States (1985, CA6 Ohio) 772 F2d
285, 3 FR Serv 3d 636.
Notice to take depositions in Washington, Florida, and Wisconsin within 48 hours was unreasonable notice; hence,
evidence was not admissible. Kilian v Stackpole Sons, Inc. (1951, DC Pa) 98 F Supp 500.
Notice served on adversary counsel in Chattanooga, Tenn. and Washington, D.C. that certain depositions would be
taken in Los Angeles, Cal., which notice gave adversary counsel only two full working days notice, was patently
unreasonable, improper and invalid where no showing was made of any special need for taking depositions in such
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USCS Fed Rules Civ Proc R 30
haste, and notice would be quashed by District Court pursuant to Rule 26(c)(1). Lloyd v Cessna Aircraft Co. (1976, ED
Tenn) 430 F Supp 25, 23 FR Serv 2d 864.
Any deficiency in time allowed deponent between original notice and time of deposition was completely cured by
order of magistrate which extended such time. Perkinson v Houlihan's/D.C., Inc. (1985, DC Dist Col) 107 FRD 286.
Videotape deposition of plaintiff may be taken but must be used solely for purposes of this infringement suit, where
Artist Formerly Known as Prince is suing unofficial publisher of magazine and operator of website devoted to him,
because there are bona fide litigation purposes for videotaping deposition, but there is also reason to believe that
defendant's motive is to generate notoriety and enhance its business ventures by making nonlitigation use of videotape.
Paisley Park Enters., Inc. v Uptown Productions (1999, SD NY) 54 F Supp 2d 347, 51 USPQ2d 1601.
25. Sufficiency of notice
Notice requirement is fulfilled by mailing to party's attorney of record copy of notice to take deposition. Chagas v
United States (1966, CA5 Tex) 369 F2d 643.
Notice alone is insufficient to procure from party or his counsel books and documents. Harrison v Prather (1968,
CA5 Miss) 404 F2d 267, 12 FR Serv 2d 23.
U. S. Attorneys who collected witness statements and documentary and physical evidence concerning murder of
Japanese citizen in Los Angeles pursuant to district court order appointing them co-commissioners following letters of
request from Tokyo prosecutor's office, were bound by 28 USCS § 1782 to follow Federal Rules of Civil Procedure,
and by failing to give notice to appellants, violated Rules 27, 30 and 45. Okubo v Reynolds (In re Letters Rogatory
from the Tokyo Dist. Prosecutor's Office) (1994, CA9 Cal) 16 F3d 1016, 94 CDOS 1108, 94 Daily Journal DAR 1918,
28 FR Serv 3d 200.
Notice to take deposition need not state matters upon which examination is sought. Saviolis v National Bank of
Greece (1938, DC NY) 25 F Supp 966; Bennett v The Westover, Inc. (1938, DC NY) 27 F Supp 10; Goldberg v Raleigh
Mfrs., Inc. (1939, DC Mass) 28 F Supp 975; Spaeth v Warner Bros. Pictures, Inc. (1941, DC NY) 1 FRD 729; Lenerts v
Rapidol Distributing Corp. (1942, DC NY) 3 FRD 42.
Notice to take deposition was not defective for failure to name officer before whom such deposition was to be taken.
Yonkers Raceway, Inc. v Standardbred Owners Asso. (1957, DC NY) 21 FRD 3.
Notice calling for examination of defendant organizations "by each of their officers and persons affiliated with said
named defendants who have knowledge of facts set forth in pleadings herein" does not comply with requirements of
Rule 30, and such notice will be vacated; notice of examination is sufficient as to individual defendants named in
caption on face of notice even though individuals were not named in body of notice. Budget Dress Corp. v Joint Board
of Dress & Waistmakers' Union (1959, SD NY) 24 FRD 506, 38 CCH LC P 66079, 3 FR Serv 2d 514.
Informal telephone notice of examination for depositions was not sufficient to establish priority. Story v
Quarterback Sports Federation, Inc. (1969, DC Minn) 46 FRD 432, 13 FR Serv 2d 816.
Government was entitled to depose 2 corporate directors whom it specifically identified in drug forfeiture case; party
who desires to depose specific corporate representative may so designate and is not required to allow corporation to
designate who will respond to deposition. United States v One Parcel of Real Estate (1988, SD Fla) 121 FRD 439.
Although plaintiff had actual notice of nonparty witnesses' deposition taken by defendant, once plaintiff withdrew
notice of witnesses' deposition but defendant insisted it would go forward with it, defendant became party desiring to
take deposition and was thus required to give written notice, and defendant made no application for waiver of such
notice. Lauson v Stop-N-Go Foods, Inc. (1990, WD NY) 133 FRD 92, 55 BNA FEP Cas 60, 19 FR Serv 3d 1016.
Except where employee of corporate party has been designated by corporation under FRCP 30(b)(6), or is officer,
director or managing agent, employee is treated in same way as any other witness, and his presence must be obtained by
subpoena rather than notice. Archer Daniels Midland Co. v Aon Risk Servs. (1999, DC Minn) 187 FRD 578.
Fed. R. Civ. P. 30 does not require either notice of who will be present at deposition or that the party conducting the
deposition must provide free copy of the transcript to the deponent. Brant v Principal Life & Disability Ins. Co. (2002,
ND Iowa) 195 F Supp 2d 1100.
26. Time and place of examination, generally
Office of defendant's attorney as place designated for taking of plaintiff's deposition is not valid ground for objection.
Collins v Wayland (1944, CA9 Ariz) 139 F2d 677, cert den (1944) 322 US 744, 88 L Ed 1576, 64 S Ct 1151.
Contention that female witness was deprived of her right to have her deposition taken at home under provisions of
Tennessee code was without merit where such witness raised no objection to leaving home for purpose of testifying and
record disclosed no untoward effect on defendant as result of hearing. Fraser v United States (1944, CA6 Tenn) 145
F2d 139, cert den (1945) 324 US 849, 89 L Ed 1409, 65 S Ct 684.
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USCS Fed Rules Civ Proc R 30
Trial court erred in dismissing plaintiff's case upon plaintiff's failure to travel from India to New York for taking of
his deposition where such requirement amounted to undue physical and financial burden. Hyam v American Export
Lines, Inc. (1954, CA2 NY) 213 F2d 221.
Person designated by organization pursuant to Rule 30(b)(6) cannot be required to travel outside limits imposed by
Rule 45(d)(2). Cates v LTV Aerospace Corp. (1973, CA5 Tex) 480 F2d 620, 17 FR Serv 2d 617.
Resident of district in which deposition is to be taken who resides and transacts business in person in one county
cannot be required to attend examination in any other county. Laverett v Continental Briar Pipe Co. (1938, DC NY) 25
F Supp 80.
Oral deposition of witness residing at distance should be taken at place of trial if witness consents and adverse party
so requests. Clair v Philadelphia Storage Battery Co. (1939, DC Pa) 27 F Supp 777.
Notice for taking of deposition of adverse party may be made returnable in district where action is pending, even
though adverse party resides outside district and has not been served with subpoena. Havell v Time, Inc. (1940, DC
NY) 1 FRD 439.
Generally speaking, nonresident plaintiff should make himself available for pretrial examination in forum in which
he has brought his action, but, where special circumstances or undue hardship are shown to exist, defendant may be
required to examine plaintiff outside forum. Endte v Hermes Export Corp. (1957, DC NY) 20 FRD 162.
Nonresident plaintiff who chooses forum makes himself available to examination in forum in absence of showing of
unreasonable hardship or presence of special circumstances. Slade v Transatlantic Financing Corp. (1957, DC NY) 21
FRD 146; Hart v Simons (1961, ED Pa) 29 FRD 146, 5 FR Serv 2d 503.
Plaintiff must make himself available for examination before trial in forum he has chosen. Pierre v Bernuth,
Lembcke Co. (1957, DC NY) 21 FRD 194.
Depositions of employees of California corporation were to be taken in office of individual plaintiff's attorney in
New York, in absence of showing that harm would result from their absence, as defendant was more able to bear
expense of trip. Tomingas v Douglas Aircraft Co. (1968, SD NY) 45 FRD 94, 12 FR Serv 2d 669.
Deposition of nonparty corporation should be taken at its principal place of business. Less v Taber Instrument Corp.
(1971, WD NY) 53 FRD 645, 15 FR Serv 2d 1269.
There is initial presumption that defendant should be deposed in district of his residence or principal place of
business. Armsey v Medshares Mgmt. Servs., Inc. (1998, WD Va) 184 FRD 569.
Ordinary employees of corporate party are subject to general rule that deponent should be deposed near his
residence, or principal place of work. Archer Daniels Midland Co. v Aon Risk Servs. (1999, DC Minn) 187 FRD 578.
There is initial presumption that defendant should be deposed in district of his residence or principal place of
business. Rapoca Energy Co., L.P. v AMCI Exp. Corp. (2001, WD Va) 199 FRD 191, 48 FR Serv 3d 880.
27. Service of notice
Where notice to take deposition is served upon party's attorney of record and no motion for relief is filed on behalf of
that party, effect is that court has directed depositions be taken. Harris v Twentieth Century-Fox Film Corp. (1943,
CA2 NY) 139 F2d 571, 60 USPQ 430; Chagas v United States (1966, CA5 Tex) 369 F2d 643.
Where defendant was first party in action to serve notice to take depositions, such defendant was entitled to priority
of examination in absence of special circumstances or good reason. Comercio e Industria Continental, S. A. v Dresser
Industries, Inc. (1956, DC NY) 19 FRD 265.
Provision of Rule 5(b) that service by mail is complete upon mailing applies to notice to take deposition and plaintiff
who mailed notice prior to time that defendant delivered its notice was entitled to priority in taking of deposition
notwithstanding provision of Rule 6(e) providing for additional time after service by mail. Porto Transport, Inc. v
Consolidated Diesel Electric Corp. (1957, DC NY) 21 FRD 250.
Notices of taking of depositions which are necessary for issuance of subpoenas must be served upon parties to action
after commencement of action. Application of Royal Bank of Canada (1963, SD NY) 33 FRD 296, 7 FR Serv 2d 525.
Plaintiff failed to comply with provisions of Rule 30(b) and therefore his motion to compel discovery was improper,
where notice of deposition and subpoena pursuant thereto were returned non est to plaintiff by marshal. Commercial
Union Ins. Co. v Talisman, Inc. (1975, ED Mo) 69 FRD 490, 1 Fed Rules Evid Serv 104.
Where New York Rules of Practice do not specify method of service in contempt proceedings in aid of discovery
after judgment, federal rules govern; thus, service of notice of deposition upon judgment debtor's attorney is sufficient.
Cerami v Robinson (1980, SD NY) 85 FRD 371.
28. Subpoena duces tecum; production of documents
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USCS Fed Rules Civ Proc R 30
Where plaintiff alleges conspiracy to prevent it from obtaining motion pictures for theater, defendant should not be
required to produce all books, records, and documents, but only such as are relevant to inquiry, and their nature, if not
sufficiently known to plaintiff to be accurately specified, can be ascertained more definitely as examination proceeds.
Folley Amusement Holding Corp. v Randforce Amusement Corp. (1940, DC NY) 1 FRD 496.
In absence of subpoena duces tecum or motion under Rule 34, plaintiffs may ignore with impunity that part of notice
of taking depositions which requires production of designated documents. Bank of America Nat'l Trust & Sav. Asso. v
Loew's International Corp. (1956, DC NY) 18 FRD 489.
Depending upon nature and volume of documents or things sought by deposition notice, that part of notice which
seeks production of documents from party may be foreclosed, either directly or impliedly, by court's scheduling order in
which time for written discovery expired. Carter v United States (1995, DC Mass) 164 FRD 131.
29. Motion to vacate notice
In action by salesman for recovery of commissions claimed to have been earned, where many applications for bill of
particulars were made, and bills filed were insufficient to apprise defendant of claims made and commissions omitted,
plaintiff's motion to vacate notice of examination will be denied. Newcomb v Universal Match Corp. (1938, DC NY)
25 F Supp 169.
Notice to take depositions given by plaintiff after answer has been filed should not be set aside on assertion that
defendant intends to file amended answer. Saviolis v National Bank of Greece (1938, DC NY) 25 F Supp 966.
Notice to take depositions in minority stockholder's action in federal court should not be vacated merely on ground
that similar depositions of same persons had been and were being taken in almost identical action in state court by other
minority stockholders against same defendants, but taking of depositions in federal court action may, in discretion of
court, be stayed until determination of state court action, even though motion to stay action in federal court has
previously been denied. Finkelstein v Boylan (1940, DC NY) 33 F Supp 657.
On motion to vacate premature notice for taking of depositions, court may direct that depositions be taken. Walker
v Walker (1941, DC NY) 1 FRD 779.
Motion to vacate notice of taking depositions is denied where it appears that testimony sought might have bearing on
issues. Moore v George A. Hormel & Co. (1942, DC NY) 2 FRD 340, 53 USPQ 677.
Notice by defendant for taking deposition of plaintiff by oral examination is not subject to dismissal on ground that
notice was served before answer where answer has since been served and issue joined. Brause v Travelers Fire Ins.
Co. (1956, DC NY) 19 FRD 231.
Fact that officers of defendant corporation stated by affidavit that they had no knowledge of facts is not ground to
vacate notices to take depositions of such officers; examining parties were entitled to explore such subjects to test truth
of such statements. Overseas Exchange Corp. v Inwood Motors, Inc. (1956, DC NY) 20 FRD 228.
Motion by plaintiffs for order vacating notice served by defendants to take deposition of one of plaintiff's attorneys
as witness was denied as premature where attorney claimed that he could not answer any questions put to him by
defendants because information was either privileged or part of his "work product." Shiner v American Stock Exchange
(1961, SD NY) 28 FRD 34, 4 FR Serv 2d 488.
On motion to quash notice to take depositions, applicable test is whether requested matters for discovery are
calculated to lead to admissible evidence. Reeg v Fetzer (1976, WD Okla) 78 FRD 34.
IV. MODIFICATION OF TIME [RULE 30(b)(3)]
30. Generally
Examination by defendant of witnesses before trial may be stayed until plaintiff completes his examination of
witnesses before trial. Harry Von Tilzer Music Publishing Co. v Leo Feist, Inc. (1941, DC NY) 2 FRD 96, 50 USPQ
298.
Motion to stay taking of deposition should be denied unless witness is being annoyed or harassed by examining
party. Harry Von Tilzer Music Publishing Co. v Leo Feist, Inc. (1941, DC NY) 2 FRD 96, 50 USPQ 298.
Delay in resumption of deposition of defendant would be granted where plaintiff was not prejudiced thereby.
Connecticut Mut. Life Ins. Co. v Shields (1955, DC NY) 18 FRD 448.
Plaintiff is not given leave to serve notice of deposition within statutorily-prescribed period unless he can show that
he will be prejudiced by having to wait required period. Brause v Travelers Fire Ins. Co. (1956, DC NY) 19 FRD 231.
In civil suit by SEC based upon same conduct out of which arose criminal prosecution, defendant's subpoenas for
taking of depositions would be quashed and proceedings stayed; good cause existed for stay of examination where
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USCS Fed Rules Civ Proc R 30
defendant was using civil depositions to obtain prosecution evidence otherwise unobtainable in criminal case. United
States v Steffes (1964, DC Mont) 35 FRD 24, 8 FR Serv 2d 30B.31, Case 2.
Leave of court to take depositions prior to expiration of 30 day period after service of process shall be granted only
when some unusual circumstances or condition exists that would prejudice party if he were required to wait required
time. Gibson v Bagas Restaurants, Inc. (1980, WD Mo) 87 FRD 60, 30 FR Serv 2d 792.
31. Pendency of state action
Examination of witnesses sought in good faith in order to prepare for trial of action in federal court will not be stayed
because of pendency of state court action involving identical issues. Empire Liquor Corp. v Gibson Distilling Co.
(1941, DC NY) 2 FRD 247.
Discovery granted in state action was not grounds for stay of taking of deposition in federal action because discovery
procedures of federal courts are more liberal than those of state. O'Donnell v Richardson-Allen Corp. (1964, ED NY)
34 FRD 214, 8 FR Serv 2d 30B.31, Case 1.
Testimonial discovery by former employee in former employer's civil action is stayed pending resolution of state
criminal proceedings on larceny charge, because while stay may cause some inconvenience and delay to employer,
protection of former employee's right against self-incrimination is more important consideration. United Technologies
Corp. v Dean (1995, DC Mass) 906 F Supp 27.
V. NON-STENOGRAPHIC RECORDING [RULE 30(b)(4)]
32. Generally
Rule 30(b)(4) is designed to decrease everyone's stenographic costs whenever that can be accomplished with no loss
of accuracy and integrity. Colonial Times, Inc. v Gasch (1975) 166 US App DC 184, 509 F2d 517, 19 FR Serv 2d 605.
Experimentation with Rule 30(b)(4)'s newly authorized procedure should be encouraged rather than blocked.
Colonial Times, Inc. v Gasch (1975) 166 US App DC 184, 509 F2d 517, 19 FR Serv 2d 605.
Rule 30(b)(4) clearly contemplates that parties must either stipulate in writing to non-stenographic method of
recording deposition or that party seeking discovery must move court to order recording by non-stenographic method;
absent written stipulation, Rule 45(d) subpoena which is silent as to how deposition will be recorded entitles party
seeking discovery to stenographically-recorded deposition only. Westmoreland v CBS, Inc. (1985, App DC) 248 US
App DC 255, 770 F2d 1168, 2 FR Serv 3d 1451.
In authorizing taking of depositions by non-stenographic recording court must establish rules so that there will be a
preservation of that level of accuracy and integrity which has come to be associated with independent stenographic
record, while harnessing potential cost-saving factors which modern technology will increasingly provide; taking
deposition by other-than-stenographic means will be authorized, with specific guidelines laid down to preserve
accuracy. Kallen v Nexus Corp. (1972, ND Ill) 54 FRD 610, 1972 CCH Trade Cases P 74211, 15 FR Serv 2d 1271, 16
ALR Fed 963.
Manifest purpose of Rule 30(b)(4), authorizing non-stenographic recording of testimony is to facilitate effective
participation by economically-disadvantaged persons in federal courts' proceedings; this has special meaning for
prisoners in actions for violations of their constitutional rights. Lucas v Curran (1974, ED Pa) 62 FRD 336, 18 FR
Serv 2d 830.
Person requesting nonstenographic recording of deposition must specify person before whom he proposes to take
deposition and corporation is not "person" within meaning of Rule 30(b)(4); Advisory Committee Note to Rule 30
seems to contemplate naming of individual, not corporate party. Garland v Clinchfield R. Co. (1981, ED Tenn) 89
FRD 551.
By no longer requiring either stipulation of counsel or court order for nonstenographic recording, current rule more
explicitly recognizes routine nature of nonstenographic recording and incorporates such recording within party's general
right to take depositions of other parties absent protective order. Gillen v Nissan Motor Corp. in United States (1994,
ED Pa) 156 FRD 120, 1994-1 CCH Trade Cases P 70658.
33. Discretion of court
Range of trial judge's discretion under Rule 30(b)(4) is limited to those actions necessary to promote accuracy and
trustworthiness; judge may deny movant's request under Rule 30(b)(4) only when he is convinced, after thorough
examination of movant's proposal, and on basis of other party's specific objections and judge's experience with differing
forms of deposition procedure, that particulars of request do not reasonably ensure accuracy equivalent to stenographic
depositions; where District Judge, in his decision denying request of petitioner to depose certain Postal Service
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USCS Fed Rules Civ Proc R 30
employees by other than stenographic means, did not make such sort of inquiry, he mistook purpose of Rule 30(b)(4)
and committed error. Colonial Times, Inc. v Gasch (1975) 166 US App DC 184, 509 F2d 517, 19 FR Serv 2d 605.
Rule 30(b)(4) does not accord party absolute right to record depositions by other than stenographic means, rather it
merely affords district judge discretion to allow such procedure on motion. International Union, United Auto., etc. v
National Caucus of Labor Committees (1975, CA2 NY) 525 F2d 323, 20 FR Serv 2d 1401.
District court did not err in permitting two telephone depositions to be taken during middle of discrimination trial
even though witnesses were not included in pretrial order since witnesses were greater than 100 miles away and if
plaintiff had not perjured himself he would not have been prejudiced by depositions, which were taken solely for
purpose of contradicting statements he had made regarding his educational backgrounds. Dunlap-McCuller v Riese
Org. (1992, CA2 NY) 980 F2d 153, 60 BNA FEP Cas 606, 24 FR Serv 3d 52, cert den (1993) 510 US 908, 126 L Ed 2d
239, 114 S Ct 290, 62 BNA FEP Cas 1520 and (criticized in Stonewall Ins. Co. v Asbestos Claims Mgmt. Corp. (1995,
CA2 NY) 73 F3d 1178).
Rule 30(b)(4) makes it entirely discretionary with trial judge whether to authorize electronic recording of
depositions, and district court did not abuse discretion in denying plaintiff's motion to use "verbatim electronic tape
transcript" of deposition of medical witness in personal injury action where defendant's counsel objected that he had not
had time to review electronic transcript and could not be certain it was accurate without reading official transcript.
Carter v Joseph Bancroft & Sons Co. (1973, ED Pa) 360 F Supp 1103, 17 FR Serv 2d 1586.
On motion for protective order filed by petitioner, First Officer on commercial airliner which crashed in North
Carolina, seeking to have his deposition in law suits filed as result of that crash taken only before stenographic court
reporter and to prevent use of videotape and sound, court clearly had authority under Rule 30(b)(4) to allow taking of
videotape deposition where appropriate; in present case, where there was no attempt to obtain indiscriminate taping of
all witnesses' testimony but, rather, attempt to videotape testimony of single essential witness who resided outside trial
court's subpoena power to compel his attendance at trial, and where there was some doubt as to witness' availability for
trial, videotaped deposition should be allowed to give fact finders greater insight by allowing them to observe witness'
demeanor and manner of testifying. In re Daniels (1975, ND Ga) 69 FRD 579, 21 FR Serv 2d 774.
Court would grant plaintiff's motion for order authorizing recordation of deposition testimony by videotape in
addition to conventional stenographic means, where deposition was to be made primarily for purposes of obtaining trial
testimony of very important witness who was defendant's former managing agent during portion of time breach of
contract between parties which formed basis of action was in effect and did not reside within subpoena distance of
court, and where it appeared plaintiff's desire to present his testimony in manner requested was well-founded and would
serve ends of justice. Continental Federal Sav. & Loan Asso. v Delta Corp. of America (1976, WD Okla) 71 FRD 697,
23 FR Serv 2d 200, 23 FR Serv 2d 205.
Permissive language of Rule 30(b)(4) indicates that court has discretion to grant or deny application to take
deposition by videotape or any other nonstenographic method. "Agent Orange" Product Liability Litigation (1980, DC
NY) 28 Fed Rules Serv 2d 993.
Court has authority to allow videotape deposition where witness is alien unable to obtain travel visa to United State
and testimony is essential to at least one issue at trial. Farahmand v Local Properties, Inc. (1980, ND Ga) 88 FRD 80,
31 FR Serv 2d 434.
It is within discretion of District Court to grant pro se plaintiff's request to use tape recorder at her deposition, with
understanding that plaintiff will not interfere with taking of deposition, that her recording is not official record of
proceeding, that she shall not interrupt deposition to adjust her recording device or request that questions and answers
be repeated because her machine did not record them, and that operation of tape recorder is to be completely
subordinate to conduct of deposition. Thomas v Shultz (1985, DC Dist Col) 107 FRD 624, 38 BNA FEP Cas 276, 1 FR
Serv 3d 1399.
Defendant in products liability case would be entitled to videotaped reenactment of plaintiff's accident in which
defendant's meat slicer injured her hand under rule allowing videotaping of depositions, since it would aid defendant's
evaluation of case and enhance recordation and memorialization process intended by discovery and would be more
accurate than plaintiff's recollection of accident, and defendant agreed to bear costs. Kiraly v Berkel, Inc. (1988, ED
Pa) 122 FRD 186.
Bank is not entitled to new trial based upon District Court's refusal to admit into evidence videotapes of depositions
of witnesses who appeared at trial, where bank wanted to use videotapes either as evidence of falsity of material fact
testified to by witness or evidence of character of witness, because under FRCrP 30(b)(4), videotapes are allowed only
based upon witness's unavailability, interest in court in saving money and need to illustrate on record event which
cannot be adequately described through deponent's statement, and not to offer jury information about witness's
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USCS Fed Rules Civ Proc R 30
credibility through viewing his demeanor on film. Windsor Shirt Co. v New Jersey Nat'l Bank (1992, ED Pa) 793 F
Supp 589, 35 Fed Rules Evid Serv 907, affd without op (1993, CA3 Pa) 989 F2d 490.
34. Assuring accuracy of recording
Since purpose of Rule 30(b)(4) is to cut expense, independent operator should be eliminated unless no alternatives
exist to guarantee trustworthiness. Colonial Times, Inc. v Gasch (1975) 166 US App DC 184, 509 F2d 517, 19 FR Serv
2d 605.
Where stenographic and photographic-sound means are to be used to record plaintiff's deposition in negligent injury
case, cameraman and person making sound recording shall take oath to accurately and in trustworthy manner
photograph and record proceedings, thereafter certifying correctness and completeness of record in manner stenographic
reporter certifies typed transcript of deposition. Carson v Burlington Northern, Inc. (1971, DC Neb) 52 FRD 492, 15
FR Serv 2d 595.
In granting motion to take discovery by other-than-stenographic means, court included following guidelines: (1)
calling party to be responsible for producing taped record; (2) recording equipment to be of top-quality; (3) equipment
to include individual microphones for each participant; (4) production of sufficient "duplicate original" recordings to
provide one for each party and one for filing with court; (5) additional recording machine to provide separate record and
"playback"; (6) calling party to provide independent operator who should also make log-index of proceedings; (7)
operator to certify correctness and completeness of recordings; and (8) costs to be allocated in traditional manner with
larger burden on calling party. Kallen v Nexus Corp. (1972, ND Ill) 54 FRD 610, 1972 CCH Trade Cases P 74211, 15
FR Serv 2d 1271, 16 ALR Fed 963.
Specific guidelines decreed by court in granting motion to take depositions by tape-recording, included following:
(1) top-quality equipment to be used; (2) each participant to have individual microphone; (3) two originals to be made
on separate machines; (4) recording machines to be equipped with counters to facilitate logging and indexing; (5)
recording machines of "originals" not to be used for "playback"; (6) independent operator, duly sworn, to monitor
machines; (7) care taken to insure identification of all speakers; (8) objections to be made during taking of deposition;
(9) calling party to provide all necessary equipment; (10) log-index to be prepared independent of any party; (11) at
close of deposition, independent third party keeping log-index to vocally record certification; (12) one original to be
sealed, after being certified, and filed immediately with court clerk; and (13) independent third party to retain
possession of other original for use in production of duplicates. Wescott v Neeman (1972, DC Neb) 55 FRD 257, 16
FR Serv 2d 714.
Plaintiff's motion for order allowing it to record deposition electronically under Rule 30(b)(4) would be granted
where procedure proposed was to have one or more electronic tapes and typewritten transcript made therefrom; where
witnesses would read and sign, or refuse to sign, transcript; where opposing counsel and others who might attend would
serve to guard against mistakes or misbehavior; and where, in cases of special concern, any party could have
proceedings taken stenographically under cited Rule. Marlboro Products Corp. v North American Philips Corp. (1972,
SD NY) 55 FRD 487, 1972 CCH Trade Cases P 74089, 16 FR Serv 2d 302.
In civil rights action where plaintiff moved to have depositions recorded electronically by tape recorder or other
method rather than by stenographic means, counsel for plaintiff would be expected to attempt to fashion realistic and
practical method and produce for recording desired depositions which would be reasonably acceptable to defendants,
and until appropriate method and procedure could be agreed upon by parties with assistance of court, no order for
alternative means of taking depositions would be granted. Jarosiewicz v Conlisk (1973, ND Ill) 60 FRD 121, 17 FR
Serv 2d 1583.
In civil rights action by prisoner, trial court will permit taking of pretrial deposition by tape-recorder in lieu of
stenographic transcription where (1) equipment is of sufficient quality to produce accurate and trustworthy record, (2)
speakers identify themselves, (3) 2 recorders are used, and (4) oath is administered to witnesses by counsel, unless
deposition is to be used at trial in which case person authorized by law to administer oath must do so. Lucas v Curran
(1974, ED Pa) 62 FRD 336, 18 FR Serv 2d 830.
In employment discrimination action, plaintiff who seemingly lacked funds to employ stenographer may use
non-stenographic means for taking depositions subject to conditions for assuring accuracy of recording. Ogletree v
Keebler Co. (1978, ND Ga) 25 FR Serv 2d 477.
Requiring cumbersome and expensive procedures defeats purpose of permitting tape recordings and, therefore,
multi-band tapes, individual lavaliere microphones, microphone mixers to compensate for different speaking levels,
three different tape-recording machines, and digital counters to provide log index are not necessary. Champagne v
Hygrade Food Products, Inc. (1978, ED Wash) 79 FRD 671, 26 FR Serv 2d 1035.
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USCS Fed Rules Civ Proc R 30
Veteran in agent orange litigation who is dying of cancer is entitled to preserve his own testimony by videotaped
deposition with appropriate conditions imposed to promote accuracy and trustworthiness. In re "Agent Orange"
Product Liability Litigation (1980, ED NY) 28 FR Serv 2d 993.
Leave to take depositions by other than stenographic means is granted to prison inmate in action alleging violation of
constitutional rights where inmate complies with requirement that independent third party be present to run recording
equipment. Jones v Evans (1982, ND Ga) 544 F Supp 769.
In products liability action district court ruled that defendant could take videotape deposition of plaintiff and
witnesses re-enacting accident without necessity of showing that deponents would be unavailable for trial, but court
required that parties be bound by following guidelines: 1. That depositions be conducted by specified company, which
will take oath to record proceedings accurately, 2. that stenographic transcript be made simultaneously, 3. that party
taking deposition may determine matters of staging and photographic technique and other party may place objections to
such determinations on record, 4. that videotape will run continuously without break from beginning to end, 5. that
party taking deposition will prepare log index, 6. that only specified persons may attend deposition, 7. that defendant
shall bear cost of taking videotape deposition, and 8. that original videotape and stenographic transcript shall be filed
with court. Roberts v Homelite Div. of Textron, Inc. (1986, ND Ind) 109 FRD 664.
There is no requirement that party taking deposition by non-stenographic means provide written transcript of entire
deposition to other parties; examining party is required to bear cost of recording, unless otherwise directed by court, and
any other party is free to prepare written transcript of tape recorded deposition. Hudson v Spellman High Voltage (1998,
ED NY) 178 FRD 29.
35. Videotape recording
Where plaintiff, injured in defendant's blacksmith shop, suffered partial amputation of hand by steel press allegedly
caused by defendant's negligence, and where defendant previously had taken plaintiff's deposition by stenographic
means and now requests permission to take it by stenographic and photographic-sound recording in blacksmith shop
where accident occurred, such procedure will be ordered, subject to qualification that plaintiff not be requested to
actually touch or operate machine in question but instead show manner in which he operated machine on day of
accident by suitable pointer or other means agreed to by counsel. Carson v Burlington Northern, Inc. (1971, DC Neb)
52 FRD 492, 15 FR Serv 2d 595.
On motion for protective order filed by First Officer on commercial airliner which crashed in North Carolina seeking
to have his deposition in law suits filed as result of crash taken only before stenographic court reporter and to prevent
use of videotape and sound, petitioner's argument that case allowing videotape deposition was distinguishable because it
was party plaintiff whose deposition was videotaped, as opposed to witness, was not persuasive since Rule 30(b)(4)
provides for alternative method of taking depositions allowed by Rule 30(a) and clearly anticipates that such alternative
means will also be utilized for non-parties; similarly, petitioner's conclusion that Rule 30(b)(4) was designed to allow
depositions by other than normal stenographic methods only in situations where it would reduce cost of deposition was
overly restrictive view; courts should be open to advances in technology which will aid in just and expeditious
determination of litigation, and fact that Advisory Committee did not foresee use of videotaped depositions in its notes
to Rule does not foreclose their use, especially where express wording of Rule is sufficiently broad to allow such. In re
Daniels (1975, ND Ga) 69 FRD 579, 21 FR Serv 2d 774.
Although trial court will not order taking of deposition of witness by means of videotape, such testimony will be
received at trial in that form provided stenographic transcript of such deposition is filed also and available at trial in
customary manner, videotape proved to comply with quality standards which are essential to proper presentation of
testimony during trial, and any additional cost of taking deposition will be at expense of party who seeks it. Tsesmelys
v Dublin Truck Leasing Corp. (1976, ED Tenn) 78 FRD 181, 25 FR Serv 2d 465.
Defendants in action brought by inmate plaintiff under 42 USCS § 1983 are entitled to take plaintiff's deposition by
videotape since defendants will bear cost of videotaping and transcribing testimony and there is no claim that taking
deposition in such manner will contravene discovery standards of Rule 26(b). Lucien v McLennand (1982, ND Ill) 95
FRD 525, 35 FR Serv 2d 181.
In multidistrict "Agent Orange" herbicide litigation in which Vietnam veterans and members of their families seek to
recover for injuries allegedly sustained as result of exposure to various herbicides, master's order governing procedure
for taking in extremis depositions by way of videotape by which plaintiff can notice in extremis deposition for 30 days
after counsel furnishes defendants with answers to in extremis interrogatories, copies of plaintiff's military or service
records, records of medical examinations in possession of plaintiff, and affidavit of plaintiff's treating physician
attesting to seriousness or plaintiff's condition and which contains provisions for exceptions to 30 days' notice and for
cross-examination of plaintiff, represents fair balancing of compelling interest and provides workable procedures to
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USCS Fed Rules Civ Proc R 30
accommodate needs of both plaintiffs and defendants. In re "Agent Orange" Product Liability Litigation (1983, ED
NY) 96 FRD 587, 35 FR Serv 2d 1368.
Although counsel's operation of video camera is not preferred method of conducting video deposition, neither FRCP
28(a) nor FRCP 28(c) specifically prohibits party's attorney from operating video camera during course of video
deposition otherwise conducted in compliance with FRCP 30. Ott v Stripe Law Firm (1996, ED Okla) 169 FRD 380.
FRCP 30(b)(6) does not trump provisions of FRCP 45(e), because allowing subpoena served pursuant to FRCP
30(b)(6) to evade proscriptions of FRCP 45(e) would render latter rule surplusage and subject nonparties to same level
of burdensome discovery that can be imposed upon party. Price Waterhouse LLP v First Am. Corp. (1998, SD NY) 182
FRD 56.
Absent showing of what effect that videotaping of deposition, to be held pursuant to Fed. R. Civ. P. 30(b)(2), would
have on employee's physical or mental health, court could not find "clearly defined" and "serious injury" as required to
demonstrate good cause, so employee was denied protective order. Fanelli v Centenary College (2002, DC NJ) 211
FRD 268.
In case involving commercial litigation where plaintiff sought blanket permission to video-record all depositions,
court stated that while Rule 30(b)(4) required some justification for employing non-stenographic deposition, history of
rule also indicated that experimentation in new methods of recording depositions should be encouraged, and court
refused to limit video depositions to important witnesses who might be unavailable for trial since plaintiff was not
requesting that regular stenographer be dispensed with, thus sharply reducing risks of video deposition. Rice's Toyota
World, Inc. v Southeast Toyota Distributors, Inc. (1987, MD NC) 114 FRD 647.
36. Miscellaneous
Where plaintiff moved for order allowing it to record deposition electronically under Rule 30(b)(4), court, indicating
that plaintiff's motion would be granted in substance unless unexpected insurmountable obstacles were encountered
preventing formulation of workable order, directed that counsel for parties submit joint and several materials for order
granting plaintiff's motion upon appropriate terms and conditions. Marlboro Products Corp. v North American Philips
Corp. (1972, SD NY) 55 FRD 487, 1972 CCH Trade Cases P 74089, 16 FR Serv 2d 302.
In civil rights action where plaintiff moved to have depositions recorded electronically by tape recorder or other
means rather than by stenographic means, counsel for plaintiff would be expected to attempt to fashion realistic and
practical method and procedure for recording desired depositions which would be reasonably acceptable to defendants,
and, until appropriate method and procedure could be agreed upon by parties with assistance of court, no order for
alternative means of taking depositions would be granted. Jarosiewicz v Conlisk (1973, ND Ill) 60 FRD 121, 17 FR
Serv 2d 1583.
Defendants' motion to forbid plaintiff's counsel use of tape recorder to record deposition testimony for his own use
was denied where court, specifically recognizing that testimony at deposition may be recorded by
other-than-stenographic means under Rule 30(b)(4), permitted counsel use of his recording device under conditions
completely subordinating operation thereof to smooth conduct of deposition proceedings. Montgomery Mills, Inc. v
Giffen-Burgess Corp. (1974, DC Del) 62 FRD 105, 18 FR Serv 2d 578.
VI. DEPOSITION OF ORGANIZATION [RULE 30(b)(6)]
37. Generally
Advisory Committee notes accompanying amendment which created Rule 30(b)(6) procedure make it clear that
device supplements existing practice whereby examining party designates corporate official to be deposed. Atlantic
Cape Fisheries v Hartford Fire Ins. Co. (1975, CA1 Mass) 509 F2d 577, 19 FR Serv 2d 1169.
Purpose of Rule 30(b)(6) depositions is simple: plaintiff must inform defendant of facts upon which it relies in
bringing suit. Founding Church of Scientology, Inc. v Director, Federal Bureau of Investigation (1979, DC Dist Col)
27 FR Serv 2d 601.
Depositions of corporate party designee that are properly noticed under Rule 30(b) must be attended in the absence
of protective order, and corporate party's filing of motion to stay discovery will not relieve it of its duty to produce its
designee to be deposed as noticed. Hydramar, Inc. v General Dynamics Corp. (1986, ED Pa) 115 FRD 147.
FRCP 30(b)(6) allows entire corporation to speak through one agent. Barron v Caterpillar, Inc. (1996, ED Pa) 168
FRD 175, 36 FR Serv 3d 544.
FRCP 30(b)(6) allows corporation to speak through its agents. Hooker v Norfolk S. Ry. (2001, SD Ind) 204 FRD 124.
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USCS Fed Rules Civ Proc R 30
Under Fed. R. Civ. P. 30, corporation can generally be examined through deposition testimony of its officers,
directors, or managing agents without need for Fed. R. Civ. P. 45 subpoena. Phila. Indem. Ins. Co. v Fed. Ins. Co.
(2003, ED Pa) 215 FRD 492.
Company's objection to special master's recommendation that company be ordered to produce properly educated
Fed. R. Civ. P. 30 witness was without merit because witness was inadequately educated as to its full knowledge of
facts respecting each of 11 noticed deposition topics; court adopted recommendation of special master with respect to
this issue. In re Vitamins Antitrust Litig. (2003, DC Dist Col) 216 FRD 168.
Depositions of a corporate party should be taken at the corporation's principal place of business. Mitchell v
American Tobacco Co. (1963, MD Pa) 33 FRD 262, 7 FR Serv 2d 534.
For FRCP 30(b)(6) deposition to operate effectively, deposing party must designate areas of inquiry with reasonable
particularity, and corporation must designate and adequately prepare witnesses to address these matters. United States v
Taylor (1996, MD NC) 166 FRD 356, affd, motion den (1996, MD NC) 166 FRD 367.
38. Relationship to other rules
Rule 30, permitting party to depose corporation or governmental agency by simply describing with reasonable
particularity matters on which examination is requested and then letting agency designate individual to testify, does not
govern Rule 45 subpoenas of witnesses, and thus District Court did not abuse its discretion in quashing subpoena duces
tecum of county which failed to designate individual desire to testify. Donoghue v County of Orange (1987, CA9 Cal)
848 F2d 926, 46 CCH EPD P 38013.
Witness testimony at FRCP 30(b)(6) deposition is not limited to subject matter of designation in notice, since
limiting scope of such deposition to what is noticed in deposition subpoena would frustrate objectives of FRCP 26(b)(1)
whenever deposing party seeks information relevant to subject matter of pending litigation that was not specified; thus,
once witness satisfies minimum standard, scope of deposition is determined solely be relevance under FRCP 26. Detoy
v City & County of San Francisco (2000, ND Cal) 196 FRD 362.
Since FRCP 30(b)(6) does not set its own discovery standard, standard provided in FRCP 26(b)(1) should be used to
determine whether information sought is relevant and is capable of leading to discovery of relevant information. Hooker
v Norfolk S. Ry. (2001, SD Ind) 204 FRD 124.
Since witness' findings were discussed extensively in Fed. R. Civ. P. 30(b)(6) investigation, as were his opinions on
such findings, to extent legal memorandum touched on matters discussed in deposition, work product protections had
been waived and court granted defendant's Fed. R. Civ. P. 37 motion to compel copy of memorandum redacted to extent
it addressed matters outside findings and opinions of witness discussed in deposition. Sec. Ins. Co. v Trustmark Ins. Co.
(2003, DC Conn) 218 FRD 29.
39. Specifying matters to be examined
In action involving alleged patent infringement, plaintiff-manufacturing company's motion to vacate notice of taking
deposition of certain unnamed employees of manufacturing company was denied where notice described persons sought
with reasonable particularity required by Rule 30(b)(6) by specifying relevant areas of inquiry. Scovill Mfg. Co. v
Sunbeam Corp. (1973, DC Del) 61 FRD 598, 181 USPQ 53, 18 FR Serv 2d 1241.
There is no absolute requirement that notice of deposition have specificity; Rule 30(b)(6) merely requires notice to
possess "reasonable particularity;" plaintiff organization is obligated to produce witnesses within its control who
possess knowledge covering matters mentioned in notice. Founding Church of Scientology, Inc. v Director, Federal
Bureau of Investigation (1979, DC Dist Col) 27 FR Serv 2d 601.
Party utilizing procedures of Rule 30(b)(6) to depose representative of corporation must confine examination to
matters stated with reasonable particularity contained within notice of deposition. Paparelli v Prudential Ins. Co.
(1985, DC Mass) 108 FRD 727.
When plaintiff's counsel attempted to ask deponent questions which were beyond scope of subject matter of
deposition as listed in 30(b)(6) notice, defense counsel could have filed motion for protective order pursuant to Rule
30(d), but defense counsel acted improperly by directing witness not to answer questions and in failing to seek guidance
from court. Paparelli v Prudential Ins. Co. (1985, DC Mass) 108 FRD 727.
FRCP 30(b)(6) notice does not define scope of deposition. Cabot Corp. v Yamulla Enters. (2000, MD Pa) 194 FRD
499.
Witness testimony at FRCP 30(b)(6) deposition is not limited to subject matter of designation in notice, since
limiting scope of such deposition to what is noticed in deposition subpoena would frustrate objectives of FRCP 26(b)(1)
whenever deposing party seeks information relevant to subject matter of pending litigation that was not specified; thus,
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USCS Fed Rules Civ Proc R 30
once witness satisfies minimum standard, scope of deposition is determined solely be relevance under FRCP 26. Detoy
v City & County of San Francisco (2000, ND Cal) 196 FRD 362.
Plaintiff company's motion to compel deposition of person from non-party was denied; language in subpoena
requesting that person from non-party be deposed about certain documents, including but not limited to specified areas,
turned subpoena into overbroad notice in contradiction to reasonable particularity required by Fed. R. Civ. P. 30(b)(6).
Innomed Labs, LLC v Alza Corp. (2002, SD NY) 211 FRD 237.
40. Designation of organization's deponent
In wrongful death action as result of Navy plane crash, where Department of Navy refused to designate person to
testify at deposition pursuant to Rule 30(b)(6), trial court properly ordered designation of witness required by cited
Rule, but at same time exceeded its authority by ordering Navy to produce plane's accident report. Cates v LTV
Aerospace Corp. (1973, CA5 Tex) 480 F2d 620, 17 FR Serv 2d 617.
When corporation designates person to testify, it appears vicariously through that agent, and if that agent is not
knowledgeable about relevant facts, principal has failed to designate available, knowledgeable, and readily identifiable
witness, hence appearance is for all practical purposes no appearance at all. Resolution Trust Corp. v Southern Union
Co. (1993, CA5 Tex) 985 F2d 196, 25 FR Serv 3d 253, reh den (1993, CA5) 1993 US App LEXIS 8383.
Declaration by defendant was not rendered inadmissible because defendant produced representative other than
declarant in response to plaintiff's Rule 30(b)(6) deposition notice where plaintiff did not move court to compel plaintiff
to comply or request that district court delay hearing until plaintiff deposed declarant. Amdahl Corp. v Profit Freight
Sys. (1995, CA9 Cal) 65 F3d 144, 95 CDOS 7106, 95 Daily Journal DAR 12142.
Corporation may not be examined through one who is no longer in its employ at time set for taking deposition;
where person sought to be deposed is employed as president of wholly-owned subsidiary of plaintiff corporation, he is
subject to control of plaintiff corporation and has identity of interest with plaintiff to degree that compelling attendance
is consistent with Rules. Martin Engineering Co. v Vibrators, Inc. (1975, ED Ark) 20 FR Serv 2d 486.
Striking air controllers' union must appoint agent to testify pursuant to Rule 30(b)(6) concerning Controllers Benefit
Fund; since government has not claimed that Benefit Fund is in any way illegal or that its existence has anything to do
with defendants' illegal strike action, it is unlikely that union can prove that requested information is privileged and
protected by Fifth Amendment. United States v Professional Air Traffic Controllers Organization, Inc. (1981, DC Dist
Col) 524 F Supp 160, 107 BNA LRRM 3299.
If party seeking discovery chooses to designate appropriate individual to be deposed, person designated must be
officer, director, or managing agent of corporate deponent; if individual so designated is not officer, director, or
managing agent, but merely employee, party seeking deposition must proceed as for ordinary non-party witness; party
seeking deposition has burden of showing that deponent has corporate status other than mere employee; in determining
whether person is "managing agent", court considers whether individual is invested with general powers allowing him
to exercise judgment and discretion in corporate matters, whether individual can be relied upon to give testimony at
employer's request in response to demand of examining party, whether persons are employed by corporate employer in
positions of higher authority than individual designated in area regarding which information is sought by examination,
and whether individual can be expected to identify with interests of corporation. Sugarhill Records, Ltd. v Motown
Record Corp. (1985, SD NY) 105 FRD 166, 1 FR Serv 3d 717.
One of purposes of Rule 30's provision that corporation named as deponent shall designate persons to testify on its
behalf is to curb any temptation corporation might have to shunt discovering party from pillar to post by presenting
deponents who disclaim knowledge of facts clearly known to someone in the organization, and where FDIC-designated
witnesses did such, order was entered that FDIC redesignate witnesses prepared to testify for entire corporation. FDIC
v Butcher (1986, ED Tenn) 116 FRD 196, affd (1987, ED Tenn) 116 FRD 203.
Government was entitled to depose 2 corporate directors whom it specifically identified in drug forfeiture case; party
who desires to depose specific corporate representative may so designate and is not required to allow corporation to
designate who will respond to deposition. United States v One Parcel of Real Estate (1988, SD Fla) 121 FRD 439.
Sexual harassment plaintiff was not entitled to compel former employer to designate immediate supervisor whom he
accused of sexually harassing him as its representative since he was not officer, director, or managing agent and thus
lacked authority to speak on behalf of corporate employer, and his interests were directly adverse to those of employer
so that he was not appropriate corporate spokesperson. Sanders v Circle K Corp. (1991, DC Ariz) 137 FRD 292, 55
BNA FEP Cas 1356.
Plaintiffs were entitled to specifically designate corporate officer and director as deponent who would, as officer and
director, automatically be deemed representative of corporation, and, in absence of any response from defendant,
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USCS Fed Rules Civ Proc R 30
plaintiffs were entitled to depose him at corporation's principal place of business. Moore v Pyrotech Corp. (1991, DC
Kan) 137 FRD 356.
Magistrate judge's order that Resolution Trust Corporation, in action against former officers and directors of failed
thrift, produce as witness individual who lacked personal knowledge of loan transactions in question because
defendants' relevant conduct occurred prior to RTC's appointment was not clearly erroneous or contrary to law, nor
abuse of discretion. Resolution Trust Corp. v Sands (1993, ND Tex) 151 FRD 616.
Bank sued for alleged discriminatory lending practices failed to produce knowledgeable deposition witness; witness
produced was only able to testify concerning underwriting policies and practices of one of bank's teams, and her lack of
personal knowledge whether other underwriting teams at bank followed same practices as her group was not excused by
bank's asserted difficulty in investigating unwritten practices in effect three years earlier since bank had duty to provide
witness or witnesses with requisite knowledge and to prepare those witnesses, despite difficulty of investigating subject
matter requested by deposing party. Buycks-Roberson v Citibank Fed. Sav. Bank (1995, ND Ill) 162 FRD 338.
Court would not require defendant to produce another Rule 30(b)(6) deposition witness, although it could have done
better job in preparing one it did produce, since that witness's inability to fully testify on all topics set forth in notice
was not tantamount to complete failure of defendant state agency to appear and evidence did not indicate that agency
acted willfully or in bad faith to obstruct discovery; agency argued that persons who were with agency at time of
disputed events had already been deposed by plaintiff United States and that Rule's purpose would not be advanced by
testimony from current representative concerning actions taken five years earlier by persons no longer with agency.
United States v Massachusetts Indus. Fin. Agency (1995, DC Mass) 162 FRD 410.
Corporate designee often lacks sufficient knowledge of relevant facts to provide adequate responses to discovering
party's requests; in such situation, onus falls on corporation to present additional designee capable of providing
sufficient answers to eluded requests. Barron v Caterpillar, Inc. (1996, ED Pa) 168 FRD 175, 36 FR Serv 3d 544.
For purposes of FRCP 30(b)(6), determining whether individual qualifies as "managing agent" of corporation must
be made at time of deposition; while burden of proof rests on party seeking discovery, doubts about individual's status
as "managing agent" at pretrial discovery stage are resolved in favor of examining party. In re Honda Am. Motor Co
(1996, DC Md) 168 FRD 535.
Designating party is under duty to designate more than one deponent if it would be necessary to do so in order to
respond to relevant areas of inquiry that are specified with reasonable particularity by plaintiffs. Alexander v FBI (1998,
DC Dist Col) 186 FRD 137, motion den, request gr (1999, DC Dist Col) 186 FRD 144, motion den, request den (1999,
DC Dist Col) 186 FRD 148, motion gr, in part, motion den, in part, request gr, request den (1999, DC Dist Col) 186
FRD 154.
Designating party has duty to substitute appropriate deponent when it becomes apparent that previous deponent is
unable to respond to certain relevant areas of inquiry. Alexander v FBI (1998, DC Dist Col) 186 FRD 137, motion den,
request gr (1999, DC Dist Col) 186 FRD 144, motion den, request den (1999, DC Dist Col) 186 FRD 148, motion gr, in
part, motion den, in part, request gr, request den (1999, DC Dist Col) 186 FRD 154.
Whether proposed deponent is "managing agent" is dependent largely upon functions, responsibilities and authority
of individual involved respecting subject matter of litigation. Libbey Glass, Inc. v Oneida Ltd. (1999, ND Ohio) 197
FRD 342.
Deponent need not have formal association with corporation to be deemed to be its "managing agent." Libbey Glass,
Inc. v Oneida Ltd. (1999, ND Ohio) 197 FRD 342.
FRCP 30(b)(6) does not impose obligation of choosing specific individual to be deposed on plaintiff, but rather
requires corporate defendant to choose employees to be deposed. Custom Form Mfg., Inc. v Omron Corp. (2000, ND
Ind) 196 FRD 333.
Sanctions were granted to the defendant doctor because the plaintiff insurance company's designee did not have
personal knowledge of the matters that the court had ordered were not protected; the insurance company was obligated
to prepare the designee to give knowledgeable and binding answers under Fed. R. Civ. P. 30(b)(6). Paul Revere Life Ins.
Co. v Jafari (2002, DC Md) 206 FRD 126.
Where plaintiffs failed to prepare properly their Fed. R. Civ. P. 30(b)(6) deponent and deponent did not have
authority to speak for three plaintiffs, which was tantamount to those plaintiffs not attending deposition, plaintiffs'
objection to magistrate judge's order imposing sanctions under Fed. R. Civ. P. 37 was denied and/or overruled. T&W
Funding Co. XII, L.L.C. v Pennant Rent-A-Car Midwest, Inc. (2002, DC Kan) 210 FRD 730.
In patent infringement action by patent holder against alleged infringer, infringer's motion to compel further
document production and testimony of patent holder's Fed. R. Civ. P. 30(b)(6) witness was granted in part where patent
holder was required to produce another Fed. R. Civ. P. 30(b)(6) witness because testimony of patent holder's present
Fed. R. Civ. P. 30(b)(6) witness revealed gaps in his knowledge as well as evasive answers to non-privileged matters,
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and patent holder was required to produce documents responsive to requests for non-privileged documents. Sony Elecs.,
Inc. v Soundview Techs., Inc. (2002, DC Conn) 217 FRD 104.
Because corporation failed to make showing of good cause for court to enter protective order on record, companies'
Fed. R. Civ. P. 30(b)(6) deposition notice in copyright infringement action, record companies were entitled to depose
any individual designated as Fed. R. Civ. P. 30(b)(6) witness to explore any business relationships corporation may
have had with affiliated corporations, and testimony of that witness was particularly important to record companies,
considering designated witness could authenticate documents corporation could produce in discovery related to
corporation's business relationship with those affiliated corporations. Sanyo Laser Prods. v Arista Records, Inc. (2003,
SD Ind) 214 FRD 496.
Defendant's failure to designate knowledgeable person in response to specific and understandable request required
new order requiring it to produce knowledgeable person and to pay plaintiff's attorneys' expenses. Marker v Union
Fidelity Life Ins. Co. (1989, MD NC) 125 FRD 121.
Once served with FRCP 30(b)(6) notice, corporation is compelled to comply, and it may be ordered to designate
witnesses if it fails to do so. United States v Taylor (1996, MD NC) 166 FRD 356, affd, motion den (1996, MD NC) 166
FRD 367.
41. --Duty of non-party organization
Although Rule 30(b)(6) could not be used to obtain documents in custody of head of non-party Department of Navy
in Washington, D. C., by service of subpoena duces tecum upon local representative of department in Texas,
Department could be ordered to designate person to testify at deposition, so that failure of Navy Department in not so
designating was clear error. Cates v LTV Aerospace Corp. (1973, CA5 Tex) 480 F2d 620, 17 FR Serv 2d 617.
Motion by non-party witnesses to vacate order of court directing them to appear and to produce records for
deposition would be granted because non-party witnesses are experts in mechanical engineering, they have no direct
knowledge of facts upon which action is predicated, and they cannot be compelled to give testimony against their will
concerning work performed by them as employees of non-party corporation. Friedman v Renault, Inc. (1967, SD NY)
11 FR Serv 2d 787.
Non-party corporation with principal place of business outside state cannot be compelled to produce documents in
district where it has office where documents subpoenaed are located at principal office; personal jurisdiction is
insufficient to create jurisdiction over documents outside of district in absence of local office's control over documents.
In Matter of North American Acceptance Corp. Secur. In re North American Acceptance Corp. (1975, ND Ga) 21 FR
Serv 2d 612.
Non-party corporation was required to produce knowledgeable person for deposition, and, if no current employee
had sufficient knowledge, to prepare witness to give complete, knowledgeable, and binding answers on behalf of
corporation, or designate substitute. Dravo Corp. v Liberty Mut. Ins. Co. (1995, DC Neb) 164 FRD 70.
42. Time and place of examination
Deposition of corporation by its agents and officers should ordinarily be taken at its principal place of business
especially when corporation is defendant and plaintiff has not shown any peculiar circumstances that would justify
deposition elsewhere. Salter v Upjohn Co. (1979, CA5 Ala) 593 F2d 649, 27 FR Serv 2d 822.
Corporate defendants may be deposed in places other than location of principal place of business, especially in
forum, for convenience of parties and in general interests of judicial economy. Sugarhill Records, Ltd. v Motown
Record Corp. (1985, SD NY) 105 FRD 166, 1 FR Serv 3d 717.
Any deficiency in time allowed deponent between original notice and time of deposition was completely cured by
order of magistrate which extended such time. Perkinson v Houlihan's/D.C., Inc. (1985, DC Dist Col) 107 FRD 286.
Under FRCP 30(b)(6), corporate officers should generally be deposed at corporation's principal office and place of
business; however, court has discretion to order protective relief when deposition of corporate officers is sought at
different location. M & C Corp. v Erwin Behr GmbH & Co. (1996, ED Mich) 165 FRD 65, 34 FR Serv 3d 1492,
subsequent app (1996, CA6 Mich) 87 F3d 844, 1996 FED App 195P.
Change of deposition testimony as to receipt date of EEOC "right-to-sue" letter was proper and suit is deemed
timely, even though employer argues that employee cannot raise genuine issue of fact by "adjusting" her deposition
testimony, because she correctly asserts that litigants are free to amend their deposition testimony at any point prior to
end of deposition, or even after its completion when reviewing transcript for signature, under FRCP 30(e). Rios v AT&T
Corp. (1999, ND Ill) 36 F Supp 2d 1064.
General rule is that deposition of corporation by its agents and officers should be taken at corporation's principal
place of business. Chris-Craft Indus. Prods., Inc. v Kuraray Co. (1999, ND Ill) 184 FRD 605.
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When corporation objects to deposition being taken at place other than its principal place of business, objection
should be sustained unless there are unusual circumstances which justify such inconvenience to corporation. Chris-Craft
Indus. Prods., Inc. v Kuraray Co. (1999, ND Ill) 184 FRD 605.
Although general presumption is that depositions of corporation through its agents should be taken at corporation's
principal place of business, court has substantial discretion to specify time and place of any deposition. Custom Form
Mfg., Inc. v Omron Corp. (2000, ND Ind) 196 FRD 333.
Foreign corporation, subject to in personam jurisdiction of court, can be ordered under FRCP 30(b)(6) to produce its
officers, directors or managing agents in United States to give deposition testimony. Custom Form Mfg., Inc. v Omron
Corp. (2000, ND Ind) 196 FRD 333.
Travel expenses of deponents are not only relevant expenses considered in determining site of deposition; travel
expenses of counsel are also relevant. Custom Form Mfg., Inc. v Omron Corp. (2000, ND Ind) 196 FRD 333.
Deposition of corporation through its agents or officers normally should be taken in district of corporation's principal
place of business. Rapoca Energy Co., L.P. v AMCI Exp. Corp. (2001, WD Va) 199 FRD 191, 48 FR Serv 3d 880.
Motion to compel production of corporate witness in United States was denied because manufacturer complied with
its obligation under Fed. R. Civ. P. 30(b)(6) and agreed to waive Japanese procedures and to allow deposition to be
conducted under Federal Rules of Civil Procedure; therefore deposition of second witness should be taken in Japan
which was location where manufacturer was located. Dwelly v Yamaha Motor Corp., USA (2003, DC Minn) 214 FRD
537.
43. Deposition of government agency
Rule 30(b)(6) provides procedure to use in determining proper person to depose; it does not deal with issue of where
deposition is to be taken, or where documents are to be produced; it cannot be used to obtain documents, in custody of
head of non-party governmental agency in Washington, D. C., by service of subpoena duces tecum upon local
representative of agency in Dallas, Texas; person designated by organization pursuant to Rule 30(b)(6) cannot be
required to travel outside limits imposed by Rule 45(d)(2). Cates v LTV Aerospace Corp. (1973, CA5 Tex) 480 F2d
620, 17 FR Serv 2d 617.
Members of Federal Home Loan Bank Board are not required to submit to oral depositions in connection with action
by incumbent management of savings and loan association contesting appointment by Board of conservator where
association fails to allege or prove bad faith on part of members of Board whom it would depose relative to decision to
appoint conservator, fails to allege that administrative record on which decision was made is inadequate, fails to show
that Board members have unique personal knowledge concerning decision and fails to show that information it hopes to
elicit from individual members is not ascertainable by way of interrogatories addressed to Board, deposition of single
spokesman designated to testify for it, or testimony of 9 other witnesses whose depositions Board has not opposed.
Community Federal Sav. & Loan Asso. v Federal Home Loan Bank Bd. (1983, DC Dist Col) 96 FRD 619, 37 FR Serv
2d 232.
Plaintiff SEC was entitled to protective order barring defendants in civil injunction proceeding from deposing
agency, since proposed Rule 30(b)(6) deposition constituted impermissible attempt by defendant to inquire into mental
processes and strategies of SEC given SEC's sworn, uncontradicted statement that all relevant, nonprivileged material
had already been disclosed to plaintiff. SEC v Morelli (1992, SD NY) 143 FRD 42, CCH Fed Secur L Rep P 96913.
Environmental group's subpoena of EPA official was properly quashed where EPA's regional counsel had withheld
permission for official to testify and environmental group had not brought suit against EPA or regional counsel.
Orange Env't v County of Orange (1992, SD NY) 145 FRD 320.
In tax refund action, motion for protective order by defendant United States barring taxpayers from taking deposition
of Internal Revenue Service was denied; taxpayers' case would have been unduly hamstrung were court to deny
discovery regarding justification for government's position. Mullins v United States (2002, ED Tenn) 210 FRD 629, 90
AFTR 2d 6189.
44. Miscellaneous
Letter rogatory issued by Venezuelan court requesting judicial assistance in verifying certain documents did not fail
to meet due process requirements by failing to adequately identify individual to be examined since Rule 30 permitted
domestic corporation to designate company officials to testify to authenticity of documents in question. In re Letter
Rogatory from the First Court of First Instance in Civil Matters (1995, CA5 Tex) 42 F3d 308, 30 FR Serv 3d 1190.
Monetary sanctions were warranted for designated representative's failure to cooperate at his deposition, which was
tantamount to failure to appear, where representative failed to offer meaningful testimony about most, if not all, of items
specified in notice of deposition, and his professed ignorance about notice of deposition and meaning of designated
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representative were not credible in light of his undergraduate and law degrees from prestigious universities and fact that
he had been licensed to practice law since 1965 or 1966. Black Horse Lane Assoc., L.P. v Dow Chem. Corp. (2000, CA3
NJ) 228 F3d 275.
Rule does not absolutely bind corporate party to its designee's recollection unless corporation shows that contrary
information was not known to it or was inaccessible; nothing in advisory committee notes indicates that rule goes so far.
A.I. Credit Corp. v Legion Ins. Co. (2001, CA7 Ind) 265 F3d 630, amd, reh den (2001, CA7 Ind) 2001 US App LEXIS
25496.
Deposition notices which named specific individuals as deponents, rather than organization, which failed to describe
subject matter of proposed examination, and which gave no indication apart from bare citation of rule, that deponents
were expected to testify on behalf of union international were deficient. Operative Plasterers' & Cement Masons' Int'l
Ass'n v Benjamin (1992, ND Ind) 144 FRD 87, 24 FR Serv 3d 835.
FRCP 30(b)(6) does not trump provisions of FRCP 45(e), because allowing subpoena served pursuant to FRCP
30(b)(6) to evade proscriptions of FRCP 45(e) would render latter rule surplusage and subject nonparties to same level
of burdensome discovery that can be imposed upon party. Price Waterhouse LLP v First Am. Corp. (1998, SD NY) 182
FRD 56.
Deposition of corporation through its agents or officers normally should be taken in district of corporation's principal
place of business. Armsey v Medshares Mgmt. Servs., Inc. (1998, WD Va) 184 FRD 569.
For purposes of FRCP 30(b)(6), deponent has duty of being knowledgeable on subject matter identified as area of
inquiry. Alexander v FBI (1998, DC Dist Col) 186 FRD 137, motion den, request gr (1999, DC Dist Col) 186 FRD 144,
motion den, request den (1999, DC Dist Col) 186 FRD 148, motion gr, in part, motion den, in part, request gr, request
den (1999, DC Dist Col) 186 FRD 154.
Designating party has duty to prepare witness to testify on matters not only known by deponent, but those that should
be reasonably known by designating party. Alexander v FBI (1998, DC Dist Col) 186 FRD 137, motion den, request gr
(1999, DC Dist Col) 186 FRD 144, motion den, request den (1999, DC Dist Col) 186 FRD 148, motion gr, in part,
motion den, in part, request gr, request den (1999, DC Dist Col) 186 FRD 154.
Except where employee of corporate party has been designated by corporation under FRCP 30(b)(6), or is officer,
director or managing agent, employee is treated in same way as any other witness, and his presence must be obtained by
subpoena rather than notice. Archer Daniels Midland Co. v Aon Risk Servs. (1999, DC Minn) 187 FRD 578.
FRCP 30(b)(6) notice does not define scope of deposition. Cabot Corp. v Yamulla Enters. (2000, MD Pa) 194 FRD
499.
Foreign corporation, subject to in personam jurisdiction of court, can be ordered under FRCP 30(b)(6) to produce its
officers, directors or managing agents in United States to give deposition testimony. Custom Form Mfg., Inc. v Omron
Corp. (2000, ND Ind) 196 FRD 333.
Travel expenses of deponents are not only relevant expenses considered in determining site of deposition; travel
expenses of counsel are also relevant. Custom Form Mfg., Inc. v Omron Corp. (2000, ND Ind) 196 FRD 333.
FRCP 30(b)(6) deponent has affirmative obligation to educate himself as to matters regarding corporation.
Calzaturficio S.C.A.R.P.A., s.p.a. v Fabiano Shoe Co. (2001, DC Mass) 201 FRD 33.
Party responding to FRCP 30(b)(6) deposition notice must prepare deponents by having them review prior fact
witness deposition testimony as well as documents and deposition exhibits; even if documents are voluminous and
review of those documents would be burdensome, deponents are still required to review them in order to prepare
themselves to be deposed. Calzaturficio S.C.A.R.P.A., s.p.a. v Fabiano Shoe Co. (2001, DC Mass) 201 FRD 33.
Deponent designated under FRCP 30(b)(6) has duty of being knowledgeable on subject matter identified as area of
inquiry. Novartis Pharms. Corp. v Abbott Labs. (2001, DC Del) 203 FRD 159.
Depositions of high level corporate executives may be duplicative, cumulative and burdensome where person sought
to be deposed has no personal knowledge of events in dispute. Harris v Computer Assocs. Int'l, Inc. (2001, ED NY) 204
FRD 44.
FRCP 30(b)(6) operates as vehicle for streamlining discovery process. Hooker v Norfolk S. Ry. (2001, SD Ind) 204
FRD 124.
FRCP 30(b)(6) imposes duty upon named business entity to prepare its selected deponent to adequately testify not
only on matters known by deponent, but also on subjects that entity should reasonably know. Hooker v Norfolk S. Ry.
(2001, SD Ind) 204 FRD 124.
Since FRCP 30(b)(6) does not set its own discovery standard, standard provided in FRCP 26(b)(1) should be used to
determine whether information sought is relevant and is capable of leading to discovery of relevant information. Hooker
v Norfolk S. Ry. (2001, SD Ind) 204 FRD 124.
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Court granted noticing party's motion for sanctions due to corporate party's failure to produce most knowledgeable
deponents; however, requested sanctions were reduced since noticing party was able to utilize some portion of first
day's inquiry. Arctic Cat, Inc. v Injection Research Specialists, Inc. (2002, DC Minn) 210 FRD 680.
Assertion of food company and chemical company in their Fed. R. Civ. P. 53 objections to special master's report
that requiring them both to provide Fed. R. Civ. P. 30(b)(6) witnesses for depositions would be duplicative since at all
relevant times, food company was wholly-owned subsidiary of chemical company was rejected; although plaintiffs were
correct that two companies were separate entities, plaintiffs alleged that each entity individually participated in
conspiracy. In re Vitamins Antitrust Litig. (2002, DC Dist Col) 217 FRD 229.
Assertion of food company and chemical company in their Fed. R. Civ. P. 53 objection to special master's report that
requiring chemical company to provide additional Fed. R. Civ. P. 30(b)(6) witness at all, at late stage in litigation,
served no useful purpose, because it had already produced documents relating to alleged conspiracies known or
reasonably known to it, was rejected by court based on "substitution theory of discovery"--that chemical company could
respond as it saw fit rather than as requested by plaintiffs. In re Vitamins Antitrust Litig. (2002, DC Dist Col) 217 FRD
229.
Apparent assertion of food company and chemical company in their Fed. R. Civ. P. 53 objection to special master's
report that since other foreign defendants had not been required to produce educated Fed. R. Civ. P. 30(b)(6) witnesses,
they should not be required to do so was rejected based on "substitution theory of discovery"--that companies could
respond as they saw fit rather than as requested by plaintiffs. In re Vitamins Antitrust Litig. (2002, DC Dist Col) 217
FRD 229.
Plaintiff's motion to compel, requesting defendants to produce Fed. R. Civ. P. 30(b)(6) witness, was denied, where
defendants had since expressed their willingness to timely produce Fed. R. Civ. P. 30(b)(6) witness. Vectra Fitness, Inc.
v Icon Health & Fitness, Inc. (2003, WD Wash) 246 F Supp 2d 1111.
In light of affirmative duty imposed by Fed. R. Civ. P. 30(b)(6), corporate representative was obliged to gain some
understanding of underlying facts, regardless of source identifying underlying facts, and to answer questions
accordingly; therefore, court granted defendant's Fed. R. Civ. P. 37 motion to compel and required company to identify
documents relied on by its 30(b)(6) witness and produce such documents to extent it had not done so already, as
attorney-client privilege did not provide valid basis on which to refuse to divulge facts underlying company's response
to defendant's allegations. Sec. Ins. Co. v Trustmark Ins. Co. (2003, DC Conn) 218 FRD 29.
In manufacturer's action against seller, corporation, and individuals alleging breach of contract and other claims, for
purposes of motions for summary judgment before court seller was permitted to offer evidence different from or beyond
that which was provided at its Fed. R. Civ. P. 30(b)(6) deposition because evidence; manufacturer's remedy for seller's
alleged failure to provide prepared witness for Rule 30(b)(6) deposition was under Fed. R. Civ. P. 37. Interstate Narrow
Fabrics, Inc. v Century USA, Inc. (2003, MD NC) 218 FRD 455.
Individual deposed pursuant to FRCP 30(b)(6) is required to testify to knowledge of corporation, not to knowledge
of individual. Poole v Textron, Inc. (2000, DC Md) 192 FRD 494, 46 FR Serv 3d 572.
VII. RECORD OF EXAMINATION; OATH; OBJECTIONS [RULE 30(c)]
45. Generally
Plaintiff must produce for inspection and copying statements relied upon by him to refresh his memory in
preparation for deposition taken from him in accordance with requirement of Rule 30(c) that examination and
cross-examination of witnesses at deposition may proceed as permitted at trial. Prucha v M & N Modern Hydraulic
Press Co. (1977, WD Wis) 76 FRD 207, 2 Fed Rules Evid Serv 731, 24 FR Serv 2d 1367.
Rule 30(c) has been accorded a literal interpretation. Philadelphia Nat'l Bank v Dow Chemical Co. (1985, ED Pa)
40 FR Serv 2d 1273.
Under Rule 30(c), it is impermissible for counsel to instruct witness not to respond to question absent claim of
privilege. United Nat'l Records, Inc. v MCA, Inc. (1985, ND Ill) 106 FRD 39, 1985-1 CCH Trade Cases P 66594, 1
FR Serv 3d 580.
Plaintiff's motion under Fed. R. Civ. P. 30(b)(6) to compel defendant surety companies to produce witness who
would identify those facts each defendant had learned after issuing surety bonds that led that defendant to now claim
that purported performance contracts were actually disguised loans was denied; parties' respective obligations and
liabilities were function of what they knew, and what they disclosed or failed to disclose, at time they entered their
contractual relationships, not thereafter. J.P. Morgan Chase Bank ex rel. Mahonia Ltd. v Liberty Mut. Ins. Co. (2002,
SD NY) 209 FRD 361.
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46. Recording testimony
Depositions of witnesses may be recorded by official stenographer. Pezza v Williams-Bauer Corp. (1942, DC NY) 3
FRD 355.
If party noticing deposition has no intention of having all of it transcribed and filed as is customary, ample notice of
that fact should be given adversaries and pretrial arrangements agreed upon for proper allocation of payment of
reasonable charges for portions respective parties desire transcribed and filed taking into account that copy of
transcription is less costly than its original. Green v Williams (1981, ED Tenn) 90 FRD 440.
Although plaintiff's expert could be deposed by telephone, he could not be videotaped since this would put defense
counsel in difficult position of perhaps missing facial expression which, were he in room watching witness, would cause
him to follow up with additional questioning so that video picture jury would see could be explained by further
examination. Bywaters v Bywaters (1988, ED Pa) 123 FRD 175.
Nothing in rule prevented plaintiff from videotaping continuation of defendant's deposition even though first part
was recorded only by sound or stenographic means; video deposition, unlike typed transcript, allows trial jury to
consider witness's demeanor and if deponent was evasive, as plaintiff claimed, video deposition would make that more
apparent than would typed transcript. Riley v Murdock (1994, ED NC) 156 FRD 130, 29 FR Serv 3d 1469.
Although counsel's operation of video camera is not preferred method of conducting video deposition, neither FRCP
28(a) nor FRCP 28(c) specifically prohibit party's attorney from operating video camera during course of video
deposition otherwise conducted in compliance with FRCP 30. Ott v Stripe Law Firm (1996, ED Okla) 169 FRD 380.
47. Oath requirement
Any statement indicating that deponent is impressed with duty to tell truth and understands that he or she can be
prosecuted for perjury for failure to do so satisfies requirement for oath or affirmation under Rules 30(c) and 43(d);
furthermore, deponent need not raise hand when saying words necessary to satisfy Rules 30(c) and 43(d) if to do so
impinges on sincerely held religious beliefs. Gordon v Idaho (1985, CA9 Idaho) 778 F2d 1397, 19 Fed Rules Evid
Serv 1076, 3 FR Serv 3d 1077.
In light of plaintiff's sincere religious objections to taking oath or using word "affirmation," it was abuse of discretion
for District Court to insist that he use either word "swear" or "affirm" before testifying at deposition. Gordon v Idaho
(1985, CA9 Idaho) 778 F2d 1397, 19 Fed Rules Evid Serv 1076, 3 FR Serv 3d 1077.
48. Objections
Action of plaintiff's counsel in directing plaintiff not to answer questions posed to him was indefensible and at
variance with discovery, where questions put to plaintiff were germane to subject matter of pending action and properly
within scope of discovery; questions should have been answered, and if plaintiff's counsel had any objection to
questions, under Rule 30(c) he should have placed it on record for evidence to be taken subject to such objection.
Ralston Purina Co. v McFarland (1977, CA4 NC) 550 F2d 967, 21 UCCRS 136.
In examination of party before trial, deponent's attorney should not instruct his client not to answer but should permit
him to answer and note his objections on record. Dellefield v Blockdel Realty Co. (1941, DC NY) 40 F Supp 212.
Plaintiff's attorney cannot defeat discovery by claiming, prior to testifying, that everything he knows is either
privileged or part of "work product"; at examination, specific questions should be asked and either answered or
objections made at that time. Shiner v American Stock Exchange (1961, SD NY) 28 FRD 34, 4 FR Serv 2d 488.
When objection involves claim of privilege, strict application of Rule 30(c) would undermine values protected, but
where objection is merely based on assertions of irrelevance, Rule should be strictly applied. Preyer v United States
Lines, Inc. (1973, ED Pa) 64 FRD 430, 19 FR Serv 2d 1359, affd without op (1976, CA3 Pa) 546 F2d 418.
Routine objections based on relevancy should be noted on record and witnesses should thereafter be required to
answer question. W. R. Grace & Co. v Pullman, Inc. (1977, WD Okla) 74 FRD 80.
Strict application of provisions of Rule 30(c) that evidence objected to shall be taken subject to objections being
noted cannot be followed as to objections based upon privilege. W. R. Grace & Co. v Pullman, Inc. (1977, WD Okla)
74 FRD 80.
It is improper for counsel at deposition to instruct client not to answer where claim of privilege has not been made; if
counsel objects to question, he must state his objection for record and then allow question to be answered subject to his
objection. Coates v Johnson & Johnson (1980, ND Ill) 85 FRD 731, 26 BNA FEP Cas 1114, 30 FR Serv 2d 234.
Policies behind Rule 30(c) require an answer to be given in absence of showing of some serious harm likely to result
from responding to any given question; therefore objections based merely on assertion of irrelevance are not exempted
from provisions of Rule. International Union of Electrical, Radio & Machine Workers, etc. v Westinghouse Electric
Corp. (1981, DC Dist Col) 91 FRD 277, 32 FR Serv 2d 632.
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In wrongful death actions against defendant drug company, where, during a deposition of the defendant's employee,
the defendant's attorney instructed witness not to answer certain questions and plaintiff subsequently filed motion to
compel, District Court noted that under Rule 30(c) testimony in deposition should normally be taken subject to
objection, but in certain circumstances refusing to answer may be justified, and court further stated that while sheer
number of questions to which defendant's counsel objected and instructed witness not to answer suggested that question
should have been answered, it would be waste of time for court to require witness to answer question that was properly
objectionable simply because counsel improperly instructed witness not to answer, rather it would be more appropriate
to impose on defendant's counsel cost of redeposing witness necessitated by finding that objections were without merit.
Lapenna v Upjohn Co. (1986, ED Pa) 110 FRD 15, 5 FR Serv 3d 522.
Defense counsel in RICO action improperly directed deponent-client not to answer deposition questions where there
was no claim of privilege and questions were not harassing or impertinent; counsel was entitled to note any objection
for record, but not to direct deponent not to answer. Bank of America Nat'l Trust & Sav. Asso. v Touche Ross & Co.
(1987, ND Ga) 118 FRD 550.
Counsel's instructions to client's designated representative, during deposition, not to answer certain questions,
without immediately seeking protective order, was improper. Nutmeg Ins. Co. v Atwell, Vogel & Sterling, Div. of
Equifax Services, Inc. (1988, WD La) 120 FRD 504.
Plaintiff's counsel erred in directing its witness not to answer defendant's questions instead of noting objections;
witness clearly had relevant information since he had personally inspected damaged site and his firm prepared report
which plaintiff submitted to defendant insurer in support of its claim. Gould Investors, L.P. v General Ins. Co. of
Trieste & Venice (1990, SD NY) 133 FRD 103.
Defense counsel's instructions to defendants not to answer certain deposition questions on grounds of irrelevance and
then terminating depositions prior to their completion without moving for protective order or to termination examination
warranted award of reasonable expenses to plaintiff. Hearst/ABC-Viacom Entertainment Servs. v Goodway Mktg., Inc.
(1992, ED Pa) 145 FRD 59, 25 FR Serv 3d 222, approved, adopted, mod, petition gr (1992, ED Pa) 815 F Supp 145.
Defense counsel improperly objected to questioning of defendant during deposition by either suggesting to his client
what he apparently believed to be appropriate answer or by himself testifying, warranting monetary sanctions and order
that defendant resubmit to deposition. Johnson v Wayne Manor Apartments (1993, ED Pa) 152 FRD 56, 28 FR Serv
3d 508, summary judgment den sub nom Johnson v Goldstein (1994, ED Pa) 850 F Supp 327, 30 FR Serv 3d 335.
Plaintiff would be ordered to answer questions put to her in her deposition regarding her view of who caused her
injury or accident since none of reasons to protect witness in deposition were present, plaintiff's view of causal factors
in her accident could be admissible as admissions of party opponent, and plaintiff as lay witness could give opinion on
ultimate issue of causation of her injury and accident. Donlin v Aramark Corp. (1995, DC Utah) 162 FRD 149.
Counsel's statements when making objections should be succinct and verbally economical, stating basis of objection
and nothing more. McDonough v Keniston (1998, DC NH) 188 FRD 22.
Speaking objections and coaching objections are not permitted in depositions in federal court. McDonough v
Keniston (1998, DC NH) 188 FRD 22.
When corporation objects to deposition being taken at place other than its principal place of business, objection
should be sustained unless there are unusual circumstances which justify such inconvenience to corporation. Chris-Craft
Indus. Prods., Inc. v Kuraray Co. (1999, ND Ill) 184 FRD 605.
If counsel feels he must make relevancy objection, such objection should briefly be made for record, and deposition
should continue with testimony being taken subject to objection. Quantachrome Corp. v Micromeritics Instrument
Corp. (1999, SD Fla) 189 FRD 697.
Objections during deposition preferably should be limited to those under FRCP 32(d)(3); other objections should be
kept to minimum during deposition. Quantachrome Corp. v Micromeritics Instrument Corp. (1999, SD Fla) 189 FRD
697.
Although party may object to question based on form and/or relevancy, it is improper to instruct witness not to
answer question based on form and relevancy objections. Gober v City of Leesburg (2000, MD Fla) 197 FRD 519.
VIII. MOTION TO TERMINATE OR LIMIT EXAMINATION; SCHEDULE AND DURATION [RULE 30(d)]
49. Generally
Greater latitude is permitted in cross-examination of party than might be case with nonparty witnesses on taking
depositions. De Wagenknecht v Stinnes (1957) 100 US App DC 156, 243 F2d 413, 70 ALR2d 676, cert den (1957) 355
US 830, 2 L Ed 2d 43, 78 S Ct 44.
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USCS Fed Rules Civ Proc R 30
Under Rule 26(c) and Rule 30(d), District Court has broad discretion with respect to termination of deposition. In
re Master Key Litigation (1974, CA9 Cal) 507 F2d 292, 1974-2 CCH Trade Cases P 75395.
Motion to terminate taking of deposition of party or in alternative to limit such examination to written interrogatories
concerning certain specified matters should be denied if party seeking examination is entitled to general examination of
his adversary, and if examination had proceeded for only short time. Newcomb v Universal Match Corp. (1939, DC
NY) 27 F Supp 937.
Rule 26(c) motion is appropriate only before deposition commences, whereas Rule 30(d) motion is appropriate only
during taking of deposition. Coates v Johnson & Johnson (1980, ND Ill) 85 FRD 731, 26 BNA FEP Cas 1114, 30 FR
Serv 2d 234.
Third Circuit adopted guidelines for attorney behavior at depositions announced in Hall v. Clifton Precision, 150
F.R.D. 525 (E.D. Pa. 1993) and although Hall was decided before 1993 amendments to Federal Rules of Civil
Procedure, decision considered Rule 30(d) and incorporated it into guidelines; aimed at reducing number of
interruptions during depositions, Rule 30 set forth general rule that counsel should not engage in any conduct during
deposition that would not have been allowed in presence of judicial officer. Plaisted v Geisinger Med. Ctr. (2002, MD
Pa) 210 FRD 527, 54 FR Serv 3d 191.
Where defense counsel, on four separate occasions, instructed each deponent not to answer certain questions, made
repeated objections, and left deposition room while question was still pending, it was determined that defense counsel
acted improperly; plaintiffs' counsel was entitled to re-depose each deponent in areas where their answers were
incomplete or where they were not permitted to answer questions. Plaisted v Geisinger Med. Ctr. (2002, MD Pa) 210
FRD 527, 54 FR Serv 3d 191.
50. Examination taken in bad faith
Right of discovery for which provision is made by Federal Rules of Civil Procedure has ultimate and necessary
boundaries, as where examination is being conducted in bad faith or in such manner as to annoy, embarrass, or oppress
persons subject to inquiry. Hickman v Taylor (1947) 329 US 495, 91 L Ed 451, 67 S Ct 385, 34 Ohio Ops 395
(superseded by statute on other grounds as stated in Hawkins v District Court of Fourth Judicial Dist. (1982, Colo) 638
P2d 1372) and (superseded by statute on other grounds as stated in Graham v Gielchinsky (1991) 126 NJ 361, 599 A2d
149).
Trial court did not abuse its discretion in finding deposition proceedings by plaintiff in defamation action against
broadcasting company to be undertaken in good faith and not with view to unreasonably annoying, embarrassing, or
oppressing witness-newspaper columnist, where information sought from witness was material and relevant, which
information was refused by witness for which she subsequently was held in criminal contempt. Garland v Torre (1958,
CA2 NY) 259 F2d 545, 1 Media L R 2541, 1 FR Serv 2d 489, cert den (1958) 358 US 910, 3 L Ed 2d 231, 79 S Ct 237.
In civil action under Sherman Antitrust Act, where plaintiff took deposition of British businessman temporarily in
country on business and witness testified freely concerning conferences with representatives of some defendants as well
as British governmental officials, refreshing his memory from papers in his possession, plaintiff's subsequent motion to
compel witness to permit plaintiff to examine memoranda made by witness concerning such conferences and
correspondence between him and defendants' officers, was denied on basis that witness might be seriously embarrassed
by such inspection. Eastern States Petroleum Co. v Asiatic Petroleum Corp. (1938, DC NY) 27 F Supp 121.
Alleged annoyance, embarrassment, or oppression must be unreasonable to support motion to terminate or limit
taking of deposition so that production of documents at taking of depositions should not be ordered if compliance with
such order would unreasonably annoy, embarrass, or oppress deponent. In re Zenith Radio Corp. (1941, DC Pa) 1
FRD 627, 50 USPQ 197.
Examination before trial will not be terminated unless bad faith, annoyance, embarrassment, oppression, or like is
shown. Grinnell Co. v National Bank of Far Rockaway (1941, DC NY) 2 FRD 116.
Where plaintiff had disobeyed subpoena calling for her appearance for completion of examination on particular day,
and where there had been considerable bickering between attorneys for both parties, court rejected plaintiff's motion to
terminate her examination on grounds of bad faith and annoyance. Dellefield v Blockdel Realty Co. (1941, DC NY) 40
F Supp 212.
Motion by defendant that his examination be terminated or limited on ground that he had been subject to
examination on three separate occasions and that his examination was unrelated to questions relevant to issue of
accounting between parties, and that by it he was being harassed, annoyed and embarrassed, in an unreasonable and
unnecessary manner, was denied. Michel v Meier (1948, DC Pa) 8 FRD 464.
Where defendant's attorney urged that he was taking information to aid him in motions relative to jurisdiction or
possible transfer of case, objection to plaintiff's president to continuance of his deposition on ground that further
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USCS Fed Rules Civ Proc R 30
examination was not warranted was overruled; no evidence of bad faith or unreasonable annoyance or embarrassment of
deponent or plaintiff was shown to exist. Apex Accessories Co. v Speidel Corp. (1951, DC NY) 11 FRD 600.
Request for order limiting scope or manner of taking depositions on ground that examination was being conducted in
bad faith and in manner to annoy and embarrass plaintiff was denied where examples of such alleged conduct cited were
not so serious to warrant protective order. Miller v Sun Chemical Corp. (1952, DC NJ) 12 FRD 181.
Motion by plaintiffs to limit or terminate examination of certain plaintiffs was denied where it appeared that
plaintiffs had failed to substantiate their claim of undue prolongation and harassment. Schwartz v Broadcast Music,
Inc. (1954, DC NY) 16 FRD 31.
Rule 30(d) empowers court to limit and terminate examinations for protection of parties and deponents where
application for relief shows that examination is being conducted in bad faith or in such manner as to unreasonably
annoy, embarrass, or oppress deponent or party; however, where examination of plaintiff had been suspended for 2
years as result of dispute over production by plaintiff of certain telephone conversations, which dispute had been
resolved against plaintiff, plaintiff's motion to terminate defendants' examination of individual plaintiff was denied
where no evidence had been presented to show bad faith on part of defendants. Banana Distributors, Inc. v United
Fruit Co. (1956, DC NY) 19 FRD 244.
Where examination had taken only 6 and 1/2 hours over course of 2 days; where questions asked did not appear to be
oppressive in nature; and where no showing by plaintiff had been made that examination had been or was intended to be
conducted in bad faith, plaintiff's motion that examination be terminated on ground of oppressiveness was denied. Idle
Wild Farm, Inc. v W. R. Grace & Co. (1958, SD NY) 22 FRD 334, 1 FR Serv 2d 452.
Safeguards of Rule 30(d) protect against bad faith discovery practices which would include frequent or persistent
inquiry into matters outside permissible scope of discovery allowed pursuant to Rule 26(b)(1). W.R. W. R. Grace &
Co. v Pullman, Inc. (1977, WD Okla) 74 FRD 80.
Though Rule 30(d) allows deposition to be terminated upon showing that examination is being conducted in bad
faith or to unreasonably annoy, embarrass, or oppress deponent; defense counsel cannot unilaterally terminate a
deposition of his client, but must apply for court termination. Hanlin v Mitchelson (1985, SD NY) 623 F Supp 452, affd
in part and revd in part on other grounds, remanded (1986, CA2 NY) 794 F2d 834, 5 FR Serv 3d 969.
Protective order to preclude deposition of corporate president is granted where party noticing deposition states in
language conspicuously clear that he is going to waste time of deponent, so deposition was noticed for purposes of
harassment and annoyance. Digital Equipment Corp. v System Industries, Inc. (1986, DC Mass) 108 FRD 742.
Order terminating deposition was appropriate sanction for party's flouting deposition order by unilaterally adjourning
it in favor of separate deposition which was not subject of court order, which was not emergency, which had been
mentioned only within previous few days, and which had been rescheduled for that afternoon without advance notice.
C & F Packing Co. v Doskocil Cos. (1989, ND Ill) 126 FRD 662.
Plaintiff's attorney's unilateral termination of client's deposition on grounds that it was conducted in bad faith and in
manner unreasonably to annoy, embarrass, or oppress plaintiff and his co-plaintiff was not warranted despite length of
deposition considering nature of employment discrimination action, issues raised, and deponent's involvement in case as
both plaintiff and witness, and transcript did not reveal pattern of irrelevant inquiry or conduct calculated to
unreasonably annoy, embarrass or oppress deponent. Smith v Logansport Community School Corp. (1991, ND Ind)
139 FRD 637, 24 FR Serv 3d 634.
Where court had by order set dates for commencement of depositions of third-party defendants and stated that if
necessary depositions could be continued thereafter on dates agreeable to all counsel, deposing party who sought to
schedule additional days after deposing parties for two days was not required to justify continuation of depositions; and
counsel for deponents failed to demonstrate any conduct by deposing party's counsel amounting to harassment sufficient
to justify halting depositions since questioning dealt with information that could lead to relevant evidence, even if it was
not always model of efficiency, and fact that information is publicly available does not place it beyond bounds of proper
deposition. Riddell Sports v Brooks (1994, SD NY) 158 FRD 555, 31 FR Serv 3d 602.
Plaintiff's attorneys' interruptions of plaintiff's deposition--repeatedly instructing plaintiff not to answer, interposing
"objections" which suggested plaintiff's answers, restating questions in order to "clarify" them for plaintiff, and pointing
out portions of documents to plaintiff--was in violation of Rule 30(d)(1), objectively unreasonable, and in bad faith,
warranting imposition of sanctions on attorneys. Armstrong v Hussmann Corp. (1995, ED Mo) 163 FRD 299, 66 CCH
EPD P 43707.
If counsel truly feels that deposition is being conducted in bad faith or in such manner as to unreasonably annoy,
embarrass or oppress deponent, counsel may instruct witness not to answer or may halt deposition; counsel may do so,
though, only if he intends to move for protective order. Quantachrome Corp. v Micromeritics Instrument Corp. (1999,
SD Fla) 189 FRD 697.
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USCS Fed Rules Civ Proc R 30
In action by charterer of vessel against owner, where charterer moved for order adjudicating witness whose
deposition it was taking to be in contempt for refusal to produce certain documents under subpoena, motion by owner to
terminate taking of deposition on basis of bad faith and with intent to annoy or harass ailing witness was denied, court
holding in abeyance contempt action while ordering witness to produce documents, and giving due recognition to
witness' illness during examination. Steamship Co. of 1949, Inc. v China Union Lines (1954, DC NY) 123 F Supp 802.
51. Requests for irrelevant materials
Trial court did not abuse its discretion in finding deposition proceedings by plaintiff in defamation action against
broadcasting company to be undertaken in good faith and not with view to unreasonably annoying, embarrassing, or
oppressing witness-newspaper columnist, where information sought from witness was material and relevant, which
information was refused by witness for which she subsequently was held in criminal contempt. Garland v Torre (1958,
CA2 NY) 259 F2d 545, 1 Media L R 2541, 1 FR Serv 2d 489, cert den (1958) 358 US 910, 3 L Ed 2d 231, 79 S Ct 237.
Relevancy of evidence sought at taking of depositions should be determined at trial and not on motion to terminate or
limit examination unless it plainly appears on such motion that evidence can have no possible bearing on issues. In re
Zenith Radio Corp. (1941, DC Pa) 1 FRD 627, 50 USPQ 197.
Motion by defendant that his examination be terminated or limited on ground that he had been subject to
examination on three separate occasions and that his examination was unrelated to questions relevant to issue of
accounting between parties, and that by it he was being harassed, annoyed and embarrassed, in an unreasonable and
unnecessary manner, was denied. Michel v Meier (1948, DC Pa) 8 FRD 464.
Motion by plaintiff to terminate examination or limit its scope was denied where motion was predicated on ground
that questions put to plaintiff's officers were irrelevant to issues. Avon Linen Service, Inc. v Gratenstein (1953, DC
Conn) 16 FRD 469.
In malpractice action, anesthetist had right to refuse to answer questions on deposition with regard to neurological
disease which was not in his field where answers by him to such questions would be neither relevant nor reasonably
calculated to lead to discovery of relevant evidence, and such questions were probably unreasonably embarrassing.
Macrina v Smith (1955, DC Pa) 18 FRD 254.
52. Privilege asserted
District Court did not abuse its discretion in antitrust action in denying motion of witness for protective order
terminating his oral deposition entirely, where individual refused, on grounds of self-incrimination, to answer questions
upon depositions. In re Master Key Litigation (1974, CA9 Cal) 507 F2d 292, 1974-2 CCH Trade Cases P 75395.
Defendant's motion to terminate or limit examination of its officers under depositions by plaintiff, which depositions
had been adjourned because of defendant's refusal to produce document sought by plaintiff, was denied where court
upheld defendant's right to withhold certain documents and records requested but required it to produce other
documents and answer further questions. Floridin Co. v Attapulgus Clay Co. (1939, DC Del) 26 F Supp 968, 41 USPQ
129.
Where it appeared that plaintiff was seeking to discover steps being taken by defendant in preparation for trial and
not relevant matters, and to make available fruits of an investigation undertaken by defendant at its expense, defendant's
motion made during pendency of examination that examination be limited was granted. Schweinert v Insurance Co. of
North America (1940, DC NY) 1 FRD 247.
In action to recover damages for personal injuries resulting from alleged negligence in operation of motor vehicle, on
examination of defendants' insurance carrier, witness would not be required to furnish statements from witnesses who
were equally available to both sides, nor would he be required to produce interoffice correspondence file. French v
Zalstem-Zalessky (1940, DC NY) 1 FRD 508.
Rule 30(d), as protective rule, is improperly used where action is taken to terminate examination, which has been
suspended to secure ruling on whether witness's prior statement is privileged, on basis that plaintiff's refusal to continue
cross-examination without access to challenged prior statement of witness concluded deposition, and that, accordingly,
examination should be "declared closed." Broadbent v Moore-McCormack Lines, Inc. (1946, DC Pa) 5 FRD 220.
Where continuing examination of defendant might result in defendant's giving evidence against himself in pending
criminal indictment, examination was terminated. National Discount Corp. v Holzbaugh (1952, ED Mich) 13 FRD
236.
Although Rule 30(d) strictly construed does not allow deposition to be halted simply because allegedly privileged
information is sought, strict application of Rule 30(d) when objection involves privilege, would frustrate values
protected by privilege so that attorney should halt deposition and apply for protective order where objection raised is
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USCS Fed Rules Civ Proc R 30
based on privilege. Perrignon v Bergen Brunswig Corp. (1978, ND Cal) 77 FRD 455, 3 Fed Rules Evid Serv 993, 25
FR Serv 2d 780.
Trial court would not instruct deposition witnesses not to answer objectionable questions, since Federal Rules of
Civil Procedure provide that evidence objected to shall be taken, although subject to objection and with objection noted;
witness could refuse to answer questions based on attorney-client and work-product privilege where sufficient
foundation was established. In re Alexander Grant & Co. Litig. (1986, SD Fla) 110 FRD 545.
Counsel should instruct witness not to answer only to preserve privilege or move for protective order in absence of
existing order limiting scope of deposition. Quantachrome Corp. v Micromeritics Instrument Corp. (1999, SD Fla) 189
FRD 697.
Company president's motion to stay discovery against him in civil litigation pursuant to Fed. R. Civ. P. 62 pending
conclusion of criminal proceedings against him was denied in favor of sealing his deposition pursuant to Fed. R. Civ. P.
30(d), allows court to limit scope and manner of taking of deposition as provided in Fed. R. Civ. P. 26(c) and limited
use of company president's deposition to perjury or impeachment. In re CFS-Related Secs. Fraud Litig. (2003, ND
Okla) 256 F Supp 2d 1227.
53. Multiple or lengthy examinations
Where extensive examination has already been conducted in another action involving same parties, second
examination should be terminated as unreasonably annoying. Cumberland Corp. v McLellan Stores Co. (1939, DC
NY) 27 F Supp 994.
Motion by defendant that his examination be terminated or limited on ground that he had been subject to
examination on three separate occasions and that his examination was unrelated to questions relevant to issue of
accounting between parties, and that by it he was being harassed, annoyed and embarrassed, in an unreasonable and
unnecessary manner, was denied. Michel v Meier (1948, DC Pa) 8 FRD 464.
Plaintiff has gone far enough in its line of inquiry and other party was entitled to order terminating taking of further
depositions of witnesses, except as to individuals named as defendants in complaint, where plaintiff has examined 23
witnesses and has obtained over 1000 pages of testimony. Pittsburgh Plate Glass Co. v Allied Chemical Alkali
Workers (1951, DC Ohio) 11 FRD 518, 28 BNA LRRM 2370.
Request for order directing defendant to cease forthwith from taking plaintiff's depositions was denied where request
was apparently based on fact that plaintiff had been subjected to one full day of interrogation, which time was not
unduly long. Miller v Sun Chemical Corp. (1952, DC NJ) 12 FRD 181.
Where examination had taken only 6 and 1/2 hours over course of 2 days; where questions asked did not appear to be
oppressive in nature; and where no showing by plaintiff had been made that examination had been or was intended to be
conducted in bad faith, plaintiff's motion that examination be terminated on ground of oppressiveness was denied. Idle
Wild Farm, Inc. v W. R. Grace & Co. (1958, SD NY) 22 FRD 334, 1 FR Serv 2d 452.
In depositions in class action, court would limit number of attorneys questioning witness on behalf of plaintiff class
to one, and if attorney representing individual class members wish to question witness further, only questions not
duplicative of prior, unambiguous questions, by counsel for plaintiff class would be permitted, subject to appropriate
sanctions and potential mootness of future motions to compel answers to duplicative questions should counsel fail to
regard court's admonishment. United Nat'l Records, Inc. v MCA, Inc. (1985, ND Ill) 106 FRD 39, 1985-1 CCH Trade
Cases P 66594, 1 FR Serv 3d 580.
54. Testimony available from other sources
In action to recover damages for personal injuries resulting from alleged negligence in operation of motor vehicle, on
examination of defendants' insurance carrier, witness would not be required to furnish statements from witnesses who
were equally available to both sides, nor would he be required to produce interoffice correspondence file. French v
Zalstem-Zalessky (1940, DC NY) 1 FRD 508.
Counsel for non-party deponent could have demanded that deposition be suspended under Rule 30(d) while counsel
raised objections with court, but counsel had no right to advise client not to answer question on ground that question
had been asked and answered earlier in deposition. First Tennessee Bank v Federal Deposit Ins. Corp. (1985, ED
Tenn) 108 FRD 640.
55. Direction not to answer question
When plaintiff's counsel attempted to ask deponent questions which were beyond scope of subject matter of
deposition as listed in 30(b)(6) notice, defense counsel could have filed motion for protective order pursuant to Rule
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USCS Fed Rules Civ Proc R 30
30(d), but defense counsel acted improperly by directing witness not to answer questions and in failing to seek guidance
from court. Paparelli v Prudential Ins. Co. (1985, DC Mass) 108 FRD 727.
Although instructions not to answer questions during depositions are generally improper, witness may be instructed
not to answer question if answer would reveal privileged information. Nutramax Lab., Inc. v Twin Lab., Inc, (1998, DC
Md) 183 FRD 458, motion to strike gr, sanctions disallowed (1999, DC Md) 32 F Supp 2d 331.
Remedy for oppressive, annoying and improper deposition questioning is not to simply instruct deponent not to
answer, but rather, it also requires suspending deposition and filing motion under FRCP 30(d)(3). McDonough v
Keniston (1998, DC NH) 188 FRD 22.
It is improper to instruct witness not to answer question based on form and relevancy objections. Quantachrome
Corp. v Micromeritics Instrument Corp. (1999, SD Fla) 189 FRD 697.
Counsel should instruct witness not to answer only to preserve privilege or move for protective order in absence of
existing order limiting scope of deposition. Quantachrome Corp. v Micromeritics Instrument Corp. (1999, SD Fla) 189
FRD 697.
If counsel truly feels that deposition is being conducted in bad faith or in such manner as to unreasonably annoy,
embarrass or oppress deponent, counsel may instruct witness not to answer or may halt deposition; counsel may do so,
though, only if he intends to move for protective order. Quantachrome Corp. v Micromeritics Instrument Corp. (1999,
SD Fla) 189 FRD 697.
Generally, instructions not to answer questions at deposition are improper; however, exception exists where serious
harm would be caused by answer. Detoy v City & County of San Francisco (2000, ND Cal) 196 FRD 362.
Although party may object to question based on form and/or relevancy, it is improper to instruct witness not to
answer question based on form and relevancy objections. Gober v City of Leesburg (2000, MD Fla) 197 FRD 519.
Where there is no claim of privilege in relation to questions asked on deposition, FRCP 30(d)(1) and FRCP 26
(relating to scope of discovery) should be strictly applied. Pilates, Inc. v Georgetown Bodyworks Deep Muscle Massage
Ctrs., Inc. (2000, DC Dist Col) 201 FRD 216.
When motion is brought challenging instruction that witness not answer question, court resolves merits of objection
and, pursuant to FRCP 30(d)(4), must award sanctions if objection was not substantially justified. Miller v Waseca Med.
Ctr. (2002, DC Minn) 205 FRD 537.
56. Suspension of proceedings
Scope of examination before trial should not be limited on motion to modify notice before examination; if it
thereafter appears that examination is being conducted in bad faith or in such manner as unreasonably to annoy,
embarrass, or oppress deponent or party, examination may be suspended for presentation of motion to terminate or limit
examination. Krier v Muschel (1939, DC NY) 29 F Supp 482.
Under Rule 30(d), requiring suspension of deposition for time necessary to make motion for order thereunder, it is
not within prerogative of opposing party to continue with taking of deposition or to determine, ex parte, validity of other
party's claim of privilege concerning information sought to be elicited from witnesses. Ross v Cities Service Gas Co.
(1957, DC Mo) 21 FRD 34.
Where attorney advised deponent not to answer question because other deponents had answered same question and
subject was not within deponent's expertise and attorney indicated deposition was closed, party would be instructed to
produce deponent for second deposition; attorney improperly instructed deponent not to testify and attorneys are not to
rule on objections. In re Air Crash Disaster at Detroit Metro. Airport (1989, ED Mich) 130 FRD 627.
Private conferences between deponents and their attorneys are improper unless they are for purpose of determining
whether privilege should be asserted; any conferences which occur for that purpose or otherwise are proper subject for
inquiry by deposing counsel to ascertain whether there has been any witness-coaching, and shall be noted on record by
counsel who participated in conference, along with purpose and outcome of conference. Hall v Clifton Precision
(1993, ED Pa) 150 FRD 525, 27 FR Serv 3d 10.
Special master, appointed by court under Fed. R. Civ. P. 53, in case to reform defendant Secretary of Department of
Interior's accounting of Indian trust funds, had authority to determine when deposition should be terminated under Fed.
R. Civ. P. 30(d)(4) and to file recommendation that court issue order to show cause requiring defense counsel to explain
why counsel's conduct should not be referred to Disciplinary Panel for review and appropriate action under D.C. Rules
of Prof'l Conduct R. 8.4(d), or why counsel's conduct did not warrant sanctions under Fed. R. Civ. P. 30(d)(3),
37(a)(4)(A). Cobell v Norton (2003, DC Dist Col) 213 FRD 48.
Deponent who was not informed that nonparty would be present at scheduled deposition could object to presence of
nonparty and could demand that deposition be suspended in order that deponent might apply for a protective order
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USCS Fed Rules Civ Proc R 30
limiting persons present at deposition, but deponent could not simply refuse to be deposed or leave deposition without
seeking protective order. Lewis R. Pyle Memorial Hosp. v Superior Court (1986) 149 Ariz 193, 717 P2d 872.
57. Motion for protective order
When plaintiff's counsel attempted to ask deponent questions which were beyond scope of subject matter of
deposition as listed in 30(b)(6) notice, defense counsel could have filed motion for protective order pursuant to Rule
30(d), but defense counsel acted improperly by directing witness not to answer questions and in failing to seek guidance
from court. Paparelli v Prudential Ins. Co. (1985, DC Mass) 108 FRD 727.
Procedure of court reporter at deposition asking court for advice and instructions when objections to questions and
depositions arise is not appropriate method of obtaining court's ruling on discovery question; exclusive means for
obtaining formal ruling is by motion for protective order or to compel. Gall v St. Elizabeth Medical Center (1990, SD
Ohio) 130 FRD 85, 16 FR Serv 3d 9.
Counsel should instruct witness not to answer only to preserve privilege or move for protective order in absence of
existing order limiting scope of deposition. Quantachrome Corp. v Micromeritics Instrument Corp. (1999, SD Fla) 189
FRD 697.
If counsel truly feels that deposition is being conducted in bad faith or in such manner as to unreasonably annoy,
embarrass or oppress deponent, counsel may instruct witness not to answer or may halt deposition; counsel may do so,
though, only if he intends to move for protective order. Quantachrome Corp. v Micromeritics Instrument Corp. (1999,
SD Fla) 189 FRD 697.
In suit by franchisor against franchisee and its principals for underreporting sales, where defendants contended that
"additional cash" in franchisee's business came, not from unreported sales, but from emergency cash loans from
nonparty relatives of franchisee's principals, magistrate found that one of principals placed in issue ability of relatives to
make such loans, so that relatives' finances were relevant to franchisor's attempt to prove alleged underreported sales;
thus, magistrate denied relatives' motion for protective order. Dunkin' Donuts Inc. v Mary's Donuts., Inc. (2002, SD Fla)
206 FRD 518.
District court held that defendants' motion for leave to depose witnesses for trial must be denied in individual's civil
action where extension of discovery deadline at late date would impose unnecessary hardship on individual; court
rejected defense position that trial depositions were different from discovery depositions. Marshall v Rice (2002, MD
Fla) 211 FRD 680, affd, objection overruled (2002, MD Fla) 211 FRD 680.
Creditor's motion for protective order pursuant to Fed. R. Civ. P. 26(c), made applicable in bankruptcy proceedings
by Fed. R. Bankr. P. 7026, requiring Chapter 11 debtor to conduct deposition under Fed. R. Civ. P. 30(b)(6), made
applicable in bankruptcy proceedings by Fed. R. Bankr. P. 7030, at creditor's place of business in Peru rather than in
Connecticut, district where bankruptcy case was pending, was denied for lack of extreme hardship where (1) problem of
bearing litigation costs for ailing company was no less severe for debtor than for creditor; (2) if parties held video
deposition, creditor's representative would not have to again travel for trial; (3) debtor's costs in having its attorney and
court reporter travel to Lima, Peru, were double cost to having creditor's representative come to Connecticut; and (4)
Department of State's issuance of travel alert concerning travel to Peru additionally counseled denial motion. Doe Run
Peru S.R.L. v Handy & Harman Refining Group, Inc. (In re Handy & Harman Refining Group, Inc.) (2003, BC DC
Conn) 295 BR 179, 41 BCD 157.
As motion to compel discovery was denied where there was no proof that discovery sought was both relevant and
proper, defendant's motion to quash Fed. R. Civ. P. 30 deposition subpoena and for protective order was granted.
Amedisys, Inc. v JP Morgan Chase Manhattan Bank (In re Nat'l Century Fin. Enters.) (2003, BC SD Ohio) 298 BR 140.
58. Miscellaneous
Where victim of slip-and-fall case was never allowed to tell her story in her own way during taking of her deposition
upon oral examination but rather was led through some 66 pages of formal and rigid questioning, deposition is
unsatisfactory. Stonsifer v Courtney's Furniture Co. (1973, CA10 Okla) 474 F2d 113.
Attorney in wrongful death action wrongfully terminated deposition and document production session where parties
were already under direct court order to continue until completed, notwithstanding attorney's motion for protective order
under Rule 30(d); if person to whom court directs an order believes that order is incorrect, remedy is to appeal and,
absent stay, to comply promptly with order pending appeal. Carlucci v Piper Aircraft Corp. (1985, CA11 Fla) 775 F2d
1440, 3 FR Serv 3d 325.
Federal District Court in New York has power to limit oral examination being conducted in New York in connection
with action pending in federal District Court in Massachusetts. Shawmut, Inc. v American Viscose Corp. (1951, DC
NY) 11 FRD 562.
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USCS Fed Rules Civ Proc R 30
Rule 30(d) is sole provision allowing interruption of deposition, and proper procedure to follow when objection is
raised to question propounded is for attorney who raises objection to note objection but to allow question to be
answered; thus, defendant's opposition to plaintiff's motion to compel continuation of deposition was in essence motion
by defendant to terminate examination under Rule 30(d), and plaintiff's motion to resume deposition would be denied.
Hanlin v Mitchelson (1985, SD NY) 623 F Supp 452, affd in part and revd in part on other grounds, remanded (1986,
CA2 NY) 794 F2d 834, 5 FR Serv 3d 969.
Court can impose sanctions for behavior by counsel that disrupts deposition pursuant to FRCP 30(d), 28 USCS §
1927, and its inherent power. Higginbotham v KCS Int'l, Inc. (2001, DC Md) 202 FRD 444.
FRCP 30(d)(2) authorizes court to sanction attorneys. Higginbotham v KCS Int'l, Inc. (2001, DC Md) 202 FRD 444.
When motion is brought challenging instruction that witness not answer question, court resolves merits of objection
and, pursuant to FRCP 30(d)(4), must award sanctions if objection was not substantially justified. Miller v Waseca Med.
Ctr. (2002, DC Minn) 205 FRD 537.
For party to prevail on its motion to compel answers to deposition questions, it must show in its initial motion that
information it seeks to compel is relevant, aside from any claims of privilege. Alexander v FBI (2000, DC Dist Col) 192
FRD 32.
IX. SUBMISSION TO WITNESS; CHANGES; SIGNING [RULE 30(e)]
A. In General
59. Generally
Submission of depositions upon oral examination to witness for changes and signing contemplates examination
concededly finished except for certain errors and mistakes on immaterial matters, and deposition upon oral examination
cannot be considered finished if witness seeks to recant his testimony or feels that to be truthful he must directly
contradict answers already given by him on material points. De Seversky v Republic Aviation Corp. (1941, DC NY) 2
FRD 113.
Rule 30(e) does not require that transcript be presented to plaintiff at his counsel's office in order to be "submitted"
for purposes of Rule; requirements of rule are satisfied by court reporter's request that plaintiff come to her office, with
or without counsel, to read and sign transcript. Johnson v Alcan Aluminum Corp. (Alcan Cable Div.) (1979, ND Ga)
106 FRD 314, 2 FR Serv 3d 1031.
Word "officer" in FRCP 30(e) means court reporter. Holland v Cedar Creek Mining, Inc. (2001, SD W Va) 198 FRD
651, 48 FR Serv 3d 1142.
Pursuant to Fed. R. Civ. P. 30(e), proper corrections to deposition are permitted. Genlyte Thomas Group LLC v Nat'l
Serv. Indus. (2003, WD Ky) 262 F Supp 2d 762.
60. Changes by witness
If witness gives deposition and signature is not waived, he may later make changes under Rule 30(e), and give
reasons. Rogers v Roth (1973, CA10 Kan) 477 F2d 1154.
Although rule allows deponents to make changes in form or substance to their testimony and places no limitations on
type of changes that may be made, original answer to deposition question remains part of record and can be read at trial.
Podell v Citicorp Diners Club (1997, CA2 NY) 112 F3d 98, 37 FR Serv 3d 1088.
Because there is no reason to treat deposition corrections under Fed. R. Civ. P. 30(e) differently than affidavits,
party's attempt to amend his or her deposition testimony has to be evaluated under same factors that are considered in
determining whether affidavit presents sham. Burns v Bd. of County Comm'rs (2003, CA10 Kan) 330 F3d 1275, 91 BNA
FEP Cas 1726.
District court correctly disregarded employee's deposition corrections filed pursuant to Fed. R. Civ. P. 30(e) because
employee was cross-examined at his deposition, employee's corrections were not based on any newly discovered
evidence, and although employee asserted that he was confused at his deposition, employee's answers to direct
questions posed by counsel did not reflect any obvious confusion, as opposed to indecisiveness or inconsistency, that
corrections would need to clarify. Burns v Bd. of County Comm'rs (2003, CA10 Kan) 330 F3d 1275, 91 BNA FEP Cas
1726.
Deponent has right to consult with counsel privately before stating to officer taking deposition changes which
deponent desires to make and reasons therefor; however, counsel for all parties have right to be present at time deponent
states to notary or other officer changes which he desires to make, and counsel have right to inquire of record and under
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USCS Fed Rules Civ Proc R 30
oath, as to reasons for any change, and whether such changes originated with deponent or with attorney. Erstad v
Curtis Bay Towing Co. (1961, DC Md) 28 FRD 583, 5 FR Serv 2d 510.
On objection to proposed changes in deposition, changes made by deponent in his own hand and with no statement
of his reasons for making changes were inoperative. Architectural League of New York v Bartos (1975, SD NY) 404 F
Supp 304, CCH Fed Secur L Rep P 95329.
Rule 30(e) allows deponents to make any changes desired in substance of his deposition even if changes contradict
original answers or if deponent's reasons for making changes are unconvincing, as long as there is compliance with
instructions within Rule 30; original answers to deposition questions will remain part of record and may be read at trial;
furthermore, if changes made in deposition make deposition incomplete or useless without further testimony, party who
took original deposition may reopen examination. Lugtig v Thomas (1981, ND Ill) 89 FRD 639, 31 FR Serv 2d 1246.
Although Rule 30(e) allows witnesses to make any changes they desire, even if changes contradict original answers
or even if reasons for making changes are unconvincing, it is not enough for witness to record no reasons at all upon
deposition but merely to claim later that reasons are "either explicit or reasonably implied from the circumstances;"
witness must state specific reason for particular change after each modification, and deposition lacking these
explanations must be amended at defendant's expense so that original answer, changed answer, and reason for change
will appear after every question affected by changes. Sanford v CBS, Inc. (1984, ND Ill) 594 F Supp 713, 225 USPQ
136, 16 Fed Rules Evid Serv 955, 40 FR Serv 2d 694.
Rule cannot be interpreted to permit deponent to alter what was said under oath. Greenway v International Paper
Co. (1992, WD La) 144 FRD 322, 24 FR Serv 3d 1396.
Eighteen, 16, and 9 changes which either added detail to, or contradicted three witnesses' original answers,
constituted substantial number of substantive changes making depositions incomplete without further testimony, thus
depositions would be ordered to be reopened. United States ex rel. Burch v Piqua Eng'g (1993, SD Ohio) 152 FRD
565, affd (1993, SD Ohio) 1993 US Dist LEXIS 17118.
Provision permitting deponent to correct transcript of testimony is not meant as mechanism to invoke constitutional
protection of Fifth Amendment; fact that original version remains available and changes are merely added so indicates,
and to hold otherwise would provide witnesses opportunity to revise their testimony long after deposition and redact it
at precisely moment first inculpatory statement was made. SEC v Parkersburg Wireless Ltd. Liab. Co. (1994, DC Dist
Col) 156 FRD 529, CCH Fed Secur L Rep P 98383, 30 FR Serv 3d 91, judgment entered (1994, DC Dist Col) 1994 US
Dist LEXIS 15006.
Errata sheet, completed after supervisor's deposition, containing several additional reasons for termination of plaintiff
employee, will be stricken from consideration of employer's summary judgment motion in disability discrimination
case, where employee contends errata sheet attempts merely to "pile on new material now that he is free from
cross-examination," because review of errata sheet reveals noncompliance with FRCP 30(e), which requires reason to
be given for every change made in substance of deposition testimony. Duff v Lobdell-Emery Mfg. Co. (1996, ND Ind)
926 F Supp 799, 16 ADD 621, 6 AD Cas 427, 44 Fed Rules Evid Serv 1038, 35 FR Serv 3d 298.
Sexual harassment plaintiff's April 4, 1997 corrections to his October 15, 1996 deposition must be stricken, where
corrections are more in nature of "re-write" and do not fall under FRCP 26(e) duty to amend, because FRCP 30(e)
permits deponent to amend deposition in this way only within 30 days after receiving notice that transcript is available.
Griswold v Fresenius USA (1997, ND Ohio) 978 F Supp 718.
Requirement that changes must be accompanied by reasons given by deponent for making them must be strictly
adhered to. Holland v Cedar Creek Mining, Inc. (2001, SD W Va) 198 FRD 651, 48 FR Serv 3d 1142.
Striking of deposition errata sheets was not warranted where reasons given by deponents were to clarify, to correct
misstatement resulting from inaccurate recollection of third amended complaint, or to correct response because
deponent did not understand question. Deloach v Philip Morris Cos. (2002, MD NC) 206 FRD 568.
Court believed that better reasoned opinions were those that interpreted Fed. R. Civ. P. 30(e) broadly as to allow
proposed deposition changes to be admitted into evidence; however, where proposed changes were so substantive,
opponents were entitled to have deposition reopened to give them opportunity to impeach deponent with his
contradictory answers, at deponent's expense. Foutz v Town of Vinton (2002, WD Va) 211 FRD 293, 51 FR Serv 3d
1276.
Executrix's changes to her deposition which stated that she misspoke about certain abbreviations were not material
because terms were mere shorthand for underlying contract language that was focus of discussion, and although changes
regarding use of those terms in conversations were substantive changes, they were not material because none of claims
or defenses at issue in case depended on use of those terms in conversations; therefore, changes were within scope of
FRCP 30(e) and were permitted because executrix sufficiently identified portions of her transcript to which changes
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USCS Fed Rules Civ Proc R 30
applied and reasoning for changes, error, was sufficient. Summerhouse v HCA Health Servs. (2003, DC Kan) 216 FRD
502.
Court would not permit party to alter her deposition testimony via errata sheet pursuant to Fed. R. Civ. P. 30 to create
material factual dispute in attempt to survive summary judgment. Wigg v Sioux Falls Sch. Dist. 49-5 (2003, DC SD) 274
F Supp 2d 1084.
Where plaintiff returned original transcript of her deposition to court reporter with numerous corrections, comments,
and cross-references and where she cut and pasted numerous pages into different order, also eliminating several portions
of depositions, plaintiff's actions did not fall within letter and spirit of Rule 30(e), rendering her attempted changes null
and void; court determined that proper sanction was to deem plaintiff to have refused to sign transcript and to deem
transcript as accurate representation of deposition testimony. Barlow v Esselte Pendaflex Corp., Meto Div. (1986, MD
NC) 111 FRD 404, affd without op (1988, CA4 NC) 838 F2d 1209, cert den (1988) 488 US 843, 102 L Ed 2d 90, 109 S
Ct 116.
61. Re-examination of witness
If upon submission of depositions of oral examination, for changes and signing, witness proposes changes which are
direct contradictions of answers previously given, he should be ordered to appear for examination again, and change
such answers as he desires, whereupon he may be re-examined in light of such answers to same extent as if they had
been originally given. De Seversky v Republic Aviation Corp. (1941, DC NY) 2 FRD 113.
62. Motion to suppress unsigned deposition
Failure to move to suppress unsigned deposition of plaintiff until two days after commencement of trial, at which
time absence of deponent's signature had been made known to court and plaintiff, constituted waiver of such
irregularities under Rule 32(d). Valdez v United States (1963, CA9 Cal) 326 F2d 598, 7 FR Serv 2d 620.
Plaintiffs' motion to suppress deposition, unsigned by deponent, was denied where basis of motion was refusal by
trial court of plaintiffs' request that reporter's certificate in lieu of deponent's signature be read to jury. Ikerd v
Lapworth (1970, CA7 Ind) 435 F2d 197, 14 FR Serv 2d 1007.
District Court did not err in barring plaintiffs' use of defendant's deposition to impeach defendant at trial where it had
not been signed as required, where the deposition was not transcribed until week before trial, and where plaintiffs did
not provide defendants with copy until morning of defendant's testimony, thus denying defendant opportunity to file
motion to suppress; and failure to file such motion under these circumstances did not constitute waiver of errors in
handling of deposition pursuant to Rule 32. Bunch v Bullard (1986, CA5 Miss) 795 F2d 384, 41 BNA FEP Cas 515, 41
CCH EPD P 36638.
Plaintiff who had known for approximately seven months that deposition was not signed, sealed, or filed as required
by Rule 30, but had filed no motion to suppress same, waived such objection. Kawietzke v Rarich (1961, ED Pa) 198
F Supp 841, 5 FR Serv 2d 515.
In deciding motion to suppress unsigned deposition of deceased witness, factors to be considered are relevance and
importance of testimony, degree to which evidence is impaired by witness' failure to review, correct and sign deposition
and prejudice that might result from its use. Bernstein v Brenner (1970, DC Dist Col) 51 FRD 9, 14 FR Serv 2d 1140.
Deposition was suppressed where it was not signed by witness after being read to or by him, there was no waiver by
witness and parties of requirement that deposition be submitted to witness for examination and reading, there was no
notation on record of any waiver, there was no compliance with requirements of Rule 30 for filing of unsigned
deposition and motion to suppress was filed three days after filing of deposition. Smith v Insurance Co. of North
America (1962, MD Tenn) 30 FRD 534, 5 FR Serv 2d 450.
B. Failure of Witness to Sign
63. Generally
Unsigned deposition may be used at trial. Ikerd v Lapworth (1970, CA7 Ind) 435 F2d 197, 14 FR Serv 2d 1007.
64. Waiver of signing
Rule 30(e) contemplates that on occasion it will be necessary for witness who has given deposition to later make
changes thereto whenever signature has not been waived. Rogers v Roth (1973, CA10 Kan) 477 F2d 1154.
Court did not err in allowing portions of depositions to be read in evidence, despite fact they had not been signed in
compliance with Rule 30(e), where depositions had been taken and transcribed 7 months before trial, objecting counsel
received copies well in advance of trial, was aware of their content and of opposing counsel's intention to use them at
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USCS Fed Rules Civ Proc R 30
trial, and did not question authenticity of depositions. Van Praag v Columbia Classics Corp. (1988, CA8 Mo) 849 F2d
1106, 11 FR Serv 3d 845.
Presence of counsel of record had nature and effect of stipulation constituting waiver of signing of deposition.
Genyard v Jones (1955, DC Dist Col) 18 FRD 204.
65. Illness of witness
Where party was ill at time deposition was taken and continued in such condition until death, such illness was
exception to requirement that deposition be signed by witness. Paul v American Surety Co. (1955, DC Tex) 18 FRD
68.
66. Absence of witness
Words "cannot be found" must be taken in context and are applicable to witness who is on protracted sea voyage and
unavailable to sign deposition so that officer taking deposition can sign and state on record fact of absence of witness.
Porter v Seas Shipping Co. (1956, DC NY) 20 FRD 108.
67. Refusal by witness
Where deponent avoided reporter before whom deposition had been taken and in effect refused to read or sign
deposition and reporter had recited such facts in certificate attached to deposition, district court did not err in refusing
plaintiffs' request that reporter's certificate be read to jury. Ikerd v Lapworth (1970, CA7 Ind) 435 F2d 197, 14 FR Serv
2d 1007.
Where plaintiff returned original transcript of her deposition to court reporter with numerous corrections, comments,
and cross-references and where she cut and pasted numerous pages into different order, also eliminating several portions
of depositions, plaintiff's actions did not fall within letter and spirit of Rule 30(e), rendering her attempted changes null
and void; court determined that proper sanction was to deem plaintiff to have refused to sign transcript and to deem
transcript as accurate representation of deposition testimony. Barlow v Esselte Pendaflex Corp., Meto Div. (1986, MD
NC) 111 FRD 404, affd without op (1988, CA4 NC) 838 F2d 1209, cert den (1988) 488 US 843, 102 L Ed 2d 90, 109 S
Ct 116.
68. Miscellaneous
Unsigned depositions taken in pending civil litigation could be used as basis for criminal perjury charges; deposition
testimony showed that each of perjuring defendants was placed under oath and that each gave answers that were
charged in indictment to be false. United States v Markiewicz (1992, CA2 NY) 978 F2d 786, cert den (1993) 506 US
1086, 122 L Ed 2d 369, 113 S Ct 1065.
Motion seeking order requiring witness to sign deposition or making deposition admissible merely by certificate of
notary who took deposition was denied where it was not shown that testimony of witness had not been submitted for his
examination or that he had refused to sign or that he was ill or could not be found. Mortensen v Honduras Shipping
Co. (1955, DC NY) 18 FRD 510.
X. CERTIFICATION AND FILING; COPIES [RULE 30(f)]
69. Generally
Failure to promptly certify and file deposition is of no controlling significance where party who made use of it at trial
was not party who took it, and where party who took deposition knew of its contents prior to trial but elected not to have
it certified or filed. McVay v Cincinnati Union Terminal Co. (1969, CA6 Ohio) 416 F2d 853, 13 FR Serv 2d 787.
Motion to supplement appellate record with appellant's own pretrial deposition will be granted even though such
deposition inexplicably was not filed either by defendants-appellees, who sought deposition, or by certifying officer
who is responsible for so doing under Rule 30(f)(1). McDaniel v Travelers Ins. Co. (1974, CA5 La) 494 F2d 1189.
Party whose deposition has been taken by adversary may move for order directing such deposition be filed. Mutual
Life Ins. Co. v Green (1941, DC Ky) 37 F Supp 949.
On motion for summary judgment, court made use of uncertified deposition, no motion having been made to
suppress it. Jno. T. McCoy, Inc. v Schuster (1942, DC NY) 44 F Supp 499, 53 USPQ 167.
Plaintiff who knows for approximately 7 months that deposition was not signed, sealed, or filed as required by Rule
30, but files no motion to suppress same, waives such objection. Kawietzke v Rarich (1961, ED Pa) 198 F Supp 841, 5
FR Serv 2d 515.
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USCS Fed Rules Civ Proc R 30
In absence of protective order through which court orders deposition to be sealed and impounded, deposition is
deemed published when filed. C.P.C. Partnership Bardot Plastics, Inc. v P.T.R., Inc. (1982, ED Pa) 96 FRD 184, 35
FR Serv 2d 665.
70. Relationship to other rules
Presumption of openness of discovery materials arises from Federal Rules of Civil Procedure, particularly Rules
5(d), 26(c), and 30(f)(1). Tavoulareas v Washington Post Co. (1984, App DC) 233 US App DC 126, 724 F2d 1010, 10
Media L R 1129, 38 FR Serv 2d 495, different results reached on reh on other grounds, en banc (1984, App DC) 238 US
App DC 23, 737 F2d 1170, 10 Media L R 2360, 39 FR Serv 2d 747.
Since Rule 30(f)(2) provided method to obtain copies of deposition, plaintiff could not utilize Rule 37 or Rule 34 to
obtain originals from defendant, who had possession of the original transcripts; originals must be filed with court under
Rule 30(f)(1) and, once filed with court, deposition transcripts may be inspected by counsel for parties regardless of
whether counsel has ordered copy pursuant to Rule 30(f)(2). Kinan v Brockton Massachusetts (1986, DC Mass) 112
FRD 206.
XI. FAILURE TO ATTEND OR SERVE SUPOENA; COSTS AND EXPENSES [RULE 30(g)]
71. Generally
Although 28 USCS § 1920(2), concerning taxing of costs, does not specifically mention depositions, they are
included by implication in phrase "stenographic transcript" used in cited statute. United States v Kolesar (1963, CA5
Fla) 313 F2d 835, 6 FR Serv 2d 1019.
Although witness is physically present, his unwillingness to testify is sufficient to justify invocation of Rule 30(g)(2).
Greenwood v Dittmer (1985, CA8 Ark) 776 F2d 785, 3 FR Serv 3d 496.
Each party should bear its own expenses incurred in taking of depositions of witnesses when direct examination is to
be on written interrogatories but one party obtains leave to cross-examine orally and other party indicates intention to
have oral redirect examination. Winograd Bros., Inc. v Chase Bank (1939, DC NY) 31 F Supp 91.
It is generally instigating party who determines whether or not deposition will be taken and if that party schedules
deposition, other parties have no practical choice but to attend, even though testimony turns out to be useless to
litigation; therefore, expenses for taking deposition should be placed on party who elects to use that manner of
discovery unless there are extenuating circumstances, supported by evidence, to relieve them of duty of paying for
deposition. Caldwell v Wheeler (1981, DC Utah) 89 FRD 145, 32 FR Serv 2d 997.
To extent that request for depositions of adverse parties' experts is covered under Rule 30, expert's entitlement to
reasonable expert's fee arises under common-law precedent and court's authority under Rule 1. In re "Agent Orange"
Product Liability Litigation (1985, ED NY) 105 FRD 577, 1 FR Serv 3d 469.
72. Who may be awarded costs and fees
Non-party cannot be awarded costs and attorneys' fees under provision of Rule 30(g) which authorizes award of fees
and expenses to "party" attending deposition where party giving notice fails to attend and proceed. Westmoreland v
CBS, Inc. (1985, App DC) 248 US App DC 255, 770 F2d 1168, 2 FR Serv 3d 1451.
FRCP 26(b)(4)(C), which permits experts to be paid reasonable fee for time spent responding to discovery requests,
is irrelevant where proposed deponents are treating physicians, because treating physicians are not expert witnesses
merely by virtue of their expertise in their respective fields; thus, treating physicians are entitled to no more than other
witnesses would receive for their attendance and testimony. Fisher v Ford Motor Co. (1998, ND Ohio) 178 FRD 195.
73. Counsel fees
Where party gave notice of taking depositions of two witnesses at designated time and place, and then was two hours
late in arriving and upon arrival took deposition of only one witness, party was liable for travel expenses and reasonable
attorney's fees of second witness, even though his deposition was not taken. Detsch & Co. v American Products Co.
(1944, CA9 Cal) 141 F2d 662.
Attendance at deposition without proceeding forward with deposition is sufficient to invoke sanctions of Rule 30(g);
costs and attorneys' fees may be awarded where, in multidefendant securities fraud action, plaintiffs refuse to excuse
counsel of 2 defendants from deposition which fails to touch upon issues involving their clients; order granting
reimbursement will be stayed pending determination whether all cases involve such interrelated nationwide fraudulent
scheme that attendance by 2 defendants' attorneys was justified. Cronin v Midwestern Oklahoma Dev. Authority (1980,
CA10 Okla) 619 F2d 856, CCH Fed Secur L Rep P 97347.
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USCS Fed Rules Civ Proc R 30
Upon defendant's motion to retax costs in patent infringement action, where commission had been granted to take
testimony abroad, attorneys' fees and disbursements, would not be allowed as costs to defendant, notwithstanding
plaintiff's patents were eventually found invalid, where it appeared not only that testimony obtained under commission
was never used at trial though considered in preparation for trial and resulted in eliminating certain issues, but also that
plaintiff lost considerable time by adjournments necessitated by issuance of commission. Standard Brands, Inc. v
National Grain Yeast Corp. (1940, DC NJ) 36 F Supp 60, 47 USPQ 502.
In patent infringement action, statutory fees of attorneys attending taking of investigators' depositions were properly
taxable as costs against unsuccessful plaintiffs where investigators had been sent by defendants into another state, where
one plaintiff was located, to establish certain facts relative to patented item where it appeared reasonably necessary to
take depositions even though facts sought to be established by investigators were not contested at trial. Hope Basket
Co. v Product Advancement Corp. (1952, DC Mich) 104 F Supp 444, 93 USPQ 94.
Where defendant failed to obey court order in connection with discovery proceedings in action involving labor union
dispute, plaintiffs were awarded, as "punishment" for such disobedience by defendant, reasonable counsel fee incurred
in taking defendant's depositions. Underwood v Maloney (1954, DC Pa) 16 FRD 3, 26 CCH LC P 68601.
Where neither party could have prepared or tried its case satisfactorily without testimony of deposing witnesses,
defendant's motion that plaintiff, who had noticed its intention to take depositions of certain witnesses, be required to
pay expenses of defendant's counsel incident to taking of such depositions was denied; under such circumstances,
parties should bear their own expenses. Continental Casualty Co. v Houdry Process Corp. (1955, DC Pa) 18 FRD 75.
Where discovery depositions were to be taken abroad by plaintiff in private antitrust action, plaintiff must pay in
advance expenses of attending such depositions, including reasonable counsel fee of American counsel for certain
foreign defendants who were found to be so entitled, which amounts so paid by plaintiff would be taxable cost in event
plaintiff prevailed; however, plaintiff should not be required to pay expenses of counsel representing American
defendants on such examination. River Plate Corp. v Forestal L. T. & R. Co. (1960, SD NY) 185 F Supp 832, 3 FR
Serv 2d 485.
In action to recover on account of allegedly erroneous and illegal assessment in collection of taxes by Internal
Revenue Service, motion of additional defendant on counterclaim for award of attorney's fees and expenses under Rule
30(g)(2) for failure of Government to serve subpoena to take deposition of chairman of board of plaintiff corporation
was denied where defendant had not cited any statute expressly authorizing award of attorney's fees or expenses by
Government. KDI Corp. v United States (1977, ND Ga) 74 FRD 563.
Defendant bank is entitled to reimbursement for expenses incurred by reason of plaintiff's failure to attend deposition
after giving notice; Rule 30(g) allows reasonable fees to bank's attorney who expended considerable time and travel
expenses in preparing for deposition which was cancelled without notice. Delozier v First Nat'l Bank (1986, ED Tenn)
109 FRD 161.
Defendants were required to pay stenographer's costs and $ 50 for plaintiff's attorney's fees for failure to come to
deposition even though defendants had filed motion to quash deposition, where filing motion to quash did not
automatically stay deposition and where moving party failed to attempt to reach agreement with plaintiff to stay
deposition or file motion with court to stay deposition until court had opportunity to rule on motion. Goodwin v Boston
(1988, DC Mass) 118 FRD 297, 9 FR Serv 3d 1012.
Where both plaintiff and defendant relied on each other's witnesses' statements that they would attend depositions,
but they did not, neither party would be awarded their expenses since they could have compelled attendance of
deponents. Keats v United States (1988, ED Mich) 121 FRD 53.
Party was entitled to expenses and attorneys' fees where opposing attorney failed to adequately notify attorney that
deposition had been canceled, causing him to incur expenses and unnecessary trip. Pine Lakes International Country
Club v Polo Ralph Lauren Corp. (1989, DC SC) 127 FRD 471.
Where counsel effectively thwarted opposing parties' attempts to take counsel's client's depositions by repeatedly
interrupting opposing counsel's questions by interposing objections and demands for clarification which served only to
obstruct questioning, he would be ordered to personally pay opposing party her costs, including attorney's fees, of
taking depositions and of bringing motions for sanctions. American Directory Service Agency v Beam (1990, DC Dist
Col) 131 FRD 635, mod on other grounds (1990, DC Dist Col) 131 FRD 15, 17 FR Serv 3d 458.
Allowance of counsel fees incident to depositions is in court's discretion; courts are generally reluctant to allow fees
unless special circumstances warrant such allowances. Interlego A. G. v Leslie-Henry Co. (1963, MD Pa) 32 FRD 9, 6
FR Serv 2d 580.
Attorney's fee in connection with presence of plaintiff's attorney at taking of depositions by government-defendant,
are considered part of expenses necessarily incurred by government in defense of action and are properly charged to
Department of Justice where plaintiff lacks resources to pay such cost. 41 Comp. Gen. 541 (1962).
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USCS Fed Rules Civ Proc R 30
74. Costs of copies
Court may tax United States with costs of copies of pretrial depositions as when such costs are taxable against
private litigants; costs of copies of depositions of government medical officers, nurses, and corpsmen were properly
taxed against United States by trial judge in exercise of discretion in action involving substantial injuries as result of
surgery. United States v Kolesar (1963, CA5 Fla) 313 F2d 835, 6 FR Serv 2d 1019.
Clerk, in taxation of costs, properly disallowed prevailing party reporter's charge for certified portion of deposition
filed in support of motion to compel answers to questions and production of documents and costs of copy of such
deposition, where it appeared that refusal to answer questions was not without substantial justification and that
deposition was not necessarily obtained for use at trial but rather for convenience of counsel in preparation therefor.
Burnham Chemical Co. v Borax Consol., Ltd. (1947, DC Cal) 7 FRD 341.
Although, in patent action, cost of prevailing defendants of court reporter's fees and charge for original transcript of
defendants' investigators' depositions are taxable to plaintiff, charges for copies thereof furnished plaintiffs and
defendants should be disallowed. Hope Basket Co. v Product Advancement Corp. (1952, DC Mich) 104 F Supp 444,
93 USPQ 94.
Defendant should not have been taxed in automobile accident suit for expense incurred by plaintiff's counsel in
obtaining, for his possible convenience and use at trial, copy of transcript of plaintiff's deposition taken for discovery by
defendants. Hansen v Bradley (1953, DC Md) 114 F Supp 382.
In stockholders' action, wherein defendants prevailed, plaintiff's objection to taxation of costs incurred by defendants
in obtaining additional copies of transcripts of five discovery depositions was sustained where defendants were
represented by two law firms, which representation was insufficient to show that additional copies had been obtained
"necessarily," rather than for convenience. Perlman v Feldmann (1953, DC Conn) 116 F Supp 102.
Party may not recover costs for original or copy of deposition of witness who appeared and testified at trial; party
may, however, recover costs of original and one copy of deposition which was introduced into evidence involving
witness who did not testify at actual trial. Pacific Engineering & Production Co. v Kerr-McGee Corp. (1976, DC
Utah) 21 FR Serv 2d 404.
Plaintiff's expert, who is deposed by defendant, is not entitled to free copy of transcript of his deposition testimony.
Mathis v NYNEX (1996, ED NY) 165 FRD 23.
Fed. R. Civ. P. 30 does not require either notice of who will be present at deposition or that the party conducting the
deposition must provide free copy of the transcript to the deponent. Brant v Principal Life & Disability Ins. Co. (2002,
ND Iowa) 195 F Supp 2d 1100.
75. Filing fees
Person initiating taking of depositions should pay for its filing unless extraordinary circumstances exist. Kolosci v
Lindquist (1969, ND Ind) 47 FRD 319, 13 FR Serv 2d 827.
76. Stenographic and transcribing fees
Party who has taken adversary's deposition should not be required to have testimony transcribed and filed unless cost
of taking such deposition is paid by party desiring to make use thereof, in absence of any showing that rights of parties
will otherwise be prejudiced. Odum v Willard Stores, Inc. (1941, DC Dist Col) 1 FRD 680.
Plaintiff's motion to retax costs of stenographic fees paid reporter for taking and transcribing pretrial depositions was
denied where it appeared that such depositions were never put into evidence but were used only by plaintiff's counsel
who alone was aided by them. Republic Mach. Republic Mach. Tool Corp. v Federal Cartridge Corp. (1946, DC
Minn) 5 FRD 388.
Costs of depositions, taken by successful defendant but not used at trial, and time charges of reporter for
untranscribed portions of depositions should not be taxed to defendant. Andresen v Clear Ridge Aviation, Inc. (1949,
DC Neb) 9 FRD 50.
In patent infringement action, unsuccessful plaintiffs were taxed court reporter's charge for stenographic services in
taking depositions and for original transcript of depositions of investigators sent by defendants to another state, where
one plaintiff was located, to establish certain facts relative to patented item where it appeared reasonably necessary to
take depositions even though facts sought to be established by investigators were not contested at trial. Hope Basket
Co. v Product Advancement Corp. (1952, DC Mich) 104 F Supp 444, 93 USPQ 94.
Upon defendant's motion to retax costs and review clerk's taxation of costs in action to recover possession of
securities, wherein plaintiff prevailed, costs paid by plaintiff for taking depositions of defendant should not have been
allowed against defendant where defendant, as executor of estate, had taken possession of securities in question until
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USCS Fed Rules Civ Proc R 30
thorough investigation of relationship between decedent and plaintiff with respect to securities' ownership and
disposition had been made. Farrar v Farrar (1952, DC Ark) 106 F Supp 238.
Defendants should not have been taxed in automobile accident suit for cost of stenographer's transcript of defendants'
own depositions taken by counsel for plaintiff where all three witnesses testified in person at trial and their depositions
were not admissible and in fact not offered. Hansen v Bradley (1953, DC Md) 114 F Supp 382.
Where transcripts of depositions are necessarily obtained for use in case, allowance of cost thereof to prevailing
party is implicit in 28 USCS § 1920(2) authorizing taxation as cost of "fees of the court reporter for all or any part of
the stenographic transcript necessarily obtained for use in the case." Perlman v Feldmann (1953, DC Conn) 116 F Supp
102.
Where defendant failed to obey court order in connection with discovery proceedings in action involving labor union
dispute, plaintiffs were awarded, as "punishment" for such disobedience by defendant, expenses incurred in taking
defendant's depositions. Underwood v Maloney (1954, DC Pa) 16 FRD 3, 26 CCH LC P 68601.
In action for breach of implied warranty of fitness for use of degreaser, defendant, even if considered as prevailing
party, was not entitled to tax cost of transcripts of depositions which it took. Bowman v West Disinfecting Co. (1960,
ED NY) 25 FRD 280, 3 FR Serv 2d 865.
Plaintiff was properly taxed with costs of discovery depositions of two of its officers and of former officer,
notwithstanding sum total of information gained was that two officers knew nothing about claim made in action and that
it was former officer whom defendants needed to examine, where length of depositions, exceeding 2,000 pages, seemed
excessive for eliciting information of such limited scope and where it appeared that myriad of objections raised by
plaintiff's counsel had contributed greatly to size of depositions. Independent Productions Corp. v Loew's, Inc. (1960,
SD NY) 184 F Supp 671, 3 FR Serv 2d 863.
Court should have discretion to decide which party should pay for original transcript of deposition taken by party so
that where defendant in libel action took deposition of plaintiff lasting over 12 hours defendant should pay for original
transcript. Dall v Pearson (1963, DC Dist Col) 34 FRD 511, 8 FR Serv 2d 30C.4, Case 1.
Person initiating taking of depositions should pay for its transcription unless extraordinary circumstances exist.
Kolosci v Lindquist (1969, ND Ind) 47 FRD 319, 13 FR Serv 2d 827.
Only upon showing of extenuating circumstances, supported by evidence if contested, will parties instigating
depositions be relieved from duty of paying for transcription; expenses should not be imposed upon opposing party who
has no interest in having deposition taken or who is willing to obtain information from witness in some other way.
Caldwell v Wheeler (1981, DC Utah) 89 FRD 145, 32 FR Serv 2d 997.
While allocation of costs of transcribing deposition is directed to trial court's discretion, party noticing and
conducting deposition is generally proper party to bear transcription cost, such rule is not altered by amendment to civil
rules that if requested by party, testimony shall be transcribed. Melton v McCormick (1982, WD NY) 94 FRD 344, 34
FR Serv 2d 801.
Defendants were required to pay stenographer's costs and $ 50 for plaintiff's attorney's fees for failure to come to
deposition even though defendants had filed motion to quash deposition, where filing motion to quash did not
automatically stay deposition and where moving party failed to attempt to reach agreement with plaintiff to stay
deposition or file motion with court to stay deposition until court had opportunity to rule on motion. Goodwin v Boston
(1988, DC Mass) 118 FRD 297, 9 FR Serv 3d 1012.
There is no requirement that party taking deposition by non-stenographic means provide written transcript of entire
deposition to other parties; examining party is required to bear cost of recording, unless otherwise directed by court, and
any other party is free to prepare written transcript of tape recorded deposition. Hudson v Spellman High Voltage (1998,
ED NY) 178 FRD 29.
77. Travel expenses
Where party gave notice of taking depositions of two witnesses at designated time and place, and then was two hours
late in arriving and upon arrival took deposition of only one witness, party was liable for travel expenses and reasonable
attorney's fees of second witness, even though his deposition was not taken. Detsch & Co. v American Products Co.
(1944, CA9 Cal) 141 F2d 662.
Under Rule 30(g), plaintiffs were awarded reasonable travel expenses incurred in connection with deposition to be
taken by defendants in California relating to defense of prior public use in patent infringement action where defendants
later advised plaintiffs, who had gone to California with counsel in anticipation of hearing, that they would not attend as
they had become convinced in meantime there was no such defense. Baldwin-Lima-Hamilton Corp. v Tatnall
Measuring Systems Co. (1958, DC Pa) 22 FRD 12, 116 USPQ 580.
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USCS Fed Rules Civ Proc R 30
In absence of showing of necessity for defendant's New York attorney to attend taking of deposition in Texas,
plaintiff will not be compelled to pay expense of having him attend; defendant can hire local Texas lawyer. United
States v American Cyanamid Co. (1963, DC NY) 34 FRD 532, 7 FR Serv 2d 611.
Plaintiff who appeared for taking of deposition which was aborted by reason of defendant's nonappearance is entitled
to reasonable expenses for travel and per diem. Tinsley v Mavala, Inc. (1964, SD NY) 226 F Supp 477.
When, in action for damages for wiretapping, defendant attempts to take deposition of individual in New York, who
will not appear as witness at trial pending in Missouri, and plaintiff would be greatly handicapped by not having
representation at taking of deposition, defendant will be ordered to pay counsel's costs for trip. Meredith v Gavin
(1970, WD Mo) 51 FRD 5, 14 FR Serv 2d 1137.
Notwithstanding plaintiffs' contention that plaintiff minor did not voluntarily leave district, and that compliance with
defendants' motion for order requiring minor to appear in district for purpose of being orally deposed would be financial
burden upon him, better exercise of court's discretion was to grant motion and require plaintiff to appear at his own
expense. Orton v Molkentin (1975, ED Wis) 68 FRD 678.
Trial court would grant plaintiff recovery for its expenses that were incurred by plaintiff's attorney who averred by
affidavit that, after receiving notice of deposition from defendant's attorney, he flew to Florida to attend deposition
which caused him to incur plane and taxi fare and occupied seven hours of his time, whereupon deponent then failed to
appear due to defendant's failure to subpoena him. National Acceptance Co. v Doede (1978, WD Wis) 78 FRD 333.
Deposition of government employees in products liability action will be taken in New York as opposed to District of
Columbia since to do so will expedite discovery and there is no evidence that deposition of government witnesses in
New York is more expensive. In re "Agent Orange" Product Liability Litigation (1982, ED NY) 95 FRD 192.
Attorney was entitled to all travel expenses for depositions in the Bahamas where it was reasonable for attorney to go
day before scheduled depositions and return day after since depositions were scheduled for all day. West v West (1989,
ND Ga) 126 FRD 82.
Plaintiff was not entitled to travel expenses incurred in traveling to deposition at which witness failed to appear
because defendants did not subpoena nor attempt to subpoena, since witness' absence was due solely to medical
emergency, witness had assured defendants that he would be able to attend, and witness was unable to inform
defendants' attorney of his inability to attend deposition due to sudden illness. Moore v Yellow Freight Sys. (1990, DC
Kan) 131 FRD 196.
Travel expenses of deponents are not only relevant expenses considered in determining site of deposition; travel
expenses of counsel are also relevant. Custom Form Mfg., Inc. v Omron Corp. (2000, ND Ind) 196 FRD 333.
Allowance of travel expenses incident to depositions is in court's discretion; courts are generally reluctant to allow
expenses unless special circumstances warrant such allowances. Interlego A. G. v Leslie-Henry Co. (1963, MD Pa) 32
FRD 9, 6 FR Serv 2d 580.
Travel expenses in connection with presence of plaintiff's attorney at taking of depositions by government-defendant,
are considered part of expenses necessarily incurred by government in defense of action and are properly charged to
Department of Justice where plaintiff lacks resources to pay such costs. 41 Comp. Gen. 541 (1962).
78. Judicial review
Interlocutory award of fees and expenses made pursuant to Rule 30(g) (2) is not appealable where such order
"effectively may be reviewed and corrected if and when final judgment results". Meche v Dan-Tex International, Inc.
(1982, CA5 La) 681 F2d 264, 34 FR Serv 2d 675.
79. Miscellaneous
Trial court, in its discretion, may tax in modest sum, costs of attendance of deposing officer required by Rule 30(c).
Harris v Twentieth Century-Fox Film Corp. (1943, CA2 NY) 139 F2d 571, 60 USPQ 430.
Deposition costs incurred by taxpayer in connection with depositions taken in eastern states by government were
improperly assessed against United States, where taxpayer did not obtain conditioning order before incurring expenses.
United States v Portland Cement Co. (1964, CA10 Utah) 338 F2d 798, 64-2 USTC P 9869, 9 FR Serv 2d 54D.151, Case
1, 15 AFTR 2d 1.
District Court did not abuse its discretion by refusing to grant plaintiff's request for hearing concerning propriety of
award of attorneys' fees and costs to defendant in connection with deposition scheduled for before trial, where plaintiff
had adequate opportunity to present his characterization of events surrounding deposition to court during conference
call on day on which deposition was scheduled, and court was fully apprised regarding services rendered and costs
incurred by defendant and was completely capable of determining on its own whether those expenses were reasonable.
Greenwood v Dittmer (1985, CA8 Ark) 776 F2d 785, 3 FR Serv 3d 496.
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Upon defendant's motion to retax costs in patent infringement action, premiums paid on bonds issued as condition to
granting commission to take testimony abroad, and technical experts' fees would not be allowed as costs to defendant,
notwithstanding plaintiff's patents were eventually found invalid, where it appeared not only that testimony obtained
under commission was never used at trial though considered in preparation for trial and resulted in eliminating certain
issues, but also that plaintiff lost considerable time by adjournments necessitated by issuance of commission. Standard
Brands, Inc. v National Grain Yeast Corp. (1940, DC NJ) 36 F Supp 60, 47 USPQ 502.
Where judgment was entered for defendant in action to enjoin operation of airport, plaintiffs were taxed for such
portion of cost of serving subpoenas on them for their appearance to take depositions as represented increase in amount
resulting from their attempted evasion of process; however, following expenditures incident to taking of depositions
should not be taxed as costs to prevailing party: (1) witness fees and mileage as condition for adverse parties,
depositions; and (2) constable's and witness fees for serving notices to other deponents. Andresen v Clear Ridge
Aviation, Inc. (1949, DC Neb) 9 FRD 50.
Although defendants prevailed, they were denied expenses of certain pretrial depositions, apparently for discovery
purposes, taken, at their instance, in California, Arizona, New Jersey, and Massachusetts, relating to issue upon which
they failed. Emerson v National Cylinder Gas Co. (1957, DC Mass) 147 F Supp 543, 112 USPQ 163, affd (1958, CA1
Mass) 251 F2d 152, 116 USPQ 101.
Defendant is entitled to award of costs from plaintiff pursuant to Rule 30(g)(2) for expenses incurred on discovery
junket to Ecuador where of 10 noticed witnesses, all of whom counsel for plaintiff represented would appear voluntarily
and testify, only 4 actually appeared, plaintiff had not secured consent of most of witnesses to appear and testify,
majority of testimony actually taken was argument by lawyers and contrary to prior assertions by counsel for plaintiff
discovery proceedings produced no evidence pertinent to plaintiff's federal law claim. Fino v McCollum Mining Co.
(1982, ND Tex) 93 FRD 455, 34 FR Serv 2d 766.
By voluntarily appearing at deposition, nonparty witness waived any objection to subpoena duces tecum based upon
lack of service. Judicial Watch, Inc. v United States DOC (2000, DC Dist Col) 196 FRD 1, motion den, motion gr,
remanded, sanctions disallowed (2000, DC Dist Col) 2000 US Dist LEXIS 14014.