Techniques and Potential Conflicts in the Handling of Depositions

Copyright (c) 2007 Victoria E. Brieant. All Rights Reserved.

By Victoria E. Brieant n1

I. Discovery Plan
Depositions can be the largest single item in your case's litigation budget, can decide whether the case settles before trial and can be outcome determinative. It is therefore important at the onset of a case to identify what are the key elements in a case -- it will then be the goal of discovery and depositions to establish those key elements. Planning discovery strategy includes: (a) identifying who to depose and why; (b) scheduling depositions after receiving documents in response to document requests from the other side; (c) identifying how discovery will be used in motion practice and ultimately at trial; and (d) timing depositions early on in a case to permit both sides to evaluate the testimony for settlement purposes. In addition, consider how you may be able to benefit from the oversight of a Special Master to ensure the best uses of your client's resources.
The purpose of taking depositions is to gather information - find out about the case, identify what the facts are, how the events occurred, what the other side knows, what the strengths and weaknesses of each side are, etc.
Use the deposition process to find out what you do not know about your case, confirm what you think you know, test out your legal and factual theories, facilitate settlement, and ultimately as a preparation tool for trial. See generally, D. MALONE AND P. HOFFMAN, The Effective Deposition: Techniques and Strategies that Work p. 22-23 (2nd ed. 1996).
 
II. Deposition Techniques
A. The Rules
Federal Rule of Civil Procedure 30 governs the taking of depositions. The rule sets forth: (a) when a deposition may be taken; (b) the guidelines for the notice of deposition, as well as requirements for recording and production of documents and things; (c) the scope and extent of cross examination and objections; (d) the schedule and duration of a deposition; (e) review of the record by the witness; (f) the duties of the stenographer; and (g) the respective penalties associated with the failure to attend a deposition and the failure to serve a subpoena upon the witness. Fed. R. Civ. Pro. 30.

n1 Ms. Brieant is Of Counsel at Stroock & Stroock & Lavan LLP, resident in the Miami office. This article is updated from a prior article, drafted with my former associate, Minh T. Hoang, now a litigation associate at Duane Morris in San Francisco.

B. Party Admissions
The testimony of a witness during a deposition constitutes a party admission. This may be particularly helpful in motion practice, including summary judgment or summary adjudication, as well as during trial. Fed. R. Evid. 801(d)(2).
C. Depositions of Party Representatives
Federal Rule of Civil Procedure 30(b)(6) permits a party to notice the deposition of an organization and specify "the matters on which examination is requested." Fed. R. Civ. Pro 30(b)(6). The notice "need only designate, with reasonable particularity, the topics for examination." Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C. 1989). In response to the notice, the organization must designate one or more individuals to testify on its behalf, who must have knowledge of the subjects described in the deposition notice. Pesaplastic, C. A. v. Cincinnati Milacron Co., 799 F.2d 1510 (11th Cir. 1986). These designated corporate deponents must be prepared to give complete, knowledgeable, and binding answers. Nevada Power Co. v. Monsanto Co., 891 F. Supp. 1406 (D. Nev. 1995); see also, U.S. v. Massachusetts Indus. Finance Agency, 162 F.R.D. 410 (D. Mass. 1995).
The designated individual must be prepared to testify to "matters known or reasonably available to the organization;' Fed. R. Civ. P. 30(b)(6), including beliefs and opinions of the organization with respect to its position in the litigation. See e.g., Lapenna v. Upjohn Co., 110 F.R.D. at 20. The standard for designation is not someone with personal knowledge to appear on behalf of the corporation, but rather the rule governing corporations only requires that the designated corporate deponent testify regarding matters "known or reasonably available to the organization:" Reed v. Bennett, 193 F.R.D. 689 (D. Kan. 2000).
If the only person available to testify is the organization's expert, attorney, or investigator, that person must be offered as the organization's designated deponent, International Woodworkers Local 5-396 v. Chesapeake Bay Plywood Corp., 659 F 2d 1259, 1272-73 (4th Cir. 1980), and may not claim privilege to refuse to disclose facts. Penk v. Oregon State Bd. of Higher Educ., 99 F.R.D. 511, 514-17 (D. Or. 1983) (attorney cannot prevent discovery of factual information obtained from third party, and client cannot resist testifying to facts on grounds facts were contained in attorney/client communication). Further, a witness may not claim work product protection for the corporation's position in the litigation and the basis for it. Nutmeg Ins. Co. v. Atwell, Vogel & Sterling, 120 FRD. 504, 509 (W.D. La. 1988).
The fact that a corporation no longer employs any individual who has a memory of the distant event at issue, or if that particular individual is deceased, does not relieve the corporation from preparing a designee to the extent matters are reasonably available, whether from documents, from past employees, or other sources. U.S. v. Taylor, 166 F.R.D. 356, aff'd, 166 F.R.D. 367.
Rule 30(b)(6) is only effective before trial. A party may not attempt to end-run Rule 30(b)(6) by issuing a Rule 45 subpoena to a corporation during trial to compel the appearance of unnamed witnesses with knowledge on specific subjects. Donoghue v. Orange County, 848 F.2d 926, 931 (9th Cir. 1987) (the requirements of Rule 30(b)(6) are not imported into Rule 45 to enable a party to serve a Rule 45 subpoena on a corporation or government agency and thereby obtain a witness to testify at trial to matters identified in the subpoena). Further, a 30 (b)(6) deposition only applies to parties at the time of depositions. Any party dismissed from the action before the time for the deposition is exempt from Rule 30(b)(6). Cohn v. Wilkes General Hosp., 127 F.R.D. 117 (D.N.C. 1989).
D. Sanctions.
Producing an unprepared witness may be tantamount to a non-appearance, warranting the imposition of sanctions. Taylor, 166 F.R.D. 356. In fact, a party's failure to produce an adequately prepared Rule 30(b)(6) witness may result in severe sanctions ranging from contempt and fees, see Pesaplastic, 799 F.2d 1510, to having adverse facts deemed established, see S.E.C. v. Allison, 35 Fed. R. Serv. 2d 548 (N.D.Cal. 1982), to having the attorney assess fees personally, see Thomas v. Hoffmann-LaRoche, Inc., 126 F.R.D. 522 (N.D. Miss. 1989), to a preclusion order, see In re Anthracite Coal Antitrust Litig., 82 F.R.D. 364 (M.D. Pa. 1979). But see, Hebron Public School Dist. No. 13 of Morton County, State of N.D. v. U.S. Gypsum Co., 1989 WL 168985 (D.N.D. 1989) (failure to produce an adequately prepared witness does not result in summary judgment against the offending party if, without 30(b)(6) testimony, there is a genuine issue of material fact); Federal Sav. and Loan Ins. Corp. v. Village Creek Joint Venture, 130 F.R.D. 357, 359 (N.D. Tex. 1989) (failure to produce 30(b)(6) representative not an admission that plaintiff did not have a factual basis for complaint and thereby violated Rule 11 by filing, because answers to interrogatories supported plaintiffs claims).
Designation of an attorney as a 30(b)(6) witness may result in his disqualification from that action. Eastway Gen. Hosp v. Eastway Women's Clinic, 737 F.2d 503 (5th Cir. 1984]; International Woodworkers, 659 F.2d 1259. Further, failure of a designated attorney to testify on privilege grounds may result in dismissal of the case. Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577 (7th Cir. 1981):
In addition, Rule 11 sanctions may be imposed, as well as sanctions pursuant to Rule 30(b)(6). The failure of a party to tender an appropriate Rule 30(b)(6) deponent is justification for a court to call into question "the plaintiff's good faith in filing the lawsuit." AMP, Inc. v. Molex, Inc., 227 U.S.P.Q. (BNA) 172 (N.D. I11. 1985). Attorneys who receive a 30(b)(6) notice should not wait until the scheduled deposition to question or object to it. If the parties cannot reach an adequate stipulation with opposing counsel, the court's assistance should be promptly sought under Rule 26(c). See E.E.O.C. v. Thurston Motor Lines, Inc., 124 F.R.D. 110, 115 (M.D.N.C. 1989).
In Cobell v. Norton, 213 F.R.D. 48 (D.C. D.C. 2003), a Special Master was appointed to "oversee the discovery process in this case...; to ensure that discovery is conducted in the manner required by the Federal Rules of Civil Procedure and the orders of this Court" and "to regulate all proceedings in every hearing." The Special Master supervised the depositions. If you read the case, which I recommend, you will see that the term "Special Master-Monitor" is used. Part of the duties included monitoring reform of the Individual Indian Money trusts managed by the Bureau of Indian Affairs. It was a dual role.
The Special Master in Cobell noted that the plaintiff followed the directions of the Special Master in response to objections at the deposition. By contrast, he noted defendant's counsel for its "active objection to and refusal to follow" his instructions. Specifically, the Special Master over-ruled defense objections during the deposition but the defendants refused to answer the questions, despite the ruling. This resulted in a motion to compel. The District Court found that: ". . in response to the questions put forth by plaintiffs, defense counsel had repeatedly made frivolous assertions of attorney-client privilege." The Court found that defense counsel made other frivolous objections and described defense counsel's conduct as "unscrupulous tactics on the part of defense counsel to obstruct a legitimate inquiry into whether her co-counsel had lied to the Court." 213 F.R.D. at 58.
Ultimately, the District Court found that the power to oversee the discovery process and to regulate all proceedings in every hearing includes the power to regulate deposition questioning. Thus, the Special Master had authority to issue directions to the parties and their counsel in response to any objections asserted during the depositions at which he presides. 213 F.R.D. at 59. In response to defense counsel's refusal to follow the Special Master's directions, the Special Master exercised his authority to order that he would (1) terminate the deposition if the conduct continued in the future; (2) recommend that the defendant's counsel be referred to the Disciplinary Panel of the U.S. District Court for the District of Columbia for review and appropriate action under the District of Columbia Rules of Professional Conduct - specifically Rule 8.4(d) that provides that it is professional misconduct for a lawyer to engage in conduct that seriously interferes with the administration of justice; and (3) recommend referring defendant's counsel to the District Court for sanctions under Rule 37(a)(4)(A), as conduct that required a motion to compel discovery. The District Court held that the Special Master had the authority to make these recommendations.
As noted, this case contains a very good discussion on the authority of Court-Appointed Monitors to request and review documents, including documents claimed by a party as privileged. The decision is also procedurally interesting in its explanation as to why a party cannot seek a protective order against a judicial officer. The defendants moved for a protective order under Rule 26(c) to limit the discovery authority of the Special Master. The District Court not only denied defendants' motion, but sanctioned them for their discovery misconduct:
 
. . . defendants' motion represents the culmination of a series of displays of obstinacy, recalcitrance, and unprincipled behavior on the part of defense counsel. The Court fails to discern any circumstances in relation to the present matter that would make an award of sanctions against defendants and their counsel unjust. In fact, the Court concludes that it would be unjust not to sanction defendants and their counsel for wasting plaintiffs' time and resources by requiring them to respond to a completely frivolous motion.
 
213 F.R.D. at 62.
An award of sanctions for discovery abuse was also at issue in Good Stewardship Christian Center v. Empire Bank, 341 F. 3d 794 (8th Cir. 2003). In that case, lendors foreclosed on a loan used to purchase property and commenced foreclosure proceedings on the properties. One of the properties was residential and appellant Vaughn resided there. Vaughn sued the lenders and related parties under the Equal Credit Opportunity Act, the Fair Housing Act and for racial discrimination. The suit was dismissed as a sanction for discovery abuse. Prior to reaching that level of sanction, the District Court had appointed a Special Master to supervise the taking of depositions. As the Eighth Circuit stated:

 The district court found that "Vaughn refused to answer simple and straightforward questions, [and] engaged in non-responsive speeches." GSCC's attorney also acted inappropriately, by "fail [ing] to advise his client of his responsibility to cooperate in discovery ... [and by lodging] constant meritless and inappropriate objections, speeches, and interruptions." As a result, the district court levied various fines and costs of the deposition against GSCC, Vaughn, and counsel, and appointed a Special Master.
 
341 F. 3d at 796-97. The District Court observed that: "relations between the parties and attorneys grew contentious." 341 F. 3d at 795. The case was dismissed as a sanction for failing to pay the monetary sanctions imposed for prior violation of court orders on conduct of the parties. The case never reached the stage where the Special Master actually supervised the taking of any depositions.
E. Special Master by Telephone vs. Supervised Deposition
Sanctionable violations of the Rules will not necessarily result in a deposition supervised by a Special Master. In re Vitamins Antitrust Litigation, 216 F.R.D. 168 (Dist. D.C.2003) provides a good discussion of the scope of the duty to investigate the facts and prepare a Rule 30(b)(6) witness. It is also a good example of a situation where the Court imposed sanctions on the defendant who did not adequately prepare its corporate witness, while at the same time declining to order that the resumed deposition be taken in the presence of the special master. Plaintiffs argued that it was concerned that the defendant "will again fail to comply with its Rule 30(b)(6) obligations at the retaking of its Rule 30(b)(6) deposition ...." Pls. Resp. to Bioproducts Obj. at 4. The Special Master noted in his report that the Plaintiff's request to have the deposition supervised by the Special Master was reasonable, but the Court should be able to rely on that Defendant and its counsel to comply with the letter and spirit of the May 15 Report and the Court's Order. The Special Master was available by telephone to rule on issues as they arose in the resumed deposition. There is no reported case suggesting that the second deposition required further motions practice.
F. Limitations of Depositions
Federal Rule of Civil Procedure 30(d) sets forth the duration and limit of depositions. A deposition is limited to "one day of seven hours," unless leave of court is obtained based on a need for "fair examination." Fed. Civ. Pro. 30(d)(2). Because of this severely restricted time frame, it is essential that a deposition is streamlined and prepared in such a way to address all the key elements of the case. Any unnecessary colloquialism among counsel merely takes away from the time allotted to substantive questions and answers. To preserve all seven hours for the deponents, any extensive discussion among counsel should be taken off the record with the time clocked.
The Advisory Committee Notes to the purpose of the stringent time limitation is to reduce "undue costs and delays" that result from overlong depositions. The Committee explained that 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." The Notes also provided that the duration may be "extended, or otherwise altered, by agreement. Absent agreement, a court order is needed." The standard for seeking an alteration of the time limitation is "good cause."
Under Rule 30(a)(2), a litigant may take no more than ten depositions per side unless the parties have stipulated to a different number or the court has given leave for a greater number. Fed. R. Civ. P. 30(a)(2). See Advanced Sterilization Products, etc. v. Jacob, 190 F.R.D. 284 (D. Mass. 2000) (party must seek leave of court to take more than ten depositions, in absence of stipulation). Rule 30(a)(2)(b) imposes a further limitation that a deponent may be deposed only once. Fed. R. Civ. P. 30(a)(2)(b).
Cardenas v. Prudential Insurance Co. of America, 2003 WL 21293757 (D.Minn. 2003) is also instructive. The case involved claims of employment discrimination. Following a contentious deposition, the Defendant moved to compel a further deposition of the Plaintiffs, on the grounds that plaintiffs had been so uncooperative and disruptive during questioning that the depositions were useless. Prudential also sought appointment of Special Master to supervise the continued depositions.
The Magistrate Judge denied Prudential's motion, finding that it would be "just and practicable" to apply the new (and optional in this case) federal rule limiting depositions to one day of seven hours. See Fed.R.Civ.P. 30(d)(2). The Magistrate Judge specifically rejected Prudential's arguments that plaintiffs' conduct rendered the depositions useless. The Magistrate Judge found that the depositions were "contentious," but assigned blame for the breakdown of the deposition on both parties and denied the defendant further relief. The District Court affirmed, finding that the Magistrate Judge's conclusions were "not clearly erroneous." This case is interesting because it suggests that if you have unclean hands or do not approach the deposition with your own good behavior, the Court may use the limit on the number of depositions as a sanction, and your client can be denied the benefits of an effective deposition despite the improper conduct of the deponent.
G. Objections at Deposition
1. Instructions Not To Answer
"It [has long been] settled that counsel should never instruct a witness not to answer a question during a deposition unless the question seeks privileged information or unless counsel wishes to adjourn the deposition for the purpose of seeking a protective order from what he or she believes is annoying, embarrassing, oppressive, or bad faith conduct by opposing counsel." First Tennessee Bank v. Federal Deposit Ins. CM., 108 F.R.D. 640 (E.D. Tenn. 1985). See Quantachrome Corp. v. Micromeritics Instrument Corp., 189 F.R.D. 697 (S.D. Fla. 1999) (if counsel believes deposition is being conducted in bad faith or in such a manner as to unreasonably annoy, embarrass, or oppress deponent, then counsel may instruct the witness not to answer, but may do so only if he intends to more for a protective order). Rule 30(d)(1) provides:

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).

 Fed. R. Civ. Pro. 30(d)(1). In Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162, 175 (S.D.N.Y. 2004), the Court sustained defense counsel's instructions not to answer, finding that: "[t]o the extent that Seagate's counsel directed him not to answer, the questions posed violated the Special Master's direction to limit inquiry to specific Seagate drives."
Rule 30(d)(1) codifies prior practice that, "in the absence of a showing some serious harm [is] likely to result from responding to any given question, the policies behind Rule 30 require the answers to be given." Nutmeg Ins., 120 F.R.D. at 508; see also, Serafino v. Hasbro, Inc., 82 F.3d 515, 518-19 (1st Cir. 1996) (invocation of Fifth Amendment privilege that prevents defendant from mounting an effective defense by obtaining information from the plaintiff that is not available elsewhere justifies dismissal of plaintiff's, case); Hearst/ABC-Viacom Entertainment Services v. Goodway Marketing, Inc., 145 F.R.D. 593 (E.D. Pa. 1992) (instructions not to answer on basis of irrelevance was clearly inappropriate, and client must answer all questions where no privilege implicated).
Instructions not to answer are often combined with contentiousness. This is addressed neatly by one Magistrate-Judge. In a case also involving a good discussion of the scope of the attorney-client privilege and work product doctrine in the context of government employees, the Magistrate Judge in Banks v. Office of the Senate Sergeant-At-Arms, 222 F.R.D. 1 (D.C. D.C. 2004), made the following observation, which I believe is worth quoting in full:

 The parties have also addressed other problems that have arisen either during the course of or during the planning for the deposition. I will not speak to hypothetical issues but, in the exercise of my obligation to keep a firm hand on the discovery process, I will provide them with guidance so that they cannot argue that they were not aware of my expectations the next time one of them complains. I will first say this. The papers in this case are all too full of the kind of bickering that is costing everyone far too much money. If it does not stop, counsel will be amazed at how much more expensive it will get once I start issuing sanctions. I am denying the motion for sanctions, but a word to the wise is sufficient.
 
Second, directing a witness not to answer a question on the grounds of relevance is a clear violation of the Federal Rules of Civil Procedure (F.R.Civ. P. 30(d)(1)) and sanctionable.
 
Third, the depositions of all remaining witnesses will be conducted in accordance with the principles elucidated in this opinion. Failure to comply with them will result in sanctions.
 
I specifically note that Mr. Macon's deposition may be taken again and conducted in accordance with these principles.
Instructions to experts not to answer questions also arise during depositions. For example, in Bockweg v. Anderson, 117 F.R.D. 563 (M.D.N.C. 1987), a medical malpractice action, the plaintiffs argued their experts could be asked only "non-privileged facts known or opinions held by the expert[s] relevant to the subject matter of the lawsuit . . . ." 117 F.R.D. at 563. The court disagreed, holding that Rule 26 encouraged "liberal discovery of expert witnesses, including information relevant only for impeachment." The court ordered that the plaintiffs instruct their experts "to answer questions relating to their involvement . . . in other malpractice actions . . . ". Id. at 565-66. See also Contra In re Air Crash Disaster at Stapelton Intern. Airport Denver, Colo., 720 F. Supp. 1442, 1444-45 (D. Colo. 1988) (refusing to allow inquiry into expert's retention and opinion on other cases, including cases handled by the same attorney; Bockweg disapproved).
Two decisions in the case of In re Omeprazole Patent Litigation, 2005 WL 818821 (S.D.N.Y. 2/18/05) and 227 F.R.D. 227 (S.D.N.Y.2005), n2 are also instructive on the appropriate use of instructions not to answer, objections at deposition and discovery of deleted portions of an expert's report. The defendant instructed an expert not to answer questions concerning deleted portions of the experts report (a report that had been "amended" several times). The Special Master recommended and the District Court confirmed that: (1) expert reports are not pleadings and are not therefore "amended" (i.e., they can be changed, but deleted or changed portions are proper areas for deposition examination), and (2) instructions to an expert not to answer are not proper. According to the Special Master, counsel should have objected and permitted the question to be answered, subject to the objection. Moreover, the expert is not the "client" and the party's counsel cannot instruct the expert not to answer.

n2 The citation is not a typo. It really is 227 F.R.D. 227.
 
Citing Shapiro v. Freeman, 38 F.R.D. 308, 312 (S.D.N.Y.1965), the District Court stated that:

 It is not the prerogative of counsel, but of the court, to rule on objections. Indeed, if counsel were to rule on the propriety of questions, oral examinations would be quickly reduced to an exasperating cycle of answerless inquiries and court orders. Alternatively, if the plaintiff's attorney believed that the examination was being conducted in bad faith... or that the deponents were being needlessly annoyed, embarrassed, or oppressed, he should have halted the examination and applied immediately to the ex parte judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d). He had no right whatever to impose silence or to instruct the witnesses not to answer, especially so when the witnesses were not even his clients.

 227 F.R.D. at 230.
The Special Master cited other authorities to show both the impropriety of Eon's actions and that "counsel's proper course would have been to allow the questioning to continue subject to objection." See Order at 5 (citing 7-30 MOORE'S FEDERAL PRACTICE--CIVIL § 30.43[2] (2004)); Hanlin v. Mitchelson, 623 F.Supp. 452, 455 (S.D.N.Y.1985) ("The proper procedure to follow when an objection is raised to a question propounded in a deposition is for the attorney who raises the objection to note his objection but to allow the question to be answered").
The actual questions and objections are worth reading, under the warning of don't let this happen to you:
 
Eon also instructed Dr. Block not to answer questions directed to the subject matter of the deleted paragraphs, for example:
Q. Now, do you think any of the claims of the patents-in-suit are anticipated by any piece of prior art?
MR. STUART: Objection. I am going to instruct the witness not to answer that question. That's been withdrawn from his Expert Report.
Block Depo. at pgs. 115-20, pgs. 152-57. During counsel colloquy, Astra's counsel attempted to persuade Eon's counsel to withdraw his objections, but Eon's counsel, Mr. Stuart, refused:
MR. GRIEM: There is nothing I can say that would allow you to permit the witness to answer my questions since he is here and since we have time to do it?
MR. STUART: That's correct. There is nothing that will make me let him answer those questions.

 2005 WL 818821 at *1.
It is worth reminding all counsel that there are only three occasions when it is proper to instruct a witness not to answer a questions:
 
- first, to preserve a privilege;

- second, to the enforce a limitation directed by a court, and

- third, to present a motion under Rule 30(d)(4).

 Fed.R.Civ. P. 30(d)(1).
In all other cases, testimony is taken subject to objection. Fed. R. Civ. P. 30(c). The limitations on objections are confirmed in In re Omeprazole Patent Litigation, 2005 WL 818821 (S.D.N.Y. Feb. 18, 2005) at *2.
One district court has held that sanctions beyond the cost of bringing a motion to compel may not be awarded for improperly instructing a witness not to answer unless there has been a previous order compelling an answer to the question, American Hanger, Inc. v. Basic Line, Inc., 105 F. R. D. 173 (D. Mass. 1985). This holding, however, does not seem to be the majority rule. Other courts have authorized harsher sanctions, including awarding as sanctions against the party or his attorney the costs of the original deposition or a second deposition (if one is ordered). See, e.g., Frazier v Southeastern Pennsylvania Transp. Auth., 161 F.R.D. 309, 315-16, 321 (E.D. Pa. 1995) (Rule 30(d)(1) is sufficient to support sanctions independent of a prior court order), and the appointment of a special master to preside at future depositions at the expense of the misbehaving attorney. See also Shapiro v. Freeman, 38 F.R.D. 308, 311 (S.D.N.Y. 1965) (same); Coca-Cola Bottling Co. of Shreveport. Inc. v. Coca-Cola Co., 123 F.R.D. 97 (D. Del. 1988) (court denied permission for a corporate party that moved to withdraw an admission under Rule 36 (even though the admission later turned out to have been made in error) where its officers had been instructed not to answer questions on the subject of the admission and discovery had thereafter closed).
2. Timely Objection on Grounds of Privilege
Remember that the failure to object at the deposition that the information sought is privileged will result in a waiver of the attorney-client privilege. Such a waiver occurred in The Diversified Group, Inc. v. Daugerdas, 304 F. Supp. 2d 507, 514-515 (S.D.N.Y. 2003), where the questions were asked and answered and no objection based on the privilege was raised until after the end of the deposition. The Special Master reviewed the transcripts and noted that the defendant had the opportunity to claim the attorney-client privilege during the deposition and failed to do so, thereby waiving the privilege.
3. Frivolous Objections and "Coaching" Of Witnesses
Objections are reserved until trial, unless they go to the form of the question or other like defect that could be cured if the objection had been immediately stated. Fed. R. Civ. P. 30(c); 32(a). It is not uncommon, however, for depositions to be disrupted by objections and colloquy. Such disruptions taint the proceeding and deprive the deposing party of its right to "a fair opportunity to make discovery." Unique Concepts, 115 F.R.D. at 294 (personal insults and invective against opposing counsel); Wright v. Firestone Tire & Rubber Co., 93 F.R.D. 491, 493 (W.D. Ky. 1982) (repeated objections by the lawyer that the questions were unclear, notwithstanding the witness's understanding of them); see U.S. v. National Medical Center, Inc., 792 F. 2d 906, 909-10 (9th Cir. 1986) (lawyer chastised for interfering with a non-party deponent's willingness to retrieve a document from his file for the examiner). Meritless objections also violate Rules 3.1 and 3.2 of the Model Rules of Professional Conduct, which state a lawyer's duties to avoid making frivolous claims and to make reasonable efforts to expedite litigation. For these reasons, the cases have held that a lawyer who objects at deposition on grounds other than privilege or trade secret should do:

 [n]othing more than state his objections. It is not the prerogative of counsel, but of the court, to rule on objections. Indeed, if counsel were to rule on the propriety of questions, oral examinations would be quickly reduced to an exasperating cycle of answerless inquiries and court orders. Alternatively, if the . . . attorney believe[s] that the examination [is] being conducted in bad faith, that the information sought [is] privileged, or that the deponents [are] being needlessly annoyed, embarrassed, or oppressed, he should [halt] the examination and appl[y] immediately to the . . . judge for a ruling on the questions, or for a protective order, pursuant to Rule 30(d). He ha[s] no right whatever to impose silence or to instruct the witnesses not to answer . . . .

 Shapiro, 38 F.R.D. at 311-12; see also Odone v. Croda Intern. PLC, 170 F.R.D. 66 (D.D.C. 1997) (during course of deposition, attorney prohibited from attaching each question posed by opposing counsel for purpose of preventing elicitation of any meaningful testimony from witness, and also may not object to questions in such a way as to "coach" witness or suggest answer.).
Rule 30(d)(1) strictly prohibits "speaking" or coaching objections, instructing that:

 Any objection to evidence during a deposition shall be stated concisely and in a non-argumentative and non-suggestive manner.

 Fed. R. Civ. P. 30(d)(1).
The 1993 Advisory Committee Notes emphasize that Rule 30(d)(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" reserving objections, be raised for the first time at trial and therefore should be kept to a minimum during a deposition.
Courts have become increasingly intolerant of "'speaking' objections to questions, [that have] the barely concealed purpose of communicating to the witness how she should answer." Heller v. Wofsey, Certiiman, Haft, Lebow & Balin, 1989 WL 79386 (S.D.N.Y. 1989). Some courts proactively prevent such misconduct through standing orders prohibiting such objections from being made in the presence of the deponent. Id.; see also, Refco. Inc. v. Troika Investment Ltd., 1989 WL 94326 (N.D. Ill. 1989) (attorney ordered "not to consult with witnesses during the course of their depositions except during mutually-agreed-upon breaks in those depositions" or on matters of privilege).
Whether or not such courts have adopted such proactive measures, they can levy sanctions for improper and disruptive objections similar to those sanctions awarded as a result of improper instructions not to answer. Courts may award the costs of filing the motion to compel or of re-taking the deposition against the offending party or his attorney. Unique Concepts, 115 F.R.D. at 294 (costs awarded against the attorney under 28 U.S.C. § 1927) 1927); see also, R.E. Linder Steel Erection Co. Inc. v. United States Fire Ins. Co., 102 F.R.D. 39 (D. Md. 1983) (both attorneys at fault; the court ordered them to pay $ 5 for each interruption of a question and $ 5 per transcript line of extraneous remarks).
For example, in Hall v. Clifton Precision, A Division of Litton Systems, Inc., 150 F.R.D. 525, 527 (E.D. Pa. 1993), the court went beyond merely prohibiting speaking objections; it also precluded the deponent from conferring with counsel before answering a pending question. The court found that that discussions relating to the client's response to questions between the client and lawyer during breaks taken during depositions did not qualify as protected from disclosure under the attorney-client communication privilege nor under the work product doctrine.
Improper and disruptive objections particularly impact video depositions, especially where those objections and colloquy are then edited out of the videotape before playing it to the jury. This procedure:
 
provides a fertile field for mischief. An irresponsible attorney can make any number of objections, ranging from frivolous to spurious. The more he makes, the better things are in his favor. When the time comes to present the deposition in court, he can withdraw the objections or permit them to be overruled by the court. In any event, the result is a video presentation where there will be long pauses, a squeal or two from the television set, and the amusing spectacle of a witness jiggling around while the tape is speeded up until the next usable portion of the testimony is reached: That is exactly what happened in this case and the result was the plaintiffs were denied the effective presentation of evidence that was crucial to them.

 Kelly v. GAF Corp., 115 F.R.D. 257, 258 (E.D. Pa. 1987) (new trial ordered); see Thomas, 126 F.R.D. at 524 (sanctions imposed on attorney personally where repeated objections "obstructed the deposition" and "destroyed the value of the videotaped depositions").
The court can levy severe sanctions for pervasive misconduct at depositions. See Ralston Purina Co., 550 F.2d at 974 (vacating a summary judgment on liability and the jury's subsequent damage award where counsel's misconduct during deposition prejudiced the losing party.); see also, Kelly, 115 F.R.D. 257 (new trial ordered because defense attorneys' objections and interruptions during a video deposition of the plaintiffs trial expert so disrupted the video presentation at trial that the testimony appeared absurd and disjointed; the court invited a motion for sanctions against the attorneys).
4. Abusive Misconduct and Improper Interrogation.
The abused party has two avenues of recourse in response to improper or abusive depositions. First, if the objection is known prior to the deposition, (e.g., an objection to the deposition notice), the deponent can move pre-deposition for a protective order. See Nutmeg Ins., 120 F.R.D. at 508-09; Coates v. Johnson & Johnson, 85 F.R.D. 731, 733 (N.D. Ill. 1980). If the objection occurs during the deposition, the injured party may call a halt to the deposition and make an immediate application to the court for relief under Rule 30 (d)(4).

 At any time during the taking of the 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 . . . may order the officer conducting the examination to cease forthwith from taking the deposition ... If the order made terminates the examination, it shall 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 shall 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.

Fed. R. Civ. F. 30(d)(4) (emphasis added). Depositions may be adjourned only on the grounds provided for in Rule 30(d)(4). See Smith v. Logansport Community School Corp., 139 F.R.D. 637 (N.D. Ind. 1991) (complaint regarding scope of cross-examination exceeding that of direct not valid objection or cause for Rule 30(d) adjournment).
Whether the party invokes Rule 26(c), Rule 30(d)(4), or both, the objection must be made promptly. Hearst/ABC-Viacom, 145 F.R.D. at 62-63. A party's failure to timely object is construed as an admission of the lack of legitimate 30(d)(4) grounds for adjournment. Hearst/ABC-Viacom, 145 F.RD. at 63. Thus, the attorney objecting to the deposition should not wait for his opponent to bring the matter before the court by a motion to compel.
A court may sanction, censure, or even order a deposition to be resumed where an attorney waited for his opponent to file a motion to compel instead of timely addressing the issue through the proper objections. See Hanlin v. Mitchelson, 623 F. Supp. 452, 455 (S.D.N.Y. 1985), aff'd in part and rev'd in part on other grounds, 794 F.2d 834 (2d Cir. 1986). Such sanctions may also be invoked against a deposing lawyer whose opponent is being unfairly disruptive. One court suggests that a deposing lawyer's failure timely to adjourn a deposition disrupted by improper objections to seek assistance under Rule 30(d) risks waiver of the right to seek judicial help. See Lapenna, 110 F.R.D. at 18-19.
5. Special Masters and Magistrate Judges
As noted above, Special Masters can play an important and determinative role in the discovery process. As explained in Convolve, Inc. v. Compaq Computer Corp., 223 F.R.D. 162 (S.D.N.Y. 2004):
The function of a special master and the role of a magistrate judge are to a large extent parallel. Each may be appointed by the district judge to address pretrial matters. See Fed.R.Civ.P. 53(a)(1) (C) (special masters); 28 U.S.C. § 636(b)(1)(A) (magistrate judges); Fed.R.Civ.P. 72(a) (magistrate judges). Each may issue orders on non-dispositive matters that are then subject to review by the district judge. See Fed.R.Civ.P. 53(g) (special masters); 28 U.S.C. § 636(b)(1)(magistrate judges); Fed.R.Civ.P. 72(a) (magistrate judges).
Since Magistrate Judges and Special Masters are deemed parallel, an appeal from an order from either must go to the District Court. It is not proper to appeal the order of the Special Master to the Magistrate Judge.
In Convolve the Magistrate Judge refused to sanction the defendant for violating an order of the Special Master and misrepresenting whether a type of document (an RFP or RFQ) existed. The Magistrate Judge's ruling was based on a finding that the defendant's misconduct was an isolated act, not a systematic abuse. Under the circumstances, the Magistrate Judge found that the appropriate remedy was full disclosure of the relevant information, not sanctions.
 
III. DISCOVERY OF DOCUMENTS REVIEWED BY A DEPONENT BEFORE OR DURING DEPOSITION
This section will focus on the discovery of documents reviewed by deposition witness in the context of: (1) claims of attorney/client privilege, (2) claims of work product protection and (3) foundational requirements. As detailed below, the law in this area has been and remains "in a state of flux." In re Comair Air Disaster Litig., 100 F.R.D. 350, 353 (E.D. Ky. 1983).
A. "Refreshed Recollection" and Rule 612.
Rule 612 of the Federal Rules of Evidence provides:
 
... if a witness uses a writing to refresh memory nor the purpose of testifying, either -
 
(1) while testifying, or
 
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
Rule 612, in conjunction with Rule 30(c), provides that examination and cross-examination in deposition "may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence." See James Julian, Inc. v. Raytheon Co., 93 F.R.D. 138, 144 (D. Del. 1982).
The legislative history of Rule 612 "clearly indicates that at least the sponsors in the House of Representatives intended that 'nothing in the Rule be construed as barring the asserting of a privilege with respect to writings used by a witness to refresh his memory' . . . ." Intermedics, Inc. v. Ventritex, Inc., 139 F.R.D. 384, 386 (N.D. Cal. 1991). Regardless, ever since Berkey Photo, Inc. v. Eastman Kodak Co., 74 F.R.D. 613 (S.D.N.Y. 1977), courts have relied on Rule 612 to compel disclosure under appropriate circumstances of documents shown witnesses before their depositions.
Two general rules of practice seem clear in this area: (1) a lawyer should not permit his client to review privileged or protected materials in preparation for a deposition unless that lawyer is prepared to produce them, 3 J. WEINSTEIN & M. BERGER, Weinstein's Evidence P 612[04] at 612-49 (1992); and (2) a lawyer should familiarize him/herself with the strictest interpretation of the foundational requirements of Rule 612. See Sporck v. Peil, 759 F. 2d 312 (3d. Cir.), cert. denied, 474 U.S. 904 (1985).
Under a stringent interpretation of Rule 612, it is insufficient to simply ask a witness if he reviewed documents before testifying to them and what those documents were. Instead, the preferred method includes narrowly-tailored questions regarding the specific subjects first and then questions to identify all documents known to him regarding that subject matter and, next, what documents he relied on in his testimony. See W. SCHWARZER & L. PASAHOW, Civil Discovery: A Guide to Efficient Practice 123 (1988).
A testifying party who reviews documents protected by the attorney/client privilege waives the privilege and must produce those documents. S & A Painting Co. v. O.W.B. Corp., 103 F.R.D. 407 (W.D. Pa. 1984); Bailey v. Meister Brau, Inc., 57 F.R.D. 11 (N.D. Ill. 1972). This result is mandated under Rule 612(1), which requires a witness to produce documents he reviews while testifying. See Auto Owners Ins. Co. v. Totaltape, Inc., 135 F.R.D. 199 (M.D. Fla. 1990). This rule also comports with general waiver principles, in which a party who is not concerned with maintaining confidentiality does not deserve the absolute protection the privilege affords. Bailey, 57 F.R.D. at 13.
The rule of waiver/automatic production has been extended to materials a witness reviewed before the witness testified. See Wheeling-Pittsburgh Steel Corp. v. Underwriters Laboratories, Inc., 81 F.R.D. 8 (N.D. Ill. 1978); see generally, Marshall v. United States Postal Service, 88 F.R.D. 348, 350 (D.D.C. 1980). This rule may not be extended, however, to circumstances where a witness merely skims a document before being deposed. The courts have found there is a marked difference in the level of disregard of the privilege where a witness actually asks to see and then reviews a privileged document to refresh his recollection during deposition. Cf. Joseph Schlitz Brewing co. v. Muller & Phipps (Hawaii), Ltd., 85 F. R. D. 118 (W.D. Mo. 1980) (attorney/deponent who reviewed his correspondence file before testifying did not thereby waive the attorney-client privilege unless actual use of individual documents was shown).
A growing number of courts have departed from Wheeling Pittsburgh and Marshall, finding instead that the waiver of the attorney/client privilege by a witness's pre-deposition review of privileged documents should be restricted to "only when the witness has consulted a writing embodying his own communication to counsel, and his testimony at the deposition, or at trial, discloses a significant part of the communication." Baker v. CNA Ins. Co., 123 F.R.D. 322, 327 (D. Mont. 1988); 3 J. WEINSTEIN & M. BERGER, Weinstein's Evidence 1612[04] at 612-38. The recent trend is to reject Wheeling-Pittsburgh's and Marshall's automatic waiver rule and instead favor an approach of pre-deposition review of privileged materials guided by general principles of waiver by voluntary disclosure, concern for the opponent's need for the materials, and overall fairness. See Barrer v. Women's Natl Bank, 96 F.R.D. 202 (D.D.C. 1982) (in camera inspection ordered so the court could compare the document with the testimony to ascertain inconsistencies and assess the opponent's need for access to the document). In the view of these courts, preservation of attorney/client confidences remains a factor to consider, among others, even if a technical waiver has occurred. Id. at 205.
This trend has been refined in Leybold-Heraeus Technologies, Inc. v. Midwest Instrument Co., Inc., 118 F.R.D. 609 (E.D. Wis. 1987) where the court reviewed a variety of privileged documents and concluded that disclosure of them to "witnesses ... to refresh their recollections for ... testifying" made them discoverable. The court rejected the notion of selective disclosure, by extended its holdings to include privileged documents that had been partially disclosed. Id. at 613-15. Thus, despite the fact that courts have rejected the automatic production/waiver rule of Wheeling-Pittsburgh and Marshall, litigants should not rely on selective disclosure as an end-run to disclosing privileged documents.
1. Production of Work Product Used to Refresh Recollection.
Courts have considered the following to fall within the work product protection: (1) selection process and distillation of documents, Berkey Photo, 74 F. R. D. 613; see also James Julian, 93 F.R.D. at 144; (2) selection and compilation of documents in preparation for pretrial discovery, Sporck, 759 F.2d at 316; (3) documents that "reveal counsel's mental impressions," Shelton v. American Motors Corp., 805 F.2d 1323, 1329 (8th Cir. 1986); and (4) discussions between counsel and trial experts. Haworth, Inc. v. Herman Miller. Inc., 162 F.R.D. 289, 295 (W.D. Mich. 1995).
In a number of cases, courts ordered production of work product under Rule 612 where a deponent had used the work product in some way to prepare for his deposition. In re Comair Air Disaster Litig., 100 F.R.D. 350; Boring v. Keller, 97 F.R.D. 404 (D. Colo. 1983); James Julian, 93 F.R.D. at 144 (discussing cases generally following Berkey Photo). In Berkey Photo, the court found that the four notebooks assembled by the defense and finished to experts before their depositions "to fill in details" and to provide them with an "appreciation" of the underlying facts should be ordered produced under Rule 612(2) because they were used to refresh the witnesses' recollection or otherwise shape and inform their testimony. 74 F.R.D. at 615. As a matter of judicial policy, in the Berkey court's view, parties should not receive immunity against production when "immunized materials have been deliberately employed to prepare - and thus, very possibly, to influence and shape - testimony." 74 F.R.D. at 616.
Compared to the documents in Berkey Photo (that revealed . . . the evident residue and reflection of interviews, statements, memoranda, correspondence, mental impressions, personal beliefs, and other products of the advocate's professional interaction with materials of his art), the documents in Sporck contained only documents counsel conceded did not enjoy independent privileged status or work product immunity, apart from their selection and organization. Sporck, 759 F.2d at 315. The Sporck court nonetheless found that those documents constituted opinion work product, while the court in Berkey Photo rejected such a finding.
The courts employ their discretion in ordering the production of work product used to prepare a witness for deposition, considering such factors as "the extent to which [the] witness consulted the documents, the extent to which those documents related facts similar to those testified to by the witness, and the extent to which the attorney's thought processes would be revealed by disclosure of the document." 1 S. SALTZBURG & M. MARTIN, Federal Rules of Evidence Manual 707 (5th ed. 1990). Some courts take a hard-line stance, finding that the mere possibility that the documents have been used to shape and influence testimony is sufficient to put aside the work product protection. See James Julian, 93 F.R.D, at 146 (finding that where plaintiff's counsel made a decision to educate their witnesses by supplying them with work product, the defendants were entitled to know the content of that education); In re Joint Eastern and Southern District Asbestos Litigation, 119 F.R.D. 4 (S.D.N.Y. 1988).
Some courts hold that Rule 612 cannot displace the work product privilege. See Omaha Public Power District v. Foster Wheeler Corp., 109 F.R.D. 615 (D. Neb. 1986). Still other courts require a more particularized showing before ordering the production of work product. See Aguinaga v. John Morrell & Co., 112 F. R. D. 671 (D. Kan. 1986). These courts find that the possibility that a document shaped or influenced the witness's testimony is insufficient to destroy the work product protection. Instead, the proponent of disclosure must prove, often by an in camera inspection, (1) that there are discrepancies between the witness's testimony and the documents he reviewed, A1-Rowaishan, 92 F.R.D. at 780-81; see Barrer, 96 F.R.D. 202; (2) that the witness was improperly coached, Parry v. Highlight Indus., Inc., 125 F.R.D. 449 (W.D. Mich. 1989); (3) that the information in the document was not available elsewhere, In re Comair Air Disaster Litig., supra; (4) that the witness actually consulted the document during the deposition, Auto Owners Ins., 135 F.R.D. 199; or (5) that the work product was unethically obtained or fell within the crime or fraud exception to the doctrine. Aguinaga, 112 F.R.D. 671.
2. Foundation Requirements of Rule 612.
A litigant must satisfy three criteria in order to obtain the production of a document reviewed by a witness prior to testifying: (1) the document must be identified and a demand for its production made; (2) the witness must have used the writing for the purpose of refreshing his recollection as to the subject matter of his testimony; and (3) the court must determine that production "is necessary in the interests of justice." Fed. R. Evid. 612(2). See generally, 3 J. WEINSTEIN & M. BERGER, Weinstein's Evidence P 612[05]. Recent cases have set forth additional requirements before ordering production of work product, using a balancing test:

 a court should weigh (1) any attempt at improper use of the work product doctrine "to exceed the limits of preparation on the one hand and concealment on the other," (2) the degree to which the documents are composed of factual material rather than an attorney's legal analysis, and (3) "whether the disclosure constituted a fishing expedition."

 Bank Hapoalim, B.M. v. American Home Assur. Co., 1993 WL 37506 (S.D.N.Y. 1993) (citing In re Joint E. & S. Dist. Asbestos Litig., 119 F.R.D. at 6). If the balance tips in favor of disclosure will the documents be ordered produced. See also, Butler Mfg. Co., Inc. y. Americold Corp., 148 F.R.D. 275, 277 (D. Kan. 1993) (to compel disclosure of work product reviewed by a deponent before testifying requires "[a] showing ... that the document actually influenced the witness' testimony") (emphasis added).
B. Discovery Under Rules 612 and 702 of Documents Shown to Experts.
Generally, discovery of documents shown an expert versus lay deponent is analyzed under Rule 705, rather than Rule 612. See generally, Boring, 97 F. R. D. 404.
Both the courts in Boring and Berkey Photo ordered the production of attorney work product furnished to a testifying trial expert. The courts found that it would be necessary for cross-examination purposes to compel production of work product where an attorney voluntarily furnished that work product to an expert, thus diminishing, if not destroying, his interest in the confidentiality of those documents.
The Northern District of California in Intermedics, 139 F.R.D. 384 emphasized the importance of ensuring full and fair cross-examination of experts as to the bases for their opinions, as provided in Rules 702, 703, and 705. Ventritex, 139 F.R.D. at 395. The court found that, "[I]t would be fundamentally misleading, and could do great damage to the integrity of the truth finding process, if testimony that was being presented as the independent thinking of an 'expert' in fact was the product, in whole or significant part, of the suggestions of counsel." Id. at 395-96.
 
IV. Videotape Depositions
Under Rule 30(b)(2), a party may choose to record the deposition by various methods, including sound, sound-and-visual, or stenographically. Fed. R. Civ. Pro. 30(b)(2). The chosen method must be identified in the notice of the deposition and the deposing party shall bear the expense of the recording. Any other party, at its own expense and after giving notice to the deponent and other parties, may designate another method of recording in addition to the method identified in the notice of deposition. Fed. R. Civ. P. 30(b)(3).
 
V. Form of the Questions
Commence the deposition with a question as wide open as possible, revolving around key questions like: who, what, when, where, why, and how. Follow up with questions that allow for the deponent to fill in the necessary blanks, like "describe that for me," or "tell me what happened next."
For example, in a car collision case, ask a general question, like "what happened on the night of December 25, 2001"? Then clarify the scope of the question. This will provide the necessary details to build a complete picture. For example, following the car collision scenario;" ask "when did you first see the approaching car?" "how fast were you driving"? "how do you know your speed"? "what did you do when you saw the approaching car?" "how close were you when you first saw the approaching car," and so on.
The next phase is to close off that topic or that particular line of questioning. This stage allows the questioning attorney the chance to make sure that the deponent is not reserving any information. Ask closing questions, like "anything else," or "is there anything you'd like to add"? or "have you now told me everything about what happened that night"? "have I exhausted your recollection of that night"? etc.
Another method to closing off a particular subject area is to summarize the events and ask for clarification. For example, "Let me see if I got this correctly. On the night of December 25, 2001, you were driving 65 mph, going north on highway 101. It was raining. You saw a car approaching you from the right side and entering into your lane. Once you saw this car, you braked"?
 
VI. PREPARE YOUR WITNESS
There are many methods by which to prepare a witness for an upcoming deposition. According to D. MALONE AND P. HOFFMAN, The Effective Deposition: Techniques and Strategies that Work p. 155 (2nd ed. 1996):

 About forty percent of attorneys prepare witnesses for deposition by extensively reviewing the substantive facts of the case; another forty percent do so by reciting an inordinately long list of "do's" and "don'ts" that even attorneys cannot remember (and therefore they are presented in writing, or on videotape, for the witness "to take home" after the last preparation session). Only the remaining twenty percent of attorneys realize that neither of these approaches deals with the primary factor affecting the witness's performance at the deposition, which is his level of confidence about his ability to perform in the deposition environment.

 Id.
Begin a session with the deponent by going over the purpose of the deposition, describe the order of the proceedings - that is, the question, possible objections, and answer - and the likely topics that the deposition will cover.
Next, move on to how to answer questions. D. MALONE AND P. HOFFMAN, in The Effective Deposition: Techniques and Strategies that Work suggestion seven ideal types of answers:
 
(1) the discrete, short answer - if the deposing attorney needs more information, it is up to him/her to follow up;
 
(2, 3) the "yes" "no" answer -- most questions can be answered by responding "yes," or "no." Again, if the deposing attorney needs more information, let him/her follow up;
 
(4) the "I don't understand that question" response - it is perfectly acceptable to ask the attorney to rephrase a question. Caution the witness that it is especially important to fully understand the question before responding to it. Otherwise, the response may not be to the exact question posed, but to a possibly important variation of it;
 
(5) the "I don't know" response - this is often the hardest answer for a witness to give, and sometimes the witness will speculate or guess, neither of which make a good record;
 
(6) the "I don't remember" answer - leave it up to the attorney to attempt to refresh the witness' recollection with documents; and
 
(7) the "I'd like to take a break" response - if the witness is unsure whether his/her response may be privileged, a break will allow the witness and the counsel to confer. Additionally, it is a good idea to take a mental break from the deposition and come back fresh and revitalized.

Id. at 162-164.
It is important to emphasize to the witness the importance of listening carefully to the question and leaving a pause before responding to allow the defending attorney to make any objections necessary. Explain to the witness that the objections are made to preserve the record and that the witness will have to respond to the question if s/he can. Enumerate that there are only three discrete circumstances when the witness will not have to respond to the pending question: (a) privilege - which should be followed by an instruction from the counsel not to answer; (b) harassment/annoyance/embarrassment; and (c) protective orders. The attorney may want to go through some practice question-and-answers with the witness.
Sometimes there will be critical documents that the counsel will want to review with the witness before the deposition. Handing a document over to a witness does not ensure that s/he will review it - instead, the attorney should go over the documents with the witness. It is up to the attorney to organize the documents and go through them in a manner that will help facilitate the witness' review of it. Documents may be organized chronologically or topically.
Sometimes attorneys have employed videotapes to prepare witnesses who need to prevent certain speech habits or mannerisms from distracting from their testimony, especially if it is to be videotaped. It is important to review with the witness what to wear - the same clothes the witness would wear to court. Jackets should not be removed. The air conditioning should be adjusted, so that the witness is not too hot. Just as the witness would not remove his jacket in court, he should not remove it during the deposition.
Also explain that there may be an opportunity for cross-examination. Final housekeeping tips on witness preparation range from reiterating to the witness the time of the deposition, the place of the deposition, the proper mode of attire, what to bring or not bring, who to look at and who to talk to. It is a good idea to meet with the deponent before the deposition to take care of any last minute questions s/he might have to and to reassure him/her of the process. See also, D. SMALL, Preparing Witnesses: A Practical Guide for Lawyers and Their, Clients (1998).
It should go without saying, but it is important to stress to your witness that they must tell the truth. There is a balance between honestly not remembering a fact that the witness once knew. In that circumstance, the deponent should answer "I don't remember." Counsel should be sensitive to the effect of dozens or scores of "I don't remembers" in a deposition. This will not play well with the jury if the witness is then fully prepared at trial and remembers everything, or if the jury believes the witness should have known these facts. "I don't remember" is not a substitute for preparation.
 
VII. Sample Objections
There are certain objections which must be made at or before the deposition to preserve them from waiver. These are objections which are curable, and include objections to the notice, see Fed. R. Civ. P. 32(d)(1)., objections to the qualifications of the officer, see Fed. R. Civ. P. 32(d)(2), objections to cure problems (e.g., errors in the taking of the deposition, in the form of the questions or answer, in the oath or affirmation, or the conduct of the parties). See Fed. R. Civ. P. 32(d)(3)(B).
It is proper to make objection to the form of the question on grounds, including: These objections include:
 
1. ambiguous;
 
2. unintelligible;
 
3. complex or confusing question;
 
4. compound;
 
5. misleading;
 
6. question calls for speculation;
 
7. lack of foundation or no showing of authenticity; (8) best evidence rule, see Fed. R. Evid. 1001 et seq;
 
8. no showing of personal knowledge, see Fed. R. Evid. 302;
 
9. unfair characterization;
 
10. misstates prior testimony;
 
11. question assumes facts not in evidence;
 
12. argumentative question;
 
13. question calls for an improper lay opinion, see Fed. R. Evid. 701;
 
14. question calls for a legal conclusion;
 
15. asked and answered;
 
16. question calls for an opinion beyond an expert's qualification;
 
17. leading (but only if not an adverse or hostile witness];
 
18. hearsay, if it can be placed within one of the exceptions and thus the objection conceivably is curable, see Fed. R. Evid. 803, 804; and
 
19. non-responsive answer or volunteering.
Rule 32(d)(3)(A) states that objections to the competency, relevancy or materiality of deposition testimony are not waived by failing to make them at the deposition unless the objection could have been cured. Fed. R. Civ. P. 32(d)(3)(A). These non-waivable objections include:

 a. relevancy and materiality;
 
b. prejudicial, see Fed. R. Evid. 403;
 
c. hearsay, unless the testimony can be placed within a hearsay exception, see Fed. R. Evid. 801, 803, 804;
 
d. confusion of the issues, misleading the jury, undue delay, waste of time, or needless presentation of cumulative evidence, see Fed. R. Evid. 403;
 
e. competency, see Fed. F. Evid. 301.
Wait until the question is completed and then state the objection concisely and in a non-argumentative, non-suggestive manner. See Fed. R. Evid. 30(d)(1).
 
VIII. Foreign Deponents and the Hague Convention
More and more often, litigation involves foreign companies or non-citizens. This section will focus on three countries and the taking of foreign depositions of citizens of Japan, the United Kingdom and Germany.
Most states authorize by statute or rule the taking of depositions in a foreign country (1) on notice before a U.S. consular officer or a foreign officials; (2) before a court-appointed commissioner; or (3) pursuant to a letter rogatory. Those state statutes or rules are commonly modeled after Federal Rule of Civil Procedure 29(b). See also, 1 RISTAU, International Judicial Assistance (Civil and Commercial) § 3-2-2 (2000 ed.) ("RISTAU").
Depositions of foreign deponents may be obtained without the aid of foreign authorities only where the witness is willing to testify or produce documents or other evidence voluntarily and where the law of the foreign country does not preclude such voluntary testimony or evidence. 1 RISTAU at § 3-2-3. Pursuant to Federal Rule of Civil Procedure 29, unless the court orders otherwise, the parties may stipulate to voluntary depositions. Deposition notices are authorized under Federal Rule of Civil Procedure 28(b)(1), which provide for foreign testimony "on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States." 28(b)(1).
A. 18 U.S.C. § 3507
As discussed in U.S. v. v. Atiyeh, 402 F. 3rd 354 (3rd Cir 2005), the District Court has authority under 18 U.S.C. § 3507 to appoint a Special Master in a criminal case to preside at a deposition taken out of the country or to serve as an advisor on questions of U.S. law. You should note that the Special Master has no jurisdiction to decide questions of privilege under foreign law.
18 U.S.C. § 3507 is very short, so it is worth repeating in its entirety:

 Upon application of a party to a criminal case, a United States district court before which the case is pending may, to the extent permitted by a foreign country, appoint a Special Master to carry out at a deposition taken in that country such duties as the court may direct, including presiding at the deposition or serving as an advisor on questions of United States law. Notwithstanding any other provision of law, a Special Master appointed under this section shall not decide questions of privilege under foreign law. The refusal of a court to appoint a Special Master under this section, or of the foreign country to permit a Special Master appointed under this section to carry out a duty at a deposition in that country, shall not affect the admissibility in evidence of a deposition taken under the provisions of the Federal Rules of Criminal Procedure.
Minebea Co., Ltd. v. Papst, 370 F. Supp. 2d 302 (D.C. D.C. 2005), is a good example of how the Special Master and the Court can be angered by a party's refusal to produce foreign witnesses for deposition. This is a patent case in which the plaintiff obtained an order from the Special Master requiring the defendant to produce various witnesses located in Germany for American-style depositions in the U.S. and for testimony at trial in the U.S. The defendant objected. The District Court affirmed in part and reversed in part.
The Court considered these factors: (1) that the defendant arranged for an paid for counsel for these witnesses in Germany, and (2) that the defendant arranged for meetings in Germany with its counsel and these witnesses. Defendant argued that even if it had control, it was not obligated to exercise that control. It also argued that it did not have "control" over the witnesses because attorneys do not control their clients.
The District Court found it was dispositive that written agreements existed between the inventors and the Company requiring the inventors to provide testimony in legal proceedings at the Defendant's request. The Court wrote:
As the Special Master concluded:
 
Given the Papst defendants' repeated failures to report completely and accurately as to their communications and their counsel's communications with the German witnesses and with the German authorities, and the Papst defendants' continued reluctance to lay out for this Court the full story of their communications and arrangements with the German witnesses since September 5, the Special Master is constrained to conclude that the communications by and on behalf of the Papst defendants have effectively discouraged and dissuaded all of the German witnesses from appearing in this District for their depositions.
 
R & R 19S at 8. Because the inventors are expressly required to testify at the request of Papst by written contracts, the Court cannot but conclude that Papst's "request" for the voluntary appearance of the inventor witnesses was made with a wink and a nod and that their failure to appear must be attributed to Papst. The Court concludes that Papst has willfully failed to produce these witnesses. If it continues to fail to produce them for testimony at trial, the Court will instruct the jury what adverse inferences may be drawn from Papst's failure to produce the witnesses.

 Minebea, 370 F. Supp. 2d at 310.
B. The Court's Inherent Power to Appoint Special Masters to Supervise Foreign Depositions
Hilao v. Estate of Ferdinand Marcos, 103 F.3d 767 (9th Cir. 1996), is a significant case involving the role of Special Masters in foreign depositions. n3 This case involved our Program co-chair, the Honorable Sol Schreiber, and a regular ALI ABA faculty member, The Honorable Manuel Real. Judge Real appointed Judge Schreiber as the Special Master to oversee the taking of 137 depositions of class members, to be taken in the Phillipines. Judge Schreiber reported his findings in the trial. The jury accepted many of them, awarded more money to some class members than recommended and awarded less money to other class members. The jury awarded compensatory damages of $ 766 million and exemplary damages of $ 1.2 billion.

n3 I would note that I was among 20 lawyers initially appointed by the Court to supervise certain of these depositions, in a process that was truncated after the first two Special Masters encountered political opposition when they traveled to the Phillipines to supervise the first of the 137 depositions. As part of the solution, Judge Schreiber, as Special Master, supervised the taking of all 137 depositions.
 
In supervising the taking of the class member depositions, the depositions were noticed and taken pursuant to the Federal Rules of Civil Procedure, even though they were taken in the Phillipines. Judge Schreiber "evaluated: (1) whether the abuse claimed came within one of the definitions, with which the Court charged the jury at the trial ..., of torture, summary execution, or disappearance; (2) whether the Philippine military or paramilitary was ... involved in such abuse; and (3) whether the abuse occurred during the period September 1972 through February 1986." 103 F.3d at 783. The Special Master recommended ceilings on damages for lost wages and pain and suffering, which were followed by the jury. This procedure was unorthodox in several ways and the reported decisions are worth reading in full. Picking up on a point made in the dissent by Judge Rymer, but disagreeing with its application, the use of a Special Master in this case created "a solution to a major social problem" and used the traditional tools of our federal court system.
If the Court had not used the approach of the Special Master supervising the depositions, making substantive recommendations and using statistical sampling, the 9th Circuit estimated it would have taken about 6 1/2 years for the District Court to have tried all 10,000 claims, handling roughly 30 per month. This would hardly have been feasible or rendered justice or due process to the parties.
C. The Hague Convention of 1970
The Hague Convention of 1970, which codifies the taking of depositions between citizens of different countries on civil and commercial matters, streamlines deposition procedures for the more than forty member-countries, including the United Kingdom and Germany. Although each participating country was allowed to make its own reservations and declarations regarding the applicability of each article of the Convention, the procedure for a U.S. party to depose a citizen of one of the member-countries in that country is less cumbersome than to depose a Japanese citizen in Japan.
Under the Hague Convention, "a Contracting State may . . . request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence." See Article 1 of the Hague Convention.

 A Contracting State shall designate a Central Authority which will undertake to receive Letters of Request coming from a judicial authority of another Contracting State and to transmit them to the authority competent to execute them. . . . Letters shall be sent to the Central Authority of the State of execution without being transmitted through any other authority of that State.

 See Article 2 of the Hague Convention.
Of note, the party scheduling a deposition in a foreign nation who relies on the voluntary agreement of the deponent, rather than obtaining compulsion of law in the foreign country, may risk monetary sanctions should the deponent fail to appear. See e.g., California Code of Civil Procedure § 20250)(2).
1. The Letter of Request
A U.S. party seeking to depose a citizen of a Contracting State should submit an application to a U.S. Court for the issuance of a Letter of Request. See Articles 2?(a), (b), 28(a), and 32 of the Hague Convention (authorizing the issuing authority to send Letters of Request directly from court to court or through a party to the action directly to the executing tribunal); see also Sample Application to U.S. Court for Issuance of Letter of Request under the Hague Convention (attached).
Under Article 3 of the Hague Convention, the Letter of Request shall specify:
 
a. the authority requesting its execution and the authority requested to execute it, if known to the requesting authority;
 
b. the names and addresses of the parties to the proceedings and their representatives, if any;
 
c. the nature and description of the proceedings for which the evidence is required, giving all necessary information in regard thereto;
 
d. the evidence to be obtained or other judicial act to be performed. Where appropriate, the Letter shall specify, inter alia-
 
(1) the names and addresses of the persons to be examined;
 
(2) the questions to be put to the persons to be examined or a statement of the subject-matter about which they are to be examined;
 
(3) the documents or other property, real or personal, to be inspected;
 
(4) any requirement that the evidence is to be given on oath or affirmation, and any special form to be used; and
 
(5) any special method or procedure to be followed that is not inconsistent with the executing State's laws.
 
See Article 3 of the Hague Convention; see Sample Letter of Request; see also, 1 RISTAU, at § 5.
The Letter of Request and accompanying documents should be submitted in duplicate, with a translation into the language of the requested court 1 RISTAU at § 3-3-2, 5-2-1(8); see Article 4 of the Hague Convention. The application for issuance of the Letter of Request should be made to the issuing court in the United States where the action is pending, with notice to the adverse 28(b).
Under Article 7, the requesting party shall be informed of the time and place the proceedings shall take place but the United Kingdom normally appoints a special commissioner to execute the Letter of Request and examine the witness under oath. The parties or the attorneys for the parties will be permitted to be present and to cross-examine the witness. The verbatim transcript of the proceeding will be returned to the court of origin in the state of origin. See 1 RISTAU at § 5-2-2.
2. Germany
a. Civil Cases
In civil cases, where a witness is willing to testify voluntarily, a deposition may be conducted at the American Embassy in Bonn or any of the American Consulates. Depositions may be taken on notice or by issuance of a commission by an American court to a "Consular Officer." See 22 CFR 92.53. The deposition cost is $ 200.00 per hour. Although technically the consular officer is the one taking the deposition, attorneys for either side ask questions orally or in writing. See http://travel.state.gov/germany. Authority for American Consular Officers to depose willing witnesses of German or third-country nationality is derived from Agreements Between the United States of America and the Federal Republic of Germany, T.I.A.S. 9938. n4 Any deposition of German or third-country nationals n5 must be in accordance with the agreements made in this exchange of diplomatic notes.

n4 Key points under the notes are: (a) that absolutely no compulsion be brought to bear on the witness to appear or to provide testimony (e.g., the request to give information may not be called a "summons" nor may the interview be called an "interrogation"); (b) witnesses must give their expressed consent to be interviewed outside the consulate (i.e. at their home or place of business]; and (c) witnesses have a right to be accompanied by an attorney.
n5 The issue of whether non-Germans who do not have a business or residence in Germany may be deposed is presently in dispute.
 
In civil cases where the party must compel the witness to testify, a German judge must ask the questions via a German court proceeding. See http://travel.state.gov/germany. But, an American attorney may request to be present and may pose additional questions through the German Judge. Id. Like requests for service, requests for evidence from involuntary witnesses must also follow the procedures set forth in the appropriate convention. The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, Part VII U.S.C. § 1781 (1977 Supp.); Martindale-Hubbell International Law Digest, Part VII (1993). Basically, the same rules as those for the Service Convention apply. The Letter of Request, as well as questions and all other documents must be translated into German and submitted in duplicate. A model letter of request follows the text of the Convention.
See also, http://travel.state.gov/germany, citing the Report on the work of the Special Commission on the Operation of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters prepared by the United States Delegation at 17 Int'l. Legal Mat. 1417 (Nov. 1978). A useful discussion of the operation of the Convention in the FRG is contained in an article by DONALD R. SHEMANSKI, "Obtaining Evidence in the Federal Republic of Germany: The Impact of the Hague Evidence Convention on German American Judicial Cooperation," International Lawyer, Vol. 17, no. 3, p. 465-487, Summer 1983.
b. Criminal Cases
The Hague Evidence Convention does not apply to criminal cases. Instead, counsel must use written questions submitted via letters rogatory and rely on a German court to handle the matter. This procedure is slow and arduous to execute and return to the requesting American court. See http://travel.state.gov/germany.
c. Administrative Cases
German authorities do not regard The Hague Evidence and Service Conventions as applying to administrative cases. http://travel.state.gov/germany. The German courts may, however, hear requests for both service and evidence in these cases pursuant to letters rogatory.
3. Japan
In order to depose a Japanese citizen in Japan, the deponent must be willing to be deposed; a U.S. Court Order or Commission must issue to the U.S. Embassy or Consulate in the appropriate Japanese city; the deposing party must obtain a Deposition Visa; and the deposing party must make the proper arrangements regarding the deposition's logistics. Fed. R. Civ. Pro. 28(b)(2); 22 C.F.R. 92.57.
A Japanese citizen may be deposed in Japan if a U.S. Court Order or U.S. Court Commission issues to any Consul or Vice-Consul in Japan, which directs the Consul or Vice-Consul to preside over the deposition. 22 C. F. R. 92.58; see also Sample Court Order or Commission (attached). According to 17(1)(e)(ii) of the U.S. - Japan Consular Convention, the deposition must be conducted on U.S. consular premises.
Each person traveling from the United States to Japan to participate in a deposition of a Japanese citizen in Japan must obtain a Deposition Visa; including, without limitation, stenographers, videographers, and attorneys. To obtain a Deposition Visa, one must apply to a Japanese Embassy or Consulate in the United States at least two weeks before the deposition is scheduled to occur. To apply, the applicant must present a copy of the court order or commission along with a request which should include (a) the name and location of the court; (b) the name and occupation of each witness; and (c) a summary of the case. See http://travel.state.gov/iapan_obtaining_evidence.html. See also Sample Request (attached). Failure to obtain a Deposition Visa may be viewed as a violation of the judicial sovereignty of Japan and could result in the arrest, detention or deportation of the participants.
It is the deposing party's responsibility to make the necessary logistical arrangements regarding the deposition. The deposing party must contact the Consular or Vice-Consular to schedule the availability of U.S. consular premises and a U.S. consular officer to conduct the deposition. The date will be reserved no more than three weeks pending the receipt of the court order and a non-refundable scheduling fee of $ 410.00. 22 C. F. R. 22.1, item 69. Since the embassy/consulate does not schedule the appearance of deponents or make arrangements for court reporters/stenographers or interpreters for private attorneys, such arrangements fall to the parties.
4. United Kingdom
a. Civil Case
Based on principles of comity, attorneys from abroad are allowed to depose anyone in the United Kingdom provided they are willing witnesses. No commission from a court is necessary. Id. The American Embassy in London or the consulates in Belfast or Edinburgh (discussed supra) can offer assistance by providing a list of local stenographers. Attorneys should not bring court reporters or stenographers with them from the United States as the United Kingdom requires they have work permits. United Kingdom solicitors may also be retained to take voluntary depositions.
When compulsion is needed to take testimony, two options for conducting deposition exist in the United Kingdom: via the Hague Evidence Convention or by way of a British solicitor.
5. Hague Evidence Convention
The United States and the United Kingdom are both parties to the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters, 28 U.S.C. § 1781 (1979 Supplement). Martindale-Hubbell Law Directory, Volume VII (Selected International Conventions). Pursuant to the Convention, counsel may obtain evidence by a letter of request sent to the central authority in the receiving country. http://travel.state.gov/uk.
The Convention provides a model format for the request, which should include a list of the questions to be posed to the witness by the British court. Counsel may also request permission to directly ask questions of the witness, 28 U.S.C. § 1781, and it is within the discretion of the individual court to grant or deny the request.
As noted above, each country which is party to the Convention had the opportunity to make reservations and declarations regarding the applicability of each article of the Convention to their country. http://travel.state.gov/uk. The United Kingdom has made a reservation regarding the pretrial discovery of documents. All the reservations can be found at the end of the Convention with the Central Authority information. Id. The letter of request must be signed by the judge and sent to the appropriate central authority:
 
Central Authority for England and Wales
 
Foreign and Commonwealth Office Clive House Petty France
 
London SW1, England, U.K.
 
Central Authority for Scotland
Crown Agent for Scotland
Lord Advocate's Department
Crown Office
5/7 Regent Road
Edinburgh EH7 5BL Scotland, U.K.
 
Central Authority for Northern Ireland
 
The Registrar of the Supreme Court For Northern Ireland
b. An Alternative Method
Alternatively, rather than using the Hague Convention, counsel may opt to hire a British solicitor to act as his agent. In that case, counsel should send the solicitor the Letter of Request directly and may then apply for a commission from the British court to take the testimony of the witness.
c. Criminal Cases
American attorneys may take voluntary witness depositions in criminal cases. If the assistance of the U.S. Embassy is required in connection with the taking of a deposition you should contact the American Citizen Services Unit of the Consular Section in London at 44-71499-9000 or by Facsimile at 44-71-495-5012. See.
When the deponent is not willing, then counsel must obtain evidence by way of letters rogatory. See 28 U.S.C. § 1781(a)(2); 28 U.S.C. § 1696; Fed. R. Civ. P. 4(i)(1)(B), 28(b); 4 J. MOORE, Moore's Federal Practice § 28.05.
Sample Application for Letter of Request Issuance
UNITED STATES DISTRICT COURT FOR THE ....District of...
 
AB, Plaintiff v. CD, Defendant
Civil Action No.    
APPLICATION FOR THE ISSUANCE OF A LETTER OF REQUEST FOR THE EXAMINATION OF WITNESSES IN GERMANY PURSUANT TO THE HAGUE EVIDENCE CONVENTION
Plaintiff,    , by its attorneys, respectfully applies for the issuance by the Court of a letter of Request in the form attached hereto as Exhibit A, addressed to the Central Authority in Germany, for the examination of    , a resident of Germany. This Application is made pursuant to, and in conformity with, The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial matters, T.LA.S. 7444, 23 U.S.T. 2555, reprinted in 28 U.S.C. § 1781, ("Hague Evidence Convention"), which is in force between the United States and Germany.
Issuance of the Letter of Request under The Hague Evidence Convention is a proper method for the taking of testimony of persons residing abroad. Rule 28(b), Fed.R.Civ.P.; Pain v. United Technologies Corp., 637 F.2d 775, 788-90 (D.C. Cir. 1980).
Plaintiff requests that the Court approve and sign the attached Letter of Request. Plaintiff further requests that after the Court has signed the Letter of Request, the Clerk of this Court authenticate the Court's signature under the seal of this Court,, and that the Letter of Request be thereafter returned by the Clerk to counsel for the plaintiff. Counsel will promptly cause the Letter of Request to be translated into the German language, as required by Art. 4 of the Hague Evidence Convention, and will transmit the Letter, together with the translation, to the French Central Authority for execution in conformity with Art. 2 of the Convention.
Respectfully submitted,
   
Attorneys for the Plaintiff
Dated:    , 200 .
 
See, 1 RISTAU at § 5-2-1.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that the foregoing Application for the Issuance of A Letter of Request Pursuant to the Hague Evidence Convention, together with the enclosures thereto, was mailed, first class, postage prepaid, on this   , day of   , to the attorneys for the defendant at the following address:
Attorney for the Plaintiff
 
See, 1 Risrau at § 5-2-1.
Sample Letter of Request
UNITED STATES DISTRICT COURT FOR THE ....District of...
 
AB, Plaintiff v. CD, Defendant
Civil Action No.    
REQUEST FOR THE INTERNATIONAL JUDICIAL ASSISTANCE PURSUANT TO THE HAGUE CONVENTION OF 18 MARCH 1970 ON TAKING OF EVIDENCE ABROAD IN CIVIL OR COMMERCIAL MATTERS
 
1. 1. Sender;
2. 2. Central Authority of the Requested State:
3. 3. Person to whom the executed request is to be returned:
4. 4. In conformity with Article 3 of the Convention, the undersigned applicant has the honour to submit the following request:
5. 5. Requesting judicial authority:
 
To the competent authority of:
 
6. 6. Names and addresses of the parties and their representatives

a. Plaintiff.
b. Defendant:

7. 7. Nature and purpose of the proceedings and summary of the facts:
8. 8. Evidence to be obtained or other judicial act to be performed:
9. 9. Identity and address of any person to be examined:
10. 10. Questions to be put to the person to be examined or statement of the subject matter about which he is to be examined:
11. 11. Documents or other property to be inspected:
12. 12. Any requirement that the evidence be given on oath or affirmation and any specific form to be used:
13. 13. Special methods or procedure to be followed:
It is requested that: (1) the parties' representatives or their designees, interpreters, and a stenographer be permitted to be present during the examination; (2) there be excluded from the examination, if permitted under German law, all persons other than the judicial officer conducting the examination of [name of person to be examined], the officials of the German court normally present during such proceedings; (3) the representatives or their designees be permitted to submit additional questions for presentment to [name of person] following his answering of the questions set forth in Section 10 above; (4) a stenographer be permitted to record verbatim the examination of [name of person].
 
14. Request for notification of the time and place for the execution of the Request and identity and address of any person to be notified.
15. Request for attendance or participation of judicial personnel of the requesting authority at the execution of the Letter of Request.
16. Specification of privilege or duty to refuse to give evidence under the law of the State of origin:
14. 17. The fees and costs incurred which are reimbursable under the second paragraph of Article 14, or under Article 26 of the Convention will be borne by:
15. 18. Date if Request:
16. 19. Signature and seal of the requesting authority:
 
20. Attachment: Questionnaire
Sample Court Order of Commission
NAME OF COURT
 
CAPTION
TO ANY CONSUL OR VICE CONSUL OF THE UNITED STATES
UNITED STATES (EMBASSY/CONSULATE) (NAME OF CITY]
UPON THE APPLICATION OF (PLAINTIFF, DEFENDANTS), AND PURSUANT TO ARTICLE 17 OF THE UNITED STATES -- JAPAN CONSULAR CONVENTION,
YOU HAVE BEEN DULY APPOINTED AND YOU ARE HEREBY AUTHORIZED TO TAKE ORAL DEPOSITIONS AT THE UNITED STATES (EMBASSY/CONSULATE) IN (NAME OF CITY), JAPAN, OF THE FOLLOWING WITNESSES WHO WILL APPEAR VOLUNTARILY:
OR
IT IS ORDERED THAT THE DEPOSITIONS ON NOTICE OF THE FOLLOWING WITNESSES BE TAKEN AT THE UNITED STATES (EMBASSY/COSULATE) IN (NAME OF CITY), JAPAN
(NAMES, ADDRESSES, AND EMPLOYER OF WITNESSES) COMMENCING ON OR ABOUT (DATE), (TIME) AND TERMINATING ON OR ABOUT (DATE), (TIME), AND TO MARK ANY DOCUMENTARY EXHIBTTS IN CONNECTION THEREWITH.
COUNSEL FOR DEFENDANT WHO WILL PARTICIPATE IN SAID DEPOSITIONS ARE (NAMES); AND COUNSEL FOR PLAINTIFFS WHO WILL PARTICII'ATE IN SAID DEPOSITIONS ARE (NAMES). THE PROCEEDINGS WILL BE REPORTED BY (NAME OF AMERICAN COURT REPORTER, IF' ONE IS TRAVELLING FROM UNITED STATES TO JAPAN). PLEASE CAUSE THE TESTIMONY OF SAID WITNESSES TO BE REDUCED TO WRITING AND THE DEPOSITIONS SIGNED BY SAID WITNESSES AND ANNEX SAID DEPOSITION TESTIMONY TO YOUR COMMISSION AND CLOSE THE SAME UNDER YOUR SEAL AND MAKE RETURN THEREOF TO THIS COURT WITH ALL CONVENIENT SPEED.
DATE SIGNATURE OF JUDGE
NAME OF JUDGE
SEAL
 
See http://travel.state.gov/japan_obtaining_evidence.html.
 
Deposition Techniques & Problem Areas

By Victoria E. Brieant
Stroock & Stroock & Lavan LLP
Santa Fe, N.M. July 2007

- Discovery Plan
- Rule 30(b)(6) Depositions
- Preparing Your Witness
- Documents Used To Refresh Recollection
- To Videotape Or Not To Videotape
- Form of the Question
- Objections
- Instructions Not To Answer
- Foreign Deponents & The Hague Convention
- Japanese Depositions
 
The Increasingly Popular Federal Rule 30(b)(6)
 
- The Rule
- Party Admissions
- Deposition of Party Representatives
- Limitations of Depositions
- Particularity of Topics to be Discussed
 
This really happened . . .
 
- MR. C   : Off the record.
- MR. G   : I don't want to go off the record with you, Jerry.
- MR. C   : Fine. I'll put it on the record. I object to the fact that you wait a minute before asking every question.
- MR. G   : Jerry, I've been at depositions you've taken, too, I've seen you do the same thing.
- MR. C   : Not the entire deposition. This entire deposition you've been asking about one question a minute, Counsel. A game of chess where we push the clock on either side.
- MR. C   : I didn't realize it was a
- training exercise for young associates.
- MR. G   . I'm a partner, Jerry.
- MR. C   : Congratulations.
- MR. G   : Are you?
- MR. C   : I guess the standards of your firm are not as high as mine.
- MR. G   : I doubt it.
 
Preparing Your Witness

- Preparation Prevents Pain
- Preparation Should Include:

- An overview of the deposition;
- Instruction on how to answer questions;
- Review of any relevant documents.

Deposition Overview
 
- Purpose of the deposition
- Goals of the deposition
- Order of the proceedings
- Likely Topics
Deposition Strategy Tip: How to Answer Questions

- Ignore counsel's abusive or aggressive tactics
- Don't be bullied into submission
- Listen carefully to each question
- Listen to objections for clues to hidden traps
- Don't relax, this is serious
Deposition Strategy Tip

- To preserve attorney/client privilege it may be necessary to prevent a witness from reading work product or privileged documents to prepare for a deposition

Videotaping Depositions

- Rule 30(b)(2) provides for depositions to be videotaped.
- Each Party Bears the Expense of the Recording Method It Chooses
 
- Check Camera Position
- Dress Appropriately
- No Eating
- Check Lighting Position
- Minimize Long Pauses
- Don't Look at the Camera
- Coach Before the Game and at Timeouts
Deposition Strategy Tip

- To Deal With Excessive Coaching, Simply Ask The Expert Witness What The Lawyer Said.
- If Not An Expert, Move For A Court Ordered Limit On Coaching
- Use It At Trial
Form of the Question
 
- Open questions
- Exploring questions
- Clarifying questions
- Closing questions.
Objections

- Federal Rule 32(d)
- Objections to Form of Question
- Non-Waivable Objections
- Court Orders That Limit Objections

Objections to Form of Question
Ambiguous	Unintelligible	Complex or	Compound	
		Confusing	 	
	 	 	 	
No Showing of	Lack of	Calls for	Misleading	
Personal	Foundation	Speculation	 	
Knowledge	 	 	 	
Argumentative	Assumes Facts	Misstates Prior	Unfair	
	Not in Evidence	Testimony	Characterization	
	 	 	 	
Calls for Opinion	Asked and	Calls for a Legal	Calls for an	
Beyond Expert's	Answered	Conclusion	Improper Lay	
Expertise			Opinion	
Leading	Hearsay	Non-Responsive	 	
		Answer or	 	
		Volunteering.	 	

Non-Waivable Objections

- Relevancy and Materiality
- Unduly Prejudicial
- Hearsay
- Confusion of Issues

Limiting Orders May Be Appropriate

- Abusive & Disruptive Behavior
- Consider the Exchange I read to you when we first started. Sometimes videotaping will stop that behavior, sometimes a limiting order is needed.

Sample Order Limiting Objections
 
- Objections shall be made only by stating the objection, including the general identification of the basis for the objection, without argument or further explanation on the record or in the presence of the witness, unless such argument or further explanation is requested by the deposing counsel. The objecting counsel may provide a brief comment to assist in clarifying the question if necessary and helpful.
 
- The deposing counsel shall not make arguments on the record or in the presence of the witness as to any objection without first giving the objecting counsel the opportunity to make such arguments.
 
- Counsel shall refrain from personal derogatory remarks about other counsel on the record.
Instructions Not To Answer

- Caution - May lead to motions practice
- Irrelevant, poorly phrased or waste of time is not sufficient to instruct not to answer
- Adequate preparation is critical

Use With Care
 
- Rule 30(d) gives appropriate parameters

- Protect a Privilege
- Enforce a Court Ordered Limitation
- To Prevent a Bad Faith Deposition

Foreign Deponents & Hague Convention

- 1970 Hague Convention
- Germany
- Japan
The Hague Evidence Convention of 1970
 
- 1970 Hague Convention

- A U.S. party must apply to the Court for a Letter of Request to issue
- The U.S. Court must issue a Letter of Request to the Country's Central Authority
- Subject to that Country's Reservations, the Letter of Request is Executed
Taking Depositions in Germany
 
- Civil Cases with a Voluntary Witness
- Civil Cases with an Involuntary Witness
- Criminal Cases
Taking Depositions in Japan
 
- Voluntary
- U.S. Embassies or Consulates
- U.S. Court Commission
- Japanese Deposition Visa
- Room Reservations
- Court Reporter & Translator/Checker
Deposition Strategy Tips
 
- Tolerate Aggressive Checkers
- Two translators are better than One
- One Checker is Enough
- Who pays?
- Translate your objections
- Translate the translator
- Make everybody swear-in
- Jury Instruction
Translation Nightmare

- Q ISN'T IT A FACT THAT THESE ARE DIAGNOSTICS?
- A OKAY. WHAT WE DESIGNER MADE IS SUCH WHICH CAN DETECT FOR IT AND STOPPED MACHINE AND INFORM SOMEONE SOMETIMES SOFTWARE WHAT'S IN THE FIGURE HAPPENS.
- Q MAY I ASK FOR THE ANSWER TO BE READ BACK?
- (WHEREUPON, THE PREVIOUS ANSWER WAS READ BACK BY THE COURT REPORTER.)
- Q: SO THESE DEVICES DIAGNOSE THE PROBLEM OR TROUBLE?
- A HARDWARE ITSELF CANNOT HAVE THE FULL FUNCTIONS OF MAINTENANCE OR DIAGNOSIS SOFTWARE.