1. FUNDAMENTALS FOR TAKING AND DEFENDING A DEPOSITION
Moderator: Panelists: September 21, :00 a.m. – 10:00 a.m.
Lynn Dummett
Director & Senior Counsel,
Allianz Global Investors U.S. Holdings LLC
Sharon Dent
Associate General Counsel, Walmart
Melissa Brown Sladden
Senior Counsel,
Chevron U.S.A. Inc.
María D. Meléndez Partner,
Sidley Austin LLP

2. FUNDAMENTALS FOR TAKING AND DEFENDING A DEPOSITION
AGENDA
Overview
Fundamentals
Taking Depositions
Defending Depositions
Special Considerations for Expert Depositions
Conclusion/Questions

3. Overview

4. OVERVIEW: PREPARATION IS KEY
The key to a successful deposition is preparation, preparation, preparation.
Proper preparation usually takes more time than the deposition itself.
Whether you are taking or defending a deposition, carefully consider the goals of each deposition, which will help with strategy and planning.

5. OVERVIEW: TYPES OF DEPOSITION
Discovery Deposition: Learn the basis of an opponent’s case/develop information helpful to your case.
Evidentiary/Trial Deposition: Preserve or “lock down” testimony to ensure a witness does not try to change his/her version of events later.
Hybrid Deposition: Many depositions will not fit completely into either category but will be a combination of the two.

6. OVERVIEW: KNOW THE RULES
Federal Rules:
FRCP 30
30(b)(6) Witnesses
FRCP 31
FRCP 32
FRCP 45
Applicable state and local rules
Other important considerations
Number of Depositions
Witness Availability
Time Limit

7. Fundamentals: Taking Depositions

8. TAKING DEPOSITIONS: STRUCTURE YOUR STRATEGY
Who are you deposing?
In which order are you taking the depositions?
Why are you deposing each witness?
What facts/admissions do you want to elicit from each witness?
Where will the deposition take place?
Will the deposition be videotaped?
What can you learn about your witness before the deposition? .

9. TAKING DEPOSITIONS: THE EXAMINATION
Take Charge. Be Confident and Courteous.
It is your deposition, and you should run it your way.
Get the information you need, but do not slay the witness or opposing counsel.
Your attitude should be professional and non-hostile. At best, the witness should want to help you – not fight you.
Structure Your Examination: There Isn’t One Right Way.
Use an outline of topics or a list of questions to conduct the examination, but be flexible to ensure you explore unexpected topics as well as your intended list of topics.
Chronological examinations are often the easiest to follow and helpful in making sure that you have not left any stone unturned.
However, sometimes the documents dictate the flow of the deposition.
Other times, you might want to elicit certain testimony first that will lock the witness in for answers to pointed, more controversial topics later in the deposition.
Many examining lawyers begin the deposition by going over admonitions with the witness. Others choose to jump right into the questions depending on the amount of ground to be covered.

10. TAKING DEPOSITIONS: THE EXAMINATION
Questioning Technique
Your goal should be to get the witness talking.
Lowering the tone of your voice and asking the witness for help may get him/her to explain something unfamiliar to you.
Do not interrupt or talk over the witness. Wait for an answer.
Maintain a quick pace to get the deponent into a rhythm and conversation.
Use expression, spacing and timing to put the witness at ease and to avoid objections.
Sequence Your Questions Like a Funnel
First, ask broad questions.
Then, directed questions.
Finally, you can use narrow questions to nail down precise testimony on certain facts.

11. TAKING DEPOSITIONS: THE EXAMINATION
Carefully Phrase Your Questions
Use short, specific, clear, self-contained questions; refrain from using compound questions.
If you need to ask broad questions, explain what you want and ask the questions as clear instructions (e.g., “Tell me everything you remember about that meeting;” “Tell me exactly what you did after the conversation;” “Please tell me exactly what steps you took.”)
Do not rely too heavily on leading questions. You want the witness to state facts (i.e., I recall X).
Limit the use of hypotheticals unless they are necessary to get the witness focused/talking.
Recapitulate, summarize and rephrase to get the testimony you need.
BUT if you get a good answer, you may want to move on and not give the witness a chance to reconsider or qualify through an attempt to summarize or rephrase.

12. TAKING DEPOSITIONS: THE EXAMINATION
Listen and Follow-Up
Listen to the answers carefully.
Get clear responses. Gestures and colloquialisms (e.g., “uh-huh,” “mm-hmm”) are not sufficient.
When you receive generalizations and opinions in response to your questions, ask follow-up questions, and request further specificity and clarification.
Try to lock down the deponent’s testimony (e.g., if the deponent does not recall, ask what it would take to refresh his or her recollection. If the deponent gives you a list as part of an answer, ask, “Is there anything else?”).
If the witness answers that he/she does not remember “specifically,” always ask if the witness remembers “generally.” It can often be an avenue to good testimony that you can then follow up with “specifically.”

13. TAKING DEPOSITIONS: EXHIBITS
You should make sure you have numerous copies of any documents you may use.
The court reporter will mark each exhibit.
When asking a question about a document, try to refer to it by its exhibit number or use a specific description of the document.
Be prepared to:
Authenticate each exhibit.
Refresh recollection.
Impeach testimony.
Obtain an explanation of the meaning of language contained in the documents.

14. TAKING DEPOSITIONS: DEALING WITH OBJECTIONS
Usually, ignore them and instruct the witness to answer. You want to establish a dialogue with the witness, not the lawyer.
If it is a form objection, try to rephrase the question.
Where you encounter a privilege objection, consider rephrasing your question to get the non-privileged information you need.
If counsel instructs the witness not to answer a question, clarify whether it is based on privilege grounds or broader grounds such as confidentiality.
Do not officially “close” the deposition if there are questions that still require an answer/instruction not to answer.

15. TAKING DEPOSITIONS: DEPOSITION DON’TS
Don’t let your adversary control your questions under the guise of clarifying or rephrasing, or by turning to the witness and saying “What she means is . . .”
Don’t be lured into explaining or justifying your questions. This is not a negotiation and you are not the witness.
Don’t permit the defending attorney to initiate conferences with the witness while a question is pending. If it happens, note the conference on the record, especially if the deposition is not being videotaped.
Don’t make a threat that you are not prepared to carry out.
Don’t engage in heated argument. Your actions will speak louder than your words.

16. Fundamentals: Defending Depositions

17. DEFENDING DEPOSITIONS: BEFORE THE DEPOSITION PREP SESSION
Prepare Yourself
Whose Deposition Are You Defending?
Evaluate the deponent’s role in the case, personality, intelligence, articulateness and mannerisms.
What Are the Main Case Themes on Both Sides?
Outline these themes and develop a plan for explaining them to the deponent. Understanding key case themes will help the deponent respond to an unfamiliar document during the deposition.
It is just as important to focus on your opponent’s goals for the deposition. Understanding your opponent’s goals can help refine your preparation.
Prepare an Outline for the Prep Session
Include prior testimony by this witness and others so you will be alert to any inconsistencies and anticipate questions by opposing counsel so that you can mock-depose the witness to gauge readiness and response.

18. DEFENDING DEPOSITIONS: AT THE DEPOSITION PREP SESSION
Prepare Your Witness
Above all, your prep is designed to make sure that there are no surprises at the deposition.
Explain the process and structure of the deposition and how to answer questions.
To preserve the attorney-client privilege, the witness must not discuss the prep or testimony with anyone apart from the attorneys or it could be discoverable. Ensure that the witness understands this.
Review documents with the witness that are likely to be discussed at the deposition.
Be careful about showing certain documents, especially those that have not been produced (including privileged documents), as they might become discoverable.
Confirm that the deponent does not have any responsive, unproduced documents. It can be very embarrassing during a deposition to have a deponent refer to documents of which you are unaware or that you did not produce.
The deponent should not make notes during the deposition prep or at the deposition.
Do a short “mock” deposition to help the witness understand how to answer questions and to help you highlight issues (i.e., rambling, uncomfortable with silence, prone to speculate, etc.).

19. DEFENDING DEPOSITIONS: SPECIAL CONSIDERATIONS FOR 30(b)(6) DEPOSITIONS
The party seeking discovery through a Rule 30(b)(6) deposition is required to describe “with reasonable particularity the matters for examination.”
30(b)(6) deposition testimony binds the company in that the company designates the witness as a representative capable of testifying “about information known or reasonably available to the organization.”
The company has a duty to prepare its witnesses with respect to the topics specified in the deposition notice.
It is important that the witness has sufficient knowledge about the topics designated.
In order to gain this personal knowledge, a 30(b)(6) witness may need to interview employees, review documents, review prior deposition testimony and exhibits and review certain corporate documents.

20. DEFENDING DEPOSITIONS: RULES OF THE ROAD FOR THE WITNESS
Answer the question asked. Answer it truthfully. And then stop.
Tell the TRUTH. This is a principle of survival, as well as morality. If you realize that you may have made a mistake in your testimony, inform your attorney at a break and, after the break, your attorney can let the examiner know that certain mistaken testimony requires clarification/correction.
LISTEN to the question. This is harder than it sounds. For some witnesses, it helps to answer in complete sentences that incorporate or restate the question so it is clear what they are answering.
PAUSE before responding, both to allow your attorney to object and to ensure that you understand the question. You set the pace of the deposition, not your examining attorney.

21. DEFENDING DEPOSITIONS: RULES OF THE ROAD FOR THE WITNESS
Ask to have any vague, unclear or confusing questions rephrased or repeated, as many times as necessary, to ensure you understand the question before you answer it.
DO NOT:
Volunteer information or try to anticipate the next question.
Be afraid or embarrassed to say, “I don’t know” or “I don’t recall,” if it is true.
Guess or assume;
Treat a deposition as a memory test, in which you are required to help or satisfy the examiner, or to have answers for all of the questions; or
Let the examiner twist “I don’t know” or “I don’t recall” into something more like “yes” or “no,” if it isn’t true.
Once your answer is complete, stop talking. Some examiners use a “pregnant pause” to embarrass witnesses into blurting out additional information. Do not fill the silence.

22. DEFENDING DEPOSITIONS: RULES OF THE ROAD FOR THE WITNESS
Pay close attention to your counsel’s objections, instructions and questions. It is important to understand the purpose and meaning of various objections, including:
Vague and ambiguous
Lacks foundation
Assumes untrue facts
Compound
Asks for an interpretation of a contract clause that speaks for itself
Asked and answered

23. DEFENDING DEPOSITIONS: RULES OF THE ROAD FOR THE WITNESS
Review documents carefully before answering, take all the time you need to review an exhibit, and distinguish among:
Things you actually know and remember;
Things you had forgotten, but as to which a question or document “refreshes your recollection” (which means actual memory refreshment, not deductive reasoning);
Documents you prepared or are otherwise familiar with containing statements about which you have no current recall, even though you may have known about it at one time; and
Completely unfamiliar documents.
Do not feel obligated to accept an examiners characterization of facts or earlier testimony, or to have words put in your mouth. If you testified earlier that you were “aware” of or “concerned,” do not let the examiner lead you incrementally into saying that you were “alarmed,” “frightened,” and ultimately, “scared to death.”
Remember, don’t let an examiner make a document improperly testify through you.

24. DEFENDING DEPOSITIONS: RULES OF THE ROAD FOR THE WITNESS
Be wary of categorical terminology in questions and answers (i.e., “always,” “never”). Similarly, be sensitive to generally phrased questions that call for an opinion, a prediction or a view on “normal procedure.”
Watch for conditional questions and answers. There is a huge difference between “What would you have done next?” and “What did you do next?”
When answering the question, choose the word that clearly means what you intend.
Be as specific as the question requires and your memory permits. It is usually a bad idea to characterize your own memory – e.g.,“I have a slight recollection” or “I have a vivid memory.”
Frequently, the correct response is that the answer might require further thought or research, or that you simply do not know.
A truthful answer may be, “I don’t know. It would depend on the facts and circumstances. It would be speculation for me to try to answer that question.”
On the other hand, if you do know, give the answer truthfully.

25. DEFENDING DEPOSITIONS: AT THE DEPOSITION
Control the Environment As Much As Possible
Try to control the timing, location and pace of the deposition.
If videotaped, make sure your witness looks ok before the taping begins. Make the videographer change the angle, zoom, etc., to make sure your witness looks as good as possible.
Ensure a “safe” environment in which the deponent has time to think about answers without harassment or intimidation.
Request breaks every 60 minutes.
Be aware that opposing counsel may ask your witness about the substance of your conversation during a break.
Always know the local rules, as in some jurisdictions those conversations are privileged and in other jurisdictions they are not.
The defending lawyer also needs to know the time permitted for the deposition under local rules, and when to enforce that limit.

26. DEFENDING DEPOSITIONS: AT THE DEPOSITION
Handling Questions
You are not simply there to observe and ask follow-up questions, if even needed. Make sure the deponent knows that you are there to protect him or her.
If the witness begins to answer a question before it is finished, interrupt and remind the witness that he or she should wait for the lawyer to finish the entire question before answering.
Just as the witness should be alert to problem questions (such as ambiguous questions or those with prefatory language or premises that are at odds with her prior testimony), you also should be alert to those questions and assert necessary form objections.
Occasionally, if the adversary does not protest, defending attorneys try and give short explanations of the basis for objections. This helps the witness understand the problems with the questions.
Object if the questioner misquotes or mischaracterizes the deponent’s earlier testimony.
Be very alert for trick questions where the questioning attorney assumes facts not in evidence, uses false implications and/or half-truths, or puts words in the witness’ mouth that you know to be untrue.

27. DEFENDING DEPOSITIONS: AT THE DEPOSITION
Making Objections
You should make form objections, but objections as to relevance, hearsay, etc. generally are preserved for trial.
Form objections consist of objections where the examiner could correct the problem by re-asking the question. The usual practice is simply to state the objection to form.
Be prepared to instruct a witness not to answer questions, including questions that are outside the scope of the deposition, designed to badger the witness, and/or would require the witness to waive any privilege.
Be alert to confidential or sensitive information and know when to have part of the transcript sealed or marked confidential. If a confidentiality/protective order or similar stipulation exists, carefully review it prior to the deposition and bring a copy with you.
Consider whether it makes sense to call chambers during the deposition. This technique should be used sparingly, in order to avoid potentially irking the judge.

28. DEFENDING DEPOSITIONS: AT THE DEPOSITION
Think carefully before deciding to cross your own witness.
The two main reasons to question your own witness are:
If the witness will not be available at trial, or
There was a mistake or mischaracterization earlier in the deposition that you want to immediately clarify or correct.
Keep in mind that crossing your own witness is an option when you need to clear up a mistake or add context to answers given during direct examination.

29. Special Considerations for Expert Depositions

30. SPECIAL CONSIDERATIONS FOR EXPERT DEPOSITIONS
Under the Federal Rules of Evidence (FRE) 702, the types of expert testimony that can be admitted is broad (scientists, economists, forensic accountants, psychologists, engineers, industry expert, etc.).
Timing of Expert Depositions: Under FRE 26(b)(4)(A), a party can depose an expert at any time, however, expert depositions are normally conducted after fact discovery is complete.
Purpose of Expert Depositions:
Pin down the expert's opinions
Set up the basis for a Daubert motion
Set up the basis for cross-examination at trial
Increase chances of settlement

31. SPECIAL CONSIDERATIONS FOR EXPERT DEPOSITIONS
Preparation:
Review the Expert’s prior testimony/opinions
Consider whether the Expert has the requisite ability to give the opinion
Is the Expert giving an improper legal opinion?
Review the Expert Report in detail (and the attachments/back-up)
Questioning:
Elicit all of the opinions the expert has given (walk through each)
Probe the basis for each opinion
Follow-up with questions on the “who, what, where, how and why”
Lock the Expert into a conclusion
Challenge the Expert with contrary evidence, opinions or publications
Are there generally accepted texts or other experts opinions they will have to agree with?
Use hypotheticals
Probe any bias

32. SPECIAL CONSIDERATIONS FOR EXPERT DEPOSITIONS
Defending:
Ensure the Expert is familiar with the key issues in the case
Make sure the Expert has read the briefing and any witness testimony to avoid contradiction or identify any issues they may have with a position or testimony prior to their testimony.
It is important that they understand the basis for damages or challenging damages so they do not undermine your client’s position.
Carefully go through the Expert Report of both your Expert and the other parties’ Expert
Go over your Expert’s opinions and the basis for any factual assertions
Remind the Expert to stick to their Report (it is not helpful to try and be helpful)
Identify issues for Cross-Examination/Weaknesses
Counsel the expert to avoid hypotheticals
Explore prior testimony/opinions
Practice Cross-Examination

33. Conclusion/Questions

34. TAKING DEPOSITIONS: SAMPLE QUESTIONS TO ASK
What did you do to prepare for the deposition?
This question is particularly important for 30(b)(6) witnesses who are required to be prepared to answer the questions in the deposition notice.
Who was present when you prepared for the deposition?
If someone outside of the attorney-client relationship was present, the privilege may have been waived and you can ask substantive questions about the conversation.
Have you been deposed or testified in court before?
If the answer is yes, you can use the details of prior testimony to attack the witness.
Have you ever been arrested?
Opposing counsel will likely object, but this is a proper question. Felony convictions and convictions for fraud, dishonesty, or moral turpitude are admissible for impeachment.

35. DEFENDING DEPOSITIONS: SAMPLE OBJECTIONS TO MAKE
What did you and your attorney discuss during your preparation session?
Object on privilege grounds and instruct the witness not to answer. If no third parties were present, the response to this question is privileged.
Tell me about when you ran the red light, hit the oncoming car, and drove into the ditch?
Object to the form of this question. This is actually three questions in one. Also, depending on what has already been covered in the deposition, this question may be objectionable for lack of foundation.
Do you think running the red light was negligent?
Object as calling for a legal conclusion. The witness may have an opinion on this but the answer to this question is to be decided by the trier of fact.
What would have happened if you had not run the red light?
Object as calling for speculation. This question is asking the witness to talk about what should have been done and could lead to harmful admissions.

36. DISCLAIMER
This program is for information only and does not constitute legal advice. 
This presentation does not create an attorney-client relationship.
The views expressed are the personal opinions of the panelists and should not be attributed to anyone else, including their employers.