Secrets of a Super Deposition
Mary Quinn Cooper
McAfee & Taft
1717 S. Boulder Ave., Suite 900
Tulsa, OK 74119
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Mary Quinn Cooper serves as national trial counsel for major corporations and
defends product liability claims and class actions across the country. For the last 25
years she has represented Ford Motor Company and General Motors nationally in
challenging cases with high exposure. Ms. Cooper has also tried cases for various
other manufacturers and Fortune 500 companies and has defended clients in profes-
sional malpractice matters. Ms. Cooper’s experience and expertise have earned her
perennial recognition in The Best Lawyers in America (commercial litigation and
product liability litigation defense) and Oklahoma Super Lawyers, where she has
been named to its list of “Top 50 Oklahoma Super Lawyers” and “Top 25 Women
Oklahoma Super Lawyers.” She has been named “Best Lawyers’ Tulsa Product Lia-
bility Litigation Defense Lawyer of the Year” in both 2011 and 2012, an honor only
given to a single lawyer in each legal specialty in each community. She has also been
awarded the “Golden Rule Award” presented by the Tulsa County Bar Association to
a lawyer who exhibits the highest standards of fairness, integrity, and professional
Secrets of a Super Deposition
Table of Contents
I. Top Ten Tips for Taking a Deposition ......................................................................................................139
II. Rules You Should Be Familiar with Prior to the Deposition ...................................................................141
A. Speaking and Coaching Objections Are Not Permitted ...................................................................141
B. Would You Like to Agree to the “Usual Stipulations”?.....................................................................144
C. Counsel Can Instruct a Witness Not to Answer Only in Limited Circumstances..........................145
D. Conferring with the Client-Witness During a Deposition Is Prohibited in Some Jurisdictions ...145
1. State Local Court Rules and Statutes .........................................................................................146
2. Federal Authority ........................................................................................................................147
E. When and Whether to Call a Judge ...................................................................................................149
F. Errata Uses and Abuses ......................................................................................................................149
1. The Majority View.......................................................................................................................150
2. The Minority View ......................................................................................................................150
Secrets of a Super Deposition ❖ Cooper ❖ 137
Secrets of a Super Deposition
The purpose of this paper is two fold. The first goal of this paper is to give you the Top 10 Tips for a
“super” deposition. (No, I didn’t choose the name of this presentation.) These have been developed after 25
years of practice and hundreds of depositions. It is also the result of hard lessons learned from the frustration
of going to back to a deposition transcript when preparing motions or for trial and seeing that the question
and answer wasn’t quite as airtight as you thought it would be. Inadvertently you have given the plaintiff a way
to worm off the hook because you didn’t quite make the witness commit, or the way the question becomes
useless at trial because it reads confusing, and will not make sense to a jury.
The second portion of the paper is much more boring, but very important. It has the many rules that
are important for you to know in order to routinely take good depositions.1
I. Top Ten Tips for Taking a Deposition
1) Start a deposition by explaining the process to the witness. Get the agreement of the wit-
ness that if she doesn’t understand a question, she will tell you that. If she doesn’t then you may
assume that she understands the question. This may not seem important during the deposi-
tion, but it is extremely important if you use the deposition testimony in a brief or when you try
a case. If you do not have this affirmative agreement from the witness at the beginning of the
deposition, then when you attempt to impeach her at trial, she can say that she misunderstood
the question, didn’t know what you meant by a certain word, or otherwise try to distance her-
self from the answer given in the deposition. Likewise, the claim can be made when you move in
limine to exclude evidence or move for summary judgment based on deposition testimony.
2) Always be professional and courteous. Remember that the deposition transcript and/or video
may be seen by the jury and judge in the case. Govern yourself accordingly. Your tone of voice
and your volume is captured by video. You will be faced with inappropriate behavior and objec-
tions. Do not be drawn into emotional responses. As you respond, remember that a jury and
judge may review the transcript or watch the video. Behave in a manner that will seem appropri-
ate to both.
3) Use an outline so you don’t forget anything, but do not tie yourself to it.
Part 1 of this tip – Write your own outline; you can use an office or someone else’s “standard”
outline to help generate your outline, but don’t use a generic outline. It helps you understand the
case, and forces preparation. Think. What do you want to accomplish by taking the deposition?
Start early. What information do you need from your client or your expert in order to take the
deposition of the opposing party, a corporate witness, a fact or an expert witness? What docu-
ments do you need to review to prepare? What documents would be beneficial to use to assist in
the examination of the witness. (For instance, prior statements, medical records, photographs,
letters, discovery responses, articles.)
You can’t start your preparation the day before you take the deposition. Leave yourself adequate
time to gather the information that you need to be knowledgeable. Knowledge is power. And to
be knowledgeable, you must prepare.
Your outline should have every category of information that you are interested in inquiring
about and questions as well. With that said, Part 2 of Tip 3 comes into play.
Secrets of a Super Deposition ❖ Cooper ❖ 139
Part 2 - Don’t tie yourself to your outline. It is vital to have a plan and write it down so you don’t
miss important areas or questions. However, your outline should be your safety net, not your
script. Many times people are so anxious to follow their outlines that they fail to pick up on good
lines of inquiry. One good way to avoid this is to segregate your outline into sections as opposed
to a continuous document. Obviously, those sections are determined by the subject of the law-
suit. For a personal injury case those areas might include background, qualifications, day of the
accident, opinions, materials relied upon, others to whom the witness has spoken, what told and
by whom. Each category should be a separate outline within itself. For instance the background
outline may be Background Page 1 and Background Page 2. When you move onto qualifica-
tions, title the section and number the pages separately. While this may sound counterintuitive
or rudimentary, 10 three page outlines are easier to manage than one 30 page outline and allows
you to move naturally from one subject to another. While you may have planned to go from
background to qualifications, the flow of the deposition may cause you to flow more naturally
into other areas. By having your outline organized in a way that you can easily move from sec-
tion to section, it allows you to get the most from the deposition.
When you believe that you are finished with the deposition, take a break and go through your
entire outline. Make sure that you have covered all the areas that you planned on covering. You
will have missed some things – your outline will prevent you from failing to go back and clean up.
4) Be curious. Listen to the deponent’s answer for follow-up questions instead of thinking about
the next question. This goes back to Tip No. 3. If you are worried about following your out-
line you will miss hints and cues that the deponent is giving you in his or her answers. Listen,
inquire. When someone gives an answer that she “isn’t sure” or “doesn’t want to speculate or
guess”, tell her that you do want her to guess. Get information. Once you have the information,
decide what to do.
5) Make sure you get the sound bite. If a witness gives a good nugget in an otherwise long answer
with extraneous information, ask a follow-up question to just get the nugget for purposes of
trial. If a witness gives a long rambling answer but within the answer gives a couple good lines
or great lines, you need to go back and make sure the record is clear. Otherwise, the good nugget
gets lost in the pages of discussion and it becomes difficult to use in motion practice or at trial.
6) Leave well enough alone. This is a delicate balance with No. 4. Don’t push a good thing – re-ask-
ing a question when you already have a good answer for it alerts the witness and his lawyer that
he has made a mistake and gives him a chance to clean up his answer.
7) Define the areas of an expert’s expected testimony. If the witness is an expert, ask her what
her opinions are, whether they’re final, read them back to the expert, and confirm she has no
other opinions. Asking an expert witness what she is not going to testify to is almost as impor-
tant as what she is are going to testify to. Have a plan, if possible, as to how you may be able to
exclude the witness at a future time if they are adverse to your position. This plan is vital to mak-
ing sure that you have the information that you need to support your motion. Know the Daubert
standards or the expert qualification standards in the jurisdiction where the matter is pending
and make sure that you can hit each prong. Nothing resonates with a judge more than a witness
admitting that they have not done the work required.
8) Make the witness answer the question. Nail her down. This cannot be overemphasized. If you
ask a question, the witness may spend lots of time answering another. When you want to listen
140 ❖ Sharing Success—A Seminar for Women Lawywers ❖ February 2012
and gather information, it is vital that you get an answer to the question. This dovetails with Nos.
6 and 7.
9) Tell your side of the story. If you have presented your company witness in a corporate wit-
ness deposition and he has been raked over the coals, avoid the temptation to be thankful when
opposing counsel has finished and blurt “no questions.” Treat it like trial. Take a break, get your
witness to take a deep breath and go back on the record and ask about his qualifications, back-
ground, work history. Ask him to explain what you perceived were problems in the testimony
given to the opposing counsel. Give the jury a chance to get to know and like your witness. This
takes the sting out of the opposing counsel’s examination. There is nothing worse than sitting
in trial and having the other side play a video deposition of your corporate witness where you
haven’t asked a single question.
10) There is no such thing as a stupid question. You are taking a deposition to gather information,
to learn. Don’t let a witness infuriate you into not asking questions. As cliché as it sounds, the
only stupid question is the one you don’t ask.
II. Rules You Should Be Familiar with Prior to the Deposition
“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.”
Hickman v. Taylor, 329 U.S. 495, 507 (1947). An effective deposition will help you gather the facts for your
case. Part of conducting a super deposition is knowing the applicable rules.
A. Speaking and Coaching Objections Are Not Permitted
In 1979, in a case involving a 26 volume, 3,000 page deposition taken intermittently over the course
of a year, Supreme Court Justice Powell in a concurring opinion noted that “discovery techniques and tactics
have become a highly developed litigation art—one not infrequently exploited to the disadvantage of justice.”
Herbert v. Lando, 441 U.S. 153, 179 (1979).
By the early 90’s reports in the Second and Seventh Circuit flatly stated that methods of taking and
defending depositions were “exercises in competitive obstructionism,” A Report on the Conduct of Deposi-
tions, 131 F.R.D. 613, 613 (1990), and “abusive and unethical.” Interim Report of the Committee on Civility of
the Seventh Federal Judicial Circuit, 143 F.R.D. 371, 388 (1991). Improper directions not to answer, suggestive
or coaching objections, and “conferences” with the deponent were the primary evils addressed. Multiple and/
or unnecessary objections, statements such as “if you remember,” “if you understand”, etc., prolonged deposi-
tions and abusive and harassing deposition questioning were among the other deposition tactics in use.
Prior to the 1993 amendments to Rule 30, the Federal Rules of Civil Procedure did not contain spe-
cific limitations on the conduct of lawyers during depositions. Rule 30 instructs that objections to evidence
during a deposition must “be stated concisely and in a non-argumentative and non-suggestive manner.”
Fed. R. Civ. P. 30(c)(2). This language was added, according to the 1993 advisory committee notes, to curtail
lengthy objections and colloquy which often suggested how deponents should answer. Fed. R. Civ. P. 30 advi-
sory committee’s note.
Objections that are argumentative or that suggest an answer to a witness are called “speaking objec-
tions” and are improper under Rule 30(c)(2). Jadwin v. Abraham, No. 1:07-cv-26-OWW-TAG, 2008 WL
4057921, at *6-7 (E.D. Cal. Aug. 22, 2008). It is commonly recognized that “[s]peaking objections and coach-
ing objections are simply not permitted in depositions in federal cases.” McDonough v. Keniston, 188 F.R.D. 22,
24 (D.N.H. 1998); see also Deville v. Givaudan Fragrances Corp., No. 08-2034 (GEB-MCA), 2010 WL 2232718,
Secrets of a Super Deposition ❖ Cooper ❖ 141
at *6-8 (D.N.J. June 1, 2010); AG Equip. Co. v. AIG Life Ins. Co., No. 07-CV-556-CVE-PJC, 2008 WL 5205192, at
*2-4 (N.D. Okla. Dec. 10, 2008); Heriaud v. Ryder Transp. Servs., No. 3 C 289, 2005 WL 2230199, at *2-9 (N.D.
Ill. Sept. 8, 2005); Auscape Int’l v. National Geographic Society, No. 02 Civ. 6441(LAK), 2002 WL 31014829, at
*1 (S.D.N.Y. Sept. 6, 2002); Damaj v. Farmers Ins., 164 F.R.D. 559, 560 (N.D. Okla. 1995). Coaching and speak-
ing objections are also precluded in many state courts. See, e.g., Laddcap Value Partners, LP v. Lowenstein
Sandler P.C., No. 600973, 2007 WL 4901555, at *4 (N.Y. Sup. Ct. Dec. 5, 2007); Alt v. Cline, No. 94-2076, 1995
WL 377618, at *2 (Wis. Ct. App. June 6, 1995) (explaining that speaking objections “undermine the deposing
attorney’s ability to obtain an accurate record of the witness’s-and only the witness’s-testimony”).
Speaking and coaching objections can lead to sanctions. The following opinion, set out in its entirety
and with the names changed, presents an extreme example of speaking and coaching objections getting out of
Before the court is [Plaintiff ’s] Emergency Motion to Forbid Attorney [Defendants’ Counsel]
from Making Improper Objections at Depositions and for Sanctions (Dkt. # 218). The court has
considered the motion, Defendants’ opposition (Dkt.# 221) and Plaintiff ’s reply (Dkt.# 223).
The parties’ multiple discovery disputes in this contentious litigation began even before the par-
ties submitted separate proposed discovery plans. The court has conducted many discovery and
dispute resolution hearings and conferences and has considered and decided a dozen or more
discovery motions. Thankfully, after several extensions and adjustments, the discovery cutoff has
In the current motion Plaintiff seeks an order prohibiting Attorney [for Defendants] from mak-
ing improper speaking, argumentative, suggestive, and coaching objections during depositions
in violation of Rule 30 of the Federal Rules of Civil Procedure. It was filed on an “emergency”
basis because Plaintiff ’s counsel expected the same problems would arise in two depositions
scheduled within days of filing this motion. My practice is to preliminarily review every motion
called an “emergency” the day it is filed. However, other cases, motions filed, scheduled hear-
ings and settlement conferences do not afford me the luxury of dropping everything to hear a
party’s perceived “emergency” especially when it involves a case that has already taken an inor-
dinate amount of the court’s time (to the detriment of other litigants who need decisions in their
matters) to resolve yet another in a series of routine discovery disputes. Thus, as the motion has
worked its way up the tall stack of other matters on my desk, there are no longer any depositions
to take. I am not the Maytag repairman of federal judges desperately hoping for something to do.
Nevertheless, the motion remains on my docket until an order is entered, and Plaintiff ’s counsel
A rough draft of the deposition of [witness] is attached as Exhibit “1” to the motion to support
the arguments made by Plaintiff ’s counsel that [Defendants’ Counsel] engaged in improper and
obstructive conduct for which he deserves to be sanctioned. Plaintiff relies on the provisions
of Rule 30(d)(2) which permit the court to impose an appropriate sanction, “including the rea-
sonable expenses and attorneys fees incurred by any party on a person who impedes, delays, or
frustrates the fair examination of the deponent.” Counsel for Plaintiff asks for attorney’s fees and
costs incurred for the necessity of filing this motion and “escalating sanctions for further mis-
conduct” if it occurs.
[Defendants’ Counsel] filed an opposition to the motion which concedes “that at least some of
the subject objections were overly verbose.” However, he denies that his “overly verbose” objec-
tions were made to coach the witness or for any other improper purpose. He laments that “the
142 ❖ Sharing Success—A Seminar for Women Lawywers ❖ February 2012
objections were made out of frustration over the manner in which Plaintiff ’s counsel had con-
ducted his depositions over the past fourteen (14) days.” Acknowledging there is never an excuse
for failing to comply with the Federal Rules of Civil Procedure and the Federal Rules of Evidence,
he asks that the Court not impose sanctions. He also attaches excerpts of depositions conducted
by counsel for the Plaintiff to support his position that [Plaintiff ’s Counsel] engaged in the same
objectionable conduct during his client’s deposition taking “speaking objections to another level”
to coach his client. Other remarks about the conduct of Plaintiff ’s counsel throughout this case
are made which are, at best, unseemly and will not be repeated in this order. [Defendants’ Coun-
sel] concludes that “the conduct of defense counsel during these depositions pales in comparison
to that of Plaintiff ’s attorney” and therefore asks that the court deny Plaintiff ’s request for costs
and attorneys fees.
Counsel for Plaintiff could not resist replying. [Plaintiff ’s Counsel’s] reply adds up the number
of [Defendants’ Counsel’s] improper objections during [the witness’] deposition and compares
them to the number of improper objections [Defendants’ Counsel] accuses him of making. Not
wanting to miss an opportunity to engage equally unseemly “tit-for-tat,” [Plaintiff ’s Counsel]
pads his reply with gratuitous comments which include a reference to counsels’ respective choice
of beverages during depositions.
To ensure that reading the 185 pages of these exchanges was not a complete waste of time, I
assigned this motion to a law student extern to prepare a legal memorandum to further his edu-
cation. In a short period of time he was able to prepare a well-written, concise memo which
identified a large number of state and federal cases throughout the country articulating the
standards for making deposition objections and identifying improper conduct for which lawyers
have been admonished or sanctioned. He correctly concluded that both lawyers engaged in mis-
conduct which violated Rule 30(c)(2).
The exchanges related in excruciating, repetitive detail in the moving and responsive papers and
their attachments were painful to read. If I was an elementary school teacher instead of a judge I
would require both counsel to write the following clearly established legal rules on a blackboard
I will not make speaking, coaching, suggestive objections which violate Rule 30(c)(2). I am
an experienced lawyer and know that objections must be concise, nonargumentative and
non-suggestive. I understand that the purpose of a deposition is to find out what the wit-
ness thinks, saw, heard or did. I know that lawyers are not supposed to coach or change the
witness’s own words to form a legally convenient record. I know I am prohibited from frus-
trating or impeding the fair examination of a deponent during the deposition. I know that
constant objections and unnecessary remarks are unwarranted and frustrate opposing coun-
sel’s right to fair examination. I know that speaking objections such as “if you remember,” “if
you know,” “don’t guess,” “you’ve answered the question,” and “do you understand the ques-
tion” are designed to coach the witness and are improper. I also know that counsel’s interjec-
tion that he or she does not understand the question is not a proper objection, and that if a
witness needs clarification of a question, the witness may ask for the clarification.
Although these papers, and the conduct they relate, make me feel like a school marm scolding
little boys, I am the judge whose duty it is to decide this motion. Accordingly, [Plaintiff ’s Coun-
sel] and [Defendants’ Counsel] are admonished for engaging in conduct which I know you know
Secrets of a Super Deposition ❖ Cooper ❖ 143
violates Rule 30(c)(2). You are better men and better lawyers than the conduct in which you have
Having reviewed and considered the matter,
IT IS ORDERED Plaintiff ’s “Emergency Motion” (Dkt.# 218) is GRANTED to the extent that
[Plaintiff ’s Counsel] and [Defendants’ Counsel] are admonished. Sanctions in the form of
memorializing their misconduct in this order are imposed.
Mazzeo v. Gibbons, No. 2:08-CV-01387-RLH-PAL, 2010 WL 3020021 (D. Nev. July 27, 2010).
The only objection to be made is “as to form.” Typical objections as to form include:
2. Vague or unintelligible.
6. Mischaracterizes witness’s prior testimony.
7. Calls for a narrative.
8. Calls for speculation.
9. Asked and answered.
10. Assumes facts not in evidence.
State Farm Mut. Auto. Ins. Co. v. Dowdy, 445 F. Supp. 2d 1289, 1293 (N.D. Okla. 2006) (citing Henry L. Hecht,
Effective Depositions, 359-62 (1988)).
Many young lawyers use a form objection as a replacement for speaking objection. If a form objec-
tion is made, you have the right to ask opposing counsel to specify what about the form of the question is
objectionable, so that you can correct the form error. If opposing counsel makes more than a couple of form
objections, you should do this.
Usually this stops rote form objections.
B. Would You Like to Agree to the “Usual Stipulations”?
Fed. R. Civ. P. 30 states, “An objection at the time of the examination – whether to evidence, to a par-
ty’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the
deposition – must be noted on the record, but the examination still proceeds.” Fed. R. Civ. P. 30(c)(2). Further,
Fed. R. Civ. P. 32(d) outlines when waiver of objections can occur. Often, at the commencement of a deposi-
tion, you will be asked whether you would like to agree to the “usual stipulations,” and you need to be sure you
are aware of both what you are agreeing to and whether that agreement is impacted by any local rules regard-
ing deposition conduct.
The use of the “usual stipulations” has developed out of custom and practice, and although every-
one professes to know what is entailed in that agreement, without specificity on the record, the meaning can
become unclear if a dispute arises. See, e.g., U.S. v. Liquid Sugars, Inc., 158 F.R.D. 466, 473 n.8 (E.D. Cal. 1994)
(likening allusion to “standard” tests to the use of the term “usual stipulations” in civil depositions and noting
that “[e]veryone purports to know without asking the content of the ‘usual stipulations’ until a dispute arises;
the ephemeral nature of the parties’ understanding is then quite apparent”). Generally, when you agree to the
“usual stipulations,” you are agreeing that objections other than objections to form are reserved for the time
144 ❖ Sharing Success—A Seminar for Women Lawywers ❖ February 2012
of trial. See, e.g., Thomas v. Hoffmann-LaRoche, Inc., 126 F.R.D. 522, 523-24 (N.D. Miss. 1989); Burgess v. Ger-
main, No. FSTCV054003848S, 2005 WL 2857561 (Conn. Super. Ct. Oct. 12, 2005).
The local rules or statutes of the jurisdiction also may provide limitations on the types of objections
that can be asserted during the deposition, see, e.g., Ariz. R. Civ. P. 32(d)(3)(A)-(D); Rule 18(I)(A), Rules of
the Seventh and Twenty-Sixth Judicial Districts (Oklahoma and Canadian Counties, Oklahoma), or pertinent
provisions regarding waiver of objections. See, e.g. Iowa Code, Rule 1.717.
Another consideration to keep in mind is whether the deposition will be used at trial. It is more com-
mon to make all objections on the record if the parties know that the deposition will be introduced at trial.
C. Counsel Can Instruct a Witness Not to Answer Only in Limited Circumstances
Rule 30 provides that “testimony is taken subject to any objection. Fed. R. Civ. P. 30(c)(2). Courts
interpret Rule 30(c)(2) to prohibit attorneys from instructing a deponent not to answer a question or oth-
erwise limiting the deponent’s answer. See United States ex rel. Tiesinga v. Dianon Sys. Inc., 240 F.R.D. 40, 43
(D. Conn. 2006) (“Ordinarily, it is improper for counsel to direct a witness not to answer a question posed
at a deposition, even if the question is improper or beyond the scope of a deposition notice.”); Detoy v. City
and County of San Francisco, 196 F.R.D. 362, 365-66 (N.D. Cal. 2000). Thus, instructions not to answer are
improper. American Hangar, Inc. v. Basic Line, Inc., 105 F.R.D. 173, 175 (D. Mass. 1985). Counsel may “instruct
a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the
court, or to present a motion” to terminate a deposition being conducted in bad faith or that unreasonably
annoys, embarrasses, or oppresses the deponent or party. Fed. R. Civ. P. 30(c)(2).
“A motion to compel a witness to answer questions put at a deposition should be granted if the ques-
tions are relevant and proper and denied if the questions call for privileged information.” Cobell v. Norton, 213
F.R.D. 16, 23 (D.D.C. 2003) (quoting 8A Charles Alan Wright, Arthur R. Miller & Richard L. Marcus,
Federal Practice and Procedure §2286 (2d ed. 1994)) (granting motion to compel after witness had been
improperly instructed not to answer questions and ordering witness to respond to the questions set forth in the
motion to compel as well as all other questions related to the subject matter of those questions, awarding costs
and fees in making the motion, and costs and fees associated with re-deposing witness). “The harm caused by
being required to take additional depositions of a witness who fails to answer a question based on an improp-
erly asserted objection far exceeds the mere inconvenience of a witness having to answer a question which may
not be admissible at the trial of the action.” W.R. Grace & Co. v. Pullman Inc., 74 F.R.D. 80, 84 (W.D. Okla. 1977).
In Resolution Trust Corp. v. Dabney, 73 F.3d 262 (10th Cir. 1995), the Tenth Circuit Court of Appeals
affirmed an order imposing sanctions on an attorney for instructing a witness not to answer deposition ques-
tions. Id. at 265-67. The Court noted, “It is inappropriate to instruct a witness not to answer a question on the
basis of relevance.” Id. at 266. In Resolution Trust Corp., the sanctioned counsel notified opposing counsel that
he would not allow the witness to testify regarding the investigative process because the plaintiff was only
producing the witness to testify regarding damages and document custody. “A party may object to an irrel-
evant line of question, but instructing a witness not to answer a question because it calls for inadmissible facts
is sanctionable.” In re Stratosphere Corp. Securities Liti., 182 F.R.D. 614, 618-19 (D. Nev. 1998) (citing Boyd v.
University of Md. Med. Sys., 173 F.R.D. 143, 144, 149 (D. Md. 1997)).
D. Conferring with the Client-Witness During a Deposition Is Prohibited in Some
Different jurisdictions take different approaches, by statute, local court rule, or judicial pronounce-
ment, to the question of whether counsel may confer with his or her client-witness during a deposition. You
Secrets of a Super Deposition ❖ Cooper ❖ 145
must know your local rules. Familiarity with a jurisdiction’s approach before a deposition can avoid unnec-
essary confrontations, discovery motions, and court involvement in discovery disputes regarding deposition
1. State Local Court Rules and Statutes
By local rule, for example, ten counties in Oklahoma preclude all conferences between counsel and a
client-witness during a deposition, without regard to whether a question is pending, unless such conference
relates to the assertion of a claim of privilege. The Rules of the Seventh and Twenty-Sixth Judicial Districts
(Oklahoma and Canadian Counties), and the Rules of the Fourteenth Judicial District (Tulsa and Pawnee
Counsel and a witness shall not engage in private, off-the-record conferences during the actual
taking of the deposition, except for the purpose of deciding whether to assert a privilege or to
move for a protective order. Private conferences may be held, however, during agreed recesses
Rule No. 18(I)(C), Rules of the Seventh and Twenty-Sixth Judicial Districts; Rule CV 20.5, Rules of
the Fourteenth Judicial District; see also Rule 2.8(C), Rules of the Eight Judicial District; Rule 36.3, District
Court Rules for the Fifteenth Judicial District (Cherokee and Wagoner Counties); Rule 15(C), Official Court
Rules of the Twenty-Third Judicial Administrative District Comprised of Pottawatomie and Lincoln Counties.
Other jurisdictions provide restrictions on conferences between an attorney and a client deponent
during the deposition with court rules applicable in all districts within a state. For example, New Jersey’s
Court Rules provide:
Once the deponent has been sworn, there shall be no communication between the deponent and
counsel during the course of the deposition while testimony is being taken except with regard to
the assertion of a claim of privilege, a right to confidentiality or a limitation pursuant to a previ-
ously entered court order.
N.J. Court Rule 4:14-3(f); see also Mich. Ct. Rule 2.306(C)(5); Tex. R. Civ. P. 199.5(d).
Some jurisdictions also preclude substantive conferences during recesses and breaks at a deposition.
For example, South Carolina’s civil procedure rules provide that “[c]ounsel and a witness shall not engage in
private, off-the-record conferences during depositions or during breaks or recesses regarding the substance
of the testimony at the deposition, except for the purpose of deciding whether to assert a privilege or to make
an objection or to move for a protective order.” S.C. Rules of Civ. P. 30(j)(5). Delaware appears to have the
broadest time-frame restriction as the Delaware Superior Court Rules of Civil Procedure preclude conferences
during any recess or continuance of less than 5 calendar days:
From the commencement until the conclusion of a deposition, including any recesses or con-
tinuances thereof of less than five calendar days, the attorney(s) for the deponent shall not: (A)
consult or confer with the deponent regarding the substance of the testimony already given
or anticipated to be given except for the purpose of conferring on whether to assert a privi-
lege against testifying or on how to comply with a court order, or (B) suggest to the deponent
the manner in which any question should be answered. A party may instruct a deponent not to
answer only when necessary to preserve a privilege, to enforce a limitation on evidence directed
by the Court, or to present a motion under paragraph (d)(3).
Del. Sup. Ct. R. Civ. P. 30(d)(1).
146 ❖ Sharing Success—A Seminar for Women Lawywers ❖ February 2012
Some jurisdictions preclude off-the-record substantive conferences between counsel and a client-
witness following the propounding of a question. For example, Alaska’s civil procedure rules provide that “[c]
ontinual and unwarranted off the record conferences between the deponent and counsel following the pro-
pounding of questions and prior to the answer or at any time during the deposition are prohibited.” Alaska
R. Civ. P. 30(d)(1). Arizona provides the same restriction. See Ariz. R. Civ. P. 32(d)(3)(E).
There are countless local court rules setting restrictions on counsel’s ability to confer with a depo-
nent during a deposition or recess at a deposition. See, e.g., Fourth Judicial District Court Rules, Rule 4.203(5)
(c) (Anderson, Coffey, Franklin and Osage Counties, Kansas) (“Private conference between deponents and
their attorneys during the actual taking of the deposition are improper except for the purpose of determin-
ing whether a privilege should be asserted. Unless prohibited by the Court for good cause shown, such con-
ferences may, however, be held during normal recesses and adjournments.”); 28 Jud. Dist. Sup. Civ. Rule 8.3
(Buncombe County, North Carolina) (“While counsel has the right and duty to prepare a client for deposition,
once the deposition begins counsel and their witness-clients shall not engage in private, off-the-record con-
ferences while the deposition is proceeding in session except for the purpose of deciding whether to assert a
privilege.”); Cuyahoga County (Ohio) General Rule 13(7) (“While a question is pending, counsel for the depo-
nent and the deponent shall not confer except for the purpose of deciding whether to assert a privilege.”). This
short string cite of local court rules is not exhaustive by any means.
Thus, a careful review of local court rules and statutes is necessary for any lawyer practicing in an unfa-
miliar jurisdiction. Even in the absence of a statute or a local court rule, where the state’s code of civil proce-
dure tracks Fed. R. Civ. P. 30, state courts may look to federal cases interpreting Rule 30. And, as demonstrated
below, many federal courts impose restrictions on substantive conferences during depositions and recesses.
2. Federal Authority
Federal courts, noting that a deposition examination and cross-examination “proceed as they would
at trial” pursuant to Rule 30(c)(1), reason that since counsel may not take a break to confer with a witness
during trial, such is not permitted in the course of a deposition or a recess. The federal courts have taken dif-
ferent approaches regarding the scope of the restrictions on conferences between counsel and a client-witness
during a deposition or recess.
The strictest approach was adopted by the United States District Court for the Eastern District of
Pennsylvania in Hall v. Clifton Precision, 150 F.R.D. 525, 526-28 (E.D. Pa. 1993). In Hall, the plaintiff ’s coun-
sel interrupted the deposition to privately confer with the witness, his client, and to review a document with
the witness before the witness answered questions regarding the document. Id. at 526. This interruption
occurred during the deposition of the plaintiff and over the objection of defense counsel. Id. The deposition
was adjourned, and the questions were brought before the court. Id.
The court reasoned that a deposition was meant to be a question-and-answer conversation between
the deposing lawyer and the witness, and that where the witness’s own lawyer acted as an intermediary, the
answers of the witness could be colored. Id. at 527-29. The court thus prohibited conferences between the wit-
ness and counsel both during the deposition and during recesses. Id. The Hall court held that: (1) a lawyer and
client do not have an absolute right to confer during the course of the client’s deposition and that neither law-
yer nor client may initiate private conferences once the deposition is underway, whether in the course of the
deposition or upon a recess; (2) a lawyer may prepare a client for a deposition, but once that deposition com-
mences, the witness is to answer all questions without intervention or advice by the lawyer; and (3) the wit-
ness should ask the deposing lawyer, and not his or her own lawyer, to clarify or further explain if the witness
does not understand the question. Id. at 528.
Secrets of a Super Deposition ❖ Cooper ❖ 147
Some courts have adopted restrictions similar to those pronounced in Hall. See, e.g., Chassen v. Fidel-
ity Nat. Title Ins. Co., No. 09-297 (ES), 2010 WL 5865977 (D.N.J. July 21, 2010) (“While it is true that Hall
is not universally followed in all jurisdictions, the United States District Court, District of New Jersey has
adopted its language to restrict attorney-client conferences once a deposition has begun.” (citing Ngai v. Old
Navy, No. 07-5653, 2009 WL 2391282 (D.N.J. July 31, 2009))). Armstrong v. Hussmann Corp., 163 F.R.D. 299
(E.D. Mo. 1995) (ordering that “[c]ounsel and their witnesses and clients shall not engage in private, off–
the–record conferences during depositions or during breaks or recesses, except for the purpose of deciding
whether to assert a privilege.”). However, many federal courts have rejected Hall as overly restrictive. In re
Stratosphere Corp. Sec. Litig., 182 F.R.D. 614, 620-21 (D. Nev. 1998).
In In re Stratosphere, even though the district court agreed with the underlying concern and essential
purpose of the holding in Hall, the court was “of the opinion that the Hall decision goes too far and its strict
adherence could violate the right to counsel.” In re Stratosphere, 182 F.R.D. at 620. The court noted that “[t]
he Hall decision effectively precludes counsel and his witness from speaking to each other once a deposition
has begun, until it is finished. If they so much as speak to each other, opposing counsel then has the right to
inquire into every thing that was said.” Id. The court further explained that it “will not preclude an attorney,
during a recess that he or she did not request, from making sure that his or her client did not misunderstand
or misinterpret questions or documents, or attempt to rehabilitate the client by fulfilling an attorney’s ethical
duty to prepare a witness.” Id. at 621.
The district court further instructed that “[s]o long as attorneys do not demand a break in the ques-
tions, or demand a conference between question and answers, the Court is confident that the search for truth
will adequately prevail.” Id. at 621. Other courts have similarly rejected Hall. See Odone v. Croda Int’l PLC,
170 F.R.D. 66, 69 (D.C. Cir. 1997) (refusing to penalize attorney for utilizing five-minute recess that he did not
request to learn whether client misunderstood or misinterpreted questions and then attempting to rehabilitate
client on record); In re PSE & G Shareholder Litig., 726 A.2d 994, 997 (N.J. Super. Ct. Ch. Div. 1998) (refusing
to apply blanket restrictions found in Hall to every case and allowing counsel and witness to confer during
evening recess, after deposition has concluded for day and is scheduled to resume the following day).
Still other courts have adopted variations of Hall to curb deposition misconduct. For example, a
federal magistrate in the Northern District of Oklahoma declined to impose all the restrictions in Hall, and
imposed the following restrictions on counsel’s conduct during a deposition:
1. At the beginning of the deposition, deposing counsel shall instruct the witness to ask deposing
counsel, rather than the witness’s own counsel, for clarification, definition, or explanation of any
words, questions or documents presented during the course of the deposition. The witness shall
abide by these instructions;
2. All objections, except those which would be waived if not made at the deposition under Fed. R.
Civ. P. 32(d)(3)(B), and those necessary to assert a privilege, to enforce a limitation on evidence
directed by the Court, or to present a motion pursuant to Fed. R. Civ. P. 30(d), shall be pre-
served. Therefore, those objections need not and shall not be made during the course of deposi-
3. Counsel shall not make objections or statements which might suggest an answer to a witness.
Counsel’s statements when making objections should be succinct and verbally economical, stat-
ing the basis of the objection and nothing more. If the form of the question is objectionable,
counsel should say nothing other than “object to the form of the question”. Should deposing
counsel desire clarification of the precise basis of the objection, that inquiry shall be made out-
side the presence of the witness; [and]
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4. Deposing counsel shall provide to the witness’s counsel a copy of all documents shown to the
witness during the deposition. The copies shall be provided either before the deposition begins
or contemporaneously with the showing of each document to the witness. The witness and
the witness’s counsel do not have the right to discuss documents privately before the witness
answers questions about them.
Damaj v. Farmers Ins. Co., Inc., 164 F.R.D. 559, 561 (N.D. Okla. 1995). Although the court’s holding in Damaj
applied to counsel taking depositions in that case, it provides guidance on appropriate deposition conduct
according to at least one federal magistrate judge in the Northern District of Oklahoma.
E. When and Whether to Call a Judge
Fed. R. Civ. P. 83(b) expressly recognizes, “A judge may regulate practice in any manner consistent
with federal law, rules adopted under 28 U.S.C. §§2072 and 2075, and the district’s local rules.” Accordingly,
because the judicial practices and procedures may vary from one judge to another judge even within the same
district, it is particularly important that litigators become familiar with the individual practices and proce-
dures of the judge before whom they are appearing in federal court.
Many courts, by local rule or custom, and many judges by chamber rules or specific order, allow the
parties to seek guidance from the judge or magistrate to resolve a discovery dispute arising during a depo-
sition. See, e.g., Stonebreaker v. Guardian Life Ins. Co., No. 11-797-WQH, 2011 WL 5022787, at *2 (S.D. Cal.
Oct. 11, 2011) (ordering that the court can address all disputes arising during depositions conducted in the
case); Chamber Rules of Magistrate Gallo at Rule IV.E (S.D. Cal.); Chamber Rules of Magistrate Kelly (D. Fla.
Orlando Div.); Local Rule 4.202(3) Franklin County, 4th Judicial District of Kansas.
Although a court rule or the judge may allow calls to the judge to resolve discovery disputes arising
during depositions, as with brining any discovery dispute to the judge for resolution, litigators should exercise
discretion in selecting those disputes to present to the judge. Don’t initiate a call to the judge unless you have a
clear abuse of process on the record that you are confident that the court will agree with. By the same token, if
you have that clear abuse on the record calling the judge or threatening to call the judge may be the only way
to curb the abuse.
F. Errata Uses and Abuses
If your witness gave testimony adverse to your client’s interests, you may be able to do some damage
control. Problematic testimony can, depending on the jurisdiction, be addressed through errata.
Generally, a deponent has a right to review his deposition transcript and, if there are changes in
“form or substance” of the testimony, the deponent may submit an errata making those changes. Fed. R. Civ.
P. 30(e). Rule 30(e) of the Federal Rules of Civil Procedure permits a deponent to review his deposition tran-
script and make “changes in form or substance.” Fed. R. Civ. P. 30(e)(1). The purpose of the rule “is obvious.
Should the reporter make a substantive error, i.e., he reported ‘yes’ but I said ‘no,’ or a formal error, i.e., he
reported the name to be ‘Lawrence Smith’ but the proper name is ‘Laurence Smith,’ then corrections by the
deponent would be in order.” Garcia v. Pueblo Country Club, 299 F.3d 1233, 1242 n.5 (10th Cir. 2002) (empha-
sis added) (quoting Greenway v. International Paper Co., 144 F.R.D. 322, 325 (W.D. La. 1992)).
Jurisdictions are split, however, on the extent of changes that can be made to prior sworn testimony
Secrets of a Super Deposition ❖ Cooper ❖ 149
1. The Majority View
The majority of jurisdictions permit deponents to make any change, in form or substance, to their
deposition. See, e.g., Podell v. City Corp. Diner’s Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997); Eicken v. USAA
Federal Savings Bank, 498 F. Supp. 2d 954 (S.D. Tex. 2007); Towers v. Heidelberger Druckmaschinen Aktieng-
esellschaft, No. 3:CV-06-700, 2007 WL 1238569, *2 (M.D. Pa. April 26, 2007) (permitting deponent to alter
substance of his deposition (citing Podel v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir. 1997)); Buzoiu
v. Risk Mgmt. Alternatives, Inc., No. Civ.A. 03-3579, 2004 WL 1427147, at *1 (E.D. Pa. June 24, 2004); Titanium
Metals Corp. v. Elkem Mgmt., Inc., 191 F.R.D. 468, 472 (W.D. Pa. 1998); Turchan v. Bailey Meter Co., 21 F.R.D.
232, 233 (D. Del. 1957).
The majority view gives real meaning to the words “or substance” and permits material corrections in
an errata sheet. Purdee v. Pilot Travel Centers, LLC, No. CV407-028, 2007 WL 3143716 (S.D. Ga. Oct. 23, 2007);
Reilly v. TXU Corp., 230 F.R.D. 486, 489-91 (N.D. Tex. 2005); Podell v City Corp. Diner’s Club, Inc., 112 F.3d 98,
103 (2nd Cir. 1997); Lugtig v. Thomas, 89 F.R.D. 639, 641 (N.D. Ill. 1981); Allen & Co. v. Occidental Petroleum
Corp., 49 F.R.D. 337, 340 (S.D.N.Y. 1970). The majority view holds that the remedy for a party against whom a
deponent has made substantive corrections is to impeach the witness at trial. As the Court noted in Auscape
International v. National Geographic Society, No. 02 Civ. 6441 LAK HBP, 2003 WL 23531750, “Although Rule
30(e) of the Federal Rules of Civil Procedure permits a deponent to make liberal changes to the form or sub-
stance of his or her deposition testimony, a deponent can be impeached at trial with any inconsistencies that
result from the errata sheet.” Id. at *11.
2. The Minority View
The Tenth Circuit Court of Appeals follows the minority view. As that court explained, under its
interpretation of Rule 30:
[T]he Rule cannot be interpreted to allow one to alter what was said under oath. If that were the
case, one could merely answer the questions with no thought at all then return home and plan
artful responses. Depositions differ from interrogatories in that regard. A deposition is not a take
Burns v. Board of County Comm. of Jackson County, 330 F.3d 1275, 1282 (10th Cir. 2003) (quoting Garcia, 299
F.3d at 1242 n.5). “Rule 30(e) is to be used for corrective, and not contradictory, changes.” Hambleton Bros.
Lumber Co. v. Balkin Enters., Inc., 397 F.3d 1217, 1225-26 (9th Cir. 2005); see also Thorn v. Sundstrant Aero-
space Corp., 207 F.3d 383, 389 (7th Cir. 2000) (holding that Rule 30(e) does not permit changes that directly
contradict the substance of a deposition unless the alterations are attributable to a transcription error); Adams
v. Allied Security Holdings, 236 F.R.D. 651, 652 (C.D. Cal. 2006) (“despite plaintiff ’s counsel’s claim that the
proposed changes are merely ‘minor, nonmaterial and/or irrelevant [in] nature,’ several of the proposed
changes significantly alter plaintiff ’s responses to deposition questions”).
Courts do “not condone counsel’s allowing for material changes to deposition testimony and cer-
tainly do not approve the use of such altered testimony that is controverted by the original testimony.” Garcia,
299 F.3d at 1242 n.5 (quoting Greenway, 144 F.R.D. at 325). Consequently, in Burns, the Tenth Circuit ruled
that the district court correctly disregarded a witness’ errata sheets where “although [the witness] assert[ed]
that he was confused at his deposition, his answers to the direct questions posed by counsel [did] not reveal
any obvious confusion-as opposed to indecisiveness or inconsistency-that the corrections would need to
clarify.” Burns, 330 F.3d at 1282; see also Saffa v. Oklahoma Oncology, Inc., 405 F. Supp. 2d 1280, 1284-85
(N.D. Okla. 2005) (striking errata sheets which made material changes to deposition testimony); Citgo Petro-
150 ❖ Sharing Success—A Seminar for Women Lawywers ❖ February 2012
leum Corp. v. Ranger Enters., Inc., 632 F. Supp. 2d 878, 883-84 (W.D. Wis. 2009) (striking errata sheets that
attempted to provide new testimony under the guise of correcting errors).
For example, in Wyeth v. Lupin Ltd., 252 F.R.D. 295, 295 (D. Md. 2008), the court granted the defen-
dant’s motion to strike the errata sheet by the plaintiff ’s 30(b)(6) corporate representative. Id. at 295. The court
examined the errata and held that the 6 proposed changes “do not clarify but materially change the answers.
They do indeed represent lawyerly fixing of potentially problematic testimony for [the plaintiff].” Id. at 297.
The court granted the motion to strike, recognizing that:
An interpretation of liberal-indeed unlimited-amendments and corrections would discourage
the careful preparation of 30(b)(6) witnesses. Rather than advancing the pursuit of truth in dis-
covery, a policy of liberal “amendments” and “corrections” would encourage and intensify lawyer
wordsmithing and parsing.
Id. at 297. The court also recognized that errata sheets cannot be construed to allow a witness to treat a depo-
sition as a take-home examination:
The errata sheet “clarifications” in this case are akin to a student who takes her in-class exami-
nation home, but submits new answers only after realizing a month later that the import of her
original answers could possibly result in a failing grade.
Id. at 297 (quoting Greenway, 144 F.R.D. at 325). The court also observed that there “was no apparent witness
intimidation or badgering…. [and] the 30(b)(6) witness gave honest answers based on the documents before
her and the questions presented.” Id.
Changes made by way of an errata sheet are disfavored and clearly not a substitute for properly pre-
paring a witness for trial.
Depositions may be the most important pre trial tool in evaluating and preparing a matter for trial.
Although they typically are taken in informal circumstances, their importance can’t be overstated. Take the
time to prepare properly for depositions and make sure that you are familiar with all relevant rules.
Secrets of a Super Deposition ❖ Cooper ❖ 151
Mary thanks Michael F. Smith and Alison A. Verret, attorneys with McAfee & Taft, for their assistance in drafting
152 ❖ Sharing Success—A Seminar for Women Lawywers ❖ February 2012