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					STATE BAR LITIGATION SECTION REPORT

  ADVOCATE
THE




        DEPOSITIONS             ✯
                             VOLUME 28

                               FALL

                               2004
STATE BAR LITIGATION SECTION REPORT
   B

   ADVOCATE
THE




EDITORS                                TOM C OWART                             LITIGATION SECTION OFFICERS          COUNCIL MEMBERS
                                       Windle Turley, P.C.
E DITOR IN C HIEF                                                              A NDY TINDEL , C HAIR
L ONNY S. HOFFMAN                      1000 Turley Law Center
                                                                               Provost & Umphrey Law Firm, L.L.P.   TERM EXPIRING 2005
                                       6440 North Central Exp.
University of Houston Law Center                                               304 W. Rusk St.                      JUDGE L EVI B ENTON
                                       Dallas Texas 75206
100 Law Center                                                                 Tyler, TX 75701                      Houston
                                       Tomc@Wturley.com
Houston, TX 77204-6060                                                         atindel@andytindel.com
Lhoffman@central.uh.edu                A LISTAIR DAWSON                                                             FRED B OWERS
                                                                               DANIEL W. B ISHOP,                   Lubbock
E DITOR E MERITUS                      Beck Redden & Secrest
                                                                               C HAIR -E LECT
J. PATRICK H AZEL                      1221 McKinney, Ste. 4500
                                                                               Watson, Bishop, London & Brophy      JEFFREY T. L UCKY
University of Texas School of Law      Houston, TX 77010
                                                                               106 E. 6th St., Ste. 700             El Paso
                                       adawson@brsfirm.com
                                                                               Austin, TX 78701
A SSISTANT E DITORS                                                            dbishop@watsonbishop.com             M ICHAEL C. SMITH
JEFFREY M. B ENTON                     WALKER C. FRIEDMAN
                                                                                                                    Marshall
Univ. of Houston, J.D. exp. May 2005   Friedman, Suder & Cooke
                                                                               S USAN I. NELSON, VICE -C HAIR
                                       Tindall Square Warehouse No. 1
                                                                               The Nelson-Lewis Law Firm, PLLC
E LVIN HOUSTON                         604 East 4th Street, Suite 200
                                                                               River Square Center                  TERM EXPIRING 2006
Univ. of Houston, J.D. May 2004        Fort Worth, Texas 76102
                                       wcf@fsclaw.com
                                                                               P. O. Box 1                          WALKER C. FRIEDMAN
                                                                               Waco, TX 76703                       Fort Worth
G RAPHIC D ESIGNER
                                                                               sinelson@aol.com
R EBECCA B RIDGES R ICE                G EOFFREY L. H ARRISON
rbr@bridgesart.com                     Susman Godfrey, L.L.P.                                                       G EOFFREY L. H ARRISON
                                                                               A LISTAIR DAWSON, SECRETARY          Houston
                                       1000 Louisiana Street, Ste. 5100
                                                                               Beck Redden & Secrest
EDITORIAL BOARD                        Houston, TX 77002-5096
                                       gharrison@susmangodfrey.com
                                                                               1221 McKinney, Ste. 4500             JUDGE K AREN G REN JOHNSON
                                                                               Houston, TX 77010                    Dallas
K IM J. A SKEW
                                                                               adawson@brsfirm.com
Hughes & Luce, L.L.P.                  THE HONORABLE
                                       K AREN G REN JOHNSON                                                         L INDA S. MC D ONALD
1717 Main St., Ste. 2800
                                                                               E LIZABETH E. M ACK , TREASURER      San Antonio
Dallas, TX 75201-7342                  Judge, 95th Judicial District Court
                                                                               Locke Liddell & Sapp LLP
askewk@hughesluce.com                  Geo. Allen Courts Building, 3rd Floor                                        A UGUSTIN R IVERA JR .
                                                                               2200 Ross Ave., Ste. 2200
                                       600 Commerce Street                                                          Corpus Christi
                                                                               Dallas, TX 75201-6776
JOE B ROPHY                            Dallas, Texas 75202
                                                                               emack@lockeliddell.com
Watson, Bishop, London, &
Brophy, P.C.                           JEFFREY K APLAN                         TALMAGE B OSTON,                     TERM EXPIRING 2007
106 East Sixth Street, Suite 700       Chevron Phillips Chemical Company
                                                                               I MMEDIATE PAST C HAIR               C HRISTY A MUNY
Austin, Texas 78701                    P. O. Box 4910
                                                                               Winstead Sechrest & Minick           Beaumont, Texas
JBrophy@watsonbishop.com               The Woodlands, TX 77387-4910
                                                                               1201 Elm St., Ste. 5400
                                       kaplaja@cpchem.com
G REGORY S. C OLEMAN                                                           Dallas, TX 75270                     JUDGE R OYAL F URGESON
                                                                               tboston@winstead.com                 San Antonio
Weil Gotshal & Manges, L.L.P           TOM K URTH
8911 Capital of TX Hwy., Ste. 4140     Haynes and Boone, LLP
                                                                               K IM J. A SKEW                       J AN WOODWARD FOX
Austin, TX 78759                       901 Main Street, Suite 3100
                                                                               Hughes & Luce, L.L.P.                Houston
greg.coleman@weil.com                  Dallas Texas 75202
                                                                               1717 Main St., Ste. 2800
                                       Thomas.Kurth@Haynesboone.com                                                 K ATHY SNAPKA
                                                                               Dallas, TX 75201-7342
                                                                               askewk@hughesluce.com                Corpus Christi
                                       E LIZABETH E. M ACK
                                       Locke Liddell & Sapp LLP                                                     PAT L ONG WEAVER
                                                                               JOHN E. SIMPSON, PAST C HAIR
                                       2200 Ross Ave., Ste. 2200                                                    Midland
                                                                               Splawn & Simpson, Inc.
                                       Dallas, TX 75201-6776
                                                                               P.O. Box 1376
                                       emack@lockeliddell.com                                                       JUSTICE L INDA R. YANEZ
                                                                               Lubbock, TX 79408-1376
                                                                               jsimpson@splawn-simpson.com          Edinberg
                                       S USAN I. NELSON
                                       The Nelson – Lewis Law Firm, PLLC
                                                                               L UTHER H. S OULES III               SUPREME COURT LIAISON
                                       River Square Center
                                                                               PAST C HAIR
                                       P. O. Box. 1
                                                                               Langley & Banack, Inc.               JUSTICE H ARRIETT O’NEILL
                                       Waco, TX 76703
                                                                               Trinity Plaza II

       ✯                               sinelson@aol.com

                                       M ICHAEL C. SMITH
                                                                               745 East Mulberry, Suite 900
                                                                               San Antonio, TX 78212-3166
                                                                                                                    STATE BAR OF TEXAS ADVISORS
                                                                                                                    M ACK BARNHART
                                                                               lsoules@langleybanack.com
                                       The Roth Firm
                                       115 N. Wellington, Ste. 200                                                  PATRICIA A LVAREZ
VOLUME 28                              Marshall, TX 75670
                                       ms@rothfirm.com                                                              TEXAS YOUNG LAWYERS
      FALL                                                                                                          ASSOCIATION REPRESENTATIVE
                                                                                                                    TREY M ARTINEZ
      2004
                                   STATE BAR LITIGATION SECTION REPORT                                          1

                                      ADVOCATE




                                  THE
                                    T A BL E     OF    C ONTENT S
                                              FALL 2004


E DITOR ’S C OMMENTS by Lonny S. Hoffman .........................................................2
C HAIRMAN ’S R EPORT by Andy Tindel .................................................................3

                    P R EPA R ING & TA K ING T HE DEP O SI T ION
P REPARING YOUR W ITNESS FOR D EPOSITION By Bryan Haynes ..............................6
P REPARING TO TAKE D EPOSITIONS
      by Walker C. Friedman and George Parker Young .................................... 13
TAKING D EPOSITIONS by Walker C. Friedman and George Parker Young ............. 20
E X AMINING & D EFENDING D EPONENTS U NDER THE TEX AS & F EDER AL R ULES
      OF C IVIL P ROCEDURE : M AKING AND D EFENDING A GAINST O BJECTIONS AND
      P RIVILEGE A SSERTIONS AND D EALING WITH O BJECTIONABLE Q UESTIONS ,
      C ONDUCT AND R EFUSALS TO A NSWER
      by Victor D. Vital & Lawrence D. Brown................................................. 26
C ORPOR ATE R EPRESENTATIVE D EPOSITIONS IN TEX AS
     by James C. Winton & Farrell A. Hochmuth ............................................34
M AKING F OREIGN D EPOSITIONS L ESS F OREIGN —D EPOSITION TESTIMONY IN F OREIGN
     J URISDICTIONS FOR USE IN TEX AS C OURTS
     by Steven R. Selsberg & Robert W. Cowan ............................................... 45
VIDEOTAPE D EPOSITIONS AND R EL ATED TECHNOLOGY TOOLS : I MPORTANT
     C ONSIDER ATIONS R EGARDING THE TAPING AND P RESENTATION OF VIDEO
     D EPOSITION TESTIMONY AND E XHIBITS
     by Eli Burriss & Thomas Kurth .............................................................. 51
C OMPARING AND C ONTR ASTING D EPOSITIONS IN STATE AND F EDER AL C OURT
     by Scot Pierce ...................................................................................... 61

                          L I T IG AT ION SE C T ION LUNC HE ON
STATE B AR OF TEX AS —L ITIGATION S ECTION L UNCHEON : THE D ECLINE OF THE
    J UDICIARY : A RE THERE STILL THREE E QUAL PARTS TO O UR G OVERNMENT?
    (transcript of proceedings): MODER ATOR: Roger Cossack,
    PANELISTS: Justice Phil Hardberger, Kenneth Starr ................................. 74

                         E V IDENC E & P RO C EDUR E UP DAT E S
E VIDENCE U PDATE by Luther H. Soules III & Robinson C. Ramsey .....................86
P ROCEDURE U PDATE by Luther H. Soules III & Robinson C. Ramsey ..................88
                                      ADVOCATE   ✯ FALL 2004




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                              EDITOR’S COMMENTS
                                  T      HIS SYMPOSIUM ISSUE OF THE ADVOCATE is
                                        devoted to the subject of depositions. Contributors
                                        cover topics as diverse as “Videotape Depositions and
                                  Related Technology Tools” to “Examining and Defending
                                  Depositions Under Texas and Federal Practice.” As always,
                                  the articles are practitioner-oriented, with an emphasis on
                                  the most current rule and case law developments and a
                                  keen focus on the practical applications of the law. The goal
                                  is to produce an issue that will be relevant to you today and
                                  remain a resource on your bookshelf for the future.

                                 Also included in this issue is a verbatim transcript of the
                                 State Bar of Texas luncheon program, organized by the
         LONNY S. HOFFMAN
                                 Litigation Section. The moderator was the entertaining and
    provocative Roger Cossack. The two panelists were Justice Phil Hardberger and Kenneth
    Starr. The program topic was “The Decline of the Judiciary: Are There Still Three Equal
    Parts to Our Government?”

    Finally, the issue concludes with the comprehensive quarterly Procedure and Evidence
    Updates provided by Luke Soules and Rob Ramsey.

    As usual, I welcome any comments or feedback you may have. My email address is
    LHoffman@central.uh.edu. My mailing address is Professor Lonny Hoffman, University
    of Houston Law Center, 100 Law Center, Houston, Texas 77204.




                                                 Lonny Hoffman
                                                 Editor in Chief
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                                 CHAIRMAN’S R EPORT
                                I   WANT TO LAUNCH MY ONE-YEAR TERM as Chairman of the
                                    Litigation Section by declaring one thing – I am proud to be a trial
                                    lawyer.

                                The finest and most interesting people I know are fellow trial lawyers.
                                The long hours, constant pressure and occasional defeats are more
                                than made up for by the relationships formed with other trial lawyers,
                                both friend and foe, in the crucible of litigation. Nothing reveals a
                                person’s true character more than how he or she acts under pressure.
                                I can honestly say that the overwhelming majority of trial lawyers I
                                have faced in court have been hard working, fair and gracious in either
                                victory or defeat. The older I get and the longer I practice law the more
       A NDY TINDEL
                                I realize what a special breed we are.

                                  That is why I am so dismayed by the now incessant attacks we as trial
lawyers are subjected to on a regular basis. In the beginning these attacks only targeted plaintiff’s
personal injury lawyers. Through the years I have witnessed these criticisms broadened not only
to defense counsel, but also to all attorneys no matter their area of practice. Regrettably, the legal
profession does not have the financial resources required to directly and consistently counter these
well funded ad hominem polemics against lawyers and our legal system. In the end, all we really can
do to counter the negative and unfair stereotypes that bombard the public is to play by the rules,
keep our word and practice our profession with honor. It is my fervent hope that the public we are
dedicated to serve will eventually come to realize that the campaign against lawyers and our civil
justice system is really a direct assault on fundamental rights and freedoms that our beloved United
States was founded upon and that depriving citizens of meaningful access to the courts will not make
medical care more affordable, lower the cost of goods that we buy or otherwise cure all of society’s
ills. I hope for all our sakes that the public does not come to this realization before it is too late. Now
I will get off my soapbox and tell you what the Litigation Section Council has planned for this year.

Our first big event will be the Second Annual Ethics Lecture to be held December 3, 2004 at Baylor
University School of Law. The State Bar will be providing additional details on our program at Baylor
in the coming months. The ethics lecture series was conceived by our immediate past chair, Talmage
Boston, as a vehicle to make the topic of legal ethics accessible and interesting to practitioners and
especially law students. Council members Susan Nelson, Judge Royal Furgeson and Michael Smith are
putting together a fantastic program. For the reasons mentioned earlier in this report, our professional
ethics and the manner in which we conduct ourselves as lawyers has never been more important.

The Litigation Section’s Annual Litigation Update Seminar will be held on January 14-15, 2005 at the
Westin La Cantera Resort in San Antonio. This seminar is rated year after year as one of the best and
most informative continuing legal education programs provided for Texas lawyers. Please mark your
calendars now and plan to attend the Litigation Update as Fred Bowers and his committee have put
together another stellar line-up of speakers to provide you with the latest court decisions and most up
to date litigation strategies.

For all the bragging I do about being a “trial” lawyer, the truth is that most of my time is spent
preparing and planning for a trial that usually never occurs. A great percentage of this preparation
                                      ADVOCATE   ✯ FALL 2004




                                THE
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    time is spent taking depositions, getting ready to take depositions and summarizing
    depositions after they have been taken. The current issue of the THE ADVOCATE
    concisely covers this central aspect of a litigator’s daily practice in a practical and
    interesting manner. Our editor, Professor Lonny Hoffman, aided by the Litigation
    Section’s editorial board, consistently produces a superb publication for Litigation
    Section members that is both timely and informative. Our current issue of THE
    A DVOCATE is no exception. Please also remember that an archive of past issues of THE
    A DVOCATE is located on the Litigation Section’s website, www.tex-lit.org. This is a great
    resource for all Texas litigators.

    I look forward to serving as Chair of the Litigation Section for 2004 – 2005. I, along
    with all members of the Litigation Section Council (whose names are listed on the
    inside front cover of THE ADVOCATE), welcome your comments, suggestions and ideas
    concerning how we can make the Litigation Section more responsive to your needs and
    interests as litigation specialists.




                                                  Andy Tindel
                                                  Chairman, Litigation Section
                                                    5
              STATE BAR LITIGATION SECTION REPORT

                A DVOCATE
              THE
PREPARING &
 TAKING THE
 DEPOSITION




                        D EPOSITIONS
                             ✯
                                                       ADVOCATE   ✯ FALL 2004




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                       PREPARING YOUR WITNESS FOR DEPOSITION
                                                         BY BRYAN HAYNES




Witness preparation is part art, part luck and part science.        use most frequently and which will hopefully give you some
                                                                    ideas as to what to include in your own arsenal for preparing


P     ART “ART” BECAUSE EACH LAWYER MUST ESTABLISH
      his or her own way to effectively convey to the witness
      the importance of the issues, rules and guidelines being
discussed and to leave the witness with an adequate under-
standing of the consequences of failing to follow the lawyer’s
                                                                    witnesses for deposition.

                                                                         WHEN SHOULD THE WITNESS BE PREPARED?
                                                                    Trial lawyers sit through hundreds and sometimes thousands
                                                                    of depositions during their careers and they quickly come to
instruction. Only experience can confer upon a lawyer the           know what to expect during the process. Witnesses, how-
“art” of preparing a witness for deposition.                        ever, may only sit through one deposition in their lifetime
                                                                    – their own – and the time leading up to that deposition will
Part “luck” because all witnesses have basic educational,           often be filled with anxiety and stress about the unknown.
cultural and personality differences,                                                       Accordingly, when the witness is pre-
varying agendas, and generally no                                                           pared for deposition can be as impor-
experience testifying. Each of these                “ Witnesses ... may only sit            tant as how the witness is prepared.
factor into the witness’ ability and will-       through one deposition in their            Prepare the witness too far in advance
ingness to comprehend the deposition          lifetime – their own – and the time of the deposition and he may forget
process and his need to be properly                                                         many aspects of the preparation, or
                                                leading up to that deposition will
prepared for his deposition. There is                                                       the importance of your instructions
little, if anything the lawyer can do            often be filled with anxiety and           may wane. Prepare the witness too
about the “luck” of witness prepara-               stress about the unknown. ”              close to the time of the deposition
tion. Hence the term “luck.”                                                                and he may be too apprehensive
                                                                                            about the impending deposition to
Part “science” because preparing witnesses for depositions          listen to, comprehend or even care about your instructions.
should generally include the same basic rules and guidelines,       Or, you may simply run out of time to adequately complete
regardless of whether it is a lay witness who is being deposed      the preparation.
for the first time or an expert witness who has been deposed
many times. The less “luck” the lawyer has with who his             Accordingly, when possible, preparation of the witness should
witness is the more the lawyer will need the “science” and          occur a couple of days before the deposition, with follow up
“art” of witness preparation. And knowing the “science” of          preparation the next day and/or the morning of the deposition.
witness preparation is an essential first step to learning the      When this is not possible or practical, which is frequentlythe
“art” of witness preparation.                                       case, the lawyer should attempt to prepare the witness the
                                                                    day before the deposition, preferably starting in the morning
This article is an attempt to cover some of the basic rules         to leave time to complete the preparation and allowing the
and guidelines that a lawyer should consider as part of the         witness time to get an adequate amount of rest before the
“science” of preparing a witness for deposition. Many of the        deposition. The least desirable time to prepare the witness
readers of this article will no doubt have rules and guidelines     is immediately before the deposition.
that they regularly use that are not in this article. There is not
enough space allotted for this article to cover every possible      In addition to hopefully getting the witness at a time before
rule and guideline and indeed, I know that I do not have a          he has begun to worry about the deposition, preparing the
lock on all of the of rules or guidelines that should be followed   witness a couple of days in advance of the deposition will
when preparing a witness for deposition. Accordingly, the           give both the lawyer and the witness the opportunity to
rules and guidelines set forth in this article are those which I    reflect upon the issues discussed and, where necessary and
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appropriate, allow time for additional discussion immediately      lawyer’s office, and away from his desk. All of the documents,
before the deposition on those issues which the lawyer and/or      pleadings and other materials needed to prepare the witness
witness believe need further attention.                            should be in the conference room to lower the distractions
                                                                   that necessarily come from interrupting the preparation to
Additionally, witnesses often recall additional documents          get documents or having others enter the conference room
or new facts during the deposition preparation process.            during the deposition preparation. It is also a good idea to
Preparing a couple of days in advance of the deposition            advise the witness well in advance of the amount of time
will give the witness the opportunity to locate any recently       the preparation will likely take and that he should not be
recalled documents, and give the lawyer time to consider           uninterrupted during such time so he can make adequate
the documents and/or new facts prior to the deposition and         arrangements at work and/or home.
how those documents and/or facts should be dealt with in
the deposition and in the case.                                          HOW SHOULD THE WITNESS BE PREPARED?
                                                                   As indicated, there is no one correct list of rules and guidelines
    WHERE SHOULD THE WITNESS BE PREPARED?                          for preparing a witness for deposition. Further, any list that
Another important aspect of deposition preparation is the          one comes up with will necessarily need to be tailored for each
location of the deposition preparation. The witness will often     witness. An inexperienced deponent will need more instruc-
request that he be prepared in his office or even at his home.     tion than an experienced deponent. However, based upon my
This is typically because it is the most convenient place for      own experience and from discussions with numerous other
him. The attorney may feel obliged to cater to the witness’        attorneys regarding how they prepare witnesses, the following
request, either because he is the client or because he is a        rules and guidelines tend to be used by most experienced
non-party witness and the lawyer does not want to upset a          lawyers when preparing witnesses for depositions.
potentially good witness for his case. However, the witness’
office or home is rarely the best place to prepare him for his     § I am in charge of the preparation process. The lawyer
deposition.                                                        must take command of the preparation process. You know
                                                                   more about the deposition process than does the witness and
The convenience of the witness being at his own office or          you should know more about the case than any single witness
home will also mean that he is more accessible to those who        knows about the case. You should, therefore, be decisive and
need his time and attention for other matters. Interruptions       clear in your instructions to the witness so they will under-
from phone calls, employees, supervisors and/or family             stand the importance of the situation and so they will feel
members will make it difficult for the lawyer to maintain          comfortable that they will be going into the deposition with
the witness’ focus at length on the issues needing to be           someone who knows what he is doing, who is looking out for
addressed. Furthermore, many witnesses feel compelled to           them, who will assist them and, where necessary, who will
continuously check e-mails and phone messages and check            protect them during the deposition process. Within reason,
in with supervisors and employees at the office to make sure       you set the time and place for the deposition preparation,
things are running smoothly without them, even if they have        and let the witness know that it is in his best interests to
requested that they not be disturbed during the deposition         follow the rules and guidelines you are giving to him. He
preparation. These are the witnesses the lawyer will most          does not have to like the rules or guidelines, but he does
need to get away from their office to adequately sustain their     have to follow them.
attention during the deposition preparation.
                                                                   A related issue is advising the witness to not review any
Likewise, preparation of the witness at the lawyer’s desk is       documents or discuss the matter with any other witnesses
also typically not an ideal location. The accessibility of the     prior to the deposition preparation. Without this instruction,
phone and the computer, as well as other attorneys and staff       many witnesses take it upon themselves to learn or refresh
vying for his attention will also distract the lawyer. Most of     their memory of the facts, believing that doing so will help
us also have other matters sitting on our desks asking for         you better prepare them for their deposition because they
our attention and distracting us from concentrating solely         will know the facts. However, the lawyer should control what
on preparing the witness for his deposition.                       the witness reviews before the deposition and otherwise how
                                                                   the witness’ memory is refreshed. The last thing you want
Generally, the preferable location for preparation of a wit-       the witness to do is to review an otherwise privileged docu-
ness should be in a conference room or other room at the           ment the night before your preparation believing that you
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                                                 THE
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would have wanted him to refresh his memory of the events             Indeed, some witnesses may believe that the lawyer wants
of the case.                                                          them to be less than truthful so they can help the case, even
                                                                      if the lawyer never makes such a statement. For this reason
If the witness is aware of a document that will be important          alone, the lawyer should, at both the inception and at the
to the deposition preparation and the lawyer does not already         conclusion of the preparation, remind the witness of this rule
have the document, the witness should be instructed to send           to dissuade the witness of any incorrect perceptions he may
the document to the lawyer immediately or, at worst, bring            have regarding the necessity to tell the truth.
the document to the deposition preparation. However, the
witness should be specifically instructed to not further review       Also, reminding a non-party witness to tell the truth at the
the document until you have had an opportunity to review              beginning and the end of the preparation is of utmost impor-
its contents.                                                         tance. Discussions between a lawyer and a non-party witness
                                                                      are not privileged (except of course as to the non-party’s own
§ Tell me everything you know. An important aspect of the             lawyer) and opposing counsel can and should ask the wit-
deposition process is for the attorney doing the preparation          ness about the lawyer’s preparation of the non-party witness.
to learn as much from the witness as possible. The witness            The non-party witness therefore needs to be clear that the
must understand that you need to obtain from him during the           lawyer’s attempts to prepare the non-party witness are not
preparation process all of the information he has regarding           attempts to improperly change his testimony or requests for
the case, even if that information is unfavorable to your side        anything less than the truth. Additionally, the theories of
of the case, embarrassing to the witness or someone else, or          primacy and instantcy teach that people most often remember
because the witness believes it is not relevant to anything in        the first thing they hear and the last thing they hear during
the case. Explain to the witness that the last place a lawyer         a conversation. If you have advised the non-party witness at
wants to hear bad news about his case or about a witness is           the beginning and at the end of your preparations that above
when the witness is on the witness stand at trial, and that the       all else he should tell the truth, when opposing counsel asks
further in advance the lawyer knows all of the facts, the better      him what he and you discussed during your meeting, he will
he will be able to deal with those facts. Make the witness as         most likely remember first, if not exclusively, that you told
comfortable as possible about your intentions, particularly           him to be truthful.
with a non-party witness, so he will be as candid as possible
with you during the preparation process.                              § We need to review documents and discuss other witness’
                                                                      testimony. The witness should never see an important docu-
§ Tell the truth. The most basic rule in preparing a witness          ment for the first time during the deposition if his testimony
for deposition is emphasizing to the witness that first, fore-        will be affected by the document’s contents. If the document
most, and always, above all other rules, tell the truth. While        is important to the case, the lawyer should, at a minimum,
this seems an obvious rule, it can be overlooked during the           show the document to the witness during the preparation
preparation process because it is so obvious.                         and ascertain whether the document affects the witness’
                                                                      testimony in any manner.
In addition to the obvious legal, ethical and moral issues
arising from a witness being less than truthful, the witness          Similarly, the attorney should review with the witness any
should be reminded of the extreme importance of his own               documents which will refresh the witness’ recollection,
credibility. If the opposing attorney is able to convince the         but only if the attorney believes that having the witness’
trier of fact that the witness has lied as to even one fact, the      memory refreshed at that time is important. Reviewing these
trier of fact will not only have the prerogative to disregard all     documents will also help the witness become accustomed
other testimony from that witness, but they will likely do so.        to handling the documents during the deposition and will
Thus, even a lie about an otherwise irrelevant fact can mean          help teach him the necessity of reviewing documents during
that the loss of the effectiveness of what may have been your         the deposition.
best witness. For this reason, the lawyer make every effort
to make sure the witness understands that he should tell the          Additionally, after hearing what the witness knows about
truth even if the truth hurts the case. It is up to the lawyer to     the case, the attorney should review with the witness any
work with the truthful facts, regardless of their impact upon         documents or testimony from other witnesses which are con-
the outcome of the case.                                              tradictory to this witness’ recollection to determine if there
                                                                      is a plausible explanation for the difference in the testimony.
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For example, this witness may be prepared to testify that the      Without adequate preparation, most witnesses will not
light was red where another witness has testified that the         understand the difference between a conversation and the
light was green. Reviewing the testimony with the witness          deposition process. They will, therefore, want to fill in the
may reveal a previously unknown reason for the difference          blanks for opposing counsel, explain their answers when no
in the testimony, such as the relative positions of the wit-       such explanation has been requested or is needed, attempt
nesses to the accident.                                            to teach the opposing counsel about a topic he appears to
                                                                   know nothing about, and otherwise fill the silence between
The attorney will also want to consider reviewing graphic          questions by providing additional testimony on the topic just
photographs or other material with the witness during the          discussed. Emphasizing that a “.” should be mentally placed
preparation if it is likely that the opposing lawyer will use      after any “Yes,” “No,” “I don’t know” or “I don’t remember”
the material during the deposition and the attorney wants to       will help the witness remember that they are not in a con-
take some or all of the shock out of the photographs or other      versation with the opposing counsel and that their answer
material. The surprise of graphic photographs, such as in a        may be adequate without further explanation.
wrongful death case, can cause the witness to lose his focus
on your instructions and the opposing lawyer’s questions.          Importantly, “I don’t know” and “I don’t remember” have
If the witness reviews the materials during the preparation,       two very different meanings when they are in the black and
he will have time to compose himself before the deposition         white text of a deposition transcript. “I don’t know” tends to
and will be less affected by the photographs if they are used      convey that the witness never knew the answer to the ques-
in the deposition. At the least, the lawyer should advise the      tion. “I don’t remember” tends to convey that the witness
witness that there are graphic photographs or other materials      knew the answer to the question at one time, but cannot
and that they may be used during the deposition to, among          now recall the correct answer. However, witnesses often use
other purposes, upset the witness.                                 “I don’t know” when they really mean, “I don’t remember.”
                                                                   The lawyer should point out and emphasize the differences
§ Answer the opposing lawyers’ questions accurately,               in these two phrases, as once the witness says “I don’t know”
but as briefly as possible. Many deposition questions can          to a question, the opposing counsel will have an easier time
be answered with one of four phrases – “Yes,” “No,” “I don’t       impeaching the witness if he later remembers the answer to
know” or “I don’t remember.” Remind the witness that most          the question or his memory is refreshed by a document or
of the time a mental “.” can be placed after these statements      other witness testimony.
instead of a “,” and the answer will still be accurate. For
example, in an ordinary conversation if someone asks, “do          A major caveat to this rule is that the witness should not give
you have a watch?” he will likely get a response that includes     a “yes” or “no” answer to a question if the question requires
the specific time. However, in a deposition, the witness may       an explanation to be accurate, even if the opposing counsel
answer “yes” and the answer will be accurate. If the opposing      insists on getting only a “yes” or a “no” to his question. Let
lawyer really wants to know what time it is, he can and will       the witness know that he should not be intimidated into
ask a more specific question. A more pertinent example             giving a single word answer just because the opposing counsel
would be the opposing counsel asking the witness whether           insists on one if the question cannot be answered accurately
he knows the opposing party. The briefest, most accurate           without an explanation.
answer to that question is “yes” or “no.” If the witness does
know the opposing party, he should not continue with an            § Listen carefully to the question. Witnesses often antici-
explanation of when he met, how he met, or how long he             pate the subject matter of the next question and either begin
has known the opposing party.                                      answering the question before the opposing counsel is fin-
                                                                   ished with his question, or begin mentally formulating their
Why? Depositions are an adversarial, question and answer           answer to the question while it is still being asked. The witness
process, not a conversation. The witness is not obligated to       must be reminded that each question is a new question and
provide more information in response to a question than what       it may or may not relate to the last question.
is required to make the answer truthful. Volunteering more
information than is sought by a question rarely advances the       Additionally, most attorneys choose the wording in their ques-
witness’ credibility, but will almost always extend the time       tions very carefully, particularly with true cross-examination
he spends in the deposition.                                       questions. The witness needs to be instructed that they must,
                                                                   in return, be precise in their answers and in the words they
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use to answer these questions. If the cross-examination              question, but are not sure, they should give an appropriate
question is mostly correct, but one fact or assumption in the        caveat to the answer, such as “I am not sure but I think …”
question is incorrect, regardless of the relative importance of      If the witness is aware of a document from which the answer
the incorrect fact or assumption, the witness needs to point         to the question can be obtained, the witness should ask for
out the incorrect fact or assumption as part of his answer, if       the document rather than guess as to what it says.
he can answer the question at all.
                                                                     Finally, if the witness is going to give an estimate, such as
A good instruction to help the witness remember that he              distance, time, speed, etc., he should state specifically that he
is in a deposition and that he must therefore listen to the          is estimating. Some witnesses are really bad at estimates, so
question carefully is to have him always sit up on the front         they should be advised to give a reference point for their esti-
edge of the seat with his hands clasped in front of him on the       mates where possible. For example, if the witness believes that
table. Sitting in this manner will help the witness recognize        a discussion took place six months ago because the weather
instinctively that this is a formal setting in which there are       was hot, he should indicate as much. Thus, if the conversa-
more rules and procedures to be followed than in a normal            tion really took place eighteen months ago, there will be at
conversation, as opposed to slouching back in the chair with         least some readily apparent explanation for the discrepancy
his hands flying about as he talks, as he likely does during a       in his testimony.
conversation with his neighbor about last night’s ball game.
Importantly, this instruction is an absolute for any videotaped      § Do not make speeches and keep your cool. Witnesses
deposition, as it will compel the witness to sit up straight and     should never make speeches during cross-examination
not unnecessarily use his hands while talking. The lawyer            by opposing counsel. Some witnesses feel the need to tell
will likely have to consistently remind the witness of this          the opposing counsel exactly what they think of him, his
instruction, as it is not a natural posture for most people.         case, other witnesses or the legal system in general. Some
                                                                     even believe that if they give a persuasive, lengthy state-
§ Don’t guess and if you are estimating, say so. Witnesses           ment regarding the facts of the case as they see them, they
tend to believe that they need to know something about every-        will convince the opposing counsel that he does not have a
thing they are asked about. Some believe that if the opposing        case or defense. The witness needs to understand that the
lawyer is asking them the question, it must be because he            opposing counsel cares little about what the witness thinks
is expected to have an answer to the question. Some believe          of him, his case, other witnesses or the legal system, and that
that the answer is likely or should be “X” so they testify as to     the deposition is not the place to attempt to persuade the
a fact when they are actually only guessing. Some just believe       opposing counsel that he doesn’t have a case or a defense.
that they will look dumb if they do not know the answer to           Such a speech will likely do little more than give the opposing
the question. Indeed, some lawyers are quite adept at making         counsel ideas regarding how he can affect the witness’ cred-
witnesses believe that they should know the answer to their          ibility at trial.
questions even if there is a plausible reason for the witness
not to know the answer to the question (“You mean as the             Likewise, many lawyers are good at getting witnesses to lose
chief executive officer you did not know that your company           their temper, and there are many witnesses who lose their
was buying widgets from ABC Company?”).                              temper even if the opposing counsel is not trying to provoke
                                                                     the witness. Advise the witness that becoming upset with
At best, the witness’ guess is correct. At worst, the witness’       the opposing counsel rarely gets the opposing counsel to
guess harms not only the witness who is doing the guessing,          back down from a tough set of questions, but it will almost
but also harms others who have testified to the contrary on          always help the opposing counsel’s case. Among other things,
the same topic. The witness’ guess may inadvertently put             it will teach the opposing counsel what it will take to make
into question the credibility of everyone else who has testi-        you upset on the stand at trial, and it will let the opposing
fied on the same topic, even if the other witnesses testified        counsel know that he is hitting on a sensitive area, and will
accurately. Thus, the witness should be counseled not to             only serve to drive him into further questioning on the topic.
guess at an answer. Instead, under such circumstances the            Furthermore, getting upset with opposing counsel often unfa-
witness should state “I don’t know” or “I don’t remember,”           vorably impacts the witness’ credibility with the trier of fact.
as appropriate.                                                      Additionally, when the witness is upset, he will be less likely
                                                                     to listen carefully to the question and less likely to give brief,
Similarly, if the witness thinks they know the answer to the         precise and accurate answers.
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                                                                                                                                   11




§ Refrain from characterizing your own testimony. Phrases            had never seen a specific set of answers to interrogatories nor
such as “to tell you the truth,” “honestly,” and “in all candor”     provided any information to assist in preparing responses to
beg the question as to whether the witness has previously            such interrogatories, though he never asked to look through
been telling the truth, been honest or given his testimony           the interrogatories. The opposing counsel then went page-
in all candor. The witness will not gain any credibility by          by-page, line-by-line, through the interrogatories, getting the
using these or similar phrases, but may well lose credibility        same negative answer to each question. After twenty minutes
by using them.                                                       of this testimony, opposing counsel finally turned to the veri-
                                                                     fication page where the witness’ signature was prominently
§ Avoid superlatives and absolutes, and do not exaggerate.           displayed. While the witness attempted to explain that the
Phrases such as “I never” or “I always “are rarely accurate. The     interrogatories had been sworn to almost two years previously
witness may believe that by using superlatives and absolutes         and that he simply did not recall them, both the witness’
or by exaggerating, they are simply putting an emphasis on           credibility and the corporation’s credibility were damaged.
the likelihood that they did or did not do something – i.e. “I
always wear my seat belt.” However, if the opposing counsel          Likewise, if information is in a document and having the
can show even one action by the witness contrary to the exag-        document would assist the witness in answering the question,
geration or absolute, the witness’ credibility will be impacted.     the witness should ask to see the document before answering
At worst, the witness will have to try to explain the difference     the question, particularly if the document is already marked
in his “I always,” “I never” or other exaggerated testimony          as an exhibit.
and the one time the opposing lawyer was able to point out
where such testimony was not accurate.                               § Do not rehearse answers to questions or attempt to
                                                                     memorize testimony. If the answer to the question is truthful,
§ Always review any document you are being questioned                there is no reason to rehearse or memorize it. Additionally,
about before testifying about its contents. Witnesses often          rehearsed answers often look rehearsed, and a good lawyer
believe they know the contents of a document and don’t need          will pick up on this and cross-examine the witness further
to read it before giving answers regarding the document,             on both the substance of the question and on how the wit-
particularly if they work with the document frequently or            ness came to learn the answer.
have recently reviewed the document. However, witnesses
tend to summarize their knowledge for easy access at a later         Importantly, when a witness rehearses or memorizes answers
time. Thus, an employee who works with the same policies             or testimony, they lose the emotions they have when the
and procedures every day may testify based upon his “sum-            answers are spontaneous. For example, a personal injury
marized” knowledge of the policies and procedures manual             plaintiff who rehearses his answers to questions regarding the
and fill in blanks in his own memory based upon what he              pain he sustained following an accident will likely not have
recalls about the other portions of the manual. Or, the wit-         genuine emotions about those injuries, and a good defense
ness may be handed a different document than the one he              lawyer will pick up on this (as may the trier of fact) and use
believes he is testifying about. For example, there may be           it to his client’s benefit.
multiple amendments to a contract that is the subject of a suit,
each slightly different than the other. If the witness does not      On a related note, the lawyer should be aware that the more a
review the specific document he is being questioned about but        witness discusses an emotional topic, the more likely he will
instead assumes he knows which amendment he is looking               be less emotional about that topic at the time of the deposition
at, he will likely testify incorrectly regarding its contents.       or trial. Therefore, if the emotions are an important part of
Similarly, the witness may be reminded of a fact important           the witness’ credibility or an important part of the case, the
to his answer while reviewing the document, such as another          lawyer must be careful not to over prepare the witness on
paragraph in a contract that modifies the paragraph about            the emotional topic. If, however, the witness’ credibility or
which he is being questioned.                                        the case is negatively affected by the witness’ emotions on
                                                                     the topic, the lawyer should spend sufficient time discussing
It is imperative that the lawyer review with the witness any         the topic with the witness as is necessary to take the emotion
previously sworn to testimony, such as prior depositions,            out of the topic.
affidavits and even interrogatory answers to ensure that the
witness’ recollection of the events remains consistent. In one       § Your appearance is important. Most trial lawyers advise
infamous case, a corporate representative testified that he          the witness what to wear, how to sit and how to speak if
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they know that the deposition is going to be videotaped. It          that meal (such as breakfast). If the deposition lasts more
is obvious in such situation that the videotape may be played        than a couple of hours, the witness should also be strongly
to the jury and how the witness appears will impact his cred-        encouraged to eat another light meal or snack during a break
ibility at least to some degree. However, the lawyer should          in the deposition. A large or heavy meal will likely make the
also advise the witness on what to wear, how to sit and how          witness lethargic, and no meal will allow the witness to be
to speak even if the deposition will not be videotaped.              easily drained of his energy.

Advising the witness to dress appropriately and ensuring             Many witnesses will not want to eat before or during a
that he does dress appropriately will help remind the wit-           deposition due to the anxiety they are feeling about the
ness of the importance of his deposition testimony and the           deposition. They should, however, be encouraged to do so
seriousness of the process. He will be more likely to recall         as a light meal will, in addition to providing needed energy,
your important instructions if he keeps this in mind.                help calm the butterflies and related anxiety symptoms they
                                                                     are experiencing. The witness should be discouraged from
Additionally, during the deposition both you and opposing            eating foods and snacks with high sugar content. While they
counsel will be evaluating how the witness will appear to the        will experience a temporary boost in energy, they will also
trier of fact. Having the witness dress appropriately, even if       experience the ensuing crash after the boost and they will
the deposition is not videotaped, will give you a better idea        be worse off than if they had not eaten at all.
as to how the witness will present at trial. Assuming that the
witness is favorable to your case, you will also want opposing                       A WORD ABOUT EXPERTS
counsel to believe that the witness will present a good image        In my own experience, even the best expert witnesses need
to the trier of fact and rate the witness highly.                    some preparation before their deposition. And unless the
                                                                     lawyer has worked with the expert on other occasions, he
There is not enough space dedicated to this article to discuss       cannot know how well the expert will do in the deposition
how a witness should dress for his or her deposition. The            even if the expert has been through hundreds of depositions.
lawyer should, however, have the witness dress, as he would          The lawyer should therefore make it a habit to meet with his
have him dress for the trial of the matter. The lawyer should        experts to prepare them for their deposition just as they would
be specific with his instructions and if possible, view the          a law witness who has never been deposed. If the preparation
clothes to be worn before the deposition if the witness’ taste       reveals that the expert is quite knowledgeable on the intri-
in clothing is questionable. In one case, the witness’ idea of a     cacies of the deposition process, the preparation will not be
suit was blue jeans, a flannel shirt, a brown corduroy jacket        lengthy. In the least, the attorney should go over the impor-
and a lime green sock tie. And that was in 2002.                     tant documents and testimony with the expert to determine
                                                                     whether and how he has considered such evidence.
§ Get a normal night’s amount of sleep and eat a light
meal. Depositions are mentally and physically draining on                                   CONCLUSION
the witness. The witness needs to know before the deposition         Preparing for and participating in a deposition takes time,
that the lawyer is in charge and that the worst the opposing         thought, and care – all of which are severe challenges for
counsel can do to the witness during the deposition is to            the witnesses who must deal not only with what is usually
ask tough questions. Accordingly, the witness should under-          a unknown process to them, but also with their ongoing
stand that worrying about the deposition the night before            responsibilities at work and at home. It is probable that every
will not help the witness’ testimony and that it may hurt his        witness you ever prepare will forget some, if not all of your
testimony if he is too tired to comprehend the questions or          instructions by the end of the deposition. However, under-
if the opposing lawyer is able to wear the witness down to           taking the effort to prepare the witness is vital to ensuring
the point of just giving him the answers that will make him          that the witness has all of the tools he needs, if he chooses
“go away” the quickest. Recommend to the witness that he             to use them, to get through the deposition and does as well
go to bed earlier than he normally would if he thinks it will        as possible.
take him longer to go to sleep or that he will wake up earlier
than normal.                                                         Bryan Haynes is a partner in the Dallas office of Locke, Liddell
                                                                     & Sapp. Mr. Haynes practice includes both trial and appellate
The witness should also be advised to eat a light meal before        litigation. ✯
the deposition, even if the witness does not normally eat
                                                       ADVOCATE      ✯ FALL 2004




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                                                                                                                                       13




                                 PREPARING TO TAKE DEPOSITIONS
                              BY WALKER C. FRIEDMAN AND GEORGE PARKER YOUNG




D      EPOSITIONS ARE THE MOST IMPORTANT discovery
        tool available to trial lawyers. Certainly interrogatories
        and requests for admissions have their place, but they
are answered by lawyers. Accordingly, they often provide very
little useful information. Responses to request for disclosure
                                                                       to properly prepare. This is a mistake. Effective deposition
                                                                       taking begins with proper preparation. If you have prepared
                                                                       properly, the actual taking of the deposition is generally the
                                                                       easy part. The ability to effectively take depositions and to
                                                                       make good decisions while taking them is rooted in having
provide, at best, a roadmap with no detail. Although docu-             thought through the issues beforehand, clear knowledge of
ment production requests are indispensable, only depositions           the facts, and a detailed understanding of the relevant law.
provide you the opportunity prior to trial to directly interact        No amount of legal talent or experience can offset the lack
with the witnesses, including the opposing parties, on the             of proper preparation.
record without the filter of the opposing attorneys. There,
you have the chance to accomplish two important objectives:            What follows first is a checklist of sorts to help impose some
                                                                                       discipline on the preparation process.
 1. To prepare for trial; and                                                          What is the goal?
 2. To send the exact message which is most              “... every aspect of a
    helpful to your client.                                deposition sends            Why are you taking this deposition in the
                                                             a message. ”              first place? If everything goes exactly right,
First, trial preparation may involve obtaining                                         what do you hope to take away from it? What
favorable evidence or it may involve factually                                         is the worst thing that could happen in the
negating your adversary’s claims. Perhaps your goal is to pin          deposition? Before deciding on taking a particular deposition
down a witness to a particular story or obtain impeachment             or how to go about taking one, the primary objectives of the
evidence. Although your discovery needs for different cases            exercise should be determined and the preparation should
vary widely, depositions are usually the best way to actually          be consistent with accomplishing the objectives.
obtain the substantive information about your case in a form
useable in trial.                                                      This forces the practitioner to focus on the working theory of
                                                                       the case, the likely order of trial and manner of trial prepa-
Addressing the second objective, every aspect of a deposi-             ration, the weaknesses of the client’s case, and where the
tion sends a message. The fact that the deposition is even             deposition will likely fit into all of these. Is it early, and the
scheduled is a message. Your preparation or lack of it sends           need is for a corporate representative witness to explain the
a message. Your conduct in a deposition sends a message as             position of the corporation on a number of issues (keeping in
does your demeanor, your response to opposing counsel,                 mind Disclosures and Interrogatory Answers seldom are very
your perceived intelligence, your willingness to go to trial,          helpful in this respect) or the identity of corporate witnesses
and even your appearance. This aspect of the process should            and what they know? Is it more fact-specific discovery? Is your
not be underestimated.                                                 goal a quick summary judgment, or avoiding one? Sometimes
                                                                       plaintiff’s counsel will work through several opposing party
In order to accomplish these goals, you must be properly               depositions, looking for the one witness in trial subpoena
prepared.                                                              range to call adverse, to give the jury a flavor of the oppo-
                                                                       nent. Is the witness (like most) helpful on only one or two
    The Obvious “Most Important Thing:” Preparation                    very important points, and likely will work best at trial as a
Everyone knows it; few deposition-takers do it. Most have              tightly edited ten or fifteen minute deposition? Are you trying
associates or paralegals do some preparation, but seldom               to pin down the other side to their “story”–no matter what it
does the experienced practitioner take the time necessary              is? The goal may be to cause co-defendants to implicate one
                                                      ADVOCATE     ✯ FALL 2004




                                                THE
14




another. See James F. Szaller & Gerald B. Leeseburg, Divide and                             Know the Facts
       ,
Conquer 39 TRIAL 42 (2003). One publication lists seventeen          Since law school, we have all been taught that mastery of
possible deposition objectives. See Stuart M. Israel, Taking         the facts wins lawsuits. Nowhere short of trial is this more
and Defending Depositions, (A. L. I. –A. B. A. Committee on          evident than in depositions. There is no excuse for not having
Continuing Professional Education 2004).                             a profound knowledge of the facts prior to taking important
                                                                     depositions. If you don’t yet know the facts, don’t schedule
Consider whether your trial goals and priorities can be met          depositions. It is obvious if the deposing attorney has put in
without taking the deposition. Many depositions don’t need           the time to truly learn the facts. It’s even more apparent if
to be taken. Simply because a name appears                                               he or she has not.
on a response to a request for disclosure, it
does not necessarily follow that each such       “ Once the decision is                 You should exhaust available sources of
person must be deposed. An interview may                                                information to determine the facts of your
                                                 made that a person or
be sufficient. If opposing counsel is rea-                                              case. This is not a function of intelligence
sonable, a Rule 11 agreement limiting the       entity must be deposed,                 or legal talent. It is pure effort and it is often
topics of identified witnesses with limited   the goals of the deposition               tedious. Sources normally include relevant
information may be adequate.                        should be clear. ”                  documents, your client, the responses of
                                                                                        the opposing party to written discovery,
Depending on the goal, it may make more                                                 and non-party witnesses. Call the non-
sense to take a series of corporate representative depositions       party witnesses. Call them as soon as you can. Talk to them
rather than taking depositions of specific, named individuals.       like a human, not like a lawyer. Don’t assume the other side
An excellent law review article on corporate representative          has them all lined up. Additional sources may also include
depositions appeared in last year’s BAYLOR L AW R EVIEW. See         consultants or experts as well as technical information and
James C. Winton, Corporate Representative Depositions In             data from authoritative sources such as codes, regulations or
Texas–Often Used But Rarely Appreciated, 55 BAYLOR L. R EV.          guidelines. Once obtained, the relevant information should
651 (2003). Not only does the article explore the differences        be analyzed thoroughly before depositions begin. Otherwise,
in corporate representative depositions under Federal Rule           you are going to consistently be playing catch up throughout
30 (b)(6)and Texas Rule 199. 2(b)(1) and note the important          discovery. You are only ready to consider beginning deposi-
differences in Federal Rules 30(b)(6) and 30(b)(1), but it also      tions when you have first expended the effort not only to
provides plenty of stimuli for the kinds of topics to which          learn the facts but also to weigh their relative significance,
corporate representative depositions are suited. While the           consider them in context, determine the likelihood of com-
selection of the individual witnesses is left to the opposing        peting scenarios, and catagorize the facts into logical units
party, failure to provide the sought-after information can have      for examination.
devastating consequences to the opponent. See Resolution Trust
Corporation v. Southern Union Co. , 985 F. 2d 196, 197-198                         Database and Internet Searches
(5th Cir. 1993). The requirement that the Texas Rule 199.            This is a great area for paralegal help in preparation. Trial
2(b)(1) notice set out topics to be covered with “reasonable         lawyer databases and defense lawyer databases abound with
particularity” requires the practitioner to really think through     transcripts of prior depositions taken of most experts, and
what he is after. See Alexander v. FBI, 186 F. R. D. 137, 142-43     of many, many witnesses. Simple Google and Lexis/Nexis
(D. D. C. 1998); see also Alexander v. FBI, 188 F. R. D. 111,        searches can reveal many things about a witness missed
121 (D. D. C. 1998) (subsequent memorandum order).                   through conventional written discovery. Investigative data-
                                                                     bases abound to find out a lot of information that saves
Once the decision is made that a person or entity must be            deposition time. Use the deposition to confirm only salient
deposed, the goals of the deposition should be clear. Write          information your search uncovered. Some web sites that are
those down on a sheet of paper and keep that sheet of paper          useful include:
at the front of your deposition binder for the witness. Look
at it while preparing for the deposition, before it starts, and        1. www.trialsmith.com (by subscription only) for prior
before the end of the deposition. Before the deposition is over,          depositions; you can also check to see if anyone else
make sure that you either obtain what you initially came                  has looked for your witness, and contact them for
for from the witness or at least did everything you could to              information;
accomplish the objectives.                                             2. www.publicdata.com (by subscription only) or other
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                                             THE
                                                                                                                              15




   similar public records search services (there are lots         17. http://blawgs.detod.com allows full-text searches of
   of them, some are better; PublicData is cheap at 10¢              a number of law-related web logs, called “blawgs. ”
   a search);
3. Lexis and Westlaw for public records, licenses, and          See also Robert J. Ambrogi, “The Essential Guide to the
   news article databases;                                      Best (and Worst) Legal Sites on the Web,” available soon at
4. Medical:                                                     www.lawcatalog.com.
     www.abms.org (shows most board certifications);
     www.docboard.org or the Texas Board of Medical             There are plenty of others – incorporate a thorough computer
        Examiners:                                              search into your preparation.
     www.tsbme.state.tx.us; Board of Nursing Examiners
        Texas: www.bne.state.tx.us;                                             Get All The Documents First
     Board of Dental Examiners Texas:                           Don’t wait for depositions to obtain all relevant documents.
        www.tsbde.state.tx.us;                                  Send a document production request to the opposing party as
     http://gateway.nlm.nih.gov/gw/Cmd access to                soon as you know what documents are going to be required.
        MedLine (medical journal articles);                     Your initial document production request should be pervasive.
     different access to MedLine (PubMed) (allows               The goal is to obtain all of your opponent’s documents up
        search by author);                                      front. Do this as soon as possible. If it later turns out that
5. Property/Address from the Appraisal District or other        additional relevant documents exist, send another request.
   property taxing body — many if not most have this            Do this as often as you need to. If your document produc-
   information in searchable form on the Internet, e. g.        tion request initiates a discovery war, don’t wait to begin the
   Dallas: www.dallascad.org;                                   process. Request a privilege log, move to compel, schedule a
6. Secretary of State for business information (trade-          hearing and obtain an order as quickly as possible - certainly
   marks, entities, registered agents, assumed names,           before depositions start.
   etc. ) www.sos.state.tx.us;
7. www.google.com and other Internet search engines             Always bates-stamp all documents produced with an iden-
   find web pages and news articles;                            tifying prefix which shows who produced the documents
8. Telephone directories, e. g. www.switchboard.com             and number. If the producing party does not bates-stamp its
   (also for reverse searches);                                 documents, do it for them. Also, keep a log of who produced
9. www.hoovers.com for company information (basic               which documents (by bates-number) on what date. This will
   free, in depth by subscription);                             avoid later confusion.
10. www.freeedgar.com for SEC filings;
11. a company or individual’s own web site;                     The foregoing applies to documents of non-parties as well.
12. ratings firms (e. g. Dun & Bradstreet, Moody’s,             Texas Rule of Civil Procedure 176 provides the easiest and
   Best) have web sites and some have free information:         cheapest way to get them before depositions. Once you have
   http://dunandbradstreet.com/us/; www.moodys.com;             all of the documents, you are in a position to begin to compile
   www.ambest.com;                                              a database or chronology.
13. www.soople.com provides easy access to Google’s
   advanced search and other functions such as calcula-         There may be times when obtaining all the documents up
   tors and people finders;                                     front is just not feasible; deadlines (to designate experts, for
14. www.queryster.com is a meta-search engine that              example) may dictate the need to start taking sworn testimony
   submits queries to ten of the most popular search            before a motion to compel or for protection can be heard by
   engines, and can be customized to include more than          the court. In those instances, a significant portion of the
   25 search engines;                                           deposition may need to cover such things as the existence
15. www.zapmeta.com is another meta-search engine               and availability of the sought- after documents, the ease of
   that queries seven major search engines and also             obtaining the documents, who maintains the documents,
   allows a one-click search of the Internet Archive,           and the details supporting and defeating any claim of privi-
   www.archive.org/web/web.php, for older versions              lege (so it is also important to have the opponent’s privilege
   of a web page;                                               log, in order to test broad, sweeping assertions of privilege).
16. www.searchsystems.net links to public records on            Often one is rewarded with testimony that the documents are
   the web (not all of which are free, however); and            easily procured and produced (undercutting the omnipresent
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“burdensome and harassment” objections) and admissions                blanks with the facts, you have a chronology with exhibits.
that the documents weren’t treated as privileged at all.
Whenever you are forced to proceed under these less than              For a complex case, the authors have found that the best
optimal circumstances, leave plenty of time for re-deposing           way to organize is with the help of litigation software. These
the witness once the documents are eventually produced. A             systems allow you to organize the evidence a number of dif-
statement to this effect may be made at the conclusion of the         ferent ways and to obtain specific information quickly. For
deposition, and should also be contained in a letter preceding        example, you can create a database of documents and facts
the deposition by a day or two (for example: “Tomorrow we             which is searchable by date, key word, issue, author or other
are deposing witness X. Even though you have not produced             useful ways. The depositions that have already been taken
a number of relevant documents timely requested of your               can be downloaded and searched quickly–usually by key
client, we are determined to go forward with the deposition           word. Relevant documents can be scanned and loaded onto
tomorrow, but reserve the right to depose the witness again           you hard drive or a CD. If you are using a litigation software
after we receive the sought-after documents.”). Often, such a         program, you may want to consider the following rules.
letter will result in production of the sought-after documents
at the beginning of the deposition.                                   Rule #1. Copies are cheap. Lawyers are expensive. If you have
                                                                      a doubt about including a copy of a document in an index or
When this happens, begin the deposition and have the wit-             an exhibit list, copy the document.
ness explain what he brought, why the documents were not
produced earlier, and what they relate to. Then announce that         Rule #2. Before copying or scanning the documents, mark
you are going off the record to review the documents. Do so           the relevant ones with exhibit numbers. Don’t ever change
and take all the time you need to update your preparation. Let        that exhibit number for that document. In deciding which
the witness and opposing counsel wait, and proceed with the           documents to include, remember Rule #1. It doesn’t matter
deposition only after you have had adequate time to review            if you make too many documents into exhibits and never
and consider the new documents.                                       use many of them.

It is a good idea to ask each witness if he is aware of any           Rule #3. When entering documents into the database, input
other relevant documents. Sometimes you may be pleasantly             the exhibit number (if there is one), the date, the issues to
surprised.                                                            which the document relates, a brief summary of the docu-
                                                                      ment, the author, recipient, and the names of any witnesses
                Legal Research In Advance                             that relate to the document. This will also serve as your
Prepare an outline of the essential elements for each one of          chronology. Such a database is easily convertible into an
your or your opponents’ causes of action and all affirma-             exhibit list at the end of discovery.
tive defenses. This becomes a proof outline. If a witness’s
deposition will not supply at least some facts relevant to            Rule #4. Update your database and exhibit list as soon as
an element of the proof outline, you may have no business             additional documents and facts are received. Also, download
taking the deposition.                                                all depositions as soon as you receive them.

In a perfect world your entire jury charge would be drafted           Rule #5. Establish a key word vocabulary early in the case.
before the first deposition. If that is not your world, you can       The vocabulary list may grow but it should remain consistent.
at least research the significant issues and familiarize yourself     Then you can search your database, exhibit list, or the deposi-
with the elements of relevant causes of action and defenses           tions by key word. That is, if your suit involves a widget named
in advance. Doing so will often cause you to consider lines           “Excaliber,” you can type in that word to obtain all references
of examination which may not have otherwise occurred to               to the widget in any of the databases or source documents you
you. It will certainly make you more thorough.                        have loaded into the program. This saves a lot of time. If you
                                                                      do not develop a key word vocabulary early and the widget is
          Organizing the Facts and the Documents                      sometimes referred to as “Excaliber,” sometimes as “Widget
Once you have the documents, know the facts and have done             number 00483,” and sometimes as “the widget,” obtaining
your research, you are ready to get organized for depositions.        all references to the item will be more difficult. This is the
If you have a simple case, organization is not a problem. By          reason that you should develop a key word vocabulary early
putting the documents in chronological order and filling in the       and not deviate from it. The widget should be referred to as
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“Excaliber” not only in your software program but each and       opponent’s weakness or to establish the nonexistence of facts
every time you refer to it in depositions. Prepare a written     supporting one or more elements of your opponent’s claims
key word vocabulary, place it in your trial notebook, and        and defenses.
updated it as needed.
                                                               A no-evidence motion for summary judgment is a powerful
If you have followed these rules, when it is time to depose,   tool for plaintiffs as well as defendants. You can no longer
say, Bill Jones on an issue involving breach of contract, you  wait until trial for the opportunity to prove the elements
should be able to quickly obtain from your software program    of your case. You must be prepared to do so at or near the
a list of each reference within any                                                          close of discovery for the reasons
document and deposition to Bill                                                              explained in TRCP 166a(i).
Jones and to the issue of breach of    “ Seldom should a deposition, even in the
contract. You can then print the         most complex commercial case, even of                    Plan for the Six/Seven
list chronologically, by exhibit         a medical expert in a medically complex                         Hour Rule
number or however else you want              death case, exceed four hours. ”                A good deposition is similar to
it. If the documents are scanned                                                             Carlos Santana’s description of
into your system, you can simply                                                             a good guitar solo: “You should
print copies. If you have diligently maintained your system    know what you’re trying to {do} and where you’re going, and
throughout a case, preparing to depose Bill Jones will be      then get the hell out. ”
simplified, yet thorough.
                                                               A single deposition is generally limited to six hours in state
One final rule is that you should always maintain one paper    court and seven hours in federal court. Very rarely should
copy of the exhibits marked and in three-ring binders. Hard    the entire time allotted ever be used with a witness, expert
drives can fail. Be prepared.                                  or otherwise. Seldom should a deposition, even in the most
                                                               complex commercial case, even of a medical expert in a medi-
      Plan Your Important Depositions with Motions for         cally complex death case, exceed four hours. The availability of
   Summary Judgment (Offensive and Defensive) in Mind          tremendous resources on the Internet and elsewhere to learn
Once you have prepared but before you begin taking depo-       about the background of any witness and the requirements
sitions, you are well advised to consider the strengths and    of detailed expert reports in almost all jurisdictions should
weaknesses of your case in light of what the deponents are     encourage the practitioner to get to the crux of the matter.
probably going to say. If your case has any significance, its  Many factors may explain the need for a lengthy deposition,
resolution will usually require someone, usually the plain-    but these should be the exception, not the rule.
tiff, to survive a motion for summary judgment or perhaps
a number of motions for partial summary judgment. Not          No trial should involve more than one or two witnesses kept
only should you prepare for purposes of later defending        on the witness stand for more than a couple of hours–all
against summary judgment motions, it is just as important      other witnesses should be on the stand for an hour or less, if
in deposition preparation to anticipate and plan for your own  the trial presentation is done effectively. Nevertheless, many
offensive motion or motions for summary judgment. Examine      Texas practitioners still consider it a badge of honor to have
the elements of both your and your opponent’s claims and       deposed a witness over the course of several days; many see
defenses. Review the evidence. Determine if there is evidence  discovery like the author of a recent article in the New York
to support each element of the various claims and defenses     State Bar Journal : “Think of a deposition as the opening
and where the proof will come from. If an opposing witness     rounds of a boxing match . . . you get to feel each other out
or party is the only source of evidence to prove an element on . . . . ” Robert A. Glick, Dissecting the Deposition: More Than
which you have the burden of proof, it is important to plan    Just a Set of Questions, 75 N. Y. ST. B. J. 10, 10 (2003). One
how to properly interrogate the witness about that element.    marketing brochure for a book on taking deposition touts:
This exercise will force you to focus on being able to prove   “For most cases, depositions are the trial. ” See Advertisement
each element of your case.                                     for KURT D. LLOYD, HOW TO PREPARE FOR, TAKE AND USE A
                                                               DEPOSITION: WINNING OUTLINES AND STRATEGIES (published
Your preparation and research should point you to the          by James Publishing) (on file with authors). The “deposition
issues on which your and your opponent’s evidence may be       in the stead of trial” approach has unfortunately permeated
weak or nonexistent. Plan your depositions to exploit your     the culture of discovery. It is rubbish–discovery is discovery,
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a trial is a trial. A deposition is to trial what pole qualifying     oral depositions are preferable in most other circumstances.
is to a NASCAR race. Antics and showing off in deposition             The use of more expensive Realtime is a highly personal
seldom work and very often backfire. Such conduct usually             choice—some attorneys find it a distraction, and with the
effectively woodsheds the witness for trial or exposes too            availability of “dirty ASCII’s” or overnight e-transcripts,
much of your strategy, making later trial examination much            Realtime’s helpfulness in subsequent depositions may be
less powerful. Consider the greater impact of the concise,            marginal.
well-prepared deposition examination, conducted confidently
and accomplished in a minimal amount of time.                         Telephonic depositions can work well where a witness has
                                                                      limited knowledge and is located far enough away that the
That leads to the other lingering issue, especially among less        expense of traveling is not justified. This route is preferable
experienced attorneys: Whether the deposing attorney sacri-           to depositions on written questions where you are relatively
fices thoroughness by taking less time and what about that            certain what the witness will say but may want to be able to
extra question that reveals the smoking gun? Thorough and             ask a few questions.
long are simply not the same thing. And if you’ve prepared
well, you are a lot less likely to lose sleep over the “great         Any remote deposition technique requires a little planning.
unasked question” that could have lead to the “clincher” docu-        If the witness is going to have to refer to exhibits, those will
ment or testimony–chances are you will uncover it if you’re           need to be provided in advance. For telephone depositions,
thoroughly preparing now and later in discovery.                      advance thought should be given to how everyone will be
                                                                      able to hear. Speakerphones are sometimes a problem. Since
There are at least two additional reasons to leave yourself           the court reporter’s hands are busy (assuming you choose
additional time: (1) you may need to re-depose the witness            stenographic means) and the witness must be present with
in the event additional documents or testimony make same              the court reporter, the witness will usually be on a speaker-
necessary; and (2) if you have used all of your allotted time         phone. You may want to test that it in advance.
and opposing counsel then examines the witness, you may
have sacrificed your right to inquire into any new areas or           If you are considering videotaping a deposition, be selective.
ask follow up questions.                                              How many times has the other side videotaped a deposition,
                                                                      and you ended up liking the video so much you couldn’t wait
              How to Record the Deposition                            to use it at trial? Don’t make your opponent’s job easier—video
Although most of us don’t often consider them, a number of            may be preserving some of your opponent’s best testimony.
optional methods of taking depositions are available. Rule            Of course, video may be essential when taking the deposition
199 expressly authorizes telephone depositions as well as             of a crucial witness outside trial subpoena range.
oral depositions by “other electronic means.” Rule 199. 1(c)
authorizes oral depositions to be recorded by other than              Another consideration is the additional expense. Video is only
stenographic means so long as the recording is intelligible,          good if you use it. Because most cases settle before trial, most
accurate and trustworthy. A court reporter is not necessary           videotape is never used. Again, be selective. Another issue is
for a non-stenographic recording. Any person authorized by            what to do with the tape once you have it. If you intend to
law to administer the oath and to assure that the recording           play it for the jury, it must be edited prior to trial. This means
will comply with the standards stated in Rule 199. 1(c) may           both sides’ objections must be determined before trial. Your
record a non-stenographic deposition. A notary public may             pre-trial order should address this. If you intend to splice it
administer the oath. TEX. GOV’T CODE § 602. 002(4). A notary          up for use to cross-examine the witness live, the software is
public is also authorized to take depositions on written              available. This requires significant planning and expense but
questions. TEX. CIV. PRAC. & R EM. CODE § 20. 001(a)(3).              it can be very effective. The impact of a video of the witness
                                                                      directly contradicting his own last answer can be huge.
In deciding the best method to record a deposition, the
first question is oral versus written. Written depositions are        Another consideration which may justify videotaping a
acceptable primarily in limited circumstances such as where           deposition is when you intend to use a focus jury. Showing
you only need to establish a predicate to admit documents or          a focus jury short video excerpts of the main players may
where the witness is friendly, there is no dispute about what         prove helpful in getting qualitatively predictive results from
the testimony will be and there will be very few questions.           the focus jury process.
Otherwise, unless you are under severe budgetary constraints,
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Be aware of important local rules and custom. For example,
U. S. District Judge John H. McBryde in the Northern District
of Texas has a standing pretrial order, wherein item 14 states:
“Not more than fifteen minutes of videotaped deposition tes-
timony will be offered by any party from any deposition.”
Cognizance of this rule may dictate how the video deposi-
tion is conducted for maximum (edited) effect in the allotted
fifteen minutes. See also Andre M. Lagomarsino, Strategic Use
of Video Depositions, 11 NEV. L AW. 8 (2003).

                        Conclusion
Although preparing for a deposition is not one of the most
glamorous aspects of litigation, it is one of the important
areas where you can increase your client’s odds of winning
merely by diligence, organization and hard work.

George Parker Young’s practice at The Law Offices of George
Parker Young involves the representation of patients, physicians
and hospitals in lawsuits filed against HMOs.

Walker C. Friedman is a partner at Friedman, Suder & Cooke
in Fort Worth. He is a member of the Litigation Council and is
on the Editorial Board of The Advocate. ✯
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                                            TAKING DEPOSITIONS
                            BY WALKER C. FRIEDMAN AND GEORGE PARKER YOUNG




O     NCE YOU HAVE COMPLETED the tedious work of
       properly preparing for a deposition, you are ready for
       the fun part. Your preparation and knowledge of the
process give you a number of advantages over the witness.
You know the law. You know the boundaries of admissibility
                                                                   the witness and opposing party with the impression that you
                                                                   are a lawyer who is decent but committed.

                                                                   With the foregoing said, for the witness who intentionally
                                                                   refuses to tell the truth, courtesy need not be such a high
and relevance. You know that discovery allows inquiries into       priority.
areas that might never see the light of day in any trial. You
know how to protect the record. You know exactly what you                           Agreements and Stipulations
want and need from the witness.                                   The first deposition you take in a case is a good place to
                                                                  attempt to reach agreements and some basic stipulations to
However, a witness also has his own advantages. The fact          govern the remainder of discovery and even some parts of
witness knows the facts, and what he or she plans to say.         trial. One area is the agreement under which all the deposi-
The witness knows enough about the case                                              tions are to be taken. TRCP 203 addresses
to know generally what is important. The                                             the signing, certification and use of depo-
witness may have opinions about the merits           “ Good manners are              sitions. It requires the witness to sign and
which might affect his testimony. If the wit-        not inconsistent with           return the deposition within twenty (20)
ness is a party, he has had the benefit of        firm resolve on behalf of days although this may be waived by the
the advice of his attorney who has had the                your client. ”             witness and the consent of all parties.
opportunity to woodshed him. A party wit-                                            Taking all depositions under Rule 203 is
ness knows the party line. If the witness is                                         logical: most witnesses want to have the
an expert, you will be playing on the expert’s turf, and using    right to review their answers and to make corrections. If the
the expert’s vocabulary, which requires additional, special-      opposing attorney has some other agreement which makes
ized preparation.                                                 sense, use it. But make sure that the same agreement applies
                                                                  mutually to all deponents from that point on. There is very
What follows is the authors’ view of some things to keep          little reason for opposing counsel not to agree during the
in mind in depositions to maximize your advantages and            first deposition that whatever agreement is chosen for the
minimize those of the witnesses.                                  first witness should apply to all depositions of all witnesses.
                                                                  That way there can be no later confusion.
                       Good Manners
Courtesy, respect for the witness and their time, unfailing       To expedite depositions and to simplify the admission of
good grace–these are the hallmarks of an experienced, effec-      documents, a stipulation regarding the authenticity of the
tive deposition taker. It’s fine to tell the witness when the     documents produced by the parties often makes sense. Since
deposition is moving well and when you only have an hour or       the adoption of TRCP 193.7, there is little reason not to so
so to go so they can plan the rest of their day. Eliminate the    stipulate.
smirks and rolled eyes. Courtesy will return to you far more
than the nasty stuff–and have interesting side benefits. The      Another stipulation that one of the authors consistently offers
witness is usually the least comfortable person in the room.      relates to the objections during the depositions. The stipula-
With extremely rare exceptions, don’t begin by making them        tion is that as long as the objecting lawyer’s objection is made
even more defensive. Also, don’t forget that you have some        reasonably soon after the witness’ answer, it is deemed to be
witnesses that you will likely be presenting for deposition.      timely. The author refers to this as the “Court Reporter Sanity
This does not mean that you should not be firm when neces-        Rule.” It discourages lawyers from interrupting the witness’
sary. Good manners are not inconsistent with firm resolve on      effort to answer.
behalf of your client. You could do a lot worse than leaving
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        Don’t Bother With The Usual Preliminaries                     of proving up documents on which you intend to rely in trial,
 Why waste the first fifteen to twenty minutes of a deposition        there is little reason not to lay the proper evidentiary predicate
going over the preliminaries, e.g. this is the court reporter; he     with the witness during the deposition. Although histori-
or she is taking down everything we say; you must answer              cally, most lawyers have often waited until trial to establish
audibly; etc.? Opposing counsel has already explained all             the admissibility of their exhibits, this can lead to problems.
this to the witness. You are there to ask questions. Why              For example, consider the situation where your opponent
spend twenty minutes placing the witness into a comfort               files a no-evidence summary judgment motion and although
zone where they will feel more at ease trying not to answer           you have plenty of evidence, it is not in an admissible form.
your questions? Perhaps you are nervous, and the prelimi-             The general rule is that summary judgment evidence must
naries are a nice way of warming up to your topic–or you’re           be admissible just as in a regular trial. United Blood Servs. v.
using that time to think up the key topics and questions you          Longoria, 938, S.W.2d 28, 30 (Tex. 1997). The same appears
should have outlined earlier. Skip the preliminaries–they             to apply to no evidence motions for summary judgment under
are a waste of time.                                                  TRCP 166a(i). Accordingly, you may not have the opportunity
                                                                      to wait until trial to call even a willing non-party witness to
 When is the last time you saw this riveting cross examination        prove up the documents. For this reason you should consider
at trial: the witness changes his or her testimony from that in       in advance of the deposition how you are going to make the
the deposition; the opposing lawyer pulls the deposition and          relevant documents of non-parties admissible and lay the
says: “Mr. Witness, turn to page 2, do you see where I TOLD           predicates in the deposition.
you to tell me if you didn’t understand any of my questions
(all read together); you never mentioned not understanding            The most common admissibility problems probably involve
that question, did you?” Trials just don’t happen that way, or        hearsay. Accordingly, it is a good idea to review Article 8 of
trials you would want to sit through, anyway.                         the Texas Rules of Evidence before beginning the deposition of
                                                                      non-parties which involve documents upon which you intend
One exception is the third party witness who is not repre-            to later rely. This is usually not as significant an issue for the
sented by counsel and not accustomed to depositions. Putting          documents of the opposing party. There, you can usually use
that witness at ease, especially if you are the first examiner        requests for admissions or depose the custodian of records
and can’t lead, may be crucial. Explaining the process and            to establish predicates.
how things work can be of benefit then.
                                                                      When examining a witness about a document, there is no
                    Exhibits in Deposition                            reason to ask the witness whether the document says what
Before the deposition starts, all of the documents on which           it says. Unless you have a question about the application of
you are going to examine the witness should be marked as              some portion of a document to your facts, there is no reason
exhibits in indexed three-ring binders. Even if you have all          to ask the witness to read the document into the record. It’s
of the documents scanned into your laptop, you still need at          already in the record. Don’t waste time. If you simply want
least one set of paper exhibits. Your exhibit list will grow as       to rely on the document, prove it up and move on.
discovery progresses. However, your exhibit numbers should
not change. Exhibit 63 for the first witness will be the same         It is often agreeable for the custodians of records for the par-
Exhibit 63 for the last witness. Importantly, it will also be         ties to be deposed to either prove up the records or stipulate
your Exhibit 63 during trial. Fumbling with loose documents           in their deposition which documents will be admissible. This
marked as “Smith Deposition Exhibit 1” which is the same              saves a lot of time at trial.
as “Jones Deposition Exhibit 7” and is “Plaintiff’s Exhibit 9”
in trial is confusing and unnecessary.                                          Think About Your Questions in Advance
                                                                      Prior to beginning the deposition, you should think about
Take the three-ring binders with the exhibits to the deposi-          how you want to ask the questions of this particular witness.
tions. If you have the exhibits in your laptop for your use,          If the witness is friendly, the form of your question is not
you only need one hard copy of the exhibits for the witness           so important. However, examining adverse witnesses is a
although you may want to bring courtesy copies of the exhibits        different matter. Consider the potential use of the deposition
you intend to use in this deposition for opposing counsel.            in trial. Is the witness out of subpoena range so that you
                                                                      will probably have to read excerpts from the deposition? Is
When you are deposing a non-party witness who is capable              the purpose of the deposition to obtain all of the opinions
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of an expert? Do you anticipate that the deposition will be       protect the record by objecting to the witness’s non-
used for cross-examination?                                       responsiveness.

Generally, the more important the witness and the more                              The Ignorant Witness
potentially damaging his testimony, the more time you should    There is still an unevolved school of legal thought that favors
spend on actually framing your questions in advance. This       the tactic of encouraging one’s witnesses not to remember
is not to say that you should sacrifice all spontaneity and     the facts or simply to play dumb. Aside from the moral and
stick to some pre-written script. The point is you should       ethical shortcomings of such conduct (it is the same as encour-
be prepared and ask the questions                                                         aging a witness to lie), the practical
in a form that will be effective for                                                      problem with this strategy is that it
later use in trial. For example, if you      “ Generally, the more important              is ineffective.
believe that the witness is inclined       the witness and the more potentially
to change their story and you intend                                                      One of the most important things we
to use the deposition for later cross-
                                             damaging his testimony, the more             do is to cogently and clearly present
examination, you should keep your            time you should spend on actually            the facts through our witnesses.
questions short. You should attempt        framing your questions in advance. ” How can you do that if your own
to ask the exact questions you intend                                                     witnesses claim ignorance?
to ask this witness at trial. When trial
rolls around you are hoping for an inconsistent answer. The     A witness who is in a position to know the facts but chooses
witness will not be in a position to quibble with you if you    not to do so is not credible. Nor is a witness who remembers
have asked exactly the same question.                           only the facts sought by one side. When your opponent’s key
                                                                witness claims not to remember an important fact of which
                   Pinning the Witness Down                     he obviously should have knowledge, your witness’ testimony
On key points, do not let the evasive witness off the hook      on that issue becomes undisputed. That may open the field
with vague responses. Pin the witness down on the impor-        for a summary judgment motion for you. Even if it doesn’t,
tant points. Think of the witness as a calf in a cutting horse  the witness is tainted as either stupid or unreliable. If the
competition. Stay with him as long as it takes if the point is  witness later develops a better memory, you have a prior
important. When opposing counsel asserts the objection of       inconsistent statement to work with.
“asked and answered” (the proper objection is “abusive” under
Rule 199.5(f)), ignore it and continue. You may want to vary    In the deposition of such a witness, your job is to ask all of
your question or it may be appropriate to continue asking       the relevant questions about which the witness should have
the exact same question. If you cannot obtain a yes or a no,    knowledge. If the witness had access to relevant documents
make sure that you understand the response. Inquire about       that could have refreshed his memory, prove that he volun-
any portion of the response that is vague. It is particularly   tarily chose not to look at them before coming to answer
important to establish in the witness’s mind early in the       questions. If not, you should establish that no additional
deposition the fact that you expect answers and you are not     information would help the witness’s memory and that the
going to leave without the information.                         witness either never had information on the topic, or that
                                                                if the witness ever had information, it is impossible for the
If necessary, refer to the documents. Go through them to        witness to now recall any of same. If the witness has ever
show not only what the true answer must be but to disclose      communicated with anyone else on the topic, inquire about
to the witness that everyone else already knows that answer.    that and review those documents, if any, with the witness.
After going through this procedure once or twice, only the      In short, close the box on the lack of knowledge.
most hardcore witnesses are willing to continue with evasive
responses.                                                      If the subject matter is within the expertise or the job
                                                                description of the witness, find out why the witness has no
If the witness is still unresponsive, consider questions which  knowledge.
might illustrate the absurdity of the witness’s response.
                                                                With regard to experts and corporate representatives, lack
If the witness attempts to answer your questions by pleading    of knowledge is particularly powerful.
their case or asserting unrequested harmful information,
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                                                                                                                                       23




Experts who opine without knowledge of the relevant                   to simply testify consistently with the documents.
underlying facts are perched on a very shaky limb. You will
have two later opportunities to deal with the expert: at the          If the documents are not helpful in your case, give the witness
Robinson hearing; and/or at trial. Take the time to thoroughly        the unaided opportunity not to remember.
establish with the uninformed expert the full extent of his
lack of knowledge of the facts.                                       A Gift From The Litigation Gods: The Untruthful Witness
                                                                      When a witness is untruthful, ignore your first couple of
Corporate representatives deposed under Federal Rule of               instincts, i.e. outrage that a witness could show such contempt
Civil Procedure 30(b)(6) or Texas Rule of Civil Procedure             for the process and the oath and frustration that the witness
199.2(b)(1) face the daunting task of providing testimony rep-        has now made your job of finding the truth that much harder.
resenting not only their organization’s knowledge but all infor-      Witnesses that refuse to tell the truth on important points are
mation “reasonably available to the organization.” That means         a gift to you and your client from the litigation gods–manna
the representative must be prepared “so they can give knowl-          from heaven. We are not talking about a witness who gets
edgeable and binding answers for the corporation” including           tripped up, or has convinced themselves of a point or two in
the organization’s “subjective beliefs and opinions . . .             their story that are just wrong–we are talking about the wit-
[and] its interpretation of documents and events.” U.S. v.            ness who is intentionally not telling the truth on key points.
      ,
Taylor 166 F.R.D. 356, 360-361 (M.D.N.C. 1996), aff’d, 166            Slow down and get their entire story; get all the whoppers on
F.R.D. 367 (M.D.N.C. 1996).                                           the record. Then decide how to attack each one–saving the
                                                                      powerful dramatic impeachment stuff for trial, unless you
If the corporate representative does not have the answer,             can’t resist testing the witness–once. And remember, some of
sanctions are available in both state and federal court. See          the best impeachment in the world comes from trusting the
FED. R. CIV. P. 37; TEX. R. CIV. P. 215. This is not as draconian     good common sense of the jury. For example, in a deposition
as it sounds because the federal and Texas rules require the          (and at trial) a critical actor for the opposition claimed she
deposition notice to the organization to list with reasonable         did not know the criteria for her quarterly bonuses (other
particularity the subject matter on which the corporate               documentation showed the company was incentivising the
representative(s) is to testify. See FED. R. CIV. P. 30(b)(6);        very conduct at issue in the lawsuit). The jury refused to
TEX. R. CIV. P. 199.2. It is safe to say that a corporate rep-        believe this single mother on an otherwise modest salary
resentative is in no position to claim lack of knowledge on           wouldn’t know what she had to do each quarter to earn that
any relevant inquiry within the list of topics stated in the          quarterly bonus; they used their common sense (it helped
deposition notice.                                                    that the witness signed the quarterly evaluations setting out
                                                                      the bonus criteria–a fact saved until trial and not touched
                    The Reluctant Witness                             during the deposition).
Sometimes you will find yourself deposing a witness who is
not exactly lying but is perhaps “riding for the home team.”          So treat the untruthful witness as the gift it is.
He is attempting to testify in accordance with what he has
been told is expected from him even though that version                     Don’t Step on Your Answers (But What About
might be slightly different from the facts as he understands                            Pinning Down a Witness?)
them. Often this type witness is visibly uncomfortable with           This means exactly what it says–once you’ve covered a line
the position in which he finds himself. This witness may be           of inquiry, even if you don’t get the final cross point framed
a mid-level corporate functionary. Maybe the witness is a             exactly as you’d like it, if its pretty close, go on. Seldom if ever
nurse in a malpractice case or an ex-employee who may still           does a witness’ answer improve when you give them another
be friendly or may have economic ties to the party for whom           chance to elaborate or explain. Some call this stepping on
he is testifying. The witness may be willing to toe the party         a pretty good answer, by asking the same question another
line but is not willing to perjure himself. This is the type          way, when the first answer was fine. If you end up simply
witness who usually has a very bad memory.                            re-asking what you thought were good cross questions, you
                                                                      weren’t as well-prepared as you should have been.
If the documents are consistent with your theory of the
case, establish his lack of knowledge then walk him through           Not stepping on the answers is different than failing to follow
the exhibits which tell the true story. Often, this type wit-         up or failing to loop back. These are essential deposition
ness may actually be relieved to be given the opportunity             techniques; if the examiner is well-prepared, those can be
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wonderfully effective–and the examination has the appear-            be doing some “storytelling”? This is only appropriate late in
ance of not being so structured. Let the witness talk–witness        the deposition after you have obtained all of the information
“control” is important at trial, but not as much in deposition.      you came for. Even then, don’t overdo it.
After long open-ended (and often self-serving) answers, loop
back and break the long answer into parts, with follow- up                             Surprising New Information
lines on the portions important to your case.                        You’ll often know its coming–something about the witness’
                                                                     demeanor or opposing counsel’s attitude sends the signal:
If you are prepared, although you will bring to the deposition       there’s something the witness is just dying to tell you, if you
a detailed outline, you may only look at it at the end of the        get within a county or two of the topic. So, don’t be afraid of
deposition as a checklist to make sure all the important topics      it–better to know now then hear it for the first time at trial.
and questions have been covered. The opposing counsel may            Sometimes the information that on first glance appears to
be left with the impression that the witness simply talked           hurt you, on deeper reflection undoes an important part of
too much and gave away far too much of the case to an                the opponent’s case. Ask follow ups and work on other topics
examiner that appeared not to be all that prepared. Careful,         until the first break. Often, a review of documents or your
detailed preparation provides the confidence and flexibility to      chronology during a break supplies the key to dealing with
go where the witness takes you and where you are far more            a surprise answer. More often, a few days rest and reflection
likely to develop helpful evidence instead of simply locking         supply the solution of how to deal with the surprise. With
into the pre-conceived answers.                                      very few exceptions, the more thorough the preparation, the
                                                                     fewer surprises during the deposition.
           Don’t Cross Examine the Witness Twice
British barristers have a saying: “Don’t cross examine the           Surprises can also be minimized by constructing mini “logic
witness twice.” Loosely translated for deposition purposes,          trees.” On key topics, there are only two or three ways a
this means that you should save your cross-examination for           witness can go, given what you know about the witness, the
trial, not waste it during a deposition. You can pin a witness       parties, the case, and other evidence in the case. Put yourself
down without asking those last few questions which will              in the witness’ and opposing counsel’s shoes: what are the
clearly drive home the point. Wait for trial where the points        two or three avenues the witness can take you down, and
count. There are exceptions to this rule. If you feel reasonably     what are the logical consequences arising from each–and
certain that the case will settle, you may want to fire all the      most importantly, what are the conflicts and inconsisten-
guns in deposition. It may unnerve the other side. However,          cies with known evidence? Often the “surprise” is an answer
if you do so, the witness has now seen the entire show and           the examiner assumed was inconsistent with other known
will be undoubtedly be ready to improve his responses during         evidence, but the witness (or opposing lawyer) has found a
trial. Another exception is if you want to test the witness as       way to reconcile the answer with the evidence you assumed
described in the next section. Just don’t get carried away with      precluded that very answer. Preparation limits these occa-
it during the deposition.                                            sions, and when they do occur, often provides the clear follow
                                                                     up line to deal with the surprise answer.
                      Testing the Witness
Depositions are not trials. But there are occasions in major                            Opponent’s Objections
depositions you may want to test the witness–follow a line           Ignore them–unless they truly raise a meritorious ground
of impeachment or confront the witness with the document             that needs to be cured on the spot. If you keep moving along,
that puts the lie to an answer to observe the response. If you       chances are the witness will start ignoring the objections
are going to do this, be clear with yourself that is what you        too, and their perhaps hoped-for effect as prompts or sign-
are doing, because you may be ruining a powerful cross line          posts will be greatly diminished. Face it, the witness wants
that would work well and be dramatic at trial. You should            to be out of there, and if the opposing lawyer is needlessly
come away with something for your trouble other than the             delaying the process with goofy objections, the witness may
satisfaction of popping a witness or party just to show you          see you as their one friend in the room (especially if you’ve
could. Here, like in a poker game, you are looking for “tells”:      been courteous and gotten to the point). If the opponent’s
Is the witness’s default response to lie even more? Did you get      objection has merit, rephrase the question to eliminate the
a good read on how the witness handles pressure? Did you             problem.
pick up information from opposing counsel’s reaction? Will
the witness likely evoke juror sympathy even when shown to           Opposing counsel has the option to instruct a witness not to
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answer questions only to preserve a privilege, comply with a         as long as possible. Don’t participate in abusive conduct and
court order, or to protect a witness from an abusive question        don’t retaliate on the record in a deposition. Aside from the
or one for which any answer would be misleading. TEX. R.             obvious reasons for this, consider the probable response
CIV. P. 199.5(f). Comment 4 to Rule 199 explains that abusive        of the poor witness who is exposed to opposing attorneys
questions “include questions that inquire into matters clearly       screaming at each other across a conference table. He thinks
beyond the scope of discovery or they are argumentative,             he has descended into some kind of Hell where anything
repetitious, or harassing.” If you are conducting your deposi-       goes–including unacceptable deviations from civility in which
tion in accordance with the rules, there will be few reasons         departures from the truth probably seem mild. This defeats
for opposing counsel to instruct the witness not to answer a         your objective. It also makes it much harder for the judge to
question. If he or she does so, upon your request, opposing          later determine who is culpable.
counsel is required to “give a concise, nonargumentative,
nonsuggestive explanation of the grounds for the instruction.”                                  Conclusion
TEX. R. CIV. P. 199.5(f). If you think that opposing counsel is      Taking effective depositions is not only great trial preparation,
playing games, give him that opportunity. Give the witness           it is also one of the best ways to convince your opponent that
every opportunity to answer your questions. If the opposing          you are willing and able to go to trial and that you intend
counsel continues to instruct them and the opposing counsel          to win.
is wrong, you may either complete your questioning on other
topics then request a hearing on a motion to compel answers          George Parker Young’s practice at The Law Offices of George
or, alternatively, you can suspend the deposition if it is being     Parker Young involves the representation of patients, physicians
defended in violation of the rules. TEX. R. CIV. P. 199.5(g).        and hospitals in lawsuits filed against HMOs.
Note that the rules require both good faith and that “Counsel
should cooperate with and be courteous to each other and to          Walker C. Friedman is a partner at Friedman, Suder & Cooke
the witness.” TEX. R. CIV. P. 199.5(h) & (d).                        in Fort Worth. He is a member of the Litigation Council and is
                                                                     on the Editorial Board of The Advocate. ✯
A word about the abusive opposing counsel who is either
merely an ass or, even worse, is actually ill: ignore him for
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         E XAMINING & DEFENDING DEPONENTS UNDER THE TEXAS
                 & FEDERAL RULES OF CIVIL PROCEDURE:
          Making and Defending Against Objections and Privilege Assertions
      and Dealing with Objectionable Questions, Conduct and Refusals to Answer
                                      BY VICTOR D. VITAL & LAWRENCE D. BROWN




I. Introduction                                                       Procedure. Finally, Section VI will include a few practice tips
As officers of the court, counsel are expected to conduct             for counsel examining and defending a deponent.
themselves in a professional manner during a deposition and
conduct that is impermissible in the courtroom during the             II. Defending a deponent under the Texas Rules of Civil
questioning of a witness is not permissible at a deposition. See      Procedure
Tex. R. Civ. P. 199.5(d); see also Ethicon Endo-Surgery v. United     A. Counsel defending the deponent must act in good
States Surgical Corp., 160 F.R.D. 98, 99 (S.D. Ohio. 1995);           faith.
The Texas Lawyer’s Creed, A Mandate For Professionalism               Defending counsel must not act in bad faith while defending a
(adopted November 7, 1989). Oral depositions must be con-             deponent. Under the Texas rules, an attorney must not object
ducted in the same manner as if the testimony were being              to a question at an oral deposition, instruct the witness not
obtained in court during trial. Counsel should cooperate with         to answer a question, or suspend the deposition unless there
and be courteous to each other and to the witness. Tex. R. Civ.       is a good faith factual and legal basis for doing so at the time.
P. 199.5(d). The following transcript excerpt from Cholfin v.         Tex. R. Civ. P. 199.5(h); The Texas Lawyer’s Creed, A Mandate
Gordon, No. CA943623., 1995 WL 809916 (Mass. Super. Mar.              For Professionalism (adopted November 7, 1989).
22, 1995) demonstrates the sort of deposition misconduct that
would not be tolerated in Texas state or federal courts:              B. Defending counsel’s objections are strictly limited and
                                                                      may only be explained under certain limited circumstances
     Counsel: Mr. Gordon, I would appreciate it if you                and in a certain manner.
     would stop making snide little looks in my direction.            Under the current rules governing oral depositions, the only
     I’m, I really don’t appreciate them. I think that you are        proper objections that a defending attorney can assert are
     one of the lowest scumballs that I’ve Seen in a long             “Objection, leading” and “Objection, form.” Tex. R. Civ. P.
     time—and I shouldn’t say it and it’s on the record               199.5(e). “These objections are waived if not stated as phrased
     and Judge McHugh is going to be angry—but I do                   during the oral deposition.” Id. Generally, “Objection, form”
     not appreciate those slimy looks that you make to                will be made to preserve the following objections: “(1) assumes
     me. Thank you. I apologize Your Honor, If you read               facts in dispute or not in evidence; (2) is argumentative; (3)
     this, but it’s true.                                             misquotes a deponent; (4) is leading; (5) calls for speculation;
                                                                      (6) is ambiguous or unintelligible; (7) is compound; (8) is too
This article will discuss the Texas and Federal Rules of Civil        general; (9) calls for a narrative answer; and (10) has been
Procedure that are designed to prevent egregious instances            asked and answered.” St. Luke’s Episcopal Hosp. v. Garcia,
of the sort of deposition misconduct discussed in Cholfin.            928 S.W.2d 307, 309 (Tex. App.—Houston [14th Dist.] 1996,
Section II of this article will discuss defending a deponent          no writ ) (quoting 5 Texas Civil Trial Guide § 100.23[3][c]
under the Texas Rules of Civil Procedure. Section III will            (W.V. Dorsaneo III & Earl Johnson, Jr., eds.)). Defending
discuss examining a deponent under the Texas Rules of Civil           counsel must give a clear and concise explanation of a form
Procedure. Section IV will discuss defending a deponent               objection if requested by the party examining the oral depo-
under the Federal Rules of Civil Procedure. Section V will            sition, or the objection is waived. Tex. R. Civ. P. 199.5(e).
discuss examining a deponent under the Federal Rules of Civil         Argumentative, or suggestive objections or explanations, will
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waive the objection and may be grounds for terminating the             objections were made in bad faith and in violation of Rule
oral deposition, assessing costs or other sanctions. Id.               30(d)(1), which requires all objections to be stated concisely
                                                                       and in a non-argumentative and non-suggestive manner. The
In re Harvest Comtys. of Houston, Inc., 88 S.W.3d 343 (Tex.            trial court sanctioned defending counsel, just as defending
App.—San Antonio 2002, no pet.) is an example of a case                counsel may be sanctioned for argumentative or suggestive
where a court found that a defending attorney’s violation of           objections or explanations of objections under the Texas
Rule 199.5(e) during a deposition warranted sanctions. In              Rules of Civil Procedure.
that case, defending counsel repeatedly interrupted the depo-
sition with long and argumentative objections that in some             C. Defending counsel’s objections must be supported by
cases continued for several pages of the transcript record.            evidence, but they need not be supported prior to trial.
During the deposition, examining counsel conducting the                A party will not waive its objections or privileges asserted
deposition reminded defending counsel that, “You’re entitled           during a deposition by not insisting on obtaining a ruling on
to make the objection as to form—and then you are to stop.”            such objections or assertions of privileges prior to trial. Tex. R.
Defending counsel replied, “You’re not going to tell me a              Civ. P. 199.6. However, the objecting party must present any
thing. You just keep your mouth shut. We’re through.” Id. at           evidence necessary to support the objection or privilege either
346. Defending counsel characterized examining counsel’s               by testimony at the hearing on the objection or by affidavits
questions as “incredible”, “nonsense”, “an incredible waste            served on opposing parties at least seven days before such
of time”, “preposterous”, and “absurd.” Id. at 346-47.                 hearing. Id.; See, e.g., In re Lowe’s Cos., Inc., No. 14-03-1272-
                                                                       CV., 2004 WL 1092374 at * 2 (Tex. App.—Houston [14th
The appellate court noted that Rule 199.5(e) limited                   Dist.] May 18, 2004, orig. proceeding) (party asserting trade
defending counsel’s objections to “Objection, leading” and             secret privilege as a ground to instruct the deponent not to
“Objection, form.” The appellate court then noted that the             answer had the burden of proving the existence of a trade
purpose of Rule 199.5(e) is to prevent the sort of obstruc-            secret). If the court determines that an in camera review is
tionist conduct that occurred during the deposition at                 necessary to rule on the defending party’s objections, answers
issue and to save substantive objections to questions for a            to the deposition questions may be made in camera, to be
subsequent hearing before a court. However, the appellate              transcribed and sealed in the event the privilege is sustained,
court found no evidence that the defendants encouraged                 or made in an affidavit produced to the court in a sealed
defending counsel to engage in deposition misconduct and               wrapper. Tex. R. Civ. P. 199.6.
found that the trial court’s decision to strike an expert wit-
ness amounted to a death penalty sanction. The appellate               D. Private attorney-deponent conferences during deposi-
court held that the trial court erred by failing to first consider     tions are generally prohibited.
and impose lesser sanctions.                                           Private conferences between defending counsel and the
                                                                       deponent during the actual examining of the deposition are
Prudent Texas counsel should also look to federal cases                improper except for the purpose of determining whether a
construing Federal Rule of Civil Procedure 30(d)(1) which              privilege should be asserted. Tex. R. Civ. P. 199.5(d). Private
requires objections to be asserted in a non-argumentative,             conferences may be held, however, during agreed recesses and
non-suggestive manner. Armstrong v. Hussmann Corp., 163                adjournments. Id. If defending counsel and the deponent do
F.R.D. 299 (E.D. Mo. 1995) is an example of a case where               not comply with this rule, the court may allow in evidence
the court found that several of defending counsel’s deposi-            at trial any statements, objections, discussions, and other
tion objections were both argumentative and suggestive.                occurrences during the oral deposition that reflect upon the
For instance, defending counsel interposed the following               credibility of the witness or the testimony. Id.
objection during the plaintiff’s deposition—“Objection, I
believe his testimony has been that he never did refuse                E. Defending counsel may instruct the deponent not to
to take off the T-shirt, he merely questioned it. His prior            answer a question under very limited circumstances.
testimony was that before he had a chance to react one way             Defending counsel may instruct the deponent not to answer
or the other, that security was called and he was ordered to           a question during an oral deposition only if necessary to
be walked out of the doors. So that’s a mischaracterization            preserve a privilege,1 comply with a court order or the
of his testimony.” Id. at 302 n. 14. After defending counsel           discovery rules, protect a witness from a abusive ques-
asserted this speaking objection, the deponent responded, “I           tion or one for which any answer would be misleading,
never refused.” Id. The court found that defending counsel’s           or to secure a ruling regarding purported violations of the
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28




discovery rules pertaining to depositions. Tex. R. Civ. P.             pel against) defending counsel’s objections or privilege
199.5(f). Abusive questions include questions that inquire             assertions.
into matters clearly beyond the scope of discovery or that             Any party may, at any reasonable time, request a hearing
are argumentative, repetitious, or harassing. Tex. R. Civ.             on an objection or privilege asserted by an instruction not
P. 199 cmt. 4. The attorney instructing the witness not                to answer or suspension of the deposition. Tex. R. Civ. P.
to answer must give a concise, non-argumentative, non-                 199.6. A party may file a motion for an order compelling a
suggestive explanation of the grounds for the instruction              deponent to answer a question propounded during an oral
if requested by the attorney who asked the question. Id.               deposition. Tex. R. Civ. P. 215.1(b)(2)(B). If the motion is
Defending counsel who instructs a deponent not to answer               granted, the court shall, after opportunity for hearing, require
a question should be prepared to defend that instruction to            a party or deponent whose conduct necessitated the motion
the trial court, offering proof to prove the applicability of          or the party or attorney advising such conduct or both of
any privilege that led to the instruction not to answer. See           them to pay, at such time as ordered by the court, the moving
In re Lowe’s Cos., Inc., 2004 WL 1092374 at *2 (sustaining             party the reasonable expenses incurred in obtaining the
trial court’s order to compel deposition testimony where               order, including attorney’s fees, unless the court finds that
defending counsel failed to adduce evidence supporting a               the opposition to the motion was substantially justified or
privilege assertion leading to an instruction not to answer            that other circumstances make an award of such expenses
a deposition question).                                                unjust. Tex. R. Civ. P. 215.1(d). If the motion is granted in
                                                                       part and denied in part, the court may apportion the reason-
F. Suspending a deposition under the Texas Rules                       able expenses incurred in relation to the motion among the
of Civil Procedure.                                                    parties and persons in a just manner. Id.
If the time limitations2 for the deposition have expired or
the deposition is being conducted in violation of the rules            C. Filing a motion for sanctions in response to a deponent’s
governing oral depositions, a party or witness may suspend             failure to comply with an order compelling discovery.
the oral deposition for the time necessary to obtain a ruling.         If a deponent fails to appear or to be sworn to answer a
Tex. R. Civ. P. 199.5(g). Defending counsel must not suspend           question after being directed to do so by a district court
the deposition unless there is a good faith factual and legal          in the district in which the deposition is being taken, the
basis for doing so at the time. Tex. R. Civ. P. 199.5(h).              failure may be considered a contempt of court. Tex. R. Civ.
                                                                       P. 215.2(a). The court in which the action is pending may,
III. Examining a deponent under the Texas Rules                        after notice and a hearing, make such orders as are just
of Civil Procedure                                                     including:
A. A deposition examination must be conducted in
good faith and examining counsel’s ability to object is                 • Disallowing any further discovery of any kind or
strictly limited.                                                         particular kind by the disobedient party (Tex. R. Civ.
Counsel examining a deposition under the Texas Rules of                   P. 215.2(b)(1));
Civil Procedure must proceed in good faith. Examining
counsel must not ask a question at an oral deposition solely            • Charging all or any portion of the expenses of dis-
to harass or mislead the witness, for any other improper                  covery or taxable court costs or both against the
purpose, or without a good faith legal basis at the time. Tex.            disobedient party or the attorney representing the
R. Civ. P. 199.5(h). If the court finds a party is abusing the            disobedient party (Tex. R. Civ. P. 215.2(b)(2));
discovery process in resisting discovery, then the court in
which the action is pending may, after notice and hearing,              • Issuing an order deeming all the matters to which the
impose any appropriate sanction authorized by paragraphs                  order was directed to be established for the purposes
(1), (2), (3), (4), (5), and (8) of Rule 215.2(b). Tex. R. Civ. P.        of the action in accordance with the claim of the party
215.3. If examining counsel wishes to object to a deponent’s              obtaining the order (Tex. R. Civ. P. 215.2(b)(3));
answer, then the only proper objection that can be asserted
is “Objection, non-responsive.” Tex. R. Civ. P. 199.5(e). This          • Refusing to allow the disobedient party to support or
objection is waived if not stated as phrased during the oral              oppose designated claims or defenses, or prohibiting
deposition. Id.                                                           him from introducing designated matters in evidence
                                                                          (Tex. R. Civ. P. 215.2(b)(4));
B. Requesting a hearing on (and filing a motion to com-
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 • Striking out pleadings or parts thereof, or staying               and Loan Ass’n, 121 F.R.D. 284, 287-288 (N.D. Tex. 1988).
   further proceedings until the order is obeyed, or
   dismissing with or without prejudice the action or             B. The Federal Rules of Civil Procedure strictly control
   proceedings or any part thereof, or rendering a judg-          the manner in which objections may be asserted.
   ment by default against the disobedient party (Tex.            Objections to the competency of a witness or to the compe-
   R. Civ. P. 215.2(b)(5)); or                                                             tency, relevancy, or materiality of
                                                                                           testimony are not waived by failure
 • In lieu of any of the foregoing
   orders or in addition thereto,
                                        “ [D]epositions are to be limited to what to makeof the before or during the
                                                                                           taking
                                                                                                     them
                                                                                                            deposition, unless
   an order treating as a contempt            they were and are intended to be:            the ground of the objection is one
   of court the failure to obey           question-and-answer sessions between a which might have been obviated or
   any orders except an order to                                                           removed if presented at that time.
   submit to a physical or mental        lawyer and a witness aimed at uncovering Fed. R. Civ. P. 32(d)(3)(A). Errors
   examination. (Tex. R. Civ. P.          the facts in a lawsuit. When a deposition and irregularities occurring at the
   215.2(b)(6)).                                                                           oral examination in the manner
                                             becomes something other than that             of taking the deposition, in the
 • In lieu of any of the foregoing         because of the strategic interruptions,         form of the questions or answers,
   orders or in addition thereto,       suggestions, statements, and arguments of in the oath or affirmation, or in the
   the court shall require the                                                             conduct of the parties, and errors
   party failing to obey the order      counsel, it not only becomes unnecessarily of any kind which might be obvi-
   or the attorney advising him,        long, but it ceases to serve the purpose of ated, removed, or cured if promptly
   or both, to pay, at such time as                                                        presented, are waived unless sea-
   ordered by the court, the rea-
                                            the Federal Rules of Civil Procedure:          sonable objection thereto is made
   sonable expenses, including                   to find and fix the truth. ”              at the taking of the deposition. Fed.
   attorney fees, caused by the                                                            R. Civ. P. 32(d)(3)(B).
   failure, unless the court finds
   that the failure was substantially justified or that other        Under Federal Rule of Civil Procedure 30(d)(1), any objec-
   circumstances make an award of expenses unjust.                   tion made during a deposition must be stated concisely and
   Tex. R. Civ. P. 215.2(b)(8).                                      in a non-argumentative and non-suggestive manner. Fed. R.
                                                                     Civ. P. 30(d)(1).3 “Depositions frequently have been unduly
IV. Defending a deponent under the Federal Rules of                  prolonged, if not unfairly frustrated, by lengthy objections
Civil Procedure                                                      and colloquy, often suggesting how the deponent should
A. Counsel defending a deponent should proceed in good               respond.” Fed. R. Civ. P. 30(d)(1) advisory committee’s note.
faith to avoid sanctions.                                            “[D]epositions are to be limited to what they were and are
While the Federal Rules of Civil Procedure do not expressly          intended to be: question-and-answer sessions between a
impose a duty to conduct discovery in good faith, federal            lawyer and a witness aimed at uncovering the facts in a law-
courts may impose sanctions for attorney misconduct,                 suit. When a deposition becomes something other than that
imposing a functional duty of good faith in all facets of a          because of the strategic interruptions, suggestions, statements,
case including depositions. See 28 U.S.C. § 1927 (1980).             and arguments of counsel, it not only becomes unnecessarily
The United States District Court for the Eastern District of         long, but it ceases to serve the purpose of the Federal Rules
Texas has expressly imposed a duty to proceed in good faith          of Civil Procedure: to find and fix the truth.” Hall v. Clifton
on attorneys conducting discovery in the Eastern District of         Precision, 150 F.R.D. 525, 531 (E.D. Pa. 1993).
Texas. Saddler v. Musicland-Pickwick Int’l, Inc., No. S-78-95-
CA, 1980 WL 333 at *2 (E.D. Tex. Dec. 22, 1980) (“Both par-          Counsel’s statements when making objections should be
ties are expected to engage in this discovery process in good        succinct and verbally economical, stating the basis of the
faith. Dilatory or obstructive tactics will not be tolerated.”).     objection and nothing more. Plaisted v. Geisinger Med. Ctr.,
Similarly, the United States District Court for the Northern         210 F.R.D. 527, 533 (M.D. Pa. 2002). If the court finds that
District of Texas has embraced the Texas Lawyers’ Creed,             any impediment, delay, or other conduct has frustrated the
which itself mandates courtesy, civility and professionalism         fair examination of the deponent, it may impose upon the
by all counsel. See Dondi Properties Corp. v. Commerce Sav.          persons responsible an appropriate sanction, including the
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reasonable costs and attorney’s fees incurred by any parties as        See also Plaisted v. Geisinger Med. Ctr., 210 F.R.D. 527, 534 (M.D.
a result thereof. Fed. R. Civ. P. Rule 30(d)(3); See also Brignoli     Pa. 2002) (during a deposition, a witness and his lawyer are
v. Balch, Hardy, & Scheinman, Inc., 126 F.R.D. 462, 466 (S.D.          not permitted to confer at their pleasure during the witness’s
N.Y. 1989) (sanctioning an attorney under 28 U.S.C. § 1927             testimony); Calzaturficio S.C.A.R.P.A. v. Fabiano Shoe Co., 201
for making speaking objections during depositions).                    F.R.D. 33, 39-40 (D. Mass. 2001) (“Counsel is not entitled
                                                                       to assist his witnesses during a deposition.”). And, like the
McDonough v. Keniston, 188 F.R.D. 22 (D. N.H. 1998) is an              Texas Rules of Civil Procedure, the Western District of Texas’
example of a case where the court found that several of the            local rules prohibit defending counsel from initiating a private
attorney’s objections interposed during depositions violated           conference with the deponent regarding a pending question,
Rule 30(d)(1). The court found 85 instances of witness                 except for the purpose of determining whether a claim of
coaching, speaking objections, and improper instructions               privilege should be asserted. W.D. R. 30.
not to answer in the deposition transcript. The following
transcript excerpt demonstrates just one such instance:                D. Instructing a deponent not to answer a question under
                                                                       the Federal Rules of Civil Procedure.
     Examining Counsel: Why don’t you do your best                     As a general rule, one should refrain from instructing a wit-
     to tell me what you say he did wrong?                             ness not to answer a question. Wilson v. Martin City Hosp.
                                                                       Dist., 149 F.R.D. 553, 555 (W.D. Tex. 1993). Defending
     Defending Counsel: I think that’s a very broad, broad             counsel may instruct a deponent not to answer only when
     question. I think it’s too broad to be answered. It calls         necessary to preserve a privilege, to enforce a limitation
     for legal characterizations. He had no connection, he             directed by the court, or to present a motion under Rule
     had no contact directly with Chuck Douglas except                 30(d)(4). Fed. R. Civ. P. 30(d)(1). In the Western District of
     for one hearing and—                                              Texas, an attorney who instructs a deponent not to answer
                                ***                                    a question shall state, on the record, the legal basis for the
     Examining Counsel: Can you tell me anything that                  instruction consistent with Federal Rule of Civil Procedure
     you say Mr. Douglas did wrong that caused you to                  30(d)(1). W.D. R. 30. If an attorney defending a deposition
     sue him?                                                          in the Western District of Texas violates this rule, then such
                                                                       a violation may be treated as a violation of a court order and
     Defending Counsel: Well, he read the deposition                   the attorney could be subjected to sanctions pursuant to
     of…                                                               Federal Rule of Civil Procedure 37(b)(2). W.D. R. 30.

     Examining Counsel: Wait a minute.                                 E. Suspending a deposition under the Federal Rules of
                                                                       Civil Procedure.
     Defending Counsel: —Carlene Keniston, that states                 Upon demand of the objecting party or deponent, the taking
     it right there.                                                   of the deposition must be suspended for the time necessary
                                                                       to make a motion for an order to terminate a deposition.
Id. at 24. The district court found examining counsel’s con-           Fed. R. Civ. P. 30(d)(4). At any time during a deposition, on
duct to be “flagrantly improper and in direct contravention            motion of a party or of the deponent and upon a showing that
of Rule 30,” ordering objecting counsel to show cause why he           the examination is being conducted in bad faith or in such
should not have to pay costs for his deposition misconduct.            manner as unreasonably to annoy, embarrass, or oppress the
Id. at 25-26.                                                          deponent or party, the court in which the action is pending
                                                                       or the court in the district where the deposition is being
C. Private conferences generally prohibited during deposi-             taken may order the officer conducting the examination to
tions in cases pending in federal courts.                              cease forthwith from taking the deposition, or may limit
Although the Federal Rules of Civil Procedure do not specifi-          the scope and manner of the taking of the deposition. Id.
cally address private conferences between the deponent and             If the court orders the termination of the deposition, it may
the attorney during oral depositions, several federal cases            be resumed only thereafter only upon the order of the court
establish that such private conferences are barred or limited.         in which the action is pending. Id.
See, e.g., Bucher v. Richardson Hosp. Authority, 160 F.R.D. 88,
94 (N.D. Tex. 1994) (it is improper for an intermediary to             V. Examining a deponent under the Federal Rules of
interpret questions and help the witness formulate answers.);          Civil Procedure
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A. Counsel taking the deposition must proceed in good               D. Filing a motion to compel an answer to deposition
faith in cases pending before federal courts.                       questions.
The Federal Rules of Civil Procedure implicitly impose a            If a deponent fails to answer a question propounded during
duty upon examining counsel to proceed in good faith.               an oral deposition, the discovering party may move for an
Specifically, a deposition may be suspended if examining            order compelling an answer. Fed. R. Civ. P. 37(a)(2)(B). The
counsel is conducting the deposition in bad faith or in such        motion must include a certification that the movant has in
a manner as unreasonably to annoy, embarrass, or oppress            good faith conferred or attempted to confer with the person
the deponent or party. Fed. R. Civ. P. 30(d)(4). The United         or party failing to make the discovery in an effort to secure
States District Courts for the Eastern and Northern Districts       the information or material without court action. Id. When
of Texas have imposed a duty of good faith on attorneys             taking an oral examination under oath, the proponent of the
conducting discovery in the those Districts. Saddler, No.           question may complete or adjourn the examination before
S-78-95-CA 1980 WL 333 at *2 (E.D. Tex. Dec 22, 1980);              applying for an order. Id. If the motion is granted or if the
See also Dondi Properties Corp., 121 F.R.D. at 287-88.              disclosure or requested discovery is provided after the motion
                                                                    was filed, the court shall, after affording an opportunity to be
B. Examining counsel’s objections.                                  heard, require the party or deponent whose conduct neces-
Errors and irregularities occurring at the oral examination         sitated the motion or the party or attorney advising such con-
in the manner of taking the deposition, in the form of the          duct or both of them to pay the moving party the reasonable
questions or answers, in the oath or affirmation, or in the         expenses incurred in making the motion, including attorney’s
conduct of the parties, and errors of any kind which might be       fees, unless the court finds that the motion was filed without
obviated, removed, or cured if promptly presented, are waived       the movant’s first making a good faith effort to obtain the
unless seasonable objection thereto is made at the taking of        discovery without court action, or that the opposing party’s
the deposition. Fed. R. Civ. P. 32(d)(3)(B). Examining counsel      nondisclosure, response, or objection was substantially justi-
must adhere to the standards set forth under Rule 30(d)(1)          fied, or that other circumstances make an award of expenses
of the Federal Rules of Civil Procedure when objecting to a         unjust. Fed. R. Civ. P. 37 (a)(4)(A).
witness’s answer. Any objection made during a deposition
must be stated concisely and in a non-argumentative and             E. Filing a motion for sanctions in response to a deponent’s
non-suggestive manner. Fed. R. Civ. P. 30(d)(1). Counsel            failure to comply with an order compelling discovery.
taking a deposition in the Eastern District of Texas, however,      If a deponent fails to be sworn or to answer a question after
is limited to “Objection, nonresponsive.” E.D. R. 30.               being directed to do so by the court in the district in which
                                                                    the deposition is being taken, the failure may be considered
C. Determining the appropriateness of an assertion of a             a contempt of that court. Fed. R. Civ. P. 37(b)(1). If a party
privilege under the Federal Rules of Civil Procedure.               or an officer, director, or managing agent of a party fails to
Examining counsel is entitled to have the party asserting           obey an order to provide or permit discovery, the court in
a privilege describe the nature of the communications in            which the action is pending may make such orders as are
a manner that, without revealing information itself privi-          just, and among others the following:
leged or protected, will enable other parties to assess the
applicability of the protection or privilege. Fed. R. Civ. P.         • An order that the matters regarding which the order
26(b)(5). But the Western District of Texas gives examining             was made or any other designated facts shall be taken
counsel a more specific right to probe the applicability of             to be established for the purposes of the action in
a privilege. In the Western District of Texas, if a claim of            accordance with the claim of the party obtaining the
privilege has been asserted as a basis for an instruction               order (Fed. R. Civ. P. 37(b)(2)(A));
not to answer, the attorney Seeking discovery shall have
reasonable latitude during the deposition to question the             • An order refusing to allow the disobedient party to
deponent and establish relevant information concerning                  support or oppose designated claims or defenses, or
the appropriateness of the assertion of privilege, including            prohibiting that party from introducing designated
(i) the applicability of the privilege being asserted, (ii) the         matters in evidence (Fed. R. Civ. P. 37(b)(2)(B));
circumstances that may result in the privilege having been
waived, and (iii) circumstances that may overcome a claim             • An order striking out pleadings or parts thereof, or
of qualified privilege. W.D. R. 30.                                     staying further proceedings until the order is obeyed,
                                                                        or dismissing the action or proceeding or any part
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     thereof, or rendering a judgment by default against                at trial. The value of sound-byte deposition excerpts at trial or
     the disobedient party (Fed. R. Civ. P. 37(b)(2)(C));               in summary judgment proceedings cannot be overstated.
     and
                                                                        D. The benefits of using “real-time” depositions.
 • In lieu of any of the foregoing orders or in addition                Real-time technology allows examining counsel to review
   thereto, an order treating the failure to obey a dis-                a rough or “dirty” copy of the deposition transcript as the
   covery order as a contempt of court. (Fed. R. Civ. P.                deposition is being taken, thus leading to the phrase “real-
   37(b)(2)(D)).                                                        time” depositions. An attorney utilizing real-time technology
                                                                        during a deposition has the advantage of viewing a question
VI. Practice Tips                                                       and an answer on the screen, enabling the attorney to assess,
A. Conducting depositions on videotape.                                 “on the spot,” whether helpful testimony will be admissible
As a general rule, if a deposition is worth taking or defending,        at trial. If examining counsel, after reviewing a real-time
it is worth the additional expense of having it videotaped by           transcription, determines that helpful testimony is not going
a professional videographer. The use of videotape in a deposi-          to be admissible at trial (because the question was not prop-
tion provides additional insurance that everyone present at the         erly formed, a proper predicate was not laid, etc.), examining
deposition will be on their best behavior. Moreover, if there           counsel can then go back and “clean up the transcript” to
is even the slightest possibility that the witness will be called       ensure the admissibility of the helpful testimony.
to testify at trial, there is no substitute for the presentation of
testimony via videotape (preferably with subtitles), whether            VII. Conclusion
for direct or cross examination purposes. The advances in               The Texas and Federal Rules of Civil Procedure governing
videotape technology, and associated software programs,                 depositions are intended to ensure that examinations are
together with the reduction in cost, ease of use and utility            conducted with the same level of dignity and professionalism
at trial as a tool of persuasion strongly militate in favor of          expected of practitioners when examining a witness at trial.
using this medium in the conduct of depositions.                        Counsel defending a deponent under the Texas or Federal
                                                                        Rules of Civil Procedure should be cognizant of the duty
B. Judges’ and jurors’ intolerance of ill-mannered, obnox-              to defend a deponent in good faith, the proper objections
ious attorneys.                                                         to questions posed to the deponent, the burden to provide
It is axiomatic that the lay public does not hold the legal             evidence in support objections or privileges asserted, the
profession in the highest esteem. It takes little in the form           general bar against private conferences during the deposi-
of bad manners by counsel, whether taking or defending a                tion, the circumstances in which defending counsel may
deposition, to earn the ire of jurors and judges. As examining          instruct a witness not to answer, and the circumstances
counsel, flights of bad temper or abusive conduct towards the           that warrant suspending a deposition. Similarly, counsel
witness or opposing counsel not only reflect poorly upon such           examining a deponent under the Texas or Federal Rules of
counsel (and the client’s cause) but often generates sympathy           Civil Procedure should be cognizant of the duty to proceed
for the deponent.                                                       in good faith and to make proper objections to a deponent’s
                                                                        answer. Civility and professionalism are not only mandated
C. “Discovery” depositions vs. “trial” depositions: a                   by the courts and the bar association but are simply the smart
distinction without a difference.                                       way to conduct yourself as a legal professional to insure your
Some have probably heard lawyers draw distinctions between              client is well represented.
“discovery” depositions and “trial” depositions. Lawyers who
draw such distinctions are not concerned with the form or               Victor D. Vital is an associate at the law firm of Haynes & Boone.
propriety of their questions during “discovery” depositions,            Mr. Vital’s practice focuses on business litigation.
because “discovery” deposition testimony is not intended for
use at trial. The authors believe that drawing such distinctions        Lawrence D. Brown is an associate at the law firm of Haynes &
often leads to poorly taken depositions, resulting in exam-             Boone. Mr. Brown’s practice focuses on business litigation as well
ining counsel obtaining potentially helpful testimony during            as intellectual property matters ✯
“discovery” depositions that cannot be used effectively at trial.
Rather than drawing such distinctions, examining counsel
should always be prepared to form questions and obtain                  1The Texas Rules of Evidence recognize an attorney-client privilege
answers such that helpful deposition testimony can be used              (TEX. R. EVID. 503), a husband-wife privilege, (TEX. R. EVID. 504), a
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                                                      THE
                                                                                          33




clergy privilege (TEX. R. EVID. 505), a political vote privilege (TEX. R.
EVID. 506), a trade secret privilege (TEX. R. EVID. 507), an informer
privilege (TEX. R. EVID. 508), a physician-patient privilege (TEX. R.
EVID. 509), and a mental health privilege (TEX. R. EVID. 510).
2 No side may depose a witness for more than six hours exclusive

of breaks taken during the deposition. TEX. R. CIV. P. 199.5(c). Each
party conducting discovery under Level 1 may have no more than
six hours in total, except by court order. TEX. R. CIV. P. 199.2(c)(2).
Each side conducting discovery under Level 2 may have no more
than 50 hours in oral depositions to examine and cross-examine
parties on the opposing side, experts designated by those parties,
and persons who are subject to those parties’ control. TEX. R. CIV. P.
190.3(b)(2). “Side” refers to all the litigants with generally common
interests in the litigation. Id. If one side designates more than two
experts, the opposing side may have an additional six hours of total
deposition time for each additional expert designated. Id. The court
may modify the deposition hours and must do so when a side or
party would be given unfair advantage. Id.
3 Notably, attorneys practicing in the Eastern District of Texas

must adhere to the same standards imposed by Texas Rule of Civil
Procedure 199.5(e) in asserting objections; that is, objections to
deposition questions are limited to “Objection, leading” and “Objec-
tion, form.” E.D. R. 30. These objections are waived if not stated as
phrased during the oral deposition. Id. All other objections need not
be made or recorded during the oral deposition to be later raised
with the court. Id. If the attorney taking the deposition requests
that an explanation for the objection be given, then the attorney
must give a clear and concise explanation of the objection or such
objection is waived. Id.
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34




             CORPORATE R EPRESENTATIVE DEPOSITIONS IN TEXAS
                                BY JAMES C. WINTON & FARRELL A. HOCHMUTH




T    HERE IS PROBABLY NO MORE MISUNDERSTOOD
      discovery procedure under the Texas Rules of Civil
      Procedure than representative depositions under Rule
199.2(b)(1) (formerly Rule 201(4)). The misunderstandings
range from who qualifies as an entity or corporate representa-
                                                                or managing directors had the information being sought.
                                                                This resulted in what Professor Moore labeled a “wasteful
                                                                charade” in which repeated shots in the dark were fired until
                                                                the appropriate target was located.2 In 1970, the federal
                                                                courts sought to remedy this problem by adopting Federal
tive to whether the deposing party can choose who will be       Rule 30(b)(6).3 In 1973, Texas adopted a similar provision
deposed as a representative, whether the entity presenting the  under former Rule 201(4), now Rule 199.2(b)(1).
witness must designate a witness with personal knowledge,
whether the interrogation may exceed the scope of the notice    II. CORPORATE REPRESENTATIVE DEPOSITIONS
or the designation of the witness, to what extent the entity is vs. ORDINARY FACT WITNESS DEPOSITIONS vs.
“bound” by the testimony of its representative and whether      FACT WITNESS DEPOSITIONS OF CORPORATE
the entity can supplement or correct statements made by its     REPRESENTATIVES
chosen representative. The confusion between entity repre-      The first question one must ask is “what do I want” or “what
sentative depositions, depositions of ordinary fact witnesses   is it that the other party is seeking”? Do I want to depose a
and fact witness depositions of corporate officers, directors   corporate representative who will be compelled to investigate
and managing agents is exacerbated by the 1999 amendments       and gather information for me and whose testimony will
to the Texas Rules of Civil Procedure                                                      bind the corporation, but who may
in which entity depositions and                                                            have no personal knowledge of the
ordinary fact witness depositions          “ Both the Federal and Texas Rules              subject matter, or, do I want to
were merged into a single rule,              continue to allow depositions of              depose a senior corporate manager
Tex.R.Civ.P. 199.2. Many of these         corporations by way of their officers,           with personal knowledge of the
issues and others are discussed in            directors and managing agents                facts whose testimony will bind the
detail at James C. Winton, Corporate            as well as by the corporate                corporation? One must be careful
Representative Depo-sitions in Texas–                                                      to distinguish the two.
                                               representative mechanism. ”
Often Used But Rarely Appreciated,
55 BAYLOR L. R EV. 651 (2003). The                                                         Both the Federal and Texas Rules
present discussion will focus on two of the more commonly       continue to allow depositions of corporations by way of
misunderstood issues: entity representative depositions vs.     their officers, directors and managing agents as well as by
ordinary fact witness depositions and supplementation and       the corporate representative mechanism.4 The Federal Rules
correction of testimony of an entity representative. While the  of Civil Procedure provide two different Rules, thereby
entity representative deposition procedure applies equally to   making it simpler to distinguish what is being requested.
corporations, partnerships and other business organizations     True corporate representative depositions operate under Rule
and even governmental organizations, this note will focus its   30(b)(6) while depositions of corporate officers, directors,
attention on corporations as the entity most often involved     and managing agents and other fact witnesses operate
in such depositions.                                            under Federal Rule 30(b)(1). Under Federal Rule 30(b)(1),
                                                                an interrogating party deposing a corporation through an
I. ENTITY REPRESENTATIVE DEPOSITIONS ADOPTED                    officer, director, or managing agent, may choose who will
TO CURE “BANDYING” ABOUT                                        be deposed and whose testimony will bind the corporation.
Prior to the adoption of the representative deposition, it was  However, the deponent is required only to provide facts
necessary for a party seeking deposition testimony from         known to him or her.5 There is no obligation on the witness
an organization to designate in its notice of deposition or     or the corporation to investigate designated subjects as there
subpoena precisely the person to be deposed.1 The entity        is with a 30(b)(6) type corporate representative deposition.
was under no obligation to help the interrogating party
determine which of its various agents, employees, officers      Unfortunately, the 1999 amendments to the Texas Rules
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                                                THE
                                                                                                                                      35




combined the two under Rule 199.2(b), eliminating the                allow the Rule to effectively function, the requesting party
shorthand reference available under former Texas Rule 201.4          must take care to designate, with painstaking specificity, the
and still available under the Federal Rules. This combined           particular subject areas that are intended to be questioned,
Rule in Texas may very well have contributed to the “hybrid”         and that are relevant to the issues in dispute.”12
deposition notice so commonly issued today. In this article,
a true corporate representative deposition will often be             Courts have interpreted what constituted “reasonable
referred to using the federal terminology, a “30(b)(6)” or           particularity” in the context of the case at issue. In Alexander
a “30(b)(1)” deposition for simplicity. This note also relies        v. FBI13 , the court looked beyond the four corners of the
heavily on federal cases and commentaries due to the dearth          notice itself in determining whether the subject matter of the
of authorities in this area from the Texas courts and treatise       deposition had been described with reasonable particularity,
writers.                                                             relying “[o]n the facts of this case,” the fact that the parties
                                                                     had already argued the relevance of the described subjects
Depositions of senior corporate executives under Rule                under Rule 26(b)(1) on a prior motion for protective order
30(b)(1) are limited by the “apex” doctrine previously               and the contents of a letter from plaintiffs’ counsel.14
embraced by many other jurisdictions, including several
federal courts.6. In Crown Central Petroleum Corp. v. Garcia,        As discussed below, the testimony of the corporate
the Texas Supreme Court adopted limitations on a party’s             representative “binds” the corporation. It is thus essential to
ability to use Texas Rule 199.2(b)(1) (then 201(4)) to conduct       know what the subjects of the deposition will be so that an
discovery of senior corporate managers.7                             adequate investigation can be conducted by the corporate
                                                                     representative. It is obviously not in anyone’s interest to
This note will focus on 30(b)(6) type corporate representative       have the corporate representative give incorrect testimony,
depositions but the differences between the two mechanisms           which must later be corrected. Nor is it in the interest of
and the advantages and disadvantages of each are discussed           the corporation that the witness fail to disclose information
in more detail at 55 BAYLOR L. R EV. 651. This note also relies      relevant to the corporation’s case that was the within the
heavily on federal cases and commentaries due to the dearth          scope of the notice.
of authorities in this area from the Texas courts and treatise
writers.                                                             Once designated, may the interrogating party exceed the
                                                                     scope of the subject matters described in the notice or the
III. AN OVERVIEW OF THE MECHANICS OF A DEPOSITION                    scope of a given representative’s designation? The authorities
UNDER FEDERAL RULE 30(b)(6) AND TEXAS 199.2(b)(1)                    are split on this question. In Paparelli v. Prudential Insurance Co.
Under both Federal Rule 30(b)(6) and Texas Rule 199.2, the           of America, plaintiff’s counsel attempted to exceed the scope
party seeking discovery from a corporation issues a notice           of his 30(b)(6) notice, defendant’s counsel instructed the
of deposition in which the corporation is named as the               witness not to answer and a motion for sanctions followed.15
deponent and the subject matters to be inquired into in the          Plaintiff contended that the notice created no limitation on
deposition are described.8 According to the District Court           the scope of the deposition, that examining counsel could ask
for the District of Columbia, there is no obligation on the          a witness produced under Rule 30(b)(6) any question, and
part of the corporation to even designate a witness until the        that the witness must answer any such question on behalf
noticing party has “describ[ed] with reasonable particularity        of the corporation, to the extent he was able to do so.16 In
the matters on which examination is requested.”9                     contrast, the court held that “if a party opts to employ the
                                                                     procedures of Federal Rule 30(b)(6), to depose the representa-
But how particular is “reasonably particular?” In Reed               tive of a corporation, that party must confine the examination
v. Nellcor Puritan Bennett, plaintiff issued a Rule 30(b)(6)         to the matters stated ‘with reasonable particularity’ . . . in the
notice specifically listing the areas of inquiry, but then           Notice of Deposition.”17 Nonetheless, the court also held that
added a dragnet provision stating that “the areas of inquiry         because no serious harm was presented by allowing the wit-
will ‘includ[e], but not [be] limited to’ the areas specifically     ness to answer the questions outside the scope of the notice,
enumerated.”10 The court held that such a notice subjected           counsel had no right under Rule 30(c) to instruct the witness
the noticed party to “an impossible task . . . . Where, as here,     not to answer. Instead, counsel should have either allowed
the defendant cannot identify the outer limits of the areas of       the witness to answer subject to his objection or should have
inquiry noticed, compliant designation is not feasible.”11 As        terminated the deposition in order to seek an order of the
stated by the District Court for the District of Minnesota, “to      court under Rule 30(d).18
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36




The opposite result was reached in King v. Pratt &                  “shot in the dark” sought to be eliminated by the adoption
Whitney.19 There again, an examining party sought to                of Rule 30(b)(6) type depositions. If he wants to put the
exceed the scope of its 30(b)(6) notices. The presenting party      burden of witness selection and information gathering on
objected, terminated the deposition, and immediately sought         the corporation, then he must proceed under Rule 30(b)(6),
a protective order to limit the scope of questioning to those       taking the witness designated by the corporation.
areas described in the notices.20 The District Court noted
that counsel’s challenge of questions outside the scope of          B. The Personal Knowledge/Corporate Representative
the notice was “understandable”, however, it disagreed with         Hybrid
the conclusion of the Paparelli court, finding instead that         Texas practitioners have fallen into the habit of issuing
Rule 30(b)(6) in no way limits the scope of a deposition.21         a hybrid notice for corporate representative depositions,
The court specifically noted that: “This Court sees no harm         which seek to compel the corporation to produce a corporate
in allowing all relevant questions to be asked at a Rule            representative with “personal knowledge” or “the most
30(b)(6) deposition or any incentive for an examining party         knowledge” regarding the designated subjects. One notice
to somehow abuse this process.”22                                   recently received by the author called for the deposition of
                                                                    the corporation and noted that “the corporate party witnesses
IV. HYBRID DEPOSITION NOTICES                                       are instructed to provide one or more individuals to testify
A. Designation of Named Corporate Representative                    about the matters described in Exhibit A attached to the
Federal Rule 30(b)(6) makes clear that the choice of whom to        notice”. So far, so good. However, Exhibit A stated: “Those
designate as the witness to testify on behalf of a corporation,     areas of deposition inquiry for which [corporate parties]
which is the subject of a corporate representative deposition       need to designate a representative having personal knowledge
notice, lies exclusively with the corporation being deposed.        to testify on behalf of said entities, are the following. . . .”
Texas Rule 199.2(b)(1) is equally clear in placing the
duty to designate on the responding corporation, not the            Such a notice misses the point of Federal Rule 30(b)(6)
interrogating party.23                                              and Texas Rule 199.2(b)(1): it is the knowledge of the
                                                                    corporation, not any one witness that is at issue.25 The
From time to time, a party noticing a corporate representative      corporation is both entitled to and has an obligation to
deposition attempts to designate the person they want to            present one or several witnesses to convey fairly all that is
depose on behalf of the corporation, even though that               known or reasonably available to it properly within the scope
person is not an officer, director or managing agent. This          of the notice. There is no obligation to present the “most
results from confusion between a Rule 30(b)(6) deposition           knowledgeable” person to address the issues or a person
of a corporate representative and a Rule 30(b)(1) deposition        with any personal knowledge at all. The corporation is only
of a fact witness–what is here referred to as a hybrid              required to present a representative reasonably prepared to
deposition. Such deposition notices might state: “Pursuant          address the subject matters designated in the notice.26
to Rule 199.2(b)(1) of the Texas Rules of Civil Procedure,
plaintiffs will depose the following individual as defendant’s      Texas courts have yet squarely to opine whether a corporation
corporate representative: John Smith, defendant’s Highest           must produce a representative with the most knowledge or
Level Industrial Hygienist on the following subjects. . . .” or     any personal knowledge.27 Only two Texas treatises have
John Smith is to be deposed as the corporate representative         been found that can be said to touch on the issue. TEXAS
of defendant on the following subjects . . . .” Such a notice       PRETRIAL PRACTICE states that the deposed corporation
is improper and should be made the subject of a motion to           may produce either a witness with personal knowledge or
quash or for protection.24 An interrogating party either seeks      someone who has actual knowledge, the choice is a matter
a corporate representative deposition under Rule 30(b)(6)           of strategy.28 Another treatise implies a duty to produce a
with all the obligations that rule imposes on the corporation,      witness with personal knowledge in recommending that Rule
or the deposition of a fact witness of his choice under Rule        199.2(b)(1) be used liberally, “since it places a significant
30(b)(1)–he can do either but not both at the same time. If he      pressure on an opponent to produce a witness or witnesses
seeks to bind the corporation by the testimony of a witness         within the corporation with knowledge of the relevant
of his selection, he must proceed under Federal Rule 30(b)(1)       facts. . . .”29 If by this statement it is intended to suggest that
against an officer, director or managing agent. In doing so,        the responding corporation is required to produce a witness
however, the discovering party has to live with the personal        with personal knowledge, then it is respectfully submitted
knowledge or lack thereof of the chosen witness–the old             that the authors are incorrect. If it is meant to state that the
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corporation is required to produce a witness who has been          An entity receiving a notice for the deposition of a corporate
properly and thoroughly prepared to answer questions on the        representative with “personal knowledge” or the “most
identified subjects, then there is no disagreement.                knowledge” should object in writing prior to the deposition
                                                                   or on the record at the deposition and present its witness
A number of federal authorities discuss attempts by                subject thereto, move to quash or move for protection.
interrogating parties to require a responding corporation to
produce a 30(b)(6) witness with personal knowledge. In Reed        V. THE DUTY OF THE CORPORATE REPRESENTA-
v. Nellcor Puritan Bennett, plaintiff requested that defendant     TIVE
provide a representative with “personal knowledge.”30 The          A. TO INVESTIGATE
court found that Rule 30(b)(6) requires only that designated       As is apparent from the discussions above, both Federal
persons testify as to matters “known or reasonably available       Rule 30(b)(6) and Texas Rule 199.2(b)(1) provide that
to the organization.”31 Other courts have reached similar          the designated representative is to provide answers based
conclusions.32                                                     not only on matters “known” to the organization but also
                                                                   those “reasonably available” to it. Neither the witness
The leading treatises on federal procedure are in accord.          nor the corporation is required to have participated in
Professor Moore notes, “[t]here is no requirement that the         the transactions or events in controversy or have actual
deponent have firsthand knowledge and involvement in the           knowledge of facts or information relevant to the action.
underlying transaction.”33 As noted in WRIGHT, MILLER &
M ARCUS, “selecting your representative who will testify is        If the interrogating party issues a Rule 30(b)(6) notice
of the utmost importance. Sometimes the person who may             specifying matters as to which the organization does not
know the most about a subject is probably not the best             have knowledge or a reasonable way of obtaining such
witness available by way of his manner and demeanor.”34            knowledge, the organization should advise the interrogating
Therefore, if the interrogating party wishes to depose a           party that it has investigated, that it has no knowledge of
corporate representative with personal knowledge, he or she        the subject matters designated, and such is not reasonably
must comply with Federal Rule 30(b)(1) by designating an           available to it.35 If the entity has no knowledge of the matters
officer, director or managing agent of the corporation. Such       designated in the notice and no reasonable ability to discover
people can reasonably be expected to have the necessary            such, then it has no obligation to produce a witness; the
judgment and discretion to speak on behalf of and bind a           Rule only requires the organization to produce a witness to
corporate party.                                                   testify regarding “matters known or reasonably available to
                                                                   the organization.”36
Another problem arises when the noticed party acquiesces by
responding without objection to a notice for the deposition        However, information that is “reasonably available”
of the “person with the most knowledge”. There, the                includes information lost from the personal knowledge
corporation leaves itself open to the argument that whomever       of the corporation’s current employees due to the passage
is designated to appear as corporate representative was the        of time. United States v. Taylor demonstrates how far
most knowledgeable person in the corporation on all the            the courts have extended the duty of a corporation to
subjects noticed. In one situation, it was even argued that        investigate and disclose its case to the opposing party.37
the corporation could not present testimony at trial on the        In Taylor, the United States sought to recover clean up
subject of the deposition by anyone other than that corporate      costs of a Superfund site involving numerous defendants
representative who had been produced as the person with            and activities going back several decades.38 The court
“the most knowledge.” To avoid such an argument, the               acknowledged that “[k]nowledgeable people [had] died,
corporation should move for protection or, at the very least,      memories . . . faded, and the corporate division of Union
formally object to the “most knowledgeable” portion of the         Carbide [involved had been] sold [several] years prior to
notice and present its corporate representative subject to         the. . . litigation.”39 Union Carbide moved to quash the
such objection.                                                    Rule 30(b)(6) notice, which was in part granted and in
                                                                   part denied by the court.40 The deposition proceeded, but
A corporation should always challenge such a notice, thereby       disputes arose whether the witnesses had been prepared.
never implicitly acquiescing in the notion that no one else        Union Carbide asserted that its duty under both Rule
within the corporation can testify with as much knowledge          30(b)(6) and the court’s order was to provide information
as the corporate representative did.                               through its witnesses where it possessed documents or
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current employees upon which information could be based              past employees, or other sources.50 The court held that
and otherwise to identify the retired employees that would           Union Carbide was required to have deponents review prior
be in a position to speak on the topics where there was no           fact witness deposition testimony as well as documents
current corporate knowledge.41                                       and deposition exhibits in order properly to prepare its
                                                                     Rule 30(b)(6) designees.51 The court even required Union
Union Carbide proposed that the court adopt an order that            Carbide to have its representatives review testimony and
any designee testifying in a particular area would be deemed         documents in the hands of third persons if it intended to
competent to testify in that area at trial and that the Rule         offer such at trial.52
30(b)(6) testimony would be admissible for any party at
trial.42 The court correctly rejected that suggestion, holding       It has been argued that the Taylor court went too far in
that testimony by a Rule 30(b)(6) witness was still subject          requiring a corporation to present, through its corporate
to the Federal Rules of Evidence, that is, the testimony still       representative, the corporation’s subjective beliefs, opinions
had to comply with the requirements of personal knowledge,           and interpretations.53 Instead, contention interrogatories
opinion, hearsay, etc.43 Thus, the Government could use              are the proper discovery device for exploring a corporation’s
whatever the witnesses said against Union Carbide under              beliefs, opinions and interpretations. It is also noted that one
the provisions of Fed. R. Civ. P. 32(a)(2) and Fed. R. Ev.           judge concluded, “contention interrogatories are not just a
801(d)(2),44 but Union Carbide could use the statements              viable alternative, but the proper discovery device under the
only if the witness at the deposition could satisfy the usual        circumstances.”54
requirements of the Federal Rule of Evidence.45 As to areas of
inquiry in which no current employee had knowledge, Union            “Reasonably available” information has been held to include
Carbide proposed that: If . . . a designee is unable to respond      information available to subsidiaries and affiliates within the
to a specific area of inquiry, Union Carbide may call other          control of the corporation. Twentieth Century Fox Film Corp.
witnesses to testify on that subject at the trial . . . provided     v. Marvel Enterprises, Inc.55 The court looked by analogy to
that [it] identifies such witnesses prior to the close of the        the duty of a corporate party to answer interrogatories,56
30(b)(6) Deposition transcript.46                                    concluding that the scope of response to a Rule 30(b)(6)
                                                                     notice of deposition is the same as the principle applied to
The court observed that Rule 30(b)(6) requires a corporation         requests for production of documents.57
not only to produce such number of persons as will satisfy
the notice, but also requires the corporation to prepare its         B. Consequences of Failing to Disclose
designated representatives “so that they may give complete,          If a corporation fails to meet its obligations to investigate and
knowledgeable and binding answers on behalf of the                   select an appropriate witness to testify or to provide complete
corporation.”47 Noting that the testimony elicited at a              answers, the court can impose a variety of sanctions under
Rule 30(b)(6) deposition represents the knowledge of the             Federal Rule 37 or Texas Rule 215.1(b). These are largely
corporation, not of the individual deponents, the court held         the same sanctions available in any discovery dispute and
that “[if] the persons designated by the corporation do not          present no unusual traps. However, there are several traps
possess personal knowledge of the matters set out in the             for the unwary corporation even when making a good faith
deposition notice, the corporation is obligated to prepare the       attempt to gather and disclose information “reasonably
designees so that they may give knowledgeable and binding            available” to it.
answers for the corporation.”48 The court went on to note
that the designee must not only testify about facts within           The extent of the burden and Draconian nature of the
the corporation’s knowledge, “but also its subjective beliefs        sanctions available against a corporation that fails fully
and opinions . . . [and] its interpretation of documents and         to disclose information “reasonably available” to it is
events.”49                                                           demonstrated by Rainey v. American Forest & Paper Ass’n. 58
                                                                     There, Rainey sued American Forest & Paper Association
On the subject of facts, beliefs, interpretations and opinions       (“AFP”) under the Fair Labor Standards Act, alleging a failure
held by former employees, the court noted that a corporation         to pay overtime. Plaintiff’s summary judgment motion raised
no longer employing individuals who have memory of a                 the question of whether plaintiff fell within the exemption
distant event or that such individuals are deceased does not         applying to individuals “employed in a bona fide . . . ad
relieve a corporation of its duties under Rule 30(b)(6) to the       ministrative . . . capacity.”59 In opposition to plaintiff’s
extent the matters are reasonably available from documents,          motion, defendant proffered the deposition testimony of its
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designated corporate representative and former employee’s             depositions, Rule 30(b)(6) required that the requested relief
affidavit, the “Kurtz affidavit.”60                                   be granted. The Kurtz affidavit was stricken, defendant was
                                                                      left with no admissible evidence in opposition, and plaintiff’s
Plaintiff had issued a Rule 30(b)(6) notice to AFP for                motion for summary judgment was granted.69
a corporate representative(s) to testify regarding her
“employment history with defendant including positions                While one might take issue with the court’s statement that
held, duties, hours worked, supervisors and representations           AFP was asserting legal and factual positions that were
made to plaintiff by defendant and its employees.”61 Two              materially different from those taken by its witnesses at
corporate representatives were designated to respond to               their 30(b)(6) depositions, it is clear that it was attempting
plaintiff’s notice. The court noted that the first, Mr. Hoagland,     to offer evidence of facts that it had not presented at those
was not designated to answer specific questions concerning            depositions. The court noted Rule 30(b)(6) was aimed at
plaintiff’s employment, as he was not hired by defendant              preventing a corporate defendant from thwarting inquiries
until after plaintiff resigned. “It therefore is expected that he     during discovery and then staging an ambush during a later
would profess no personal knowledge about the particular              phase of the case.70 The fact that no one still working for
circumstances of plaintiff’s employment.”62 The other                 AFP could have testified based on personal knowledge was
corporate representative, Mr. Kirshner, stated AFP’s position         no excuse. The court observed that:
that plaintiff’s duties were exempt, but he was unable to
provide specifics about the nature of plaintiff’s duties or the          If Ms. Kurtz was–as her affidavit suggests–so closely
allocation of her time to back up those conclusions.63 The               involved with the human resources department while
court held that Kirshner’s conclusory testimony, unsupported             plaintiff worked there, surely the information she has
by personal knowledge, was insufficient to create genuine                come forward with was equally well-known at the time
issues of material fact.64                                               plaintiff sought to depose a corporate representative.
                                                                         Defendant’s failure to produce it then–either by desig-
Next the court turned to the Kurtz affidavit.65 Ms. Kurtz’s              nating Ms. Kurtz as its representative or by preparing
affidavit was based on personal knowledge of plaintiff’s                 its designees to present what Kurtz knew–clearly vio-
day-to-day duties and responsibilities while both were                   lated Rule 30(b)(6).71
employed by AFP.66 Plaintiff challenged consideration of
the Kurtz affidavit on the ground that the matters covered            The fact that AFP was able to obtain Ms. Kurtz’s cooperation in
therein were within the scope of plaintiff’s 30(b)(6) notice          making the affidavit was evidence that it could have obtained
but no representative had been presented by AFP to testify            her cooperation in acting as a corporate representative or as
about them.67 The court held that Rule 30(b)(6) prohibits             a source of the information to be presented by its designated
introduction of information within the scope of the                   representatives.72
designated subject matter of the deposition “[u]nless [the
producing party] can prove that the information was not               Perhaps most significantly, the court rejected AFP’s argument
known or was inaccessible.”68                                         that plaintiff had not been ambushed because throughout the
                                                                      deposition of its corporate representatives, Ms. Kurtz had
AFP argued that Ms. Kurtz’s testimony fell within an                  been identified as someone knowledgeable about plaintiff’s
exception to the rule since it had no legal duty to designate a       hours of work.73 The court refused to consider the affidavit
former employee and that the responses of Mr. Kirshner at his         of Ms. Kurtz or to put the burden on plaintiff to depose her
deposition evidenced adequate preparation for his deposition.         to learn what she might have to say.74 Pointing plaintiff to
The court agreed that AFP had “no duty to designate any               the bush where the bird was and telling her to go sniff it out
particular individual” and that Mr. Kirshner displayed                for herself was just not good enough under Rule 30(b)(6)
familiarity with the areas of inquiry. However, it noted that         in the Rainey court’s opinion. As noted above, the Southern
plaintiff was not seeking Rule 37 sanctions for improper              District of New York in Bank of New York agreed in similar
designation or inadequate preparation of defendant’s                  circumstances that Rule 30(b)(6) had not been complied with
witnesses. Instead, she sought to prevent consideration of            but declined to strike testimony as too severe a sanction. 75
legal and factual positions that varied materially from those
taken by the corporate representatives. The court held that           In Texas, it would seem that the trial court is first required
since AFP had not made a showing that the facts set out in the        to impose a lesser sanction that that imposed by the Rainey
affidavit were not reasonably available to it at the time of the      court. In Adkins Services, Inc. v. Tisdale Co.,76 the trial court
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granted a motion to strike testimony as a sanction for failure          the corporation seemingly must go further by taking the
to respond to interrogatories or a request for admission.               deposition of third-party witnesses and then incorporating
The court of appeals noted that under Texas Rule of Civil               the information into the testimony of its corporate
Procedure 215, “any sanction that adjudicates a claim and               representative.80
precludes the presentation of the merits of the case constitutes
a death penalty sanction” and therefore held that among other           V. CORRECTION AND SUPPLEMENTATION OF
conditions precedent to the imposition of a death penalty               CORPORATE REPRESENTATIVE TESTIMONY
sanction, the court must first impose lesser sanctions to test          Another problem occurs when a corporate representative
their effectiveness in securing compliance.77                           testifies to the best of his ability but the corporation later
                                                                        realizes that an answer was inaccurate or incomplete. While
So what can an organization do to protect its ability to present        all courts seem to agree that the testimony of both Rule
evidence when the necessary information is in the hands of              30(b)(1) officers, directors and managing agents and Rule
third parties? AFP clearly was able to obtain an affidavit from         30(b)(6) corporate representatives is the testimony of the
Kurtz and, therefore, she appears to have been cooperating              corporation,81 and that as such it “binds” the corporation,82
with AFP. If so, it would seem that all AFP had to do was               there is a split in the authorities as to the practical impact
to interview her and incorporate her information into the               of this. In other words, to what extent is such testimony
testimony of the designated corporate representatives. While            rebuttable like the testimony of any other witness, including
their Rule 30(b)(6) representative’s hearsay testimony based            other corporate employees? Can the organization amend or
on their interview of Kurtz would not have been admissible              supplement its 30(b)(6) testimony?
in opposition to the motion for summary judgment,78 by
disclosing the facts during the Rule 30(b)(6) deposition, AFP           While the cases speak loosely of the testimony of a corporate
then would have been free to present Ms. Kurtz’ properly                representative “binding” the corporation, what does that
founded testimony by way of affidavit in opposition to                  really mean? In W.R. Grace, the court noted that:
plaintiff’s motion for summary judgment.
                                                                           It is true that a corporation is “bound” by its Rule
AEP also could have designated Ms. Kurtz as its corporate                  30(b)(6) testimony, in the same sense that any indi-
representative if she had consented so to act. It is clear under           vidual deposed under Rule 30(b)(1) would be “bound”
the rules that anyone who consents to act as such may be                   by his or her testimony. All this means is that the
appointed by the corporation to act as its representative–it               witness has committed to a position at a particular
need not be a current or even a former employee.79 Texas                   point in time. It does not mean that the witness has
Rule 199.2(b)(1) simply states that the organization must                  made a judicial admission that formally and finally
“designate one or more individuals to testify on its behalf. . . .”        decides an issue. Deposition testimony is simply evi-
Federal Rule 30(b)(6) is more explicit, stating that “. . . the            dence, nothing more. Evidence may be explained or
organization so named shall designate one or more officers,                contradicted. Judicial admissions, on the other hand,
directors, or managing agents, or other persons who consent                may not be contradicted.83
to testify on its behalf. . . .” (Emphasis added.) The key is
to designate someone who will effectively investigate the               In A.I. Credit Corp. v. Legion Insurance Co., the Seventh
designated subjects and respond to questions with regard                Circuit was faced with a claim that a corporation could not
thereto on behalf of the corporation. The representative                oppose a motion for summary judgment based on testimony
may be a former employee, the employee of a subsidiary,                 that contradicted that of its Rule 30(b)(6) corporate
an independent contractor or third-party, so long as the                representative.84 The Seventh Circuit held that Rule 30(b)(6)’s
corporation is willing to live with the testimony. Thus, the            cannot be read absolutely to bind a corporate party to its
failure to designate Ms. Kurtz or, at the very least, to interview      designee’s testimony.85 The court considered the contradictory
her and incorporate her information in the testimony of the             testimony and found that an issue of fact existed.86
designated corporate representative was unexcused.
                                                                        As noted by Sinclair & Fendrich, a corporation is “bound”
What can an organization do if its former employees or                  in the same sense as any other witness: “the witness has
other third-party witnesses refuse to cooperate with the                committed to a position at a particular point in time; it does
corporation’s investigation? If Rainey is to be accepted as             not mean that the witness has made a judicial admission that
correctly describing the scope of the corporation’s duty,               formally and finally decides an issue. . . . Such evidence may
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be explained or contradicted.”87 There is no Fifth Circuit or      areas outside the scope of the Rule 30(b)(6) notice in such
Texas decision on point.88                                         a way that it will create a dangerously muddled deposition
                                                                   in which fact and representative testimony is so intertwined
So what should a corporation do upon learning that                 that it may not be possible to determine which is which,
information is in fact available on a subject matter as            and thus, which is binding and which is not? In a perfect
to which the corporation’s 30(b)(6) witness previously             world, it would not matter; the witness would be sufficiently
disavowed knowledge, or provided an incorrect answer? The          savvy to recognize when a question exceeded the scope of
simple answer is for the witness to correct the incomplete or      the designated subject matter and would make clear in his
incorrect statements on the errata sheet when reviewing and        response that he was testifying based on personal knowledge
signing the deposition. The corporation may also give notice       rather than his investigation on behalf of the corporation.
of the need to supplement or correct and designate additional      In practice, however, a corporate representative, who is at
witnesses to testify–and the sooner the better.89                  times testifying based on the corporation’s investigation
                                                                   and at other times his own memory and beliefs, will leave
Where incorrect information has been given, a more difficult       a dangerously muddled trail. How then does one prevent
question is presented but one that is not without answer.          the interrogating party from taking advantage of the King
One court extended to Rule 30(b)(6) by analogy the duty            court’s largesse?
to supplement imposed by Rule 26(e).90 Whether or not
the wording of Rule 26(e)(2) in fact applies to corporate          The Northern District of California in fact addressed this
representative depositions of its own force, the extension of      situation in Detoy v. City and County of San Francisco, a suit
the duty (and right) timely to supplement prior responses          under 42 U.S.C. § 1983.92 During the 30(b)(6) deposition
during a corporate representative deposition should allow          of the city, defendant’s counsel instructed the designee not
a corporate party to provide additional information as             to answer questions outside the scope of the notice. Plaintiff
discovery progresses, additional facts are revealed and            moved to compel and defendant moved for a protective order.
theories develop.                                                  The DeToy court noted the split between the Paparelli,93 King94
                                                                   and Mandelbaum95 courts and found King to be the more
Similarly, both Federal Rule of Civil Procedure 36(b) and          accurate and logical interpretation of Rule 30(b)(6).96
Texas Rule of Civil Procedure 198.3 provide for a motion
for leave to withdraw or amend responses to requests for           Still, the court acknowledged that defending counsel “may
admission. If even responses to requests for admission             fear ambush, and that the designating entity could be
may be withdrawn or amended, it would make sense that              bound by the witness’s answers or that the answers could
Rule 30(b)(6) testimony may be withdrawn, amended or               be construed as admissions by the designating entity, or that
supplemented. Since a corporate representative’s testimony         the questions may enter into territory where the witness
is not a judicial admission, the standards for supplementing       is unprepared.”97 In that regard, counsel for defendant
or amending the responses of the corporate representative          suggested that plaintiff be required to adjourn the deposition
should be no more stringent than for supplementing                 so that the witness could appear separately on his own. The
responses to requests for admission.                               court was unpersuaded, despite the acknowledged concerns,
                                                                   in part because such would encourage defending counsel to
Because of the risk of prejudice from delay, a corporation         take a hard line and make the interrogating party use up one
that learns that its Rule 30(b)(6) testimony was incomplete        of its allotted depositions.98
or inaccurate would be well advised to act promptly in
correcting or supplementing same.                                  The court directed that if counsel had an objection to a
                                                                   question as falling outside the scope of the Rule 30(b)(6)
VI. When the Questioner Creates Ambiguity Whether the              notice, he was to state the objection on the record as provided
Designated Representative Speaks for the Corporation as            by Federal Rule 30(c) and 30(d)(1), unless the situation fell
to Certain Questions, What Remedy is Available to the              within the bounds of Federal Rule 30(d)(4), a deposition being
Corporation?                                                       conducted in bad faith or in such a way as unreasonably to
The King court saw “no harm in allowing all relevant questions     annoy, embarrass or oppress the deponent or a party.99 The
to be asked at a Rule 30(b)(6) deposition or any incentive for     court did allow that counsel could note on the record that
an examining party to somehow abuse this process.”91 What if       answers to questions outside the scope of the notice were not
during the deposition, the examiner seeks to inquire into          intended as answers of the designating party and would not
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bind that party. The court also suggested that prior to trial,     the corporation, it must proceed under the equivalent of Rule
counsel could request from the court instructions to the jury      30(b)(6). The corporation will be obligated to investigate
that such answers were merely the answers or opinions of           and present information within the scope of the designated
individual fact witnesses, not admissions of the party.100         subject matters but it is free to chose who its spokesperson
                                                                   will be and is under no obligation to present a witness with
The Texas Rules arguably provide an even broader basis for         personal knowledge. That person may be a current or former
protecting the corporate representative from such abuse. Rule      employee or someone selected at random who has consented
199.5(f) provides that “[a]n attorney may instruct a witness       to act as a corporate representative. Testimony of a corporate
not to answer a question . . . if necessary to . . . protect a     representative not based on personal knowledge and will be
witness from an abusive question or one for which any              admissible against the corporation but not by it.
answer would be misleading.” The Comments to Rule 199.5
do not limit the abusive or harassing questions to which a         The potential sanctions available for a corporation that does
witness may be instructed not to answer to those noted.            not properly meet its obligations under the Rule 30(b)(6)
While neither the letter nor the spirit of the Rules would         type are significant, but no more Draconian than the
allow presenting counsel to try to take advantage of the           potential that its evidence may be stricken or disallowed at
latitude given by Rule 199.5(f) and the Comments thereto, a        trial for failure to investigate and present facts, positions and
fair reading would certainly seem to allow counsel to protect      interpretations in discovery.
the corporation’s designated representative from abusive or
harassing questions intended to or which would create a            Given the consequences of cases holding that the testimony
misleading record as to when questions were being posed            binds the corporation and the ability of the questioner to
within the witness’s designation as a corporate representative     exceed both the scope of the notice and the scope of the
and when they were not. 101                                        designation, it is critical that counsel presenting a corporate
                                                                   representative seek to get as much particularity in the notice
It is a judgment call whether one should simply object and         as possible by way of a letter request for clarification or, if
note for the record each time a question is asked outside the      necessary, a motion.
scope of the notice or of the designation, or terminate the
deposition and move for a protective order. If the objection       James C. Winton is a partner at the law firm of Baker &
and notation on the record will be sufficient to cure the          Hostetler. His practice has primarily involved the maritime and
problem, then that is probably all that the rules will allow       oil & gas industries. Readers may be interested in his earlier, and
one to do.102 In other words, where the transgression has          more detailed article on the same subject. See 55 BAYLOR L.
not risen to the level of “bad faith” or “unreasonabl[e]           R EV. 651 (2003).
oppress[ion]” to use the federal terminology or “abus[e]”
or “for which any answer would be misleading,” to use the          Farrell A. Hochmuth is an associate at the law firm of
Texas terminology, then the less disruptive remedy must be         Baker & Hostetler. Ms. Hochmuth’s area of emphasis is envi-
resorted to. Where the questioner is truly trying to create a      ronmental law ✯
misleading record, then it would seem that a termination of
the deposition to allow a motion would be in order.
                                                                   1 Hosp. Corp. of Am. v. Farrar, 733 S.W.2d 393, 394–95 (Tex.
Conclusion                                                         App—Fort Worth 1987, no writ).
                                                                   2 7 James Wm. Moore et al., Moore’s Federal Practice § 30.25[1]
One must determine whether one seeks, or the opposing
party seeks, to depose a corporation under the Texas               (3d ed. 2002). See also, Fed.R.Civ.P. 30, Advisory Committee Notes,
equivalent of Federal Rule 30(b)(6) or 30(b)(1). If the            § (b)(6) (section 30(b)(6) adopted to cure “bandying” in which
deposing party wants to select the witness, he must                officers or managing agents are deposed in turn but each denies
                                                                   knowledge of the subject matter).
proceed under the equivalent of Rule 30(b)(1), designating         3 United States v. Taylor, 166 F.R.D. 356, 360 (M.D.N.C. 1996),
a corporate officer, director or managing agent and stating        aff’d, 166 F.R.D. 367 (M.D.N.C. 1996).
in the notice that the witness will be deposed as a corporate      4 See generally Farrar, 733 S.W.2d at 395.
representative. By doing so, he will get fact testimony but        5 Kent Sinclair & Roger P. Fendrich, Discovering Corporate Knowledge
only those facts known to the witness. If the deposing party       and Contentions: Rethinking Rule 30(b)(6) and Alternative Mechanisms,
wants to put the burden on the corporation to investigate          50 A LA. L. R EV. 651, 703 (1999)
and report information known or “reasonably available” to          6 See Salter v. Upjohn Co., 593 F.2d 649, 651 (5th Cir. 1979); Baine
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v. Gen. Motors Corp., 141 F.R.D. 332, 334-35 (M.D. Ala. 1991);                 TRIAL & A PP. A DVOC. 73, 77 (1999) (“The corporation is not obli-
Travelers Rental Co. v. Ford Motor Co., 116 F.R.D. 140, 144-46 (D.             gated to produce the most knowledgeable person to address each
Mass. 1987); Mulvey v. Chrysler Corp. 106 F.R.D. 364, 366 (D.R.I.              issue outlined in the deposition subpoena and can even prepare
1985); Armstrong Cork Co. v. Niagara Mohawk Power Corp., 16                    one witness to testify on all of the issues.”).
F.R.D. 389, 390 (S.D.N.Y. 1954); M.A. Porazzi Co. v. The Morma-                27 The only case found which even tangentially touches on the issue

clark, 16 F.R.D. 383 (S.D.N.Y. 1951); Liberty Mut. Ins. Co. v. Super.          (and even there, only by implication) is In re Senior Living Properties,
Ct., 13 Cal. Rptr. 2d 363, 366 (Cal. Ct. App. 1992); Broadband                 L.L.C. There the court of appeals reformulated without comment
Communications, Inc. v. Home Box Office, Inc., 549 N.Y.S.2d 402                the trial court’s order that the corporation “produce for deposition a
(N.Y. App. Div. 1990). Not all courts agree, however. See, e.g., State         corporate representative who has the most knowledge” concerning
ex rel. Ford v. Messina, 71 S.W.3d 602, 607-08 (Mo. 2002) (en banc)            designated issues, requiring only that defendants “present a depo-
(declining to adopt “apex” rule used in California and Texas, instead          nent who can testify concerning the extent to which coverage has
leaving depositions of top-level corporate officials to standard rules         been eroded or compromised and the number of claims competing
governing discovery but with very similar analysis).                           for the coverage.” In fact, in Hoechst Celanese Corp. v. Nat’l Union
7904 S.W.2d 125, 127-28 (Tex. 1995).                                           Fire Ins. Co., the court held that it was improper to interrogate
8FED. R. CIV. P. 30(b)(6) (“A party may in the party’s notice and              the corporate representative about “who the most knowledgeable
in a subpoena name as the deponent a public or private corpora-                person [was]” since the corporation was not required to present the
tion . . . and describe with reasonable particularity the matters on           “most knowledgeable person.” 623 A.2d 1099, 1113 (Del. Super.
which examination is requested.”) (emphasis added); TEX. R. CIV.               Ct. 1991).
P. 199.2(b)(1) (“If an organization is named as the witness, the notice        28 2 SCOTT BRISTER ET AL., TEXAS P RETRIAL P RACTICE § 28:249

must describe with reasonable particularity the matters on which               (2001).
examination is requested.”) (emphasis added).                                  293 BROWN ET AL., TEXAS P RACTICE GUIDE: P ERSONAL INJURY. § 8:
9Alexander v. FBI, 186 F.R.D. 137, 139 (D.D.C. 1998) (quoting FED.             291 (2d ed. 2002).
R. CIV. P. 30(b)(6)).                                                          30193 F.R.D. 689, 692 (D. Kan. 2000).
10193 F.R.D. 689, 692 (D. Kan. 2000).                                          31Id.
11Id.                                                                          32 See e.g., United States v. Taylor 166 F.R.D. 356, 360 (M.D.N.C.
                                                                                                                   ,
12Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 638 (D. Minn.           1996), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996). (if corporate repre-
2000). See also Alexander, 186 F.R.D. at 142-43.                               sentative does not have “personal knowledge of the matters set out
13 Alexander, 186 F.R.D. at 137.                                               in the deposition notice, the corporation is obligated to prepare
14Id. at 140.                                                                  the designees . . . .”); SEC v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y.
15108 F.R.D. 727, 729 (D. Mass. 1985).                                         1992) (Rule 30(b)(6) requires only that the representative be
16 Id.                                                                         adequately prepared, not that the representative have “first-hand
17Id; see also Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co.,            knowledge” or personal knowledge); Ierardi v. Lorillard, Inc.,
623 A.2d 1099, 1112-13 (Del. Super. Ct. 1991).                                 CIV.A.No.90-7049, 1991 WL 158911, at *1 (E.D. Pa. Aug. 13,
18 Paparelli, 108 F.R.D. at 731; see also Detoy v. San Francisco, 196          1991) (“employee’s lack of personal knowledge is irrelevant.”); and
F.R.D. 362, 365-66 (N.D. Cal. 2000).                                           Bank of New York v. Meridien BIAO Bank Tanz., Ltd., 171 F.R.D.
19See generally 161 F.R.D. 475 (S.D. Fla. 1995), aff’d, 213 F.3d 646           135, 150-51 (S.D.N.Y. 1997) (corporation could have designated
(11th Cir. 2000) (unpublished decision).                                       witness with knowledge “or it could have provided Mr. Mbanga
20 Id. at 475.                                                                 [the witness presented] with their accounts of document produc-
21Id.                                                                          tion as a means of preparing him for the deposition.”). Bank of
22Id. at 476.                                                                  New York makes it clear that even though there were witnesses
23 FED. R. CIV. P. 30(b)(6) (“[T]he organization so named shall                available who had actual knowledge of the matters into which
designate one or more officers, directors, or managing agents, or              inquiry was sought, it was only necessary to produce a witness
other persons who consent to testify on its behalf. . .”); TEX. R. CIV.        who had been properly prepared to answer questions on behalf
P. 199.2(b)(1) (“In response, the organization named in the notice             of the party.
must–a reasonable time before the deposition–designate one or more             33MOORE’S, supra note 2, § 30.25[3], p. 30-56.1.

individuals to testify on its behalf. See also Sinclair & Fendrich,            348A CHARLES A LAN WRIGHT ET AL., FEDERAL P RACTICE AND P RO -

supra, note 5, at 664.. . . .” ) (emphasis added).                             CEDURE § 2103, n.2 (2d ed. 1994).
24See, e.g., Shelton v. Am. Motors Corp., 106 F.R.D. 490, 491 (W.D.            35See Sinclair & Fendrich, supra note 5, at 747-49 & n.506.

Ark. 1985), rev’d on other grounds, 805 F.2d 1323 (8th Cir. 1986).             36Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 76 (D. Neb.
25See, e.g., United States v. Taylor, 166 F.R.D. 356, 361-62 (M.D.N.C.         1995).
1996), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996).                                  37166 F.R.D. 356, 360 (M.D.N.C. 1996), aff’d, 166 F.R.D. 367
26 See, e.g., David Fietze, The Unreasonable Interpretation of “Reasonable     (M.D.N.C. 1996).
Particularity” in Federal Rule of Civil Procedure 30(b)(6), 4 SUFFOLK J.       38 Id.
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39 Id.   at 358.                                                             75Bank    of N.Y. v. Meridien Biao Bank Tanz. Ltd., 171 F.R.D. 135,
40 Id.                                                                       151-52 (S.D.N.Y. 1997).
41Id.    at 359 n.4.                                                         7656 S.W.3d 842, 844-46 (Tex. App.—Texarkana 2001, no pet.).
42Id.    at 359.                                                             77Adkins Servs., 56 S.W.3d at 845.
43Id.                                                                        78 See, e.g., United States v. Taylor, 166 F.R.D. 356, 359 (M.D.N.C.
44FED    R. EVID. 801(d)(2).                                                 1996), aff’d, 166 F.R.D. 367 (M.D.N.C. 1996).
45FED.    R. EVID. 602 (“A witness may not testify to a matter unless        79 See generally Ierardi v. Lorillard, Inc., No. CIV.A.90-7049, 1991

evidence is introduced sufficient to support a finding that the wit-         WL 158911, at *3 (E.D. Pa. Aug. 13, 1991)
ness has personal knowledge of the matter.”); see also W.R. Grace &          80 See Rainey, 26 F. Supp. 2d at. at 95.

Co. v. Viskase Corp., No. 90C5583, 1991 WL 211647, at *2 (N.D.               81See, e.g., Hyde v. Stanley Tools, 107 F. Supp. 2d 992, 992-93 (E.D.

Ill. Oct. 15, 1991) (mem.) (stating that Rule 30(b)(6) deposition            La. 2000) (“In a Rule 30(b)(6) deposition, there is no distinction
testimony may be used by the adverse party for any purpose).                 between the corporate representative and the corporation.”).
46Taylor 166 F.R.D. at 359-60.
          ,                                                                  82MOORE’S, supra note 2, at §§ 30.25[3] p. 30-56.3 & 32.21[2][a]
47Id. at 360-61 (quoting Marker v. Union Fid. Lif. Ins. Co., 125             p. 32-24.
F.R.D. 121, 126 (M.D.N.C 1989)).                                             83W.R. Grace & Co. v. Viskase Corp., No. 90C5383, 1991 WL
48 Id. at 361; see also Resolution Trust Corp. v. S. Union Co., 985          211647, at *2 (N.D. Ill. Oct. 15, 1991)
F.2d 196, 197 (5th Cir. 1993).                                               84 A.I. Credit Corp. v. Legion Ins. Co., 265 F.3d 630 (7th Cir. 2001).
49Taylor 166 F.R.D. at 361 (citing Lapenna v. Upjohn Co., 110 F.R.D.
          ,                                                                  85Id.at 637.

15, 20 (E.D. Pa. 1986)).                                                     86 Id.
50Taylor 166 F.R .D. at 361.
          ,                                                                  87 Sinclair & Fendrich, supra note 5, at 730.
51Id. at 362.                                                                88 Adkins Servs., Inc. v. Tisdale Co., 56 S.W.3d 842, 845-46
52Id. See also, Calzaturficio S.C.A.R.P.A. S.P.A. v. Fabiano Shoe Co.,       (Tex.App.—Texarkana 2001, no pet.) can be argued as at least
201 F.R.D. 33, 37 (D. Mass. 2001).                                           instructive on the issue.
53Id. Sinclair and Fendrich, supra note 5, at 710-11 (“There is no           89See, e.g., Sinclair & Fendrich, supra note 2, at 679-80.

basis in the Rule or its legislative history for infusing the Rule           90 Ierardi v. Lorillard, Inc., No. CIV.A.90-7049, 1991 WL 158911,

30(b)(6) deposition with such a function.”).                                 at *3 (E.D. Pa. Aug. 13, 1991).
54Id. at 714 (quoting SEC v. Morelli, 143 F.R.D. 42, 48 (S.D.N.Y.            91King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995),

1992)).                                                                      aff’d without opinion, 213 F.3d 647 (11th Cir. 2000).
55No. 01 Civ. 3016 (AGS)(HBP), 2002 WL 1835439 (S.D.N.Y. Aug.                92196 F.R.D. 362, 366-67 (N.D. Cal. 2000).

8, 2002) (mem.).                                                             93Paparelli, 108 F.R.D. at 730.
56 Id. at *3 (citing Am. Rockwool, Inc. v. Owens-Corning Fiberglass          94King v. Pratt & Whitney, 161 F.R.D. 475, 476 (S.D. Fla. 1995),

Corp., 109 F.R.D. 263, 266 (E.D.N.C. 1985); Westinghouse Credit              aff’d without opinion, 213 F.3d 647 (11th Cir. 2000).
Corp. v. Mountain States Mining & Milling Co., 37 F.R.D. 348,                95Overseas Private Inv. Corp. v. Mandelbaum, 185 F.R.D. 67, 68-

349 (D. Colo. 1965)).                                                        69 (D.D.C. 1999) (corporate representative subject to deposition
57Id. at *4.                                                                 on all information which is relevant or likely to lead to relevant
58 See generally 26 F. Supp. 2d 82 (D.D.C. 1998).                            information, limited only by Rule 26(b)(1)).
59 Id. at 87.                                                                96 DeToy, 196 F.R.D. at 366-67.
60 Id. at 85-87.                                                             97Id. at 367.
61Id. at 92.                                                                 98 Id.
62Id.                                                                        99 DeToy, 196 F.R.D. at 367.
63Id. at 92-93.                                                              100 Id.
64Id.                                                                        101See, e.g., TEX. R. CIV. P. 199.5(h) (“An attorney must not ask a
65Id. at 93-94.                                                              question at an oral deposition solely to harass or mislead the wit-
66 Id.                                                                       ness, for any other improper purpose, or without a good faith legal
67Id.                                                                        basis at the time. An attorney must not object to a question at an
68 Id. at 94 (citing Ierardi v. Lorillard, Inc., No. CIV.A.90-7049, 1991     oral deposition, instruct the witness not to answer a question, or
WL 158911, at *3 (E.D. Pa. Aug. 13, 1991).                                   suspend the deposition unless there is a good faith factual and legal
69 Rainey, 26 F. Supp. 2d at at 95.                                          basis for doing so at the time.”).
70 Id, at 95.                                                                102See, e.g., TEX. R. CIV. P. 192.6(a) (“A person should not move for
71Id.                                                                        protection when an objection to written discovery or an assertion of
72Id. at 95 n.3.                                                             privilege is appropriate, but a motion does not waive the objection
73Rainey, 26 F. Supp. 2d at 95.                                              or an assertion of privilege.”).
74Id. at 96.
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                                                                                                                                     45




                                  Making Foreign Depositions Less Foreign—

             DEPOSITION TESTIMONY IN FOREIGN JURISDICTIONS
                       FOR USE IN TEXAS C OURTS
                                  BY STEVEN R. SELSBERG & ROBERT W. COWAN


           Your client, Novalt Inc., sued Bancomundo, S.A. in a Texas court for breach of contract and other claims. Novalt
           is a computer networking software giant based in Houston. Bancomundo, S.A. is a Latin American financial
           institution based in Mexico City. Novalt contracted with Bancomundo to provide it with consulting services
           and software designed to overhaul Bancomundo’s antiquated computer network. So far, your client has invoiced
           Bancomundo for just over a million dollars. But Bancomundo won’t pay. It claims Novalt’s networking software
           never worked and, as a result, its consulting services were worthless.

           Bancomundo hired Texas counsel to answer and defend the lawsuit. Numerous party and non-party deposi-
           tions will have to be taken in Mexico. To make matters more complicated, Bancomundo also hired a Nevada
           firm to assist the bank with a different, but related, aspect of the network overhaul. At last count, at least two
           non-party depositions must be taken in Nevada. Thus, long before you start worrying about how to collect any
           judgment against the Mexican defendant, your immediate concerns focus on the intricacies (and sensitivities)
           associated with securing deposition testimony in these foreign jurisdictions.




I   F THIS HYPOTHETICAL doesn’t already sound familiar,               jurisdiction requires, notwithstanding the Texas rules.4
    it soon may. Many Texas lawyers are finding their                 Regarding a deposition in a foreign country, problems may
    practices “internationalized,” often inadvertently, as            arise because American pretrial discovery may be inconsis-
increasing numbers of businesses become participants in               tent with its laws, customs, and national interests.5 A foreign
the global economy.1 Moreover, the necessity of securing              country may not permit “U.S. style” pretrial discovery, and
depositions from witnesses outside Texas, but within the              the form and extent of discovery that other sovereigns will
United States, is already commonplace. Yet, how to procure            compel, or even allow, varies widely.6 Both current diplomatic
a foreign deposition is itself foreign to many lawyers.2 This         relations with the United States and the nature of the litiga-
article sets forth the procedures—and some of the pitfalls—of         tion itself may also affect the attitude of a foreign country
deposing witnesses south of the Rio Grande, north of the Red          towards the litigation.7 Accordingly, it is almost always helpful
River, “across the pond,” and in other jurisdictions outside          to engage local counsel to quickly learn the law of the foreign
the Lone Star State.                                                  jurisdiction and navigate through the courts or diplomatic
                                                                      channels.
              Some Preliminary Considerations
Texas Rule of Civil Procedure 201 governs depositions in              In addition, taking depositions in foreign nations can be
foreign jurisdictions for use in Texas courts. Comment 1 to           expensive and time-consuming. The lawyer seeking deposition
the rule includes the following disclaimer: The Rule does not         testimony from outside the United States should understand
“address whether any of the procedures listed are, in fact,           the requirements early in the litigation to allow for any neces-
permitted or recognized by the law of the state or foreign            sary extra time.8 Indeed, absent agreement from the adversary
jurisdiction where the witness is located. A party must first         and/or witness, obtaining deposition testimony in a foreign
determine what procedures are permitted by the jurisdiction           country may involve traversing through diplomatic channels,
where the witness is located before using this rule.”3                often lengthening a process that already may take between
                                                                      six and twelve months to complete.9 To minimize costs and
The comment is instructive. A witness in a foreign jurisdic-          delays, the parties may consider paying a willing deponent to
tion can be compelled only to do what the law of the foreign          come to the United States or, if permitted by the laws of the
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46




host country, conducting the deposition telephonically.10              The process of deposing a non-party witness in a sister state
                                                                       can be relatively simple. For example, Nevada (where the
The most efficient, comprehensive, and economical resource             stateside nonparty deponents reside in the hypothetical)
for obtaining country-specific law and guidelines related to           and many other states have adopted the Uniform Foreign
the taking of foreign depositions is the Bureau of Consular            Depositions Act, under which one may simply sign and file
Affairs of the U.S. State Department.11 A wealth of country-           in the Texas court the same Notice of Deposition one would
specific information for both signatories and non-signatories          use for deposing a witness in Texas.27 Likewise, one may
to the Hague Convention on the Taking of Evidence Abroad               also issue the same subpoena one would use for a Texas
(discussed infra) is available online at http://travel.state.gov/      deposition.28 The subpoena, however, must be served29 in
judicial_assistance.html.12                                            the foreign state.30

                      Consult The Rule                                 In other states, courts will issue deposition subpoenas com-
Before 1984, neither the Texas Rules of Civil Procedure nor            pelling local residents to appear for deposition within the
any Texas statute permitted state courts to issue process to           county of their residence upon showing that the testimony
obtain evidence outside of Texas.13 Texas courts had to rely           is required by an agreement of parties or notice of a lawsuit
on concepts of inherent and implied power to gather evidence           pending in Texas.31 These states may or may not require a
in foreign jurisdictions.14                                            party to officially petition the witness’s state court through
                                                                       letters rogatory or a request for commission (see infra).32
Former Texas Rule of Civil Procedure 188, effective April              Either way, the party should file a Notice of Deposition with
1, 1984, changed that.15 Rule 188 was patterned after                  the Texas court and send a copy to the witness’s home state
Federal Rule of Civil Procedure 28(b), the Uniform Foreign             court.33 In states that do not require a petition for subpoena,
Depositions Act and its successor, the Uniform Interstate and          a party may be able to simply write a letter to the court clerk,
International Procedure Act.16 Current Rule 201.1 took effect          enclosing a copy of the Notice of Deposition (or the parties’
in 1999 and was a rewrite of former Rule 188.17 Rule 201.1             agreement to depose the witness) and ask that the clerk or
also clarified the procedures for obtaining oral or written            court issue the necessary subpoena.34 The party must, of
depositions in foreign jurisdictions.18                                course, have the subpoena served.35

Whether the proposed deponent resides in a foreign country             Other states require “letters rogatory.”36 Letters rogatory are
or a sister state, Rule 201.1 governs. The rule authorizes four        simply requests from the Texas court to a court in a foreign
methods of obtaining oral or written depositions in foreign            jurisdiction requesting the court to issue process for a sub-
jurisdictions for use in Texas proceedings: (1) notice; (2) letter     poena.37 Rule 201.1 (a), (c), and (e) address the issuance of,
rogatory, letter of request, or other such device; (3) agreement       and objections to, letters rogatory.38 Examples of requests for
of the parties; and (4) court order.19 Thus, returning to the          letters rogatory are available from Texas resources.39 Once the
hypothetical above, the same Texas rule applies to both the            letter rogatory is signed by the Texas judge and entered by the
Nevada and Mexican witnesses.20 However, as one might                  clerk, it should be sent to the out-of-state court, along with
expect, arranging for depositions in Nevada will likely be             a cover letter explaining the circumstances and enclosing a
easier than in Mexico.                                                 draft subpoena for the out-of-state court to issue.40

  Deposing A Non-Party Witness In A Different State21                  Still other states can be classified as “Miscellaneous Action”
All 50 states have statutes or rules governing the taking of           states.41 These states require the hiring of local counsel to
depositions for use in another state.22 The state practices            file a miscellaneous action in the court with jurisdiction over
can be grouped into four different general practices.23 It is          the deponent.42 Once that action is filed, local counsel must,
always prudent to check with the Court clerk where the                 in most cases, file a motion asking the local court to issue a
witness resides to learn the local practice.24 An out-of-state         subpoena to your deponent.43
deposition can often be arranged through a court reporter
in that jurisdiction.25 National court reporting services are            Deposing A Non-Party Witness In A Foreign Country
convenient resources for noticing and subpoenaing out-of-              As noted above, Rule 201.1 also governs all extra-juris-
state witnesses for deposition. Additionally, local counsel            dictional depositions for use in Texas courts, whether the
can assist if you anticipate problems with the deponent                deposition is taken in South Dakota or Sweden, Tennessee
and anticipate the need for a motion to compel.26                      or Turkey, Michigan or Mexico.44 The fundamental difference
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                                                                                                                                     47




is the possible application of the Hague Convention on the            Bancomundo, S.A.”58 Such broad language may trigger atten-
Taking of Evidence Abroad in Civil or Commercial Matters              tion to cultural differences and thus create impediments.59
(the “Hague Evidence Convention” or “Convention”).45                  For example, in Mexico the plaintiff presents its case to the
                                                                      court when the case is filed, and the court determines whether
The Hague Evidence Convention “is a permissive supple-                it wants to conduct discovery on specific issues; thus vague
ment to the Texas Rules of Civil Procedure.”46 As such, it            or overbroad discovery requests are likely to be viewed with
is within the trial court’s discretion to determine whether           disfavor. A disadvantage to letters of request is that the pro-
Hague Convention procedures should be used as a “first                cess can be slow, particularly if it is sent through the U.S.
resort,” before initiation of discovery under the Texas Rules         State Department (which has the power to receive letters of
of Civil Procedure.47 The United States Supreme Court has             request and to transmit them to foreign tribunals) instead of
made clear that the Convention was “intended to establish             sending the letter directly to the receiving authority in the
optional procedures that would facilitate the taking of evi-          foreign country.60
dence abroad.”48 Rule 201.1(d) contemplates the use of the
Hague Evidence Convention by providing that: “On motion               Because the Texas rules allow notice procedures instead of
by a party, the court in which an action is pending, or the           letters of request under the Hague Evidence Convention, par-
clerk of that court, must issue a letter of request or other such     ties may agree to follow notice procedures regarding party
device in accordance with an applicable treaty or international       depositions.61 With non-party depositions, or where the
convention on terms that are just and appropriate.”49                 parties cannot agree, notice procedures are useless because
                                                                      a Texas party using notice procedures has no powers of
At present, there are 40 signatory countries to the Hague             compulsion in Mexico. 62
Evidence Convention, including Argentina, Australia, China,
France, Germany, Israel, Italy, Mexico, Poland, the Russian           Moreover, Rule 201(f) provides an additional incentive to use
Federation, South Africa, Spain, Turkey, the United Kingdom,          letters of request: evidence obtained pursuant to a letter of
and the United States.50 Even for signatory countries, however,       request is not inadmissible merely because it is not a verbatim
the Convention does not guarantee trouble-free depositions.51         transcript, or the testimony was not taken under oath, or “for
Article 33 of the convention allows signatory countries to            any similar departure” from the rules for taking depositions
file reservations at the time of ratification objecting to cer-       in Texas.63 “This provision prevents the loss of important
tain provisions and, therefore, the Convention must be read           evidence solely because a foreign court’s procedures for taking
in light of the numerous reservations made by the various             evidence differ from the procedures of the United States.”64
signatories.52 For example, the use of commissions or con-            Testimony taken pursuant to notice procedures under Rule
sular agents to compel the taking of evidence, as described           201.1 is not protected by this provision.65
in Convention Articles 17 and 18, is expressly rejected by
Mexico in declarations filed pursuant to its ratification of the                                Conclusion
Hague Evidence Convention.53 Also, many countries require             A little preparation goes a long way when it comes to foreign
that a judicial officer conduct depositions.54                        depositions. Following the Texas rule, and understanding
                                                                      the foreign jurisdiction’s rules and practices, will increase
Turning, then, to the deposition of the Mexican witnesses in          the chances of witness compliance and admissibility of the
the hypothetical: Because the applicable treaty between the           testimony.
United States and Mexico is the Hague Evidence Convention,
a “letter of request” under Rule 201.1(a)(2) and (c) is the           Steven R. Selsberg is a partner in the Houston office of Mayer,
operative option under the Convention for obtaining deposi-           Brown, Rowe & Maw, L.L.P. He represents Grupo Carso, Carlos
tion testimony in Mexico.55 A letter of request, like a letter        Slim Helú, Teléfonos de México (Telmex), Condumex, Grupo
rogatory, is simply a request from one court to another to            Sanborns, and Banco Inbursa and their affiliates in litigation
obtain certain evidence under that court’s jurisdiction for use       matters throughout the United States.
in the requesting court.56 The requesting court in the U.S.
transmits the letter of request and accompanying documents            Robert W. Cowan is an associate in the business and commercial
with translations, in duplicate, directly to the Mexican Central      litigation section of Porter & Hedges, L.L.P. in Houston, and has
Authority to compel evidence.57 The letter should avoid the           represented numerous Mexican entities and persons in business
use of broad language such as “any and all documents” or that         disputes in Texas, California, Colorado, and Utah. ✯
questioning will concern “all of the witness’s involvement in
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                                                      THE
48




1  Andrew Agati & E. Todd Presnell, Interstate and International             teleconference, or other electronic means under the provisions of
Depositions, FOR THE DEFENSE, Jan. 1999, at 14. “The increasing              Rule 199. See Clone Component Distribs. of Am., Inc. v. State, 819
geographical mobility of individuals and expanding global economy            S.W.2d 593, 598 (Tex. App.—Dallas 1991, no writ) (holding that
are distinct characteristics of today’s marketplace. [T]he recent elimi-     “the requirement of [former] rule 188(1) that the deposition be
nation or reduction of national trade restrictions as well as increasing     taken “before” a person authorized to take oaths was satisfied by
telecommunications technology allows many small businesses to                the court reporter’s being in the vocal and aural presence of the
become players in the international economy.” Id. “With the rati-            deponent through the use of the telephone”).
fication of the North American Free Trade Agreement (NAFTA),                 11 See Agati & Presnell, supra n.2, at 22.

interaction and cooperation between the United States and Mexico             12 Note that the website contains the following disclaimer: “The

should grow more than ever. Commercial and private traffic between           information in this site relating to the legal requirements of specific
the two countries is destined to increase dramatically over the next         foreign countries is provided for general information only and may
several decades.” Ryan G. Anderson, Transnational Litigation Involving       not be totally accurate in a particular case. Questions involving
Mexican Parties, 25 ST. M ARY’S L.J. 1059, 1059-60 (1994).                   interpretation of specific foreign laws should be addressed to for-
2 Agati & Presnell, supra n.2.
                                                                             eign counsel.”
3 TEX. R. CIV. P. 201 cmt. 1.                                                13 R. Doak Bishop, International Litigation in Texas: Texas Rules of
4 1 DAVID E. K ELTNER, TEXAS P RACTICE GUIDE § 5:119 (2004).
                                                                             Evidence and Recent Changes in the Texas Rules of Civil Procedure, 36
However, if the proposed foreign deponent is a party subject to              BAYLOR L.R. 131, 138 (1984).
the U.S. court’s personal jurisdiction, the method most attrac-              14 Id.

tive to U.S. litigants for procuring the deposition testimony is to          15 Id.

arrange for the deponent to travel to the United States for exami-           16 Id. at 140; Agati & Presnell, supra n.2, at 15. The UFDA and UIIPA

nation. This obviates the need for compliance with foreign law in            were promulgated by the National Conference of Commissioners
taking the deposition and eliminates the practical obstacles that            on Uniform State Laws in 1920 and 1962, respectively.
frequently arise when depositions are conducted abroad. GARY B.              17 TEX. R. CIV. P. 201.1; Hon. Nathan L. Hecht & Robert H.

BORN, INTERNATIONAL CIVIL LITIGATION IN UNITED STATES COURTS                 Pemberton, A Guide to the 1999 Texas Discovery Rules Revisions
867 (Klewer Law Int’l 1996).                                                 G-16 § N (1998), at http://supreme.courts.state.tx.us/rules/tdr/
5 M ANUAL FOR COMPLEX L ITIGATION (FOURTH) § 11.494 (2004).
                                                                             disccle37.pdf.
6 Id. In Japan for example, the deposition of a willing witness for use      18 Hecht & Pemberton, supra n.18.

in a court in the United States may only be taken if the deposition          19 TEX. R. CIV. P. 201.1(a).

is (a) is presided over by a U.S. consular officer and is conducted          20 Civil Practice and Remedies Code § 20.001 provides a nonexclu-

in English; (b) is conducted on U.S. consular premises; (c) is taken         sive list of persons qualified to take depositions on oral examination
pursuant to a U.S. court order or commission; and (d) if any non-            or written questions in another state or outside the United States.
Japanese participant traveling to Japan applies for and obtains a            In either situation, a person authorized to administer oaths in the
Japanese special deposition visa. Detailed Information on Deposition         place where the deposition is taken (such as a notary public in
Taking in Tokyo, Embassy of the United States, Japan, available at           another state) or “any notary public,” presumably from the State of
http://japan.usembassy.gov/e/acs/tacs-deposition_detail.html (last           Texas, may serve as the deposition officer in another state or outside
visited June 25, 2004). In comparison, depositions of willing wit-           the United States. 6 WILLIAM V. DORSANEO III, TEXAS LITIGATION
nesses may be conducted in Jordan regardless of the nationality of           GUIDE § 94.06[5] (1999). Thus, where depositions were taken in
the witness if they are to be used in a foreign country. Both local          Mexico, but the witnesses were only sworn by a Texas notary
and foreign attorneys can take depositions. The procedure for                public, the trial court did not abuse its discretion in admitting the
taking depositions does not vary in civil, commercial, administra-           depositions. Kugle v. DaimlerChrysler Corp., 88 S.W.3d 355, 362
tive, domestic relations, or criminal cases if the deposition is to be       (Tex. App.—San Antonio 2002, pet. denied) (citing TEX. R. CIV.
used in a court of the United States. Judicial Assistance–Jordan,            P. 201.1(b) and TEX. CIV. PRAC. & R EM. CODE A NN. § 20.001(c)(3)
available at http://travel.state.gov/jordan_ja.html (last visited June       (Vernon 1997) and noting that “a foreign deposition may be taken
25, 2004).                                                                   by any notary public”).
7 M ANUAL FOR COMPLEX L ITIGATION, supra n.6 (“This latter factor            21 The deposition of a party or party-affiliated witness may gener-

is particularly important if the American litigation involves claims         ally be taken in the county where the lawsuit is pending. TEX. R.
(such as antitrust) that conflict with the law or policies of the            CIV. P. 199.2(b)(2)(C).
foreign country.”).                                                          22 Victoria Bushnell, How to Take an Out-of-State Deposition, Utah
8 M ANUAL FOR COMPLEX L ITIGATION, supra n.6.
                                                                             B. J. 28, 30 & 31 n.7 (Jan./Feb. 2001).
9 Agati & Presnell, supra n.2, at 22.                                        23 Id. at 28.
10 M ANUAL FOR COMPLEX L ITIGATION, supra n.6. Indeed, Texas Rule            24 Id. at 28, 30-31.

of Civil Procedure 201.1(g) specifically permits a deposition in             25 MICHOL O’CONNOR & BYRON P. DAVIS, O’CONNOR’S TEXAS RULES §

another jurisdiction to be taken by telephone, videoconference,              17.2 (2004) (“The easiest way to arrange for a deposition in another
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                                                        THE
                                                                                                                                                       49




state is to contact a lawyer or court reporter in the other state and           out-of-state depositions statute in C AL. CIV. PROC. CODE § 2029);
make arrangements through that person.”).                                       see also Agati & Presnell, supra n.2, at 16-17 (detailing the process
26 1 K ELTNER, supra n.5, at § 5:116.                                           for obtaining a commission in Texas).
27 6 DORSANEO, supra n.21, at § 94.06[2] (“[I]f the deposition is               37 1 K ELTNER, supra n.5, at § 5:116.
                                                                                38 TEX. R. CIV. P. 201.1(a), (c), (e).
taken in [a] sister state, a Texas litigant may take a deposition by
                                                                                39 See, e.g., 6 DORSANEO, supra n.21, at § 94.108[2]; 1 K ELTNER,
notice in accordance with the Texas Rules of Civil Procedure as if
the deposition were taken in Texas.”); see Bushnell, supra n. 23, at            supra n.5, at § 5:206 (including proposed order and sample letter
29. As of early 2001, states that had adopted the UFDA included                 rogatory).
                                                                                40 Bushnell, supra n.23, at 29-30.
Florida, Georgia, Louisiana, Maryland, Nevada, New Hampshire,
                                                                                41 Bushnell, supra n.23, at 30. In 2001, these states included Alabama
Ohio, Oklahoma, South Dakota, Tennessee, Virginia, the U.S. Virgin
Islands, and Wyoming. Bushnell, supra n.23, at 29. Several other                (judge issues subpoena; need commission from trial state court),
states have enacted similar Statues, including: California, Nebraska,           Arizona, Arkansas (judge issues subpoena; need letter rogatory
New York, Rhode Island, South Carolina, and Texas. Id.; see, e.g.,              from trial state court), Connecticut, the District of Columbia (clerk
C AL. CIV. PROC. CODE § 2029 (2003) (“Whenever any mandate,                     issues subpoena upon judge’s approval; file notice with home state
writ, letters rogatory, letter of request, or commission is issued out          court), Hawaii, Illinois, Kansas, Kentucky (judge issues subpoena;
of any court of record in any other state . . . of the United States, . . .     need commission from trial state court), Michigan, Missouri, New
or whenever, on notice or agreement, it is required to take the oral            Jersey, New Mexico, North Carolina, Pennsylvania, Vermont,
or written deposition of a natural person in California, the deponent           Washington, and West Virginia. Id. As noted in the parentheticals
may be compelled to appear and testify, and to produce documents                above, some miscellaneous action jurisdictions follow a hybrid
and things, in the same manner, and by the same process, as may                 procedure, including Alabama, Arkansas, District of Columbia,
be employed for the purpose of taking testimony in actions pending              and Kentucky.
                                                                                42 Id.
in California.”).
28 6 DORSANEO, supra n.21 (“[M]any, if not most, sister states have             43 Id.
                                                                                44 TEX. R. CIV. P. 201.1.
statutory provisions, similar to Civil Procedure Rule 201.2, which
                                                                                45 28 U.S.C.A. § 1781 (West Supp. 2004). The United States is
provide for the enforcement of subpoenas or other writs and pro-
cesses issued by Texas officials for depositions taken outside Texas            also party to several bilateral agreements, including the Vienna
for use in a Texas proceeding.”); see Bushnell, supra n.23.                     Convention on Consular Relations, the Japan-United States
29 Bushnell, supra n.23, at 28.                                                 Consular Convention, and the Inter-American Convention on
30 Id. As an alternative to a subpoena, one can contact the witness             Letters Rogatory. See 21 U.S.T. 77; 28 U.S.T. 2555; 28 U.S.C.A. §
directly (if s/he is not represented by counsel) and ask him or her             1781; see also Agati & Presnell, supra n.2, at 17. For more infor-
to accept a Texas subpoena and/or agree to appear at a designated               mation on whether the United States has an agreement with a
time and place. This may work if the witness is cooperative, but                particular country, consult the Department of State, Treaties in
there is no power to command the deponent to appear, nor is there               Force website (http://www.state.gov/s/l/c8455.htm); the United
any threat of sanctioning the witness if s/he fails to appear. Id.; see         Nations treaty website (http://untreaty.un.org/); the “Treaties and
also 1 K ELTNER, supra n.5, at 5:114.                                           Conventions” link on the Organization of American States website
31 1 K ELTNER, supra n.5, at § 5:115. As of 2001, these jurisdictions           (http://www.oas.org/main/english/); and the Library of Congress
included Alabama, Delaware, the District of Columbia, Idaho,                    website, How to Find Information on UNITED STATES TREATIES in the
Minnesota, Montana, New Mexico, North Carolina, North Dakota,                   Library of Congress (http://www.loc.gov/rr/main/ gopher/treaty.html).
Ohio, Oregon, South Carolina, Tennessee, and Utah. Bushnell, supra              See Agati & Presnell, supra n.2, at 17.
                                                                                46 Sandsend Fin. Consultants, Inc. v. Wood, 743 S.W. 364, 366 (Tex.
n.23, at 29.
32 Bushnell, supra n.23, at 29.                                                 App.—Houston [1st Dist.] 1988, orig. proceeding).
33 See id.                                                                      47 Id. at 365-66.
34 Id.                                                                          48 Société Nationale Industrielle Aérospatiale v. United States Dist. Ct.,
35 Id.                                                                          482 U.S. 522, 538 (1987) (“The text of the Evidence Convention does
36 1 K ELTNER, supra n.5, at § 5:116. While (as of 2001) only Alabama,          not modify the law of any contracting state, require any contracting
Arkansas, and Kentucky have statutes or rules in place explicitly               state to use the Convention procedures, either in requesting evidence
requiring out-of-state attorneys to obtain a writing from the trial             or in responding to such requests, or compel any contracting state
state court asking the home state court to issue a subpoena, several            to change its own evidence-gathering procedures.”) (emphasis in
states’ clerks and attorneys believe that this process is still required        main text added).
                                                                                49 TEX. R. CIV. P. 201.1(d) (emphasis added). Subsection (d) con-
in their state. Bushnell, supra n.23, at 29 (describing the author’s
frequent experience of being required by California court clerks                tinues:
to have a Utah judge sign a “Commission to Take Out-of-State                         The letter or other device must be issued regardless of
Deposition,” despite the fact that California has adopted a liberal                  whether any other manner of obtaining the deposition is
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     impractical or inconvenient. The letter or other device must:      57  International Judicial Assistance–Mexico, available at http:
     (1) be in the form prescribed by the treaty or convention          //travel.state.gov/mexicoja.html (last visited June 27, 2004)
     under which it is issued, as presented by the movant to            (“Mexico has designated the Secretaria de Relaciones Exteriores
     the court or clerk; and (2) must state the time, place, and        (SRE) Direccion General de Asuntos Juridicos, Ricardo Flores Magon
     manner of the examination of the witness.                          No. 1, Mexico, D.F. , Mexico (telephone 782-34-40) as the central
Id.; see also Th. Goldschmidt A.G. v. Smith, 676 S.W.2d 443, 445-46     Authority under [the Hague Evidence Convention].”).
(Tex.—Houston [1st Dist.] 1984, orig. proceeding), overruled on         58 Agati & Presnell, supra n.2, at 22.

other grounds, Sandsend, 743 S.W.2d at 365.                             59 Id.
50 Hague Convention on Private International Law, Full Status           60 See id.

Report Convention #20, available at http://www.hcch.net/e/status/       61 Anderson, supra n.2, at 1087.

stat20e.html (last modified June 1, 2004).                              62 Id. Anderson suggests using a notice for speed, but also a letter
51 Agati & Presnell, supra n.2, at 18.
                                                                        of request for certainty.
52 28 U.S.C.A. § 1781; see M ANUAL FOR COMPLEX L ITIGATION, supra       63 TEX. R. CIV. P. 201.1(f); Anderson, supra n. 2, at 1088.

n.6; Agati & Presnell, supra n.2, at 18.                                64 Anderson, supra n.2, at 1088.
53 28 U.S.C.A. § 1781; see M ANUAL FOR COMPLEX L ITIGATION, supra       65 Id. (“While the taking of evidence in a verbatim transcript usu-

n.6; Anderson, supra n.2, at 1087;                                      ally may be guaranteed by supplying one’s own reporter, obtaining
54 M ANUAL FOR COMPLEX L ITIGATION, supra n.6.
                                                                        evidence under oath may prove more difficult. Thus, [Rule 201.1]
55 TEX. R. CIV. P. § 201.1(a)(2), (c); see Anderson, supra n.2, at
                                                                        encourages the use of the Hague Evidence Convention’s letters of
1087.                                                                   request procedures by conforming Texas procedural law to the
56 Anderson, supra n.2, at 1087.
                                                                        realities of foreign judicial proceedings.”).
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     VIDEOTAPE DEPOSITIONS AND R ELATED TECHNOLOGY TOOLS:
                    Important Considerations Regarding the Taping and Presentation
                             of Video Deposition Testimony and Exhibits.
                                          BY ELI BURRISS & THOMAS KURTH



                        I. Introduction                             training regarding how to effectively use technology in the
The use of technology in the courtroom adds a dynamic ele-          courtroom, this section identifies questions and concerns
ment by introducing new tools of persuasion to courtroom            attorneys should address prior to the deposition in order to
proceedings, with the further potential to significantly reduce     ensure that he or she will be able to present a deposition
the length of a trial while enhancing the effectiveness of          excerpt at trial in a manner that will appeal to the jury.
the presentation to the court and jury.1 Many judges have
embraced attorneys’ use of technology, recognizing that the         A. Achieving high quality video.
use of video and computer technology in the presentation            1. Considerations in selecting a videographer.
of evidence improves the judge and jury’s ability to under-         Attorneys should select a deposition videographer that uses
stand testimony and evidence, and to reach fair decisions.2         either a SVHS (Super VHS) or digital video camera. Both types
Therefore, litigators who understand how to effectively employ      of cameras provide a very high quality video product. Both
technology in the litigation process have the ability to pro-       SVHS and digital video must also be converted into a digital file
duce dynamic presentations of their case that facilitate the        format (MPEG 1 being the most popular) in order to integrate
judge and jury’s understanding of the issues, and promote a         the video into a multimedia trial display using the presentation
speedier resolution of the dispute.                                 software discussed below. Therefore, from a purely technical
                                                                    standpoint, it does not matter whether the attorney selects a
This article provides a practical approach to solving the tech-     videographer that uses SVHS or digital video.
nology puzzle with respect to videotaped depositions and
related technology tools. The first part of the article identi-     There is, however, a logistical concern that leads some attor-
fies questions and concerns an attorney should tackle when          neys to favor videographers that use SVHS cameras. SVHS
attempting to take and present a videotaped deposition. The         cameras can record two hours of deposition testimony per
second component of the article briefly examines how the            tape, while most digital video cameras require the digital
technology utilized in video depositions and the presentation       video cassette to be changed every hour. As a result, digital
of documentary evidence has influenced trial practice.              video cameras require twice as many interruptions as SVHS
                                                                    cameras, and can disrupt the flow of the deposition. Thus,
               II. Important Considerations in                      out of a desire to maintain the flow of a deposition, some
                   Taking a Video Deposition                        attorneys prefer SVHS over digital video cameras.
Many large firms have in-house litigation support staffs
that have considerable technical expertise. However, prac-          There is literature that suggests that, unlike SVHS, an orig-
titioners in smaller firms often do not have the luxury of          inal digital video cassette cannot be forensically analyzed
access to this type of in-house technical expertise, and lack       to verify its authenticity. This is inaccurate. Digital video
meaningful experience in using technology in the litigation         cameras encode metadata onto the digital cassette along with
process. In fact, a recent ABA poll showed that less than           the video stream. Metadata is essentially a digital fingerprint
thirty (30) percent of litigators use litigation-support tech-      that records information such as the time and date of the
nology, and less than twenty (20) percent of trial attorneys        recording and the camera’s settings. A software analyst can
have received any training regarding the use of technology          read the metadata and determine whether the video has been
in the courtroom.3                                                  altered. Therefore, despite what some literature suggests, it
                                                                    is possible to forensically verify the authenticity of a master
In an effort to provide some practical advice to those roughly      digital video cassette, akin to what can be done with a master
eighty (80) percent of us who have never had any formal             SVHS tape.
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2. Monitoring the video recording at the deposition.                   conducting oral depositions does not even involve recording
Lawyers taking (or defending) videotaped depositions should            the deposition image or sound. Rather, it involves the lawyer’s
insist that the video technician connect a video monitor to the        ability to review and code, or index, a rough copy of the
camera. SVHS cameras usually do not have a small monitor               deposition transcript as it is being typed—in real-time.
built into the camera allowing the video technician to view
the image as it is being recorded. Even when a camera comes            1. Advantages and disadvantages of real-time transcrip-
equipped with a built-in monitor, often the built-in monitor           tion.
displays a larger image than is actually being recorded. As a          There are several advantages of utilizing real-time transcrip-
result, part of the image seen on the camera’s monitor gets cut        tion. First, attorneys taking depositions usually have a key
off when the recording is played back on a television or projector     piece of testimony they hope to extract during the deposi-
screen. A separate video monitor connected to the camera allows        tion. The ability to review the witness’s testimony as it is
the technician and counsel to preview the video as it is being         being transcribed allows the attorney to ensure that he or
recorded to ensure that the deposition is properly recorded.4          she actually nailed down that piece of testimony they set out
                                                                       to obtain.7 Real-time transcription also allows the attorney
B. Achieving high quality sound                                        to review the questions and the witness’s response so that
1. Microphone selection.                                               the attorney can focus follow-up questions.8
The witness’s testimony is the most critical part of the depo-
sition, not to trivialize the importance of the documentary            Second, there are several real-time software packages avail-
evidence. In order to make certain that the lawyer’s questions         able that allow an attorney to make notes in the transcript,
and the witness’s corresponding testimony are clearly pre-             and code testimony as it transcribed.9 Thus, by the end of the
served on the video record, lawyers should require the video           deposition, the attorney has already annotated the deposition
technician to supply each person that will be speaking at the          and organized the witness’s testimony by issue. Annotating
deposition with their own lavaliere, or clip-on, microphone.           or coding testimony on a real-time basis can be an invaluable
Lavaliere microphones allow the speaker’s voice to be clearly          tool for direct examination and cross-examination during
recorded, while eliminating the majority of background noise,          the deposition itself, allowing counsel to focus on specific
such as the shuffling of exhibits and documents, that distracts        dialogue for purposes of impeachment, clarification and
the viewer from the witness’s testimony.5                              completion of a line of examination without repetition.

While lavaliere microphones are ideal, individual tabletop             An additional advantage to real-time depositions is the avail-
microphones for each attorney and the witness are also suf-            ability of a rough-draft transcript of the deposition at its
ficient if counsel and the videographer takes adequate pre-            conclusion. This can be invaluable when the attorney is oper-
cautions to limit background noise. Table-top microphones              ating under time constraints, such as an imminent hearing
will adequately record the speakers’ voices, but will also pick        or additional depositions scheduled in the immediate future.
up more background noise than lavaliere microphones.6                  The availability of a rough-draft deposition transcript may
Therefore, if table-top microphones are used, counsel and              also obviate the need (and attendant expense) of expediting
the videographer will need to take extra care to ensure that           the court-reporter’s delivery of the final deposition transcript.
background noise is limited to the greatest extent possible.           Even if an attorney does not have a laptop computer at the
                                                                       deposition, or is unavailable for the deposition, the reporter
2. Monitoring the sound recording at the deposition.                   can deliver a rough-draft of the real-time deposition via the
Equally as important as a video monitor, counsel should                internet or floppy disk.
make sure that the video technician is wearing headphones
to check the quality of the sound being recorded. A video with         There is, however, potential disadvantages to real-time tran-
the highest quality image is, obviously, useless without the           scription. Beyond the additional cost of real-time transcrip-
corresponding audio component. Therefore, counsel needs to             tion, some attorneys feel that taking notes on a computer
make sure that the video technician is wearing headphones              during the deposition breaks the attorney’s concentration and
to monitor the quality of the sound recording, in addition to          interrupts the flow of the deposition. If the case will justify
monitoring the video recording.                                        it, one possible solution is to have one attorney conduct the
                                                                       deposition while another attorney annotates the real-time
C. Real-time depositions.                                              transcript. Nevertheless, attorneys should be aware that
One of the most significant technological advancements for             some practitioners feel that real-time transcription interrupts
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                                                                                                                                  53




the flow of the deposition and undermines the attorney’s             issues with the court reporter in advance of the day on which
effectiveness.                                                       the deposition is scheduled.

2. Newest developments in real-time transcription.                   D. Virtual (on-line) depositions.
The newest versions of real-time software allow the tran-            The cutting edge of deposition technology allows an attorney
script to be viewed remotely by persons not in the deposition        to fully participate in a deposition from a remote location via
room, and allow the remote viewer to communicate privately           the Internet. Streaming technology allows video, text, and
with the attorneys present at the deposition via text mes-           audio data streams to be transmitted and displayed simul-
saging.10 The remote viewer could be an expert, co-counsel,          taneously over the Internet.14 Using this technology, remote
or even the client, and could point out questions or areas of        participants can see, hear, and talk to the witness and counsel
examination that should be pursued based upon the witness’s          present at the deposition; receive a real-time transcript; and
testimony.11                                                         communicate privately with attorneys present at the deposi-
                                                                     tion via text messaging.15 Considerations of cost, the rela-
This technology, however, may present a conflict with the            tive significance of the deponent witness and availability of
rules of civil procedure. Under Rule 199.5(a)(3) of the Texas        counsel are factors that often drive the appropriateness of
Rules of Civil Procedure, a party must give notice to the other      on-line depositions.
side before a person who is not the deponent, the deponent’s
spouse, a lawyer involved in the case, or an employee of a           On-line depositions also present the same procedural con-
lawyer involved in the case may attend a deposition.12 There         cerns as remote real-time transcription. A remote participant
is a question whether Texas courts would consider a person           who can see, hear, and speak to the witness and attorneys
remotely viewing a deposition via real-time transcription,           present in the deposition room, in addition to receiving a
who can communicate with the lawyers in the deposition               real-time transcript of the witness’s testimony, would almost
room, to be in attendance under Rule 199.5(a)(3). No Texas           certainly be held to be in attendance under Rule 199.5(a)(3).
case appears to have addressed this issue. Because it seems          Therefore, remote on-line participants should adhere to the
plausible that a court would consider a person who can               procedures set out in Rule 199.5(a)(3) before attending a
view the transcript and communicate with counsel in the              deposition on-line.
deposition room as the deposition is being conducted to be
in attendance under Rule 199.5(a)(3), the prudent course of          E. DVRs – A new twist to depositions.
action is to provide the other side with notice that additional      Recently, several companies have developed technology that
persons will be remotely viewing the deposition.13                   allows a user to view, fast-forward, rewind, and pause infor-
                                                                     mation being digitally recorded onto a hard drive without
3. Coordinating with real-time court reporters.                      interrupting the recording.16 These digital video recorders, or
Most court reporters today have the ability to transcribe a          DVRs, have an intriguing potential use in depositions.
deposition in real-time. Occasionally an attorney may run
across a court reporter who does not have the training and/or        It is possible to connect a DVR to a video camera so that the
equipment to offer real-time transcription. As a result, attor-      deposition is simultaneously recorded onto a SVHS tape or
neys need to ask the court reporter if he or she is capable          digital video cassette and the DVR’s hard drive. The DVR
of providing real-time transcription at the time the attorney        could then be connected to a television in a room separate
schedules the court reporter.                                        from the room where the deposition is being conducted.
                                                                     Spectators in the viewing room could watch the deposition
The attorney also needs to ask the court reporter what version       in the same manner as they would watch a tape playing on
of real-time transcription software the court reporter uses.         a VCR, without interrupting the recording.
There are several different programs that enable parties to
view the deposition transcript in real-time, and not all ver-        In addition, the attorney taking the deposition could review
sions are compatible. In order for the attorney’s computer to        the witness’s testimony at breaks, allowing the attorney
be able to display the real-time transcript, the attorney’s com-     to refine his or her examination of the witness. Similarly,
puter must be able to communicate with the court reporter’s          counsel defending the deposition could show the witness
equipment. This is only possible if the real-time software the       his or her testimony, and critique the witness, pointing out
attorney uses is compatible with the court reporter’s. It is         how a judge or jury might interpret the witness’s answers
prudent to resolve these logistical matters and compatibility        and demeanor.
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        III. Tips for Effectively Using Video Deposition            the importance of being able to tell whether the jury is paying
                         Excerpts in Court                          attention to the testimony, the most advisable course of action
Similar to the issues that an attorney needs to address prior       is to provide the jury with one large monitor.
to recording the deposition, there are several considerations
that an attorney must discuss with his or her litigation sup-       2. Use of additional courtroom monitors.
port team prior to using the video deposition in court. An          In addition to the jury’s monitor, it is advisable (and man-
overarching consideration is the trial court’s attitude and         dated by many trial judges) that additional small monitors be
rules (if published) on the use of technology at a hearing or       placed at the bench and at counsels’ table. It is often difficult,
trial to present testimony and documents in video form. It is       if not impossible, to place one monitor so that the judge, the
incumbent on counsel to conduct due diligence early in the          attorneys, and all members of the jury have a clear view of
case to determine the “rules of the road” in the trial court        the evidence being presented on screen.20 As a result, it is
on this subject.                                                    a good idea to place smaller monitors at the bench and at
                                                                    counsel’s table.
A. Using video screens in court.
The layout of the courtroom and the court’s rules governing         B. Video presentation software.
the use of video equipment will greatly affect the size of the      The purpose of using technology in presenting deposition
monitor that can be used, and the location of the monitor in        testimony at trial is to grab and hold the jury’s attention in the
the court. Setting these logistical concerns aside, there are       presentation of witness testimony, particularly when exam-
some general rules of thumb that litigation-support tech-           ining a witness from documents.21 The best way to do this
nicians go by that can help the attorney choose the right           is with video presentation software that can simultaneously
equipment, and the right layout of that equipment as well.          display the video deposition excerpts along side the deposi-
                                                                    tion transcript and exhibits.22 This software allows the jury to
1. Selection and placement of the jury’s monitor.                   view the transcript as the witness gives his testimony, which
The attorney should place one large monitor; either a plasma        provides emphasis and clarity on the testimony from the jury’s
screen, rear-projection television, flat-panel LCD monitor or       perspective.23 Attorneys can also use this software to bring
a projector screen, so that each member of the jury can view        up key documents and exhibits as the witness is being ques-
the screen, without impeding the attorney’s view of the jury.       tioned about that piece of evidence.24 Again, from the jury’s
The type of monitor used is important because traditional tube      perspective, this provides clarity because the jury can view
televisions lack the resolution needed to legibly display docu-     the document(s) that the witness is being questioned about
mentary evidence. The placement of the monitor is likewise          without ever having to look away from the screen.25 These
important because the attorney needs to make sure that each         software packages also allow the trial attorney to highlight key
member of the jury is actually looking at, and paying attention     portions of the transcript or exhibit for further emphasis.26
to the evidence being presented on the screen.17 After all, as      Again, it is axiomatic that the jury needs to be viewing an
one practitioner noted, you cannot persuade a jury that is          exhibit while you are examining the witness about it, other-
not listening to you.18 Nor will the jury understand the point      wise the jury will quickly lose interest in the discourse.
of your examination about an exhibit if it isn’t viewing the
exhibit when you are examining the witness about specific           Moreover, the newest bundled versions of these applications
portions of the exhibit.                                            allow the user to seamlessly move back and forth between
                                                                    the trial presentation software, document retrieval software,
As an alternative to one large screen, the attorney could           and database searching software.27 Therefore, the attorney
elect to place small screen monitors in the actual jury box.        can switch from the presentation view, quickly search the
This is especially feasible with flat panel LCD monitors or         deposition transcript, and simultaneously pull up video tes-
small plasma screens because of their compact size. While           timony and synchronized key exhibits to cross examine or
this will ensure that each member of the jury will be able to       impeach a live witness, or to rebut opposing counsel’s argu-
see the image on the screen, it does not guarantee that each        ment.28 Using these software suites, it is literally possible to
jury member will actually be looking at the screen. In fact,        edit and re-organize deposition excerpts on the fly, in the
using multiple small screens makes it more difficult for the        courtroom. In sum, these bundled software presentation
attorney to observe each jury member, and to gauge whether          packages give litigators “a faster, easier, and more compre-
they are looking at the evidence being shown because all of         hensive way of preparing compelling cases and presenting
the jurors will not be looking up at a single screen.19 Given       evidence with maximum impact.”29
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C. Time limits on video deposition testimony.                          The substance of the Federal Rules is, however, the same as
Experienced litigators know that deposition testimony can             their Texas counterparts—a party must provide the witness
be boring. As a district court judge for the Eastern District of      and all other parties with notice that the deposition will
Missouri noted, “[no] one likes deposition evidence at trial,         be videotaped. Failure to do so could result in an attorney
but it is a rare civil case that can be presented without any.”30     refusing to allow the deposition to go forward. Therefore,
Therefore, the trial attorney’s job is to make the testimony as       just as under the Texas Rules, an attorney wishing to vid-
interesting as possible.31                                            eotape a deposition must provide notice that the deposition
                                                                      will be videotaped in order to avoid the risk of unnecessary
While judges and jurors can hardly dispute that the use of            costs and delay.
video technology helps to grab the jury’s attention, and assists
the judge and jury in the performance of their duties, their          B. Rules regarding the use of video deposition testimony
attention span is limited.32 As a result, many practitioners          in court.
feel that video deposition excerpts are most effective when           1. Texas rules regarding the use of video deposition
used in thirty-minute intervals or less, and in no case should        testimony in court.
a single clip last more than an hour.33                               Under Texas law, a non-stenographic recording, such as a
                                                                      videotaped deposition, may be used at trial to the same extent
           IV. Rules Regarding Video Depositions.                     as a deposition taken by stenographic means.37 However,
Just as the development of new technology has led to changes          Texas Rule of Civil Procedure 203.6(a) states that the court,
in the way a deposition is recorded and presented at trial,           for good cause shown, may require the party seeking to
technology has necessitated changes in the rules governing            use a non-stenographic recording or written transcript of a
depositions.                                                          deposition to first obtain a complete transcript of the depo-
                                                                      sition from a certified court reporter.38 Therefore, although
A. Providing notice that the deposition will be video-                video depositions may be used at trial to the same extent as
taped.                                                                stenographic transcripts, the deposition must still be recorded
1. Texas law regarding noticing videotaped depositions.               stenographically because the court has the authority to order
Texas rule of civil procedure 199.1(c) requires that a party who      production of a complete transcript taken by a certified court
intends to record a deposition by non-stenographic means,             reporter.39
including videotape recording, must provide the witness
and all other parties with notice, at least five (5) days before      2. Federal rules regarding the use of video deposition
the deposition, that the deposition will be recorded by non-          testimony in court.
stenographic means.34 The notice must state the method of             The Federal Rules of Civil Procedure also allow parties to
recording to be used, and whether a simultaneous steno-               use videographic depositions to the same extent as a steno-
graphic recording will also be made.35 Providing proper notice        graphic transcript. In fact, unlike the Texas Rules of Civil
that the deposition will be videotaped is critical because some       Procedure, the Federal Rules explicitly provide that a party
attorneys will refuse to allow the witness to be deposed if           may record a deposition by audio-visual means. Specifically,
proper notice was not provided under Rule 199.1(c). Even if           Rule 30(b)(2) provides that, unless the court orders otherwise,
such actions are unreasonable, failure to provide proper notice       a deposition may be recorded by sound, sound and visual,
can result in needless delay and increased costs.                     or stenographic means.40

2. Federal law regarding noticing videotaped deposi-                  Under the Federal Rules of Civil Procedure, a party must
tions.                                                                record the deposition stenographically if the video recording
Similar to Texas law, Federal Rule of Civil Procedure                 will be offered at trial or submitted with a dispositive
30(b)(3) provides that the deposition notice shall state the          motion.41 Federal practice regarding the use of video deposi-
method by which the deposition will be recorded.36 The                tions in court is substantially the same as Texas law. A depo-
Federal Rules are somewhat different mechanically than the            sition may be recorded by videographic means, but a party
Texas Rules because the Federal Rules require the method              must still record the deposition stenographically because a
of recordation to be set forth in the actual deposition notice,       stenographic transcript is required under the Rules if the
while the Texas Rules provide a separate notice of non-               deposition videotape will be offered in court.
stenographic recording may be sent after the deposition
notice has been served.
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C. Ability to recover the costs of videotaping a                      most effective to the presentation of its case, as long as the
deposition.                                                           ordering does not convey a distinctly false impression.49
1. A party may recover the costs of videotaping a deposi-             Because the trial court did not find that the edited video-
tion in some instances under Texas law.                               tape presented a distinctly false impression, the trial court
Under Texas law, a party may recover the costs of videotaping         erred.50 In holding that the trial court erred by excluding the
a deposition either as a sanction for discovery abuse or as costs     edited videotape, in light of the defendant’s objection under
reasonable and necessary to prosecute a claim awarded to a            the rule of optional completes, the appellate court implicitly
prevailing party.42 The costs recoverable may include the video       held that the rule of optional completeness does not require
technician’s fee, rental costs of the camera and monitors, and        the entire deposition to be played when an edited version
costs of processing and copying video tapes and CDs.42                is shown to the jury unless the edited version is patently
                                                                      misleading. Nevertheless, the appellate court held that the
2. The costs of videotaping a deposition are not recoverable          error was harmless because the testimony was cumulative
under Fifth Circuit law.                                              of prior admitted evidence.51
In contrast to Texas law, the Fifth Circuit has repeatedly
held that a party may not recover video deposition costs as           The district court for the Eastern District of New York dis-
an element of reasonable and necessary costs awarded under            played similar reasoning in Blue Cross and Blue Shield of New
28 U.S.C. 1920. 43 Section 1920, in conjunction with Federal          Jersey, Inc. v. Philip Morris, Inc.52 There, the defendant argued
Rule of Civil Procedure 54, provides that a court may tax the         that, under the rule of optional completeness, the defendant
costs of the “court reporter for all or any part of the steno-        should be able to play any portions of the deposition that the
graphic transcript necessarily obtained for use in the case”          defendant selected at the same time that the plaintiff played
upon the losing party.44 The Fifth Circuit strictly construes         an edited version of the deposition tape.53 The court rejected
Section 1920, and holds that video deposition costs are not           the defendant’s argument, and held that, notwithstanding
subsumed within the language granting the court power to              the rule of optional completeness, the plaintiff is entitled to
tax the losing party with the costs of “a court reporter for all      present its evidence in the order that the plaintiff chooses,
or any part of the stenographic transcript.”45 As a result, a         and the defendant had the right to do the same after the
party may not recover the costs of video taping a deposition          plaintiff presented its evidence.54
as an element of the reasonable and necessary costs awarded
to the prevailing party under Fifth Circuit law.                      Therefore, a court applying either Texas or Federal law should
                                                                      hold that the rule of optional completeness does not require
D. Effect of the Rule of Optional Completeness on the use             the entire videotaped deposition to be played at the time one
of videotape depositions.                                             party introduces edited segments. Rather, one side can play
The rule of optional completeness states that if one party            the portions it selected, and the other side can subsequently
introduces any part of a statement or document, the other             present counter-designated portions.
party may contemporaneously introduce any part or all of
the remainder of the evidence in order to explain or put into         E. Local rules and court rules regarding video deposition
context the admitted portion.46 Some parties have argued that         procedures.
the rule of optional completeness allows them to introduce            Attorneys should consult the local forum rules and the
all of a video deposition at the time the other side offers an        individual court’s rules and procedures regarding the use
edited portion of a videotape. Many courts have rejected              of video deposition excerpts at a trial or hearing. Below are
this argument.                                                        the relevant local rules and court rules from the four federal
                                                                      Texas districts and the larger Texas counties. Notably, Texas
For example, in Jones v. Colley, the plaintiff offered an edited      state court practice varies from that of most federal district
excerpt of its expert deposition, which presented the por-            courts as the state courts permit the use of depositions at
tions of the expert’s testimony that were most favorable to           trial, videotaped or stenographic, with the witness present
the plaintiff’s case.47 The trial court excluded the video tes-       in the courtroom or otherwise available by the court’s
timony, sustaining the defendant’s objection that the edited          subpoena powers. In contrast, most federal courts require
videotape would be misleading, confusing, and unfair to               that a witness’s testimony may not be offered by deposition
the parties.48 The Texarkana Court of Appeals held that any           unless the witness is found to be unavailable under Federal
portion of a deposition is admissible, and that a party may           Rule of Civil Procedure 32(a)(3).
present its evidence in the order that the party believes is
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1. Texas Federal court rules.                                             advising the Court of such possible use and describing
a. Northern District of Texas                                             each item that the party might use at trial. Parties may
The only local rule of the Northern District of Texas that                offer no more than fifteen (15) minutes of testimony
relates to video deposition testimony is Local Rule 26.2.                 from a videotaped deposition. If less than an entire
Rule 26.2 does not apply exclusively to video depositions,                deposition is offered, the videotape shall be edited in
but rather, it requires the parties to designate any portions             a manner to which the parties agree. Attorneys must
of depositions that will be used at trail at least three (3) days         resolve objections regarding the proposed testimony,
before trial, in lists delivered to opposing parties and filed            and if a resolution cannot be reached, must submit
with the court.55 Several of the individual court’s procedures            the disagreement to the Court for resolution at least
also relate to video depositions:                                         two (2) weeks before trial.

 § Judge Buchmeyer requires all exhibits to be marked,                  § Judge Means requires all exhibits to be marked and
   exchanged, and filed at least fourteen (14) days before                exchanged approximately one week before the trial
   the final pretrial conference. The parties must also                   month begins.
   consult with Judge Buchmeyer regarding the use
   of electronic equipment at trial at the final pretrial               § Judge Sanders requires all exhibits to be exchanged
   conference.                                                            with opposing parties by noon on at least the four-
                                                                          teenth (14) day before trial.
 § Judge Cummings requires the parties to exchange all
   exhibits at least thirty (30) days before trial. Judge             b. Southern District of Texas.
   Cummings also only allows one monitor to display                   In contrast to the Northern District, the Southern District of
   video evidence to the jury, and the monitor must be                Texas has a rule that specifically governs videotaped deposi-
   placed across the courtroom from the jury.                         tions. Southern District of Texas Local Rule 30.1 provides
                                                                      that, in civil cases, videotaped depositions may be taken
 § Judge Fitzwater requires all exhibits, except those                without contemporaneous stenographic recordation.56 The
   offered solely for impeachment, that a party intends to            notice of deposition, however, must state that no stenographic
   offer at trial to be marked by the exhibit number under            recording will be made so that other parties can arrange for a
   which they will be offered at trial, and exchanged with            stenographic recording if they so desire.57 Many of the courts’
   opposing parties at least fourteen (14) days before the            procedures also concern video depositions:58
   date of the trial setting. When practicable, a copy of
   such exhibits must be furnished to the court. Unless                 § Judges Hoyt, Hughes, Lake, and Rainey require
   the court advises the parties otherwise, however, they                 parties to designate the portion of any deposition to
   must not deliver trial exhibits, or the court’s copies                 be used at trial by citing the page and line number
   of such exhibits, to the court or to the court reporter                of the portion that will be used in the joint pretrial
   before the date the trial actually commences.                          order. Parties using videotape depositions must edit
                                                                          the tape to resolve objections to the testimony to be
 § Judge Kinkeade requires all exhibits to be exchanged                   presented.
   with opposing parties at least fourteen (14) days
   before trial or by the deadline set out in the Judge’s               § Judges Harmon and Hanen require parties to designate
   scheduling order.                                                      the portion of any deposition to be used at trial by
                                                                          citing the page and line number in the joint pretrial
 § Judge Lindsay will determine the due date for                          order. Parties using videotape depositions must edit the
   exchanging exhibits in the scheduling order, but Judge                 tape to resolve objections, and incorporate rulings on
   Lindsay requires the parties to exchange exhibits at                   the admissibility of the testimony to be presented.
   least twenty-one (21) days prior to the trial date.
                                                                        § Judge Hittner specifically requires that a witness’s
 § Judge McBryde requires that a party who intends to                     testimony may not be offered by deposition unless the
   offer video deposition testimony at trial must notify                  witness is found to be unavailable under Federal Rule
   the Court of that fact no later than one (1) week                      of Civil Procedure 32(a)(3). With respect to deposi-
   prior to the pretrial conference by filing a document                  tion testimony that will be admitted, counsel must
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     excise all irrelevant and repetitive testimony and all             and read only the most relevant deposition testimony into the
     colloquy between counsel. Parties must designate the               record. In addition, counsel shall attach to the front of the
     portion of any deposition to be used at trial by citing            deposition exhibit a summary of what each party intends to
     the page and line number in the joint pretrial order,              prove by such testimony. In a jury trial, counsel shall attach
     exchange deposition excerpts before trial, and attach              to the front of the deposition exhibit the designated portions
     a summary of what the party intends to prove with                  of such testimony to be read by the court, citing page and
     that testimony to the front of the deposition.                     line numbers. Two (2) courtesy copies of the depositions so
                                                                        marked shall be delivered to chambers prior to the final pre-
 § Judges Atlas and Rosenthal require parties to des-                   trial conference. Use of videotaped depositions is permitted
   ignate the portion of any deposition to be used at                   if they are edited to remove sidebar remarks and testimony
   trial by citing the page and line number in the joint                to which objections are sustained.
   pretrial order. Parties using videotape depositions
   must edit the tape to resolve objections and incor-                  d. Western District of Texas.
   porate rulings on the admissibility of the testimony                 The Local Rules for the Western District of Texas have the
   to be presented. In a bench trial, the parties must                  most extensive set of procedures regarding videotaped deposi-
   offer the entire deposition as an exhibit, and attach                tions. First, generally with respect to depositions, the Western
   a summary of what the party intends to prove with                    District requires that the parties file, ten (10) days before trial,
   that testimony to the front of the deposition.                       the names of those witnesses whose testimony is expected
                                                                        to be offered by means of a deposition.60 If the deposition
 § Judge Tagle requires parties to designate the portion                was taken by non-stenographic means, a transcript of the
   of any deposition to be used at trial by citing the page             testimony must also be filed.61 Further, the party noticing a
   and line number in the joint pretrial order. Parties                 videotaped deposition must ensure that the equipment used
   using videotape depositions must edit the tape to                    is adequate to produce a clear record.62 The Western District
   resolve objections and incorporate rulings on the                    also produces a set of guidelines that the parties must follow
   admissibility of the testimony to be presented. In a                 during the taping of a deposition.63
   bench trial, parties shall provide a list of the portions
   of the depositions to be offered as an exhibit, citing               2. Texas State courts rules.
   page and line number.                                                a. Travis County.
                                                                        The Travis County District Courts have several local rules
 § Judge Werlein requires parties to designate the por-                 that would relate to the use of videotaped depositions. First,
   tion of any deposition to be used at trial by citing                 Local Rule 3 states that twelve (12) days before trial counsel
   the page and line number in the joint pretrial order,                must exchange a page and line reference for all deposition
   and the parties must provide the case manager with                   testimony to be offered in its case in chief.64 Further, if
   a copy of any deposition to be used at trial. Parties                electronic media will be used to show material to the jury,
   using videotape depositions must edit the tape to                    a copy of the CD or other media must be made available to
   resolve objections to the testimony to be presented.                 opposing counsel to use before the jury.65 The Travis County
                                                                        Local Rules also provide that hard copies of all electronic
c. Eastern District of Texas.                                           evidence should be brought to court in case an equipment
The Eastern District of Texas does not have a local rule                malfunction occurs.66
that pertains to videotaped depositions. Judge Crone of the
Eastern District, however, has a rule of court that relates             b. El Paso County.
to depositions in general and also addresses videotaped                 The El Paso County Local Rules also have a provision relating
depositions specifically.                                               to videotaped depositions. Under the El Paso County Local
                                                                        Rules, videotaped depositions must be exchanged prior to
Judge Crone requires parties to excise all irrelevant and               the pretrial settlement conference, and any objections to the
repetitive testimony.59 Parties must exchange designated                videotaped depositions not made at the settlement conference
testimony and attempt to resolve all objections prior to the            are deemed waived.67
final pretrial conference. The Court will rule on any unre-
solved objections at the final pretrial conference. In a bench          c. Harris County.
trial, counsel shall offer the entire deposition as a trial exhibit     The Harris County Local Rules do not have a provision
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                                                                                                                                             59




governing the exchange of exhibits or designation of video testi-     pre-trial conference, to identify or designate the specific
mony. However, several of the individual courts have procedures       deposition excerpts intended to be used at trial. Prior to the
addressing the use of video deposition testimony at trial: 68         use at trial, a copy of the excerpt must be made available to
                                                                      the Court, the court reporter, and opposing counsel.
 § Judges Bernal, Elrod, and Benton require parties to
   exchange deposition excerpts to be offered at trial                                        V. Conclusion
   one week before trial begins.                                      Simply put, trial lawyers are in the “entertainment business.”
                                                                      That is, our job is to entertain, and thereby persuade, the
 § Judge Lindsay requires parties to exchange exhibits,               judge and jury to our client’s viewpoint. The plain fact is
   presumably including deposition excerpts, no later                 that, whether in a hearing or trial on the merits, judges and
   than one hour before trial is scheduled to begin.                  juries appreciate lawyers’ use of technology to present their
   Judge Lindsay also does not allow the use of projector             case and streamline the litigation process.70 The presentation
   screens if a video projector will be used to play video            of videotaped deposition testimony affords the trial attorney
   excerpts; she requires the parties to display the image            an opportunity to persuasively present the client’s case using
   on the wall behind the bailiff’s desk.                             modern technology and a medium to which the judges and
                                                                      juries are well-accustomed—television and video monitors.
 § Judge Sullivan requires parties to designate, in writing,          Thus, the trial lawyer can transform what might otherwise
   by page and line number, all deposition excerpts to                be boring testimony into a dynamic presentation of evidence,
   be offered at trial. The designation list should be                both in testimonial and documentary form.
   provided to the court reporter prior to trial.
                                                                      Eliot Burriss is an associate in the Business Litigation Practice
 § Judge Wood requires parties to designate, in writing,              Group at Haynes & Boone. He received his J.D. from Southern
   by page and line number, all deposition excerpts to                Methodist University where he was a member of the law review.
   be offered at trial at least seven (7) days before trial.
   Judge Wood’s courtroom is equipped with a televi-                  Thomas Kurth is an experienced trial lawyer and a partner at the
   sion on a cart and standard VCR for displaying video               law firm of Haynes & Boone. Mr. Kurth’s practice encompasses
   deposition testimony.                                              various aspects of commercial and transactional litigation.

 § Judge Jamison requires the parties to exchange page                Grateful thanks and recognition are given to our Firm’s senior
   and line number deposition designations at the pre-                “propeller heads” in the Litigation Support Group, Thom Wisinski
   trial conference. Judge Jamison also requests that the             and Ric Dexter. They will undoubtedly forget more about this
   attorneys provide her with a binder containing copies              subject than these authors will ever know. ✯
   of all exhibits that will presented to the jury.

d. Dallas County.                                                     1 America Bar Association Technology Resource Center, presentation,
The Dallas County District Courts do not have a local rule            Courtroom Technology F.A.Q.–A beginners’ guide to Level One court-
that governs the use of depositions or exhibits at trial. Judge       room technologies, 2001, available at http://www.lawtechnology.org/
Hartman appears to be the only Dallas County District Court           presentations/nlada2002/ctrmtech/frame.htm.
with a published court rule relating to depositions. Judge            2 Catherine D. Perry, What Works–Evidence From a Trial Judge’s

Hartman’s policies and procedures state that the parties              Perspective, 25 Litigation 3, Spring 1999 at 7.
                                                                      3 Albert Barsocchini, Are We Still Running Scared?, 9 Law Tech. Prod.
should exchange witness and exhibit lists prior to trial.69
Parties seeking to offer videotaped deposition testimony in           News 11, November 2002.
                                                                      4 Id.
Dallas County District Courts should consult with the court           5 58 Am. Jur. Trials § 481 (2003).
regarding the proper manner to offer videotaped deposition            6 Id.
testimony. At the least, parties would be well advised to follow      7 Francis J. Burke, Jr., Tools of the Trade for Today’s Litigator 12 Prac-
                                                                                                                                      ,
Judge Hartman’s procedures and disclose their intention to            tical Litigator No. 4, Jul. 2001 at 20.
use videotaped testimony prior to trial.                              8 Id.
                                                                      9 Id. Almost all real-time software suites allow the attorney to

e. Tarrant County.                                                    assign each issue to a single key. That way, the attorney can code
Tarrant County Local Rule 7 requires the parties, at the              the witness’s testimony by pressing a single key.
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10 Id.                                                                     42 Operation Rescue-National v. Planned Parenthood of Houston
11 Id.                                                                     and S.E. Tex., Inc., 937 S.W.2d 60, 87-88 (Tex. App.—Houston
12 TEX. R. CIV. P ROC. 199.5(a)(3).
                                                                           [14th Dist.] 1997, pet. granted) (upholding imposition of costs that
13 Pending patent litigation has introduced a potential complicating
                                                                           included video technician fee) aff’d 975 S.W.2d 546 (Tex. 1998);
factor to counsel seeking real-time connection to the court reporter’s     see also McFarland v. Szakalun, 809 S.W.2d 760, 765, 769 (Tex.
transcription of the deposition, particularly where interactive func-      App.—Houston [14th Dist.] 1991, writ denied) (holding that the
tionality is desired. In the Engate v. Esquire litigation, Esquire and     trial court’s imposition of sanctions for discovery abuse that included
other reporting services have challenged the validity of Engate’s          video deposition expenses was proper).
patents for real-time software and related connections. Pending            43a See 28 U.S.C. § 1920 (1966).

the outcome of this litigation, you may be required by the court           43b West v. Nabors Drilling USA, Inc., 330 F.3d 379, 396 (5th Cir.

reporting service to pay a fee for the download (or transmission)          2003); Mota v. The Univ. of Tex. Health Science Center, 261 F.3d
of the real-time transcription during the course of the deposition.        512, 530 (5th Cir. 2001).
This fee is purchased through the court-reporting firm and is some-        44 See 28 U.S.C. § 1920 (1966); See also FED. R. CIV. P ROC. 54(d).

times referred to as a “token” or “cookie”, and can be purchased in        45 Mota, 261 F.3d at 530; 28 U.S.C. § 1920(2) (1966).

multiples in advance. The fee is modest but it can be an unexpected        46 TEX. R. EVID. 106; Jones v. Colley, 820 S.W.2d 863, 866 (Tex.

hassle for attorneys who are unaware of this requirement.                  App.—Texarkana 1991, writ denied).
14 Rebecca Porter, The Next Step: Taking Deposition Online, News           47 Jones, 820 S.W.2d at 864.

& Trend, Aug. 2001, at 12; Michael I. Leonard, Test Run: Online            48 Id.

Depositions, 27 Legal Practice Mgm’t 2, Mar. 2001 at 20.                   49 Id. at 877.
15 Id.                                                                     50 Id.
16 Jane Black, A Cable Lifeline for DVR Technology, Busi-                  51 Id.

nessWeek online, Apr. 12, 2003, at p. 1, available at http://              52 Blue Cross and Blue Shield of New Jersey, Inc. v. Philip Morris,

www.businessweek.com/technology/content/apr2003/tc2003042_                 Inc., 199 F.R.D. 487 (E.D.N.Y. 2001).
8128_tc119.htm.                                                            53 Id.
17 Id.                                                                     54 Id.
18 Jeffrey R. Parsons, Texas Lawyer, May 3, 1999.                          55 N. D. Tex. Local Rule 26.2.
19 Burke, 12 Practical Litigator 4 at 24.                                  56 S. D. Tex. Local Rule 30.1.
20 Richard Swanson & Veronica Rendon, Creating Sizzle with Staid           57 Id.

Facts, 11 Law Tech. Prod. News 2, Feb 2004.                                58 All Southern District of Texas Courts’ Procedures are available
21 Technology Trials and Tribulations, 2 ABA Journal E-Report 28,
                                                                           at http://www.txs.uscourts.gov/judges/judgedis.htm.
2003.                                                                      59 All Eastern District of Texas Local and Court Rules are available
22 New Products, 21 Legal Mgm’t 1, Jul 2002 at 93; James M. Wood,
                                                                           at http://www.txed.uscourts.gov/.
Software, 18 GPSolo 8, December 2001, at 33.                               60 W. D. Tex. Local Rule CV-16(e)(10).
23 Annotated Manual for Complex Litigation 3d § 22.33.                     61 Id.
24 New Products, 21 Legal Mgm’t, at 93; Wood, 18 GPSolo at 33.             62 W. D. Tex. Local Rule CV-30.
25 Id.                                                                     63 W. D. Tex. Local Rule CV-30; W. Dist. Tex. Local Rule,
26 Burke, 12 Practical Litigator at 21.
                                                                           Appendix “I,” available at http://www.txwd.uscourts.gov/rules/
27 New Products, 21 Legal Mgm’t at 93.
                                                                           online/default.asp.
28 Id.                                                                     64 Travis County Local Rule 3.
29 Id.                                                                     65 Travis County Local Rule 9.1
30 Perry, 25 Litigation at 7.                                              66 Travis County Local Rule 9.2.1.
31 Id.                                                                     67 El Paso County Local Rule 3.17(F).
32 Id. at 7, 10.                                                           68 All Harris County Judges’ Court Procedures are available at http:
33 Burke, 12 Practical Litigator at 21.
                                                                           //www.justex.net/civil.
34 TEX. R. CIV. P ROC. 199.1(c).                                           69 Dallas County District Court Local Rules and Court Rules are
35 Id.
                                                                           available at http://www.dallascourts.com/forms/lstCivDist.htm.
36 FED. R. CIV. 30(b)(3).                                                  70 See America Bar Association Technology Resource Center,
37 TEX. R. CIV. 203.6(a); Wren v. G.A.T.X. Logistics, Inc. 73 S.W.3d
                                                                           presentation, Courtroom Technology F.A.Q.–A beginners’ guide
489, 499 (Tex. App.—Fort Worth 2002, no pet.)                              to Level One courtroom technologies, 2001, available at http:
38 Id.
                                                                           //www.lawtechnology.org/presentations/nlada2002/ctrmtech/
39 Id.
                                                                           frame.htm.
40 FED. R. CIV. 30(b)(2).
41 FED. R. CIV. 26; FED. R. CIV. PROC. 32; 37 Jul Trial 90, 99.
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                                                                                                                                  61




                  COMPARING AND CONTRASTING DEPOSITIONS IN
                    STATE AND FEDERAL COURT PROCEEDINGS
                                                         BY SCOT PIERCE




I   MAGINE THAT YOU ARE DEFENDING A DEPOSITION,
    and the opposing side begins asking a lot of questions
    that are objectionable. In a parrot-like staccato, you state
“objection form” in response to each objectionable question.
The deposition ends, and you are on your way home when a
                                                                     a number of significant differences that can have a serious
                                                                     impact on taking and defending depositions. This chart is
                                                                     an attempt to provide a cheat sheet to help navigate through
                                                                     depositions in both systems. It lays the state and federal
                                                                     rules of civil procedure relating to depositions beside each
nightmarish thought hits you–your case is in federal court,          other based on answers to questions encountered in daily
not state court. You begin fearing that you have just waived         practice. I have numbered the questions and included an
all of your objections? This just an example of the types of         index for ease of reference. Of course, it is only a beginning.
problems that attorneys face when they litigate in two dif-          It goes without saying that it is always helpful to check the
ferent arenas–state and federal court. Although there are            local rules and case law as appropriate.
many similarities between the two systems, there are also



Index of Questions:                                                  14. When is a witness required to sign the deposition
1. Who can be deposed?                                               transcript?
2. How many depositions can I take?                                  15. How long does a witness have to sign his or her deposi-
3. What are the time limits for taking oral depositions?             tion transcript and make changes?
4. What is required for noticing a party for an oral deposi-         16. When can I use a deposition in the same proceeding?
tion?                                                                17. When can I use a deposition from another pro-
5. What is required for noticing a nonparty for an oral              ceeding?
deposition?                                                          18. What is required for noticing a party for a deposition
6. What is required in a subpoena?                                   upon written questions?
7. How much notice must I give for an oral deposition?               19. What is required for noticing a nonparty for a deposition
8. How do I object to the time and place for taking the              upon written questions?
deposition of a party?                                               20. How much notice must be given before taking a deposi-
9. How do I object to the time and place for taking the              tion upon written questions?
deposition of a nonparty under subpoena?                             21. What are a party’s deadlines for responding to a deposi-
10. How do I object to questions and answers at a deposi-            tion upon written questions?
tion?                                                                22. What do I file to take a deposition before filing suit?
11. When can I instruct a witness not to answer a ques-              23. What are the deadlines for serving notice of a petition
tion?                                                                for a deposition before suit?
12. Can the parties modify the deposition procedures?                24. Can I use a deposition taken before filing suit against a
13. What are the court’s powers to alter the rules for depo-         deponent after I file suit?
sitions?
                                                  ADVOCATE   ✯ FALL 2004




                                            THE
62




 Question                 State Rules of Civil Procedure                       Federal Rules of Civil Procedure
 1. Who can be            • Any person or entity. TEX. R. CIV. P. 199.1(a)     • A party may take the deposition of any person
 deposed?                 & 200.1(a).                                          without leave of court except for the following:
                          • The court, however, has the power to limit          1. if the person is a prisoner;
                          this. Id. at 192.4 & 191.1.                           2. if the deposition would result in more than 10
                          • See Question “13. What are the court’s powers         depositions being taken by the plaintiffs, defen-
                          to alter the rules for depositions?” infra for a        dants, or third-party defendants, unless the
                          discussion of the court’s limiting powers.              parties have a written stipulation otherwise;
                                                                                3. if the person to be examined has already been
                                                                                  deposed in the case, unless the parties have a
                                                                                  written stipulation otherwise; or
                                                                                4. if the deposition is to be taken before the
                                                                                  time specified in Rule 26(d) unless the notice
                                                                                  contains a certificate, with supporting facts,
                                                                                  that the person to be examined is expected to
                                                                                  leave the United States and be unavailable for
                                                                                  examination in this country unless deposed
                                                                                  before that time and unless the parties have
                                                                                  a written stipulation otherwise.
                                                                               FED. R. CIV. P. 30(a)(1)-(2) & 31(a)(1)-(2).
                                                                               • Note that the exception above for someone
                                                                               expected to leave the country is not included
                                                                               in the text of Rule 31 dealing with depositions
                                                                               upon written questions.
                                                                               • Also, the court can limit discovery under Rule
                                                                               26(b)(2). See “13. What are the court’s powers
                                                                               to alter the rules for depositions?” infra for a
                                                                               discussion of the court’s limitation powers.

 2. How many deposi-      • There is no limit as long as it is within the      • The plaintiffs, defendants, and third-party
 tions can I take?        cumulative time limits mandated in the appli-        defendants can take 10 each unless leave of court
                          cable discovery control plan.                        is granted to take more or the parties have a
                          • See Question “3. What are the time limits for      written stipulation allowing for more deposi-
                          taking oral depositions?” infra for a discussion     tions. FED. R. CIV. P. 30(a)(2)(A).
                          of the cumulative time limits.

 3. What are the time     • Generally, no side may examine or cross-           • One day of seven hours per deponent, unless
 limits for taking oral   examine an individual witness for more than          otherwise ordered by the court or stipulated by
 depositions?             6 hours excluding breaks. TEX. R. CIV. P.            the parties. The court must allow additional time
                          199.5(c).                                            consistent with Rule 26(b)(2) if warranted by the
                          • For a case governed by a Level 1 discovery         circumstances. FED. R. CIV. P. 30(d)(2)
                          order–No more than 6 hours per party for all
                          witnesses. The parties may agree to extend
                          the limit up to 10 hours in total, but no more
                          without a court order. The court may modify
                          the time limit so that no party is given an unfair
                          advantage. Id. at 190.2 (c)(2).
                                                    ADVOCATE   ✯ FALL 2004




                                              THE
                                                                                                                                 63




Question                    State Rules of Civil Procedure                       Federal Rules of Civil Procedure
(Question 3 continued)      (continued)
3. What are the time        • For a case governed by a Level 2 discovery
limits for taking oral      order–No more than 50 hours per “side”
depositions?                to examine opposing parties, designated
                            experts, and persons who are subject to those
                            parties’ control. If one side designates more
                            than two experts, the opposing side may
                            have an additional 6 hours of deposition time
                            for each additional expert designated. The
                            court must modify the time limits when one
                            side or party would be given an unfair advan-
                            tage. Note that “side” refers to all litigants
                            with generally common interests in the litiga-
                            tion. Id. at 190.3(b)(2).
                            • For a case governed by a Level 3 discovery
                            order–to be decided by the court and tai-
                            lored to the circumstances of the case. Id. at
                            190.4(b)(3).
4. What is required for • Under Texas Rules of Civil Procedure 199.2(a)          • The deposition notice must be sent to every
noticing a party for an and 191.5, the deposition notice must be served          other party and:
oral deposition?        on the witness and all parties and:                      1. Give the name and address of the deponent,
                        1. State the name of the witness or organization           if known. If not know, then it must provide a
                          to be deposed. If the witness is an organiza-            general description sufficient to identify the
                          tion, the notice must describe with reason-              person or particular class or group to which
                          able particularity the matters on which the              the person belongs. If an organization is to be
                          examination is requested.                                deposed, then it must name the organization
                        2. State a reasonable time and place for the               and describe with reasonable particularity
                          deposition. The place may be in:                         the matters on which the examination is
                          A. the county of the witness’s residence,                requested.
                          B. the county where the witness is employed            FED. R. CIV. P. 30(b)(1) & (b)(6).
                            or regularly transacts business in person,           2. Give the time and place for the deposition.
                          C. the county of suit, if the witness is a party         Id. at. 30(b)(1).
                            or a person designated by a party under              3. Give the method by which the deposition will
                            Rule 199.2(b)(1),                                      be taken. Id. at 30(b)(2).
                          D. the county where the witness was served             4. If you are requesting documents, then the
                            with the subpoena, or within 150 miles of the          request must comply with Rule 34 if the
                            place of service, if the witness is not a resident     deponent is a party. Id. at 30(b)(5).
                            of Texas or is a transient person, or                5. The notice must be sent to every other party.
                          E. subject to the foregoing, at any other con-           FED. R. CIV. P. 30(b)(1).
                            venient place directed by the court in which         • In regards to additional attendees at the
                            the case is pending.                                 deposition, note that the Federal Rules do not
                        TEX. R. CIV. P. 199.2(b)(1) & (2).                       automatically exclude other witnesses from
                        3. Give notice whether the deposition is to be           attending a deposition just on the request of a
                          taken by telephone or other remote elec-               party. Exclusion of additional attendees, how-
                          tronic means and identify the means. Id. at            ever, can be ordered under Rule 26(c)(5).
                          199.2(b)(3).                                             (continued on next page)
                          (continued on next page)
                                                   ADVOCATE   ✯ FALL 2004




                                             THE
64




 Question                  State Rules of Civil Procedure                    Federal Rules of Civil Procedure
 (Question 4 continued)  (continued)                                         ( continued)
 4. What is required for   3. Give notice whether the deposition is          a subpoena has to be issued to compel atten-
 noticing a party for an     to be taken by telephone or other remote        dance of a witness whether or not the witness
 oral deposition?            electronic means and identify the means.        is a party, courts have cited Rule 37(d) and
                             Id. at 199.2(b)(3).                             found that notice alone should be sufficient
                           4. Give notice, if applicable, that the deposi-   to compel a party to attend or produce docu-
                             tion will be taken by non-stenographic          ments or tangible things. Telluride Mgmt. Sol.,
                             means. This can be served with the deposi-      Inc. v. Telluride Inv. Group, 55 F.3d 463 (9th
                             tion notice or separately but must be served    Cir. 1995); Chagas v. U.S., 369 F.2d 643 (5th
                             at least 5 days prior to the deposition. The    Cir. 1966)
                             notice must state the method of the non-
                             stenographic recording to be used and
                             whether the deposition will also be recorded
                             stenographically. Id. at 199.1(c).
                           5. Give notice of expected additional attendees
                             at the deposition besides the witness, par-
                             ties, spouses of parties, counsel, employees
                             of counsel, and the officer taking the depo-
                             sition. The notice should include the addi-
                             tional attendees’ identities. Note that this
                             can be sent separately from the deposition
                             notice. Id. at 199.2(b)(4) & 199.5(a)(3).
 5. What is required for • The same that is required for noticing a          • The same that is required for noticing a
 noticing a nonparty for party for an oral deposition plus:                  party for a deposition except a subpoena must
 an oral deposition?     1. If the deponent is neither a party, nor is       be issued under Rule 45 to compel attendance
                           retained by, employed by, or otherwise sub-       of the nonparty. Also, a subpoena must be
                           ject to the control of a party, then to compel    issued under Rule 45 to compel production
                           attendance, a subpoena must be issued under       of documents or tangible things rather than
                           Rule 176. Tex. R. Civ. P. 205.1(a).               under Rule 34. FED. R. CIV. P. 30(a)(1 ) &
                         2. Also, the notice may include a request for       30(b)(1)
                           documents or tangible things that complies
                           with Rule 205 for issuing a subpoena, and
                           the designation of materials required to be
                           identified in the subpoena must be attached
                           to or included in the notice. TEX. R. CIV. P.
                           199.2(b)(5), 205.1, & 176.2(b).
                         • Under Rule 205.3(b), the notice must state:
                         1. the name of the person from whom production
                           or inspection is sought to be compelled;
                         2. a reasonable time and place for production
                           or inspection; and
                         3. the items to be produced or inspected and,
                           if applicable, describe the desired testing
                           and sampling with sufficient specificity to
                           inform the nonparty of the means, manner,
                           and procedure for testing or sampling. TEX.
                           R. CIV. P. 205.3(b).
                                                  ADVOCATE   ✯ FALL 2004




                                            THE
                                                                                                                                65




Question                 State Rules of Civil Procedure                        Federal Rules of Civil Procedure
6. What is required in   • Rule 176 requires that the subpoena be issued       • Rule 45 requires that every subpoena shall:
a subpoena?              in the name of “The State of Texas” and must:         1. state the name of the court from which it is
                          1. state the style of the suit and its cause           issued;
                            number;                                            2. state the title of the action, the name of the
                          2. state the court in which the suit is pending;       court in which it is pending, and the civil
                          3. state the date on which the subpoena is             action number;
                            issued;                                            3. command each person to whom it is directed
                          4. identify the person to whom the subpoena            to attend and give testimony or to produce and
                            is directed;                                         permit inspection and copying of designated
                          5. state the time, place, and nature of the action     books, documents or tangible things in the
                            required by the person to whom the subpoena          possession, custody or control of that person,
                            is directed meaning the subpoena must com-           or to permit inspection of premises, at a time
                            mand the person to whom it is directed to do         and place therein specified; and
                            either or both of the following:                   4. set forth the text of subdivisions (c) and (d)
                            a. attend and give testimony at the deposi-          of Rule 45.
                              tion; and/or                                     FED. R. CIV. P. 45(a).
                            b. produce and permit inspection and copying
                              of designated documents or tangible things
                              in the possession, custody or control of that
                              person.
                          6. identify the party at whose instance the
                            subpoena is issued, and the party’s attorney
                            of record, if any;
                          7. state the text of Rule 176.8(a); and
                          8. be signed by the person issuing the subpoena.
                         TEX. R. CIV. P. 176.1.

7. How much notice       • To a party without a document request–a             • To a party or a nonparty without a docu-
must I given for an      reasonable time. TEX. R. CIV. P. 199.2(a).            ment request–a reasonable time. FED. R. CIV.
oral deposition?         • To a nonparty without a document request–a          P. 30(b)(1).
                         reasonable time with a subpoena to accompany          • To a party with a document request–30 days.
                         or follow the notice. Id. at 199.2(a) & 205.2.        FED. R. CIV. P. 30(b)(5) & 34(b).
                         • To a party with a document request–30days.          • To a nonparty with a document request–
                         Id. at 199.2(b)(5) & 196.2(a).                        although no time is specified, the subpoena is
                         • To a nonparty with a document request–a             quashable if it does not provide a reasonable time
                         reasonable time with a subpoena to follow at          for compliance FED. R. CIV. P. 30(b)(1), 34(c),
                         least 10 days after the notice. TEX. R. CIV. P.       & 45(c)(3)(A)(i).
                         199.2(b)(5), 205.2, & 205.3(a).

8. How do I object to    • A party or witness may object to the time           • Upon motion for a protective order by a
the time and place for   and place designated for the deposition by filing     party or person from whom discovery is sought,
taking the deposition    a motion for a protective order or a motion to        accompanied by a certification that the movant
of a party?              quash. If the objection is filed by the third busi-   has in good faith conferred or attempted to
                         ness day after service of the notice of deposition,   confer with other affected parties in an effort to
                         the deposition is stayed until the motion can be      resolve the dispute without court action, and
                         heard. TEX. R. CIV. P. 199.4 & 192.6.                 for good cause shown, the court in the district
                                                                               where the deposition is to be taken may make
                                                                               an order to protect a party
                                                  ADVOCATE   ✯ FALL 2004




                                            THE
66




 Question                 State Rules of Civil Procedure                     Federal Rules of Civil Procedure
 (Question 8 continued)                                                      (continued )
 8. How do I object to                                                       or person from annoyance, embarrassment,
 the time and place for                                                      oppression, or undue burden or expense. This
 taking the deposition                                                       includes an order that the discovery not be had
 of a party?                                                                 or that the discovery may be had only on speci-
                                                                             fied terms and conditions, including a designa-
                                                                             tion of time or place.
                                                                             FED. R. CIV. P. 26(c).

 9. How do I object to    • Move for a protective order under Rule           • File a motion with the court to quash or
 the time and place for   192.6(b) before the time specified for compli-     modify the subpoena because it:
 taking the deposition    ance either in the court in which the action       1. fails to allow a reasonable time for compliance;
 of a nonparty under      is pending or in a district court in the county    2. requires a person who is not a party or an
 subpoena?                where the subpoena was served. Serve the             officer of a party to travel more than 100 miles
                          motion on all parties in accordance with Rule        from the place where that person resides, is
                          21a. TEX. R. CIV. P. 176.6(e).                       employed, or regularly transacts business in
                                                                               person; or
                                                                             3. subjects a person to undue burden.
                                                                             FED. R. CIV. P. 45(c)(3)(A).

 10. How do I object to   • The only permissible objections during a         • Objections as to the admissibility of the evi-
 questions and answers    deposition are “Objection form,” “Objection        dence can be made at a trial or hearing. FED. R.
 at a deposition?         leading,” or “Objection nonresponsive.” TEX.       CIV. P. 32(b) & 32(d)(3)(a).
                          R. CIV. P. 199.5(e).                               • Failing to seasonably object at the deposition,
                          • Upon request of the party taking the deposi-     however, waives any objection if the problem
                          tion, the objecting party must give a clear and    could have been removed, obviated or cured if
                          concise explanation of the objection or it is      it had been promptly presented. FED. R. CIV. P.
                          waived. Id.                                        32(d)(3)(A) & (B).
                          • See question “21. What are a party’s deadlines   • An objection must be stated concisely, and in a
                          for responding to a deposition upon written        non-argumentative and non-suggestive manner.
                          questions?” infra for a further discussion of      FED. R. CIV. P. 30(d)(1).
                          objecting to written deposition questions.         • See question “21. What are a party’s deadlines
                                                                             for responding to a deposition upon written ques-
                                                                             tions?” infra for a further discussion of objecting
                                                                             to depositions upon written questions.

 11. When can I           1. To preserve a privilege;                        1. To preserve a privilege;
 instruct a witness not   2. To comply with a court order or the Texas       2. To enforce a limitation directed by the court;
 to answer a question?      Rules of Civil Procedure;                          and
                          3. To protect a witness from an abusive ques-      3. To present a motion under Rule 30(d)(4)
                            tion;                                              that the deposition is being conducted in bad
                          4. To protect a witness from answering a ques-       faith, or in such a manner as to unreasonably
                            tion where any answer would be misleading;         annoy, embarrass, or oppress the deponent
                            and                                                or a party.
                          5. To secure a ruling about the time limits        FED. R. CIV. P. 30(d)(1).
                            expiring or any other violation of the Texas
                            Rules of Civil Procedure.
                          TEX. R. CIV. P. 199.5(f).
                                                   ADVOCATE   ✯ FALL 2004




                                             THE
                                                                                                                                  67




Question                  State Rules of Civil Procedure                        Federal Rules of Civil Procedure
12. Can the parties       • Yes. Except where specifically prohibited,          • Yes. Unless otherwise directed by the court,
modify the deposition     the procedures and limitations set forth in the       the parties may by written stipulation:
procedures?               rules pertaining to discovery may be modified         1. provide that depositions may be taken before
                          in any suit by the agreement of the parties or by       any person, at any time or place, upon any
                          court order for good cause. An agreement of the         notice, and in any manner and when so taken
                          parties is enforceable if it complies with Rule 11      may be used like other depositions; and
                          or, as it affects an oral deposition, if it is made   2. modify other procedures governing or limita-
                          a part of the record of the deposition.                 tions placed upon discovery.
                          TEX. R. CIV. P. 191.1.                                Fed. R. Civ. P. 29.


13. What are the          • The court can alter or limit discovery if upon      • The court has virtually complete control over
court’s powers to alter   motion or sua sponte and on reasonable notice         the discovery process pursuant to its powers to
the rules for deposi-     it determines that:                                   issue a protective order under Rule 26(c). See
tions?                     1. the discovery sought is unreasonably cumu-        Fed. R. Civ. P. 26(c).
                             lative or duplicative, or is obtainable from       • Also, the court has enumerated powers in
                             some other source that is more convenient,         Rule 26(b) to alter the limits on the number of
                             less burdensome, or less expensive; or             depositions or length of depositions. Pursuant
                           2. the burden or expense of the proposed dis-        to a motion or sua sponte, the court can limit
                             covery outweighs its likely benefit, taking into   the frequency or extent of use of the discovery
                             account the needs of the case, the amount in       methods permitted by the rules if the court
                             controversy, the parties’ resources, the impor-    determines that:
                             tance of the issues at stake in the litigation,     1. the discovery sought is unreasonably cumu-
                             and the importance of the proposed discovery          lative or duplicative, or is obtainable from
                             in resolving the issues.                              some other source that is more convenient,
                          TEX. R. CIV. P. 192.4.                                   less burdensome, or less expensive;
                          • The court also has the powers detailed in            2. the party seeking discovery has had ample
                          Rule 191.1 to modify the rules.                          opportunity by discovery in the action to
                          • Also, note that the individual rules often             obtain the information; or
                          grant the court the power to modify the limits         3. the burden or expense of the proposed dis-
                          in the rules. See e.g., id. at 199.2(a).                 covery outweighs its likely benefit.
                                                                                 Id. at 26(b)(2).
                                                                                • Note that many rules also have specific sub-
                                                                                sections granting the court the power to control
                                                                                depositions. See e.g., id. at 31(a)(4).

14. When is a witness     • The witness is always required to sign the          • The witness is only required to sign the deposi-
required to sign the      transcript except:                                    tion transcript if the witness or a party requests
deposition transcript?    1. when the witness and all parties waive the         that the transcript be available for review before
                            signature requirement,                              the deposition is completed, and the witness sub-
                          2. when the deposition is upon written ques-          sequently makes changes within 30 days after
                            tions, or                                           being notified that the transcript is available for
                          3. when the deposition is recorded by non-            review. Fed. R. Civ. P. 30(e); FED. R. CIV. P. 30
                            stenographic means.                                 1993 advisory committee’s notes ¶ 21.
                          TEX. R. CIV. P. 203.1(a) & (c).
                                                 ADVOCATE   ✯ FALL 2004




                                           THE
68




 Question                 State Rules of Civil Procedure                    Federal Rules of Civil Procedure
 15. How long does a      • The witness has 20 days from when the tran-     • The witness has 30 days after being notified
 witness have to sign     script is provided to the witness or witness’s    that transcript or recording is available for review
 his or her deposition    attorney to make changes and sign the tran-       to sign and make changes to the deposition tran-
 transcript and make      script . TEX. R. CIV. P. 203.1(b).                script. FED. R. CIV. P. 30(e).
 changes?                 • Of course, this is sometimes modified by
                          agreement of the parties under Rule 191.1.

 16. When can I use a     • A deposition may be used for any purpose        • A deposition, to the extent it is admissible
 deposition in the same   in the same proceeding and is not considered      under the Federal Rules of Evidence applied
 proceeding?              hearsay. Note that the court considers a pro-     as though the deponent were then present and
                          ceeding in a different court, but involving the   testifying, may be used against any party who
                          same subject matter and the same parties or       was present or represented when the deposition
                          their representative or their successors in       was taken or who had reasonable notice of the
                          interest as being the same proceeding. TEX. R.    deposition as follows:
                          CIV. P. 203.6(b).                                 1. The deposition can be used by any party for
                          • The deposition, however, is only admissible       contradicting or impeaching the testimony of the
                          against a party joined after the deposition was     deponent as a witness or for any other purpose
                          taken if:                                           allowed by the Federal Rules of Evidence.
                           1. the deposition would be admissible under      2. The deposition can be used by the adverse
                             the former testimony exception to hearsay in     party of a party deponent for any purpose.
                             Texas Rule of Evidence 804(b)(1), or           3. The deposition of a witness, whether or not the
                           2. the party has had a reasonable opportunity      witness is a party, can be used by any party for
                             to redepose the witness and has failed to do     any purpose if the court finds the following:
                             so. Id.                                          A. the witness is dead;
                                                                              B. the witness is farther than 100 miles from
                                                                                the trial or hearing or is out of the United
                                                                                States unless it appears that the witness’s
                                                                                absence was procured by the party offering
                                                                                the deposition;
                                                                              C. the witness is unable to attend or testify
                                                                                because of age, illness, infirmity, or impris-
                                                                                onment;
                                                                              D. the party offering the deposition has been
                                                                                unable to procure the attendance of the wit-
                                                                                ness by subpoena; or
                                                                              E. upon application and notice, exceptional
                                                                                circumstances exist that make it desirable
                                                                                to allow the deposition to be used, in the
                                                                                interest of justice and with due regard to the
                                                                                importance of presenting the testimony of
                                                                                witnesses orally or in open court.
                                                                            FED. R. CIV. P. 32(a).
                                                                            • Note, however, that a deposition cannot be
                                                                            used against:
                                                                            1. a party who demonstrates that, when served
                                                                              with the notice, it was unable through able
                                                                              diligence to obtain counsel to represent it at
                                                                              the deposition; or       (continued next page)
                                                  ADVOCATE   ✯ FALL 2004




                                            THE
                                                                                                                              69




Question                  State Rules of Civil Procedure                      Federal Rules of Civil Procedure
(Question 16 continued)                                                       (continued)
16. When can I use a                                                          2. a party who received less than 11 days notice
deposition in the same                                                          of the deposition and who promptly filed a
proceeding?                                                                     motion for protective order requesting that
                                                                                the deposition time or place be moved or that
                                                                                the deposition not be held and the order was
                                                                                pending at the time of the deposition.
                                                                              Id. at 32(a)(3).
17. When can I use a      • A deposition from a different proceeding may      • If an action has been brought in a previous
deposition from a dif-    be used in the current proceeding only to the       state or federal court proceeding involving the
ferent proceeding?        extent allowed by the Texas Rules of Evidence.      same parties or their successors in interest or
                          TEX. R. CIV. P. 203.6(c).                           representatives and the same subject matter, then
                          • Note that Texas Rule of Evidence 804(b)(1)        all depositions lawfully taken and duly filed in
                          provides that deposition testimony can be used      the former action may be used in the current
                          if it would be admissible under the former tes-     proceeding as if they were taken in the current
                          timony exception to hearsay.                        proceeding. Otherwise, depositions from other
                                                                              proceedings are admissible only to the extent
                                                                              allowed under the Federal Rules of Evidence.
                                                                              FED. R. CIV. P. 32(a)(4).
                                                                              • Note that Federal Rule of Evidence 804(b)(1)
                                                                              provides that deposition testimony can be used
                                                                              if it would be admissible under the former tes-
                                                                              timony exception to hearsay.

18. What is required      • Basically, the same as for noticing a party for   • Basically the same as for noticing a party for
for noticing a party      an oral deposition except you must:                 an oral deposition except you must:
for a deposition upon     1. attach the questions to be answered to the       1. include the name or descriptive title and
written questions?          notice; and                                         address of the officer before whom the depo-
                          2. deliver a copy of the notice and all written       sition is to be taken;
                            questions to be asked during the deposition       2. attach a copy of the questions to be asked;
                            to the deposition officer.                          and
                          TEX. R. CIV. P. 200.3(a) & 200.1(a).                3. deliver a copy of the notice and questions to
                                                                                be asked during the deposition to the deposi-
                                                                                tion officer designated in the notice
                                                                              FED. R. CIV. P. 31(a)(3) & 31(b).
19. What is required      • Basically, the same as for noticing and sub-      • Basically the same as for noticing a nonparty
for noticing a nonparty   poenaing a nonparty for an oral deposition          for an oral deposition except you must:
for a deposition upon     except you must:                                     1. include the name or descriptive title and
written questions?        1. attach the questions to be answered to the          address of the officer before whom the depo-
                            notice;                                              sition is to be taken in the notice; and
                          2. deliver a copy of the notice and all written      2. attach a copy of the questions to be asked;
                            questions to be asked during the deposition          and
                            to the deposition officer; and                     3. deliver a copy of the notice and questions to
                          3. file the notice of deposition, discovery            be asked during the deposition to the deposi-
                            request, and the subpoena with the court.            tion officer designated in the notice
                          TEX. R. CIV. P. 200.3(a), 200.1(a) & 191.4(b).      FED. R. CIV. P. 31(a)(3) & 31(b).
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                                            THE
70




 Question                State Rules of Civil Procedure                        Federal Rules of Civil Procedure
 20. How much notice     • To a party without a document request–20 • Rule 31 does not provide separate deadlines
 must be given before    days. TEX. R. CIV. P. 200.1(a).                  so presumably the same deadlines for an oral
 taking a deposition     • To a nonparty without a document request– deposition apply.
 upon written ques-      20 days with a subpoena to accompany or follow
 tions?                  the notice. TEX. R. CIV. P. 200.1(a) & 205.2.
                         • To a party with a document request–30
                         days. TEX. R. CIV. P. 200.1(b), 199.2(b)(5) &
                         196.2(a).
                         • To a nonparty with a document request–20
                         days with a subpoena to follow at least 10
                         days after the notice. TEX. R. CIV. P. 200.1(a),
                         199.2(b)(5), 205.2 & 205.3(a).


 21. What are a          • Objections to the written questions are to be       • Objections to the form of the written questions
 party’s deadlines for   served on the party propounding them within           are to be served in writing upon the party pro-
 responding to a depo-   the time allowed for serving succeeding cross-        pounding the questions within the time allowed
 sition upon written     questions or redirect questions as applicable.        for serving the succeeding cross or other ques-
 questions?              TEX. R. CIV. P. 200.3(b).                             tions, as applicable, and within 5 days after
                         • Objections to recross questions must be             service of the last questions authorized. FED.
                         served within the earlier of 5 days after the         R. CIV. P. 32(d)(3)(c).
                         recross questions are served or the time of the       • Cross-questions are to be served on all other
                         deposition. Id.                                       parties within 14 days after notice and the
                         • Cross-questions are to be served on all par-        written questions are served. Id. at 31(a)(4).
                         ties within 10 days after the notice and direct       • Redirect questions are to be served on all other
                         questions are served. Id.                             parties within 7 days after the cross-questions
                         • Redirect questions are to be served on all          are served. Id.
                         parties within 5 days after the cross-questions       • Recross questions are to be served on all other
                         are served. Id.                                       parties within 7 days after the redirect questions
                         • Recross questions are to be served within 3         are served. Id.
                         days after the redirect questions are served. Id.     • Note that the rule allows the court to enlarge
                                                                               or shorten these time periods.Id.

 22. What do I file      • File a verified petition in the name of the         • File a verified petition in the district court
 to take a deposition    petitioner in a court in the county where venue       where the expected adverse party resides
 before filing suit?     may lie if suit is anticipated or where the witness   requesting authorization to take the deposition
                         resides if no suit is yet anticipated. TEX. R. CIV.   or depositions. FED. R. CIV. P. 27(a)(1)
                         P. 202.2(a), (b) & (c).                               • The petition must be entitled in the name of
                         • The petition must:                                  the petitioner and show:
                         1. state either that the petitioner anticipates the   1. that the petitioner expects to be a party to
                            institution of a suit in which the petitioner        an action cognizable in a court of the United
                            may be a party; or that the petitioner seeks         States but is presently unable to bring it or
                            to investigate a potential claim by or against       cause it to be brought;
                            the petitioner;                                    2. the subject matter of the expected action and
                                                                                 the petitioner’s interest therein;
                         (continued next page)
                                                                               (continued next page)
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                                              THE
                                                                                                                                    71




Question                   State Rules of Civil Procedure                         Federal Rules of Civil Procedure
(Question 22 continued)    (continued )                                           (continued from previous page)
22. What do I file         2. state the subject matter of the anticipated         3. the facts which the petitioner desires to
to take a deposition       action, if any, and the petitioner’s interest            establish by the proposed testimony and the
before filing suit?        therein;                                                 reasons for desiring to perpetuate it;
                           3. if suit is anticipated, either:                     4. the names or a description of the persons the
                             A. state the names of the persons that the             petitioner expects will be adverse parties and
                               petitioner expects to have interests adverse         their addresses so far as known;
                               to the petitioner’s in the anticipated suit,       5. the names and addresses of the persons to
                               and the addresses and telephone numbers              be examined and the substance of the testi-
                               for such persons; or                                 mony which the petitioner expects to elicit
                             B. state that the names, addresses, and tele-          from each; and
                               phone numbers of persons that the peti-            6. request an order authorizing the petitioner
                               tioner expects to have interests adverse to          to take the depositions of the persons to be
                               the petitioner’s in the anticipated suit cannot      examined named in the petition, for the pur-
                               be ascertained through diligent inquiry, and         pose of perpetuating their testimony.
                               describe those persons;                            Id.
                           4. state the names, addresses and telephone
                             numbers of the persons to be deposed, the
                             substance of the testimony that the petitioner
                             expects to elicit from each, and the petitioner’s
                             reasons for desiring to obtain the testimony
                             of each; and 5. request an order authorizing
                             the petitioner to take the depositions of the
                             persons named in the petition.
                           TEX. R. CIV. P. 202.2.




23. What are the dead-     • At least 15 days before the date of the hearing,     • At least 20 days before the date of the hearing,
lines for serving notice   the petitioner must serve notice of the hearing        the petitioner must serve notice of the hearing
of a petition for a        in accordance with Rule 21a along with a copy          upon each person named in the petition as an
deposition before suit?    of the petition, on all persons that the petitioner    expected adverse party together with a copy of
                           seeks to depose and, if suit is anticipated, on        the petition stating that the petitioner will apply
                           all persons that the petitioner expects to have        to the court at a time and place named in the
                           interests adverse to the petitioner’s in the antici-   notice for the order described in the petition.
                           pated suit. TEX. R. CIV. P. 202.3(a).                  FED. R. CIV. P. 27(a)(2).
                           • The rules provide procedures for alterna-            • The notice must be served in accordance with
                           tive methods of service if appropriate. Id. at         Rule 4(d) for serving a summons. Id.
                           202.3(b).                                              • The rules provide for alternative means of
                           • The rules also provide for alternative               service and the appointment of attorneys ad
                           methods of service in probate proceedings. Id.         litem if appropriate. Id.
                           at 202.3(c).
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                                                  THE
72




 Question                     State Rules of Civil Procedure                       Federal Rules of Civil Procedure
 24. Can I use a deposi-      • Yes. Except as otherwise provided in the           • Yes. If it was taken in accordance with the
 tion taken before filing     rules, use of the deposition is governed by the      rules or would be admissible in the courts of the
 suit against a deponent      rules applicable to depositions of nonparties in a   state in which it was taken, then it is admissible
 after I file suit?           pending suit. TEX. R. CIV. P. 202.5. See Question    in any action brought in a United States District
                              “16. When can I use a deposition in the same         Court involving the same subject matter. FED.
                              proceeding?” supra for a discussion of this.         R. CIV. P. 27(a)(4).
                              • The court, however, may restrict or prohibit
                              the use of the deposition to protect a person
                              who was not served with notice of the deposi-
                              tion from unfair prejudice or to prevent abuse
                              of the rule. Id. at 202.5.




Scot Pierce is an associate at the law firm of Brackett & Ellis.
His practice focuses on commercial and insurance litigation ✯
             STATE BAR LITIGATION SECTION REPORT

               ADVOCATE
                                                   73




             THE
 STATE BAR
 LUNCHEON
TRANSCRIPT




                      D EPOSITIONS
                           ✯
                                                       ADVOCATE     ✯ FALL 2004




                                                 THE
74




              Transcript of Proceedings: State Bar of Texas—Litigation Section Luncheon

                             THE DECLINE OF THE JUDICIARY:
                         ARE THERE STILL THREE EQUAL PARTS TO
                                  OUR GOVERNMENT?
                                            MODERATOR: ROGER COSSACK
                                PANELISTS: JUSTICE PHIL HARDBERGER, KENNETH STARR




The following is a transcript of a panel discussion which took        which was a great boon for someone who was in the legal
place at the Texas State Bar Luncheon on June 25, 2004. The           analysis business on television to have President Clinton in.
panelists included Kenneth Starr, a former Judge on the United        And Judge Starr told a story earlier today. He said that he
States Court of Appeals for the District of Columbia Circuit, and     would work such late hours that the press who was covering
Justice Phil Hardberger, former Chief Justice of the Texas Fourth     him would get overtime because he wouldn’t leave his office
Court of Appeals in San Antonio. The discussion was moderated         until 8:00 p.m. at night, and I know that’s true because I
by Roger Cossack, a legal analyst at ESPN and a commentator           was covering him. And he said the press—one fellow from
at Court TV.                                                          the press came to him, a cameraman, and said, “I want to
                                                                      thank you. I was able to put a down payment on my house


M      R. COSSACK: Thank you for having me back again.                because of all the overtime I got because of you.” and I will
       This is my third year. As I heard my name mentioned            just tell you the truth, that right in the middle of what you
       for the third time, I thought, you know, this Cossack          were doing, my contract came up for renewal and we were
must be the only one without a job because he always seems            getting readings that was off the—you know, in the sky
to be available. Anyway, thank you again.                             and, you know, because of that, I too have a new house in
                                                                      Georgetown, and so I hope it was as good for you as it was
First of all, I welcome you, Judge Hardberger, and I want             for me, you know.
to thank you for coming on today. In preparation for your
appearance today I read many of the things that you wrote,            You know the topic and we have wonderful, wonderful people
including all forty-five pages of the Saint Mary’s Law Journal        to discuss it. I believe that a good moderator should look
article that you wrote. I’d like a little extra money for that        good —I wore my green tie. I hope I look good—but not be
one, Linda. I will say this—and if you look back far enough           heard too much, so I’m going to open this by allowing these
and long enough in the UCLA Law Review you can find an                gentlemen a short period of time to sort of stake out a posi-
article written by me on the Landrum-Griffin Act, and if any          tion, and after they’ve done that we’ll try and ask them some
of you are ever having difficulty sleeping, getting to sleep, I       questions and see how they respond. So, Judge Phil, you’re
recommend it highly. It’s never failed me, and I wrote it.            right next to me. Why don’t you go ahead and start.

And, of course, Dean Ken Starr, who we all know. I person-            Justice Hardberger: Very good. And I like your tie, too.
ally owe you a debt of thanks, Judge Starr. It seems to me
I can never forget calling you Judge Starr. As you all know           Mr. Cossack: Thank you.
what Judge Starr has done in the past, at that time I was the
CNN legal analyst, and one of the problems when you’re a              Justice Hardberger: I do see that there has been a consistent
legal analyst on a daily television show is finding a subject to      attack over the last decade on the jury, and I see that coming
cover and, you know, between—I, of course, was very lucky.            both as judges and juries and the entire judicial senate—the
My career spanned the same career as President Clinton,               entire judicial system. I see it in about four areas. There’s
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                                                THE
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more, but we’ll limit it to four. The sentencing guidelines have     happening to the judiciary and things that are affecting in
absolutely tied the hands of the federal judges and taken away       an adverse way the administration of justice in the United
their discretion. Any independence of the judiciary there has        States. (Applause.)
been lost. Those came in effect, in usage, in 1987. You had
four hundred thousand people in prison in the United States.         Mr. Cossack: You know what, Judge Starr, you always end
Now you have one and a half million people and climbing in           up against the hometown boy. I don’t know what. This just
the United States. We can’t build jails fast enough. Clearly         doesn’t seem fair, but I know you can handle yourself, so
the judicial system has not only been attacked, but has              let’s hear from you.
been wounded with the sentencing
guidelines.                                                                                  Mr. Starr: Hey, this is my home-
                                               “... I see inadequacy of court                town.
The state version of that is the man-
datory minimum sentences, which
                                             funding as being very serious, more              Mr. Cossack: Oh, that’s right. I take
you usually talk about habitual                than just a superficial problem.”              it back.
criminals, sounds good, put away
habitual criminals for life, for a long                                                       Mr. Starr: But you’re right. And what
number of years, but you have to keep in mind that that would       we’ve heard is very illustrative, I think, of the formidable
encompass somebody that’s written three hot checks, too.            powers of the Justice. I want to step back and reflect just for
That makes them a habitual criminal, or two hot checks and          a moment at the sort of first principles. What is it that we
maybe stole a stereo out of somebody’s car. In Texas we don’t       want our judiciary to do and thus is the judiciary irrelevant?
really keep them for life, but we do keep them for twenty-five      Is it losing power to the other branches of government? And
years, and what we have now is a geriatric form of prison           to return to first principles we all should lift up the value
control because they go in there and they stay forever and          of independence. Even with an elected judiciary at the state
we pay for them forever, and clearly that is a system that is       level, we all want our judges to—once they are engaged in
failing and that has been put upon us by the legislature.           the judicial function, to truly be independent, and that of
                                                                    course means the integrity of the judicial decision-making
Also, I see on the civil side the eliminations and reductions       process.
of rights and remedies. Every one of those is an attack upon
a trial judge. Every one of those I see as an attack on the jury    At the Supreme Court of the United States level I would say
system. It is a form of elitism, which is we cannot trust the       that if anything the Supreme Court has been quite assertive
judges, we cannot trust the juries, so we the elite are going to    of its authority that Chief Justice John Marshall asserted,
tell the people of this state and of the United States, because     I think quite correctly, in Marbury v. Madison when Chief
it goes on in other states—we’re going to tell them how they        Justice Marshall said it’s emphatically the province of the
must conduct themselves, we’re going to put them in a cage, so      judicial department to say what the law is. And I think it’s
they won’t cause a lot of trouble. That happened of course in       accepted in our legal culture and in our society that it is the
House Bill 4 that just passed, but it’s not just in Texas. It’s all authority of the Supreme Court of the United States to say
across the United States, very, very similar. It shows a distrust   what the law is with respect to that which really touches the
and a diminution of the importance of the judiciary.                lives and liberties of the people in the most profound way,
                                                                    and that is the constitution.
And finally I see inadequacy of court funding as being very
serious, more than just a superficial problem. I see the appel-     People in this room well remember just about ten years ago
late courts in Texas that every year are reduced and then           the case that came out of Boerne in the Hill Country that
that lower base amount is then reduced some more and then           gave the Supreme Court of the United States, City of Boerne
reduced some more, and all of those are eventually getting at       v. Flores, the opportunity to restate the emphatic maxim that
affecting the core efficiency and job of the courts of Texas and    it’s our job to interpret the constitution and not that of the
the judiciary, and that too is a nationwide problem.                Congress of the United States, and invalidating a law that
                                                                    many of us thought well of, those very concerned about
So on all four of those fronts—and I’ll be happy to talk when       the erosion of religious liberty in the United States and the
I get more of a chance with more detail about fleshing some         very broadly bipartisan support that went into the Religious
of this out, but I see all four of these as really terrible things  Freedom Restoration Act passed by Congress, signed into
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                                                 THE
76




law, and the Supreme Court struck it down as unconstitu-               law should be defined. Isn’t it true, Justice Starr, that when
tional. Very recently the Supreme Court said, “Listen, when            you start allowing the legislative process to curb what a jury
we decided Miranda we meant it,” even though there were a              would do—and remember in this country we as juries decide
lot of cases, Michigan v. Tucker in 1974, that said maybe it’s         whether someone lives or dies in a capital punishment case,
not a constitutional rule after all.                                   jurors decide who is going to be the president of the United
                                                                       States by being a member of the voting electorate—isn’t it
But let’s go to what Justice Hardberger has been talking about,        true that when we allow the legislative process to involve and
and that is areas—and he’s identified some very specific areas         to limit the jury process, that we are in some ways curbing
that are of concern to him. I understand full well the concern         the exercise of that democracy, curbing what DeTocqueville
on the part of judges with respect to sentencing guidelines,           admired so much?
but I dare say that the greater concern is with respect to
mandatory minima, and there I think you will find a lot of             Mr. Starr: I completely disagree with the sort of populace
agreement among thoughtful observers that it’s too much,               concern. In fact, let’s take capital punishment. We’ve seen a
it’s too draconian, three strikes and you’re out. Those kinds          long march, and I think it’s been a very healthy march, with
of things that entirely eliminate discretion I think are quite         respect to controlling and guiding the discretion of the jury so
troubling, but what about the concept of sentencing guide-             that it’s not simply, well, that’s just this one jury’s judgment.
lines to begin with? To me, in looking back at 1984 when               We want to guide the jury. The judge instructs the jury. You
the Congress again by a very broad bipartisan majority said            don’t just go out and decide this any way you want. If you
we need to curb the exercise of discretion because it’s unfair         do that, you’re lawless. The law—you are to determine and
for an individual who is evading the draft, the Vietnam war            resolve the facts. You are in the capital punishment sense, the
conflict and the like, for someone in Kentucky to be sentenced         sentencing phase, the moral conscience of the community,
to the maximum and someone in the Eastern District of New              but even there you’re to be guided by the instructions that
York or Southern District of New York to essentially be given          I give you.
probation, those kinds of disparities have to be addressed.
                                                                       I am a big supporter of the jury system. Don’t get me wrong.
With respect—and then I will close. With respect to the                I will not second a motion to in any way eliminate the jury
issues of the civil justice activity, let me just mention punitive     system. I’m also a huge supporter of ADR, for the marketplace
damages. I think Justice Hardberger has suggested that these           to work. There are some cases that should go before juries.
kinds of concerns that are lifted up, including in constitutional      Clearly criminal cases of moment have to go before them, but
law but also via state legislatures, are somehow an invasion of        there are times when cases are just too important, frankly,
the province of the jury, I respectfully disagree. Let me just         to one party or perhaps both not to, in fact, take it through
use punitive damages. Punitive damages is not by definition            the full trial process. And we need to have that, but I also
compensatory. It is designed to serve a social purpose, and            think we need to have a cafeteria of ideas that are available
thus it’s perfectly appropriate for the legislative process in a       but also—including ADR, but also to say it’s not wrong to
representative democracy to say when we’re talking about not           guide or cabin the discretion of the jury when the jury is
just the administration of justice in a particular case between        engaging in something beyond just the adjudication of who
a plaintiff and a defendant but we’re talking about things that        wins and who loses, but is also carrying on a social function
touch on society’s interests more broadly. It’s important for          that almost has a legislative-type quality, and I think punitive
the people to be heard not in terms of voting for a particular         damages is a pretty good example of that.
judge or against a particular judge, but for the representative
process. I think that’s a healthy thing.                               Justice Hardberger: I wanted to hit about two or three
                                                                       points. First, on the sentencing guidelines, the reason for
Mr. Cossack: Well, let me follow it up then, Judge Starr.              that was, in fact, predictability of sentencing and to do away
(Applause). Because I knew the kind of company I would be              with disparities between the judges of giving different sen-
keeping today, I brought along a quote from DeTocqueville              tences for different crimes. That’s exactly what the judges
who said that when he was examining American democracy,                should be doing, by the way. They have the parties before
he said that the jury system was perhaps the purest form of            them, they understand the facts, and I want disparity of
American democracy, which is the idea that a representa-               sentencing because there’s disparity of individuals that they
tive jury of one’s peers would be making almost grass-roots            are sentencing.
decisions on how our law should be enforced and how our
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                                                  THE
                                                                                                                                      77




When—so that although I recognize that the goal of sen-                 we’re the troops out here. We’re the county judges; we’re the
tencing guideline was a worthy one, I submit it was an incor-           district judges. We are the jurors. We are the battleground.
rect one. You know, when it started in 1987, which is when              This is where it’s going on. It’s not going on among the four-
it was promulgated, the guidelines were three hundred pages             star generals. It’s going on among everybody that’s sitting
long. Today they are fifteen hundred pages long. The judge              in this room and the way we live our lives day to day and
has no discretion. I’ll tell you who does have the discretion.          practice law day to day. And what I’m talking about, these
The prosecutor has the discretion. The prosecutor can fashion           encroachments that I’ve been mentioning, they affect us. The
that case, can make the charges and work within that system             Supreme Court in their eighty cases or so a year of United
to a fare-thee-well. Got a gun? Throw it in there. That’s five          States, sure, they can pick and choose and they can make
years. We’ll use that as a bargaining tool. Any sort of fact can        very big rulings. Meanwhile, the rest of us have to make
be fiddled with by the prosecutor. The judge can do nothing             the day to day law work. So the Supreme Court may do one
about it. That’s what we mean by judicial independence.                 thing, but the judiciary system is hugely, hugely bigger than
                                                                        simply the Supreme Court.
And when I say that we don’t trust judges any more than we
do juries in this country, or at least this trend is there, what        By the way, around here it might surprise you, when people
we’re saying is we do not believe in the judicial system as             say the Supreme Court, we don’t think of Washington. We
being the cornerstone of our democracy, which I happen to               think of Austin. We think of Chief Justice Phillips there. We’re
think it is, and the lowest denominator of that, but the brick          not thinking of Chief Justice Rehnquist. (Applause).
in it is the jury system itself. But I certainly include the judges
in that as well. You’ve got to give judges discretion.                  Mr. Cossack: Judge Starr, I want to –

Federal judges, they go through a tremendous vetting process.           Mr. Starr: Hold on. It’s great to be back in the Republic of
They’re almost always leading lawyers in their community.               Texas, but I do have to tell you—and I went to Sam Houston
They wouldn’t even be nominated. Then they have to be                   High School—that you did join the union and I’ve not heard
grilled and gone through and get the nomination process,                of a motion to secede yet and the idea that, well, there’s some
and then they have to go through the senate, and when we                four-star generals up there, well, listen, if the Supreme Court
finish, what do we do? We say we don’t have any confidence              of the United States is saying whether capital punishment is
in them. We’ll tell them what to do. Let’s don’t let them use           constitutional or not, friends and neighbors, that’s an impor-
their discretion at all in this.                                        tant four-star—let’s don’t overlook that. But I’m happy to
                                                                        discuss these issues down at the ground level where you are
I saw two days ago you had the federal district judge in Boston,        serving and where those in this room are serving. I thought
Judge Young, he wrote a hundred and fifty page opinion                  it not unwise to at least note that there is a union of states,
against the sentencing guidelines. That is frustration. That            that we joined together as a people to form a more perfect
is judicial frustration. Furthermore, he asked for two cases            union, but let’s just stay in Texas for right now, and we only
that he had already decided to be reversed and sent back to             have one chief justice I now understand and, Chief Justice
him because he wanted to do it the way he wanted to do it               Phillips, I salute you. I’ve got great respect for Chief Justice
and not have to follow the guidelines. He knew he didn’t                Phillips.
have jurisdiction, but that expresses the extreme frustration.
So I think we have to really—let’s get the courts back in the           I just think that the concerns are exaggerated. They’re over-
judge’s hands and the judges then will direct the juries, and           drawn. The idea that because a judge in Boston—and, see,
that’s the way that will work out.                                      he didn’t go to New Boston, he had to go north, didn’t he, to
                                                                        find a judge to support his position. Now the reason is that I
As far as, well, the Supreme Court still has plenty of power,           think most judges, again, would like to exercise discretion, but
they knocked down the Religious Restoration Act in that                 the idea—and this is the moral foundation of what this very
Archbishop Flores v. Boerne case and of course they knock               able, learned justice and lawyer and mayoral candidate and
down state laws at a great rate, as they choose to do, so I don’t       great sailor would say—it is a good thing for two people seri-
deny that the Supreme Court has got a lot of clout. But I also          ally situated to have totally different sentences. Well, I would
do not equate our judicial system with the Supreme Court of             say, maybe, if it’s the same judge imposing those disparate
the United States. That is just one small part of our judicial          sentences, but that’s not what the Congress had before it.
system. It’s like being in a room with four-star generals, but
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                                                THE
78




The Congress represents the people of the United States and         quite a different thing. The end result of every one of those
they were deeply concerned about the kinds of disparities           stories that’s told is how stupid and ridiculous the jury is. I
district to district, not in a single judge. No one was concerned   mean, that’s the bottom line on every one, and sometimes
about that, or at least I don’t think that was driving it in the    they throw the judges in, too: I mean, “Did you ever see such
least. Mandatory minimums are a different thing, but let me,        clowns?,” you know.
since we’re also at a practical and philosophical level, say I
think that we in the bench and bar, but it’s really the bar’s       What that really shows to me—I mean, it’s the voice of the
responsibility, need to look—and I think this cry from the          elite. It’s the voice of those that wish to control, that wish to
heart that we’re hearing, and I think it’s a very sincere cry       be able to do what they want to do with whom they want to
from Justice Hardberger, is to worry about a justice system         do, the strong versus the weak, and it is a vote not only against
that seeks too quickly, too quickly, to imprison as opposed         the judicial system, it’s a vote against democracy. That’s truly
to seeking what some would call a more restorative kind of          what I feel and I do not feel—Judge Starr was saying that the
justice. I’m very sympathetic to that, but when in fact a deci-     whole thing about loss of judicial independence and the power
sion is made that a criminal prosecution must be brought            of the judiciary is oversaid. I don’t think it’s oversaid, and
with the likelihood of incarceration,                                                          the reason I don’t is the older I get,
I want a fundamentally fair system,                                                            I realize that most big decisions that
and I think sentencing guidelines —               “... I want a fundamentally fair             get made and most where we end up
yes, they’re complex—contribute to                system, and I think sentencing               in wrong places—and certainly I’m
that. The mandatory minimums, I               guidelines —yes, they’re complex— talking about the courts on this—is
don’t think so.                                                                                the gradual erosion of power, gradual
                                               contribute to that. The mandatory               erosion.
Mr. Cossack: All right. Let me just               minimums, I don’t think so. ”
change the topic for just a moment                                                             I don’t think the legislature or the
and ask Justice Hardberger this ques-                                                          executive is ever going to pass a law
tion. They say that for every action there’s a reaction, and we     that says the courts can’t function, but I do think there is a
have seen Congress recently pass or enact an attempt to do          much more insidious process going on, which is a gradual
a great deal of tort reform, a word that is, you know, a bad        erosion that just doesn’t seem so big and it seems logical, like
word for trial lawyers. But as someone once said recently, a        in the civil rights, civil remedies—well, we’ll just trim them
writer said, we are in litigation hell right now. We find that      a little here, we’ll just cut them a little here and look at this
children who sit on the couch, their parents sue McDonald’s         excess and so forth, but the end result of that is—let’s look
because they get fat and if they take them to the playground        at the end result of it, where we are right now. Do you know
and they fall off the swings, their parents sue the city because    how many jury trials are actually tried? In the federal system
they shouldn’t have fallen off the swings.                          it’s two percent, two percent, only, of all the cases that are
                                                                    filed, two percent. Texas, it’s one and a half percent. That’s
In fact, if you think we’re not in litigation hell, I remind you    how many jury trials are actually tried. We talk about what a
that I am a legal analyst for an all sports network, so—which       strain we’ve got on our judicial system, all of these cases, all
is a good thing for me. Isn’t, in fact, the kinds of reforms that   these ridiculous, stupid, frivolous lawsuits, they’re overloading
the reformers call tort reform—isn’t that in reaction to the fact   the courts. That’s a bunch of bunk. (Applause).
that we find ourselves in litigation hell, that we find a great
deal of frivolous lawsuits being brought and a concern by           Now, of course, I’m not saying that every lawsuit is a good
the Congress, which is as Judge Starr points out, the people’s      lawsuit. Truly some of them are frivolous. Some of them need
house, a reaction to the fact that litigation has become, or at     to be tossed out at the first opportunity, and they are tossed
least a belief that litigation has become, a crap shoot rather      out at the first opportunity, and if they get passed that, the
than something serious?                                             jury will toss them out. I’m not saying that there’s not bad
                                                                    lawsuits brought or that all Plaintiff lawyers really carefully
Justice Hardberger: It’s a reaction to the propaganda that’s        select their cases, although all the rich ones do carefully select
put out by people. I do believe that. It’s certainly a reaction.    their cases, because it’s an expensive lesson. I brought some
(Applause). You know, like you, I hear those stories and like       frivolous lawsuits myself, but I deeply regretted it.
a lot of stories that circulate, if you really look at the facts
and get inside them, they kind of turn inside out and you see       But what you really see is like in—if we’re talking about Texas
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now, you don’t have any contract cases being decided like              Justice Hardberger: Well, there’s two points. I wanted to
you used to in the past; you don’t have business disputes.             answer that, but it also reminded me of what Judge Starr
You don’t have a lot of—especially you don’t have a lot of             said while ago, and that is: The legislature has always set
personal injury cases. Those have died. Our courts now are             parameters, and if we’re talking about sentencing dispari-
filled with family relation matters, and that’s because nobody         ties, there was always a range of sentences, you know, ten
has passed any laws to stop them. We don’t have a litigation           to twenty years, two to five, whatever. So there were always
problem in this country. I think we have a confidence problem          those parameters there, and I think the legislature was in their
in the litigation system.                                              right to set those parameters. Clearly they had the right to do
                                                                       it and probably the responsibility to do it. I think parameters
Mr. Cossack: Let me just follow up with that and then, Justice         can be set up by the legislature, too, in this case.
Starr, I’ll give you a chance to respond. When you have ver-
dicts that are not curtailed by punitive damage limitations            Certainly there is a societal need of legislatures to put some
and pain and suffering limitations, don’t you end up with a            controls that the court can work within that framework.
situation where, in fact, those damages just get passed on             It’s not the actual act of having made some limits, but the
to the consumer and that therefore what you’re trying to do            amount of the limits that you can give your courts to work
really gets erased by the fact that the consumer just ends up          in. If you clearly legislate down your rights and remedies to
paying more money anyway?                                              where there are no remedies and rights, then the judges can’t
                                                                       really do anything with that. But if you’re talking about huge
Justice Hardberger: Yes, it is passed down to the consumer             punitive damages, putting some limits on what can be done
and there has to be an appellate system to control that system.        on punitive damages, I have no problem with that.
When you have verdicts that are clearly runaway, clearly
dominated by the passions of the moment—and they are                   Mr. Cossack: All right. Judge Starr, please.
from time to time—that’s why you have an appellate system,
to knock them down. Our courts are perfectly capable of                Mr. Starr: Well, the Justice has given us a lot to think about.
controlling that behavior, and they do so, and they should do          Let me begin by lifting up an observation which I think
so; but they do not have to be told what to do by either the           was quite wise, if not profound, and that was Justice Felix
legislature or the executive branch. It is a self-righting system.     Frankfurter who said that the history of liberty, the history
That’s why you have courts of appeal, that’s why you have              of freedom, is in large part the history of procedure. And we
the Supreme Court of Texas, to keep that system in control;            can debate what the best procedures are, but I think Justice
and when things are done wrong at the lower courts and too             Hardberger agrees that there should in fact be procedures,
much money is awarded and the verdict is out of line, then             and that’s much of the principle, the first principle I’m trying
it can be brought back in line by our court system. And that           to articulate here.
really is the heart of it.
                                                                       For example, one of the enormous areas—and you mentioned
I think we need to trust our judges. We have an elected system,        tort reform. One of the enormous areas of concern has been
as you know, Judge Starr, of electing our judges. Well, clearly        with respect to class actions, both in the federal system and
at some point our judges had the confidence of the people,             in the state system. Now, here—and I think this cuts across
and our polls have pretty well shown that has stayed up, and           idealogical lines. It may not cut across plaintiffs’ bar and
I have every confidence that our own courts can correct the            defense bar lines, but it certainly cuts across idealogical and
deficiencies and the irregularities and the excesses of our            philosophical lines on various courts.
own system, and that is my point.
                                                                       And one of the persons on the Supreme Court of the United
Mr. Cossack: One last question there, aren’t you then just             States who has been quite adamant with respect to the need
transferring the decision-making from Congress, who would              to follow the specifics of Rule 23 of the Federal Rules of Civil
enact a statute that says punitive damages can go so high,             Procedure governing federal class actions is Justice Ruth Bader
to one person, the appellate judge, who would say I think in           Ginsburg. Another person has been Justice David Souter. They
my opinion punitive damages are too high, therefore giving             tend to be associated with a, quote, liberal wing of the court.
the power to one person or a group of two or three people              What is it they’re lifting up when they decide these cases that
rather than what the elected officials are? And isn’t there            say, look, this particular class action or that class action is
something wrong with that?                                             simply not, in fact, congruent with the rules? They’re lifting
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up the value of procedure. And so I think when we’re talking            It was determined by Congress, for example, in the black lung
about, well, let’s improve the process of class actions, which          controversy and the terrible tragedies that afflicted so many
I think has been one of the very powerful engines for giving            households in mining communities for a lot of those decades,
cause to very serious concerns—and those cases by the way               that Congress stepped in and wisely came to—whether it’s the
do not get tried and we all know that. A class action very              greatest plan or not, but it said we need a legislative solution,
rarely in the federal system is tried and, in fact, it is essentially   and I think that’s one of the things that thoughtful judges
the death nail and the defense will, in fact, assume his class          are saying. Some of these recurring areas like asbestos really
certification. It’s one of the reasons Congress responded with          require a legislative solution as opposed to this continuing
what’s called Rule 23(f). It is such a vital decision to get the        onslaught of costly and debilitating litigation.
procedure right. If it’s right, then it’s
right, and there are times when class                                                             Finally, let me say going to
actions have to be the mechanisms, “ Some of these recurring areas like Pepperdine, as I am, Pepperdine very
the mechanism of fairness, so that           asbestos really require a legislative much emphasizes in its training of
the value of a fair justice system can             solution as opposed to this                    lawyers the use of alternative tech-
be achieved.                                                                                      niques, mediation, arbitration and
                                              continuing onslaught of costly and                  the like, but at the same time they’re
But to come back to your fundamental                    debilitating litigation. ”                very proud of the jury system. Both
question about tort reform—and I                                                                  can co-exist. And recently I was
tend to embrace various procedures                                                                serving—a week ago I was serving
that have been suggested—let me just lift up one overriding             as a mediator and it was a dispute where both sides were—but
concern, and that is the transactional costs and whether, in            you know what was at issue more than anything else, prin-
fact, the victims of injuries are being, in fact, compensated.          ciple, a sense of right and wrong, and we needed to bring
And I know there’s a great division within the plaintiffs’ bar          those folks together as opposed to launching a three-year
with respect to this. Just watch the infighting that’s going on         period of litigation. And by God’s grace the two companies
with respect to the asbestos wars and how—I think there are             are now together. They needed to be. So there’s a place, but
a lot of plaintiffs’ lawyers who say, you know, some of these           there is a very fundamental place for our jury, but let’s have
lawyers, you know, we don’t particularly—because they’re                procedures that guide the jury’s discretion.
not defending injured people.
                                                                        Mr. Cossack: Before I follow up with Judge Starr, let me tell
Look at what’s happening to our society in terms of the                 you that for all of his travails that we know so much about,
asbestos wars, and now you know what’s happening.                       he has been rewarded because when he talks about being the
Individual companies not only have gone out of business,                Dean of Pepperdine Law School, let me tell you where that
so let me go ahead and play that card, but now lawsuits                 is. It is in the Malibu Hills of Southern California, perhaps
are being filed against companies that never manufactured               the most beautiful campus you’ve ever seen, and certainly
a thing. They were in the distribution chain, removing a                you paid your dues. You deserve to be in a wonderful place
second and third tier, and I think that’s part of the concern.          like that.
The concern is the transaction costs are so high, the expenses
are so high. And when I say transaction costs, I also mean              Mr. Starr: Thank you.
fees, and who is being compensated, at what level, are the
plaintiffs being compensated, at what level are the attorneys           Mr. Cossack: All right. Let me just follow up for a second.
and experts being—those are very foundational questions                 You mentioned the asbestos example, and I think that is a
to a system of justice. They’re being very closely looked at            great example. It’s something that I’m familiar with. This is
now, with an idea that, look, we do care about competitive-             an example, this is a case—and I’ll just be brief about it—in
ness, yes, we care about jobs, yes, but let’s don’t talk about          which it’s difficult to find the right side because both sides
economics. Let’s talk about justice. Let’s have a justice system        have a little problem. Asbestos —as the Judge points out,
that really works to defend the rights of those who are injured         the litigation of asbestos has become a national economic
as opposed to broader kinds of issues that may be frankly,              problem. Companies are going bankrupt. When they do
as Justice Ruth Bader Ginsburg suggested, more appropriate              it’s not just a—it’s a ripple effect. It causes bankruptcies. It
for a legislative solution.                                             causes losses of jobs, not just in the individual corporations,
                                                                        but around the many communities. It is true also that they
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are now going after secondary—non-producers of asbestos,               in which to exercise their independent jurisdiction.
people who just had asbestos, which you may remember at
one time was a wonder compound in this country because                 So, as a matter of principle, and on certain types of litigation
it did do what it was supposed to, which was prevent and               which has vast societal consequences, I agree the legislature
retard fires. So everybody used asbestos and then it turned            has a place to do that. It should be—there should be a lot of
out to cause these diseases.                                           comity between the branches of government and of course
                                                                       sometimes there is. But what I have seen in recent years, or
On the other hand, the suggestion is in Congress right now,            what I believe I have seen, is a falling off and a lessening of
which is being fought as you can imagine by the unions,                the comity between the—sometimes the overlapping areas
that we have the establishment of alternative courts, asbestos         of the branches of government.
courts if you will, with limitations on the recovery, with
special judges being set up to man or to staff these asbestos          Let me just take funding. Courts have to be funded by
courts. And their jurisdiction will be only asbestos cases and         somebody, so that’s usually the legislature that makes that
that’s what will be held and the awards will be parceled out           decision. The federal courts have a relatively stable system
and limited. It is—the reason that it is being suggested is            and are relatively well funded, but the state systems—and
because of the tremendous impact, national economic—and                I know this from working with all the other chief judges
it has an economic impact upon the economy of the United               around the states—they have to go through a legislative pro-
States. It is that large. On the other hand, unions, trial lawyers     cess and here’s what I’ve seen in Texas, actually personally
look around and say, “Wait a minute. What do you mean                  seen. Judges come up—by the way, in Texas it’s not like the
you’re going to have an alternative court because my client            supreme—the chief justice comes up and gets the funding for
happened to come in contact with asbestos? Why shouldn’t               all the courts. All the courts have to do their own lobbying.
my client be able to recover just like anyone else could recover       They have to come up. And what you see is in real life an
if they were in an automobile accident?”                               employer-employee relation and you have the—being form
                                                                       ed. And you have committee chairmen that are absolutely
Justice Hardberger: Well, I think actually there were a                insulting to the judges. I have been in a room when one of
couple of points that Judge Starr said that we agree on in             our oldest chiefs of all of our appellate courts was told by
that last exchange, and I do believe also—it’s not quite as            a committee chairman, “I am really tired of seeing you old
exciting in a debate situation when you agree so I’ll try to           white men come up here begging for money every year.” and
keep it down, but there are certainly societal problems that           as I say there has been a perpetual cut. In our state budget,
need to be addressed by the legislature. I think that really           while it is true we’re supposed to have—we’re separate and
is true and it has always been true. It’s fundamental to our           equal and we’ve got a third, but I think they misinterpreted
entire republic. It’s less satisfying forensically, but the truth      because our part of the budget is zero point three percent of
is in many cases it’s where you’re putting the line. How far           the state budget for our entire state judiciary. They got their
are you going as apart from do you have any right to do that           decimal points misplaced there.
whatsoever? That’s truly what we’re really talking about.
                                                                       And so, as I say, I don’t want to take the position, which
For instance, it’s also always been the case that legislatures         would be extreme and it also wouldn’t be right, that there’s
can go back and, quote, correct a Supreme Court decision by            not a role for the legislature, and many times the legislature
passing a new law under the guise that you didn’t under-               does provide guidelines in which we can work, the courts
stand what we said. You misinterpreted what we meant so                can work. But I do see a lot of changes in that system going
now we’re going to have a new law, and see if you can change           on, and now the courts of Texas—and this also is not just
that one. So that’s always been there and it’s correct that            Texas, though—they are imposing conditions like they are
it should be. That’s the legislative function because, after           the employer, like they are the master, on what they’re going
all, the court’s function is to interpret and not to make the          to do to give you money, by performance review standards.
law. So does the legislature have a place in the regulation of         Let’s make it real simple. You crank out a bunch of cases we’re
our behavior? Clearly it does. There is no question about              going to give you the money you need. If you don’t crank out
that. Vast, complex litigation can and sometimes does                  many cases, we won’t give you the money you need. That’s
overwhelm the judicial system. That’s the truth. It is just            a really bad—I mean, things are going—well, we would say
too complicated. You’ve got to put some rules, regulations             down here things are going north. Perhaps you might say
in place so that the courts can have a workable framework              things are going south.
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Mr. Starr: He keeps forgetting I’m from San Antonio. Can             I really do. It’s just improvements in the administration of
I jump in on that?                                                   justice is always a good thing to worry about.

Justice Hardberger: Yes.                                             Mr. Cossack: I just would respond by saying that I, too, am
                                                                     concerned about this notion of having alternate courts, but
Mr. Starr: Just to say I love this idea of comity—that’s             the whole idea of having alternate courts I find somewhat
c-o-m-i-t-y—isn’t that right?                                        displeasing to me and the idea particularly in these asbestos
                                                                     lawsuits I think is so, and I think it would pass muster because
Mr. Cossack: Yeah.                                                   they are creating specific kinds of actions.

Mr. Starr: Comity is so important and for that kind of toxic         Mr. Starr: Well, it’s really tugging at Seventh Amendment
environment to exist between the branches is really, really          values at least by doing that because you are taking away a
terrible. I’ll say back when I was a young pup and clerking          common law right.
for now deceased Chief Justice Warren Burger, one of the
thoughts he had was, well, let’s get the members of the judi-        Mr. Cossack: One of the things I want to do here is I notice
ciary committee off campus and under a neutral sponsor,              that we have about ten minutes left and I would suspect that
and so he would have the Brookings Institution sponsor an            you are sitting there and—at least in Colorado I know for
off-the-record just weekend discussion between the judiciary         a fact that on July 1st they will have a new rule where the
committees and then members of the judicial conference. And          juries get to ask the lawyers questions. I mean, talk about
some good things came out of that, nothing that was earth            sending chills through our hearts, huh? But that’s—and,
shattering, but you know what, it helped develop rapport, the        as a matter of fact, in the Koby Bryant case I think the case
kind of understanding. And so they did that every year. It’s         will be tried. I know it will be tried after July 1st, and one
since gone away, but it was, as I thought, a very good idea, but     of the things that is going to happen is the jurors are going
comity building is so important that there be genuine respect        to submit questions to the judge and the judge will review
between and among the branches for one another.                      those questions with the lawyers and I suppose ask some of
                                                                     them, so we’ll see something new at least in that.
Going back to, Roger, your specific idea on asbestos, I would
worry about the creation of specialized courts as a general          But I’m sitting here thinking that perhaps you would have
matter. It’s just another bureaucracy perhaps. I’d be concerned      some questions for these fine panelists, and I know if I was
about that. We also like our courts, don’t we, and I know the        sitting out there I’d be itching to get a chance to ask either
civil and criminal split here in Texas, but we really as a gen-      one of these men some questions, so with our few moments
eral matter in this country want our judges to be generalists.       that we have left, do we have any questions that any of you
There are places for administrative law judges and specialist        would like to ask? Yes.
judges, but I think there should be a presumption in favor
of the generalist judge and he or she has a broader kind of          (Question from the floor.)
docket, maybe rotating obviously from one division to the            Mr. Cossack: The question was: Does any member of the
next because I think we feel better about that. It’s going to        panel—I suppose perhaps—any member of the panel, and
be, we think, or it’s the aspiration to have less bureaucratic       we’ll let them both respond, have any opinion as to why there
justice and more real and genuine justice.                           has been such a reduction in the amount of jury trials in the
                                                                     last decade? Gentlemen.
The other thing—and now I’m going to sound like Justice
Hardberger—I would worry any time that you’re talking about          Justice Hardberger: I think the legislative and executive
the abrogation of the Seventh Amendment right to a jury.             branches have killed it. That’s the reason. That’s the reason
Again, I’m not here to jury bash. I’m here to say that there         that you see so many courtrooms that nothing is happening
need to be controls and procedures in place, but I would             in them. I know that may go down badly with some of the
worry about that as well. Now, if you’re saying Congress is          judges here, who’d probably say they work from morning to
creating a specific cause of action so it would not have been a      night, but the truth is walk around courthouses not only in
jury trial or common law and so forth, which is, I guess, part       Texas but anywhere in the country and what you’ve seen is
of that legislation, perhaps it passes muster, but I think let’s     a huge reduction of cases being tried. Mandatory ADR is one
don’t go bureaucratic. We’ve got, I think, a very good system.       reason. Pre-emption of this and pre-emption of that is another
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reason. Various and sundry things that have been passed by            sion —and you mentioned it and rightly so—of ADR. I think
the legislature that frankly it doesn’t pay any more in many,         that’s going to continue. It’s very cost effective. I’ll tell you
many cases to try the case. It doesn’t make any sense, and you        this, my one-day mediation—I wish I got a contingency
may not even legally be able to try the case. And I think the         fee—has saved literally several million dollars in attorneys’
reduction—we can all say jury systems are great and we’re all         fees. Now, I’m impoverished as a result of that, but I think
for the jury, but when you see the numbers continually falling,       justice is served by virtue of those two organizations now
falling, falling, you better ask yourself is there a symptom          viewing constructively, you know, let’s—and one of them in
here? Is something going wrong? And something is going                the mediation, “I want to get in front of a jury,” because we
wrong and that was the point I was trying to make.                    were talking about reputational interests and so forth—“I
                                                                      want in front of a jury,” this kind of thing. I said, “Well,
Mr. Starr: Well, I think there is increased fear—this is on the       sometimes you should do that, but let’s just think about the
defense side. My law firm is typically on the defense side—of         cost, the agony, the disruption to your organizations, the lack
what I guess John Grisham would colorfully call the runaway           of focus. Is that really what two”—now, that was two compa-
jury and then the judge who’s not going to adequately control         nies—“what you really want to spend your time doing or do
the jury through devices that are common law devices like             you want to say let’s do some creative compromising here?”
remittitur and so forth. Just a year or so ago I argued in what’s     so I think there’s this greater sensitivity to that. Judges want
called Central West, Los Angeles Superior Court, at what is           it, and so far I think that’s the wave of the future.
referred to among the plaintiffs’ bar as the bank, and the bank
is one particular division in superior court in Los Angeles           Now, having said that, the jury system is so valuable, and I
County and the juror interviews show that there’s a fairly            say this not just as an article of faith but someone who was
wide sentiment within the jury pool that unless a punitive            privileged to serve during my period of time as a judge on
damages award exceeds one billion dollars, including in an            the jury committee. I was an appellate judge, but I was on
individual case, then the company back wherever is just not           the jury committee at the U.S. District Court in Washington,
going to get the message. Well, even with remittiturs down            D.C. In reading those exit questionnaires from the people who
to—the case I argued the remittitur was all the way down              served as jurors convinced me to a moral certainty that this
to a hundred million dollars in an individual case because I          is a good thing for our body politic. It is a unifying kind of
think the trial judge felt punitive damages were appropriate in       experience, even if the particular—you may not have agreed
the case, but, okay, I’ll reduce it by ninety percent, but when       fully with what the jury was doing when one was serving,
you start at a billion and you’re in a single person case?            but one is exercising one’s fundamental right to decide a
                                                                      very important matter, be it civil or criminal, and it’s such
So I think those—and I know there are some people, because            an important part of our system. So let’s let the marketplace
you’ve been getting a lot of applause, who just are not going         work. Let’s have ADR, but let’s preserve the jury system and
to like this. That is viewed as a pathology in our system. It         try to make it better.
is unjust, it is unfair, for a specific injured individual who
should be compensated and who perhaps deserves punitive               A final thing—I know I’m going on too long —a grave concern
damages to receive one hundred million dollars in punitive            about the various—and I’ve lost track of what’s happened
damages. It’s just wrong, period, and that’s why—and you              here in Texas—the various exemptions from jury service so
can disagree with that all you want to—and that’s why a lot           that do we have a truly representative jury, and grounds for
of the legislators are saying that’s just wrong. That’s why we        striking jurors so that the juror who perhaps has a master’s
have things such as legislatures coming in and saying, “Well,         degree is just not going to be on that jury. There’s something
what do the anti-trust laws provide? That’s been around for a         fundamentally wrong with a system that does not reach out
century.” Well, you get three times your damages, et cetera.          to the entirety of the community and then also say doctor,
So those, I think, are the kinds of things that are driving at        lawyer, butcher, baker, et cetera, it is your time to serve. It’s
least some decision-making by litigants: I just cannot afford         a great honor for you to serve. We’re not going to come back
to take my chances in that particular jurisdiction. And you all       at you. One day, one trial, other reforms, but you’re going to
know what I’m talking about. There are certain jurisdictions          have to serve. Judith Kay in New York has been—I don’t know
that are viewed as quite dangerous and toxic to one’s health,         if she’s still doing this, Chief Justice Phillips —an absolute
welcome stranger. You’ve got to settle the case out.                  innovator on that, and therefore at the time that he was mayor,
                                                                      Rudy Giuliani, was sitting over in a jury and there was no
And I think we’ve also seen in this last generation the explo-        basis to strike him, unless you could show for cause.
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                                                 THE
84




Justice Hardberger: The trouble with the—what you said,
giving your example of one person getting a hundred million
dollars, and you said “that’s just not right,” the problem with
that is not the facts you gave, but you’re entirely blocking out
two-thirds of the appellate review system and you’re only
looking at one step. When that jury came in and gave the
hundred million, it isn’t over. As they say, the fat lady ain’t
sang yet. That’s then going to be reviewed in Texas on the
intermediate appellate level and then by the Texas Supreme
Court, so there is a system in place. It is the judicial system
that is in place, and that’s one of the problems I have with
a lot of those urban myth stories, I call them, or legal myth
stories, they give you what may or may not be true about the
value that was placed on that by the jury and then they stop
the story. Well, we all know that are in the practice of law
the story doesn’t stop there. If it’s a big verdict, it isn’t just
going to get paid. It probably will never get paid, not in the
amount that it was in issue, because it’s got some hurdles to
go over. You’ve got some legal sufficiency and factual insuf-
ficiency points, so there is controls in place when a jury is out
of line. And that’s, I think, a fundamental answer to many of
the stories when people say, well, they gave so much because
this woman got scalded by coffee. But the next question is:
What money really changed hands? Inevitably nobody knows.
They really don’t know what happened or even if any money
changed hands.

I will say this, and this is my fundamental theme and I know
we’re running out of time. We must be eternally vigilant. If
the courts and the judicial system lose their independence,
the constitution dies.

Mr. Cossack: And, you know, I know Justice Starr agrees with
that. (Applause). I think that our panel has come to an end.
How exciting it is for me to get to do this and how neat it is
for you to offer me and allow me to come down—for three
straight years now to come down and do this, so individually
and personally let me thank you all for having me again. I
can’t tell you how much I enjoy this, how exciting it is for
me to be on a panel with these two gentlemen. Thank you
very, very much. (Applause).

(End of transcript of recorded proceedings.)✯
             STATE BAR LITIGATION SECTION REPORT

               ADVOCATE
                                                          85
             STATE BAR LITIGATION SECTION REPORT

               A DVOCATE
              THE
             THE


               U
PROCEDURE              PDATES ON CASE LAW pertaining
& EVIDENCE             to procedure and evidence as
   UPDATES             compiled by Luther H. Soules III

               and Robinson C. Ramsay, of Langley &

               Banack, Inc.




                              D EPOSITIONS
                                   ✯
                                                       ADVOCATE      ✯ FALL 2004




                                                 THE
86




                                                 EVIDENCE UPDATE
                                    LUTHER H. SOULES III & ROBINSON C. RAMSEY




TEXAS SUPREME COURT                                                    is no need to go beyond the face of the record to test its
RULE 103 – PRESERVATION OF ERROR                                       reliability.” Therefore, the Court concluded, “when a reli-
Coastal Transport Co. Inc. v. Crown Central Petroleum Corp.,           ability challenge requires the court to evaluate the underlying
136 S.W.3d 227, 232–34 (Tex. 2004). In this case involving             methodology, technique, or foundational data used by the
a gasoline truck’s causing a fire that destroyed a gasoline-           expert, an objection must be timely made so that the trial
loading facility, the Texas Supreme Court considered the issue         court has the opportunity to conduct this analysis. However,
of whether the petitioner waived its right to complain that            when the challenge is restricted to the face of the record, for
there was legally insufficient evidence of gross negligence.           example, when expert testimony is speculative or conclusory
The court of appeals held that the failure to object to the            on its face, then a party may challenge the legal sufficiency
admission of expert testimony on gross negligence waived               of the evidence even in the absence of any objection to its
any complaint that the testimony lacked probative value. The           admissibility.”
Supreme Court disagreed, concluding that “such an objection
is required only when a challenge to expert testimony ques-            Because the Court concluded that Maritime Overseas “did
tions the underlying methodology, technique, or foundational           not change the general rule that bare conclusions even if
data used by the witness.”                                             unobjected to cannot constitute probative evidence,” it held
                                                                       that the petitioner “did not waive its no-evidence challenge
A Daubert/Robinson challenge to the reliability of a scientific        in this case.”
process or technique “must be timely made in order to allow
the court to exercise its gatekeeper function.” Here, how-             RULE 702 – EXPERT WITNESSES
ever, the petitioner did not challenge the expert’s underlying         IHS Cedars Treatment Center of Desoto, Texas, Inc. v.
methodology. Instead, it argued that the testimony was “non-           Mason,no. 01-0926, 2004 WL 1396194 June 18, (Tex. 2003).
probative on the face of the record.” Therefore, it did not waive      In this medical malpractice case, the plaintiff’s expert testi-
its challenge to the legal sufficiency of the evidence.                fied that the alleged negligent conduct of a physician and a
                                                                       hospital “proximately caused” the plaintiff’s injuries “without
In Maritime Overseas Corp., the Texas Supreme Court held               an explanation of how the conduct of [the physician] and the
that “[t]o preserve a complaint that scientific evidence is            hospital was the cause in fact of [the plaintiff]’s injuries.” The
unreliable and thus, no evidence, a party must object to               expert “merely state[d] in her affidavit that, in her opinion,
the evidence before trial or when the evidence is offered.”            the breaches of the standard of care alleged against [the
There, however, the expert’s underlying methodology was at             physician] and [the hospital] ‘constitute negligence that was
issue. The Court concluded that “examination of the expert’s           a proximate cause of the occurrence and injuries” that the
underlying methodology was a task for the trial court in its           plaintiff suffered. These statements failed to provide “a suf-
role as gatekeeper, and was not an analysis that should be             ficient causal nexus between the duties and breaches” by the
undertaken for the first time on appeal. . . .This rule allows         physician and the hospital and the injuries that the plaintiff
the trial court to exercise its discretion in making a deter-          suffered. Therefore, the plaintiff presented “no evidence of
mination of whether the expert testimony is sufficiently               causation.”
reliable . . . . It also ensures that a full record will be devel-
oped, and that appellate courts will be able to evaluate the           COURTS OF APPEAL
legal and factual sufficiency of the evidence without looking          RULE 702 – EXPERT WITNESSES
beyond the appellate record.”                                          Taylor v. American Fabritech, Inc., 132 S.W.3d 613, 618–
                                                                       20 (Tex. App.—Houston [14th Dist.] 2004, pet. filed). In
“When the testimony is challenged as conclusory or specula-            Robinson, the Texas Supreme Court held that “expert opinion
tive and therefore non-probative on its face, however, there           of a scientific nature required an initial inquiry as to whether
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                                                  THE
                                                                                                                                         87




the testimony was based on a reliable scientific foundation”            experience and his knowledge in the fields of construction
and the Court listed certain factors it deemed useful in this           safety and accident investigation. He stated that he had a
inquiry. In Gammill, however, the Court explained that                  master’s degree in civil engineering and postgraduate cer-
“although trial courts must assess the reliability of all expert        tificates in occupational safety and health and public safety,
testimony, the Robinson factors will not always be relevant             and he has been qualified by the Workmen’s Compensation
to the inquiry, particularly when the proffered testimony is            Commission of Texas as a ‘professional safety source in con-
based not on scientific research or theories but on the expert’s        struction.’ He has also taught courses on construction safety
experience and knowledge in his or her field.”                          and specifically has taught on fall protection. He stated that
                                                                        his analysis was based on established principles of safety
Here, the appellant’s experts did not offer scientific testimony.       engineering and management and that his investigative tech-
“Analyzing whether safety measures could have prevented an              nique was widely accepted in the field, namely ‘to establish
accident, calculating the costs of medical care, lost earnings,         the who, what, when, why, where, and how, to analyze the
and living assistance, and explaining the severity of a person’s        events based upon the best available testimony . . . then to
injuries are not scientific inquiries under the Robinson/Gammill        evaluate the building plans and documents. . . .’ He listed
framework.” In forming their opinions, the experts “relied              various regulations, articles, programs, product data sheets,
not on specific scientific research or studies but on their             and case documents he relied upon in deriving his conclu-
own experience, education, and review of the literature in              sions.” Based upon this evidence, the court of appeals found
their fields. Hence, the trial court was required to consider           that there did not appear to be any significant “analytical
whether the testimony was based on a reliable foundation and            gap” between the expert’s proffered testimony and its stated
whether it was relevant to issues in the case, but the court            basis.
was not required to analyze all of the specific factors noted
in Robinson. . . . In cases involving nonscientific expert testi-       Luther H. Soules is a partner in Langley & Banack, Inc. and the
mony, Gammill instructs [courts] to consider whether there              co-author of Dorsaneo & Soules’ Texas Codes and Rules—Civil
is an ‘analytical gap’ between the experts’ opinions and the            Litigation. Soules has served as director of the State Bar of Texas’
bases on which they were founded.”                                      Advanced Civil Trial Course and chairman of the Texas Supreme
                                                                        Court Advisory Committee.
The appellant’s expert’s affidavit “contained a lengthy expla-
nation of the subjects he expected to testify regarding and             Robinson C. Ramsey practices at Langley & Banack, Inc. Ramsey is
the bases for his opinions. Generally, he expected to testify           a contributing author to the State Bar’s Expert Witness Manual,
regarding [the appellant]’s fall from a height, the availability of     New Rules of Appellate Procedure and Appellate Advocate as
fall prevention equipment and techniques, and the conditions            well as an assistant editor of Dorsaneo & Soules’ Codes and
at the construction site. He based his testimony on his own             Rules—Civil Litigation. ✯
                                                       ADVOCATE      ✯ FALL 2004




                                                 THE
88




                                               PROCEDURE UPDATE
                                    LUTHER H. SOULES III & ROBINSON C. RAMSEY




TEXAS SUPREME COURT                                                    Fourteenth Court of Appeals held that “a defendant who filed
SPECIAL APPEARANCE                                                     a Rule 11 Agreement extending the answer date did not seek
Exito Electronics Co., Ltd. v. Trejo, no. 03-0401, 2004 WL             affirmative action from the court or recognize that the action
1434798 (Tex. June 25, 2004). Before filing an answer, the             was properly pending and thus did not enter a general appear-
petitioner filed a Rule 11 agreement extending the deadline            ance.” The Supreme Court agreed with the result in Angelou.
to file its initial responsive pleading. This agreement “was
not conditioned on a subsequent special appearance.” The               “[T]he plain language of Rule 120a requires only that a spe-
petitioner and the respondent entered into two more Rule 11            cial appearance be filed before any other ‘plea, pleading or
agreements further extending the time for the petitioner to            motion.’ A Rule 11 Agreement between the parties, in and
file its answer, but those agreements were not filed in the trial      of itself, is not a plea, pleading, or motion.” The petitioner
court until after the petitioner had answered. “In conjunction         “did not waive its special appearance by filing the Rule 11
with its original answer, [the petitioner] subsequently filed          Agreement. The agreement [was] a typical letter agreement
a verified special appearance, objecting to the trial court’s          between the parties that did not address the trial court and
personal jurisdiction, and attached a supporting affidavit.”           in which [the respodent]’s attorney, by signing the letter,
                                                                       confirmed in writing that he would grant [the petitioner] an
Later, the respondent filed a motion to compel the deposition          extension of time to file a responsive pleading. Rule 11 states
of the petitioner’s corporate representative. The petitioner filed     in pertinent part that an agreement between the parties ‘will
a response to this motion, and the docket sheet showed that            [not] be enforced unless it be in writing, signed and filed
the trial court ruled on the motion a month later. However,            with the papers as part of the record.’ . . . Thus, while filing
the record did not reflect how the court ruled. Before the             a Rule 11 Agreement with the trial court is a requirement for
trial court heard and ruled on the special appearance, the             enforcement, it is not in and of itself a request for enforcement
petitioner also filed a motion to modify its answers to some           or any other affirmative action by the trial court. As noted in
requests for admissions, which the trial court granted.                Angelou, there would be no reason to seek such action unless
                                                                       the plaintiffs had filed a motion for default judgment. . . .
“Texas Rule of Civil Procedure 120a, which governs special             Nor [did] the letter recognize that the action [was] properly
appearances, states that ‘[e]very appearance, prior to judg-           pending; it merely acknowledge[d] that [the petitioner] [was]
ment, not in compliance with this rule is a general appear-            required to respond to the petition in some manner. . . .”
ance.’” A party enters a general appearance when it “(1)
invokes the judgment of the court on any question other                The Supreme Court held that “a Rule 11 Agreement that
than the court’s jurisdiction, (2) recognizes by its acts that         extends a defendant’s time to file an initial responsive pleading
an action is properly pending, or (3) seeks affirmative action         and is filed in the trial court before the defendant files a
from the court.”                                                       special appearance, even if the agreement is not expressly
                                                                       made subject to the special appearance, does not violate Rule
“Rule 120a(1) mandates that a special appearance be filed              120a’s ‘due-order-of-pleading’ requirement and thus does not
‘prior to a motion to transfer venue or any other plea, pleading       constitute a general appearance.”
or motion.’ . . . This is sometimes referred to as the ‘due-order-
of-pleading’ requirement. . . .” Here, the court of appeals held       Rule 120a(2) states that “[a]ny motion to challenge the juris-
that “a party that files an unconditional Rule 11 Agreement            diction provided for herein shall be heard and determined
before a special appearance is not in compliance with Rule             before a motion to transfer venue or any other plea or pleading
120a.” In Angelou v. African Overseas Union, however, the              may be heard.” It also provides that “[t]he issuance of process
                                                       ADVOCATE      ✯ FALL 2004




                                                 THE
                                                                                                                                       89




for witnesses, the taking of depositions, the serving of requests      Here, “nothing in the rule precluded the trial court from
for admissions, and the use of discovery processes, shall not          rendering complete relief among [the appellee] and the
constitute a waiver of [a] special appearance.”                        eight homeowners who had sued for a declaration of rights.
                                                                       Although the parties continue[d] to litigate its correctness,
The court of appeals concluded that “‘[u]nlike rule 120a.1,            the trial court’s judgment represent[ed] a final and complete
rule 120a.2 does not except discovery matters from its                 adjudication of the dispute for the parties who were before
requirements’ and that while the rule allows the nonresident           the court. . . . Any non-joined homeowner would be entitled
defendant to participate in discovery, the special appearance          to pursue individual claims contesting [the association]’s
must be heard and determined before any discovery motions,             authority to raise assessments or impose fees, notwithstanding
should a discovery dispute arise.” The Supreme Court dis-              the trial court’s judgment in the current case.”
agreed “to the extent that the discovery disputes the trial
court resolved in this case involved discovery related to the          Although the failure to join each homeowner in one suit cre-
special appearance. . . .”                                             ated a risk that the association could be subject to inconsistent
                                                                       judgments, the Court found that the association’s dilemma
“[T]he parties can participate in such discovery, and Rule 120a        was “the product of its own inaction.” It could have sought
states that the court shall determine the special appearance           relief at trial “by urging the court, among other things, to
in part on the basis of ‘the results of discovery processes.’ It       abate the case, join absent homeowners, or grant special
is simply illogical to allow the parties to engage in relevant         exceptions. . . . Instead, it waited until the case reached [the
discovery, which can be a vital part of resolving a special            Texas Supreme] Court to first raise the specter of multiple
appearance, but prohibit the nonresident defendant from                or inconsistent judgments.” Therefore, the Court found that
seeking the trial court’s ruling on disputes that may affect           the association “had an opportunity to raise the absence of
the evidence presented at the special appearance hearing. . . .        the nonjoined person and waived it.”
[A] nonresident defendant’s participation in the trial court’s
resolution of such discovery matters does not amount to a              DISMISSAL FOR WANT OF PROSECUTION
recognition that the action is properly pending or a request           Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 850–52 (Tex.
for affirmative relief inconsistent with the jurisdictional chal-      2004). “A court may dismiss a case for want of prosecution
lenge.” Therefore, the Court held that “a trial court’s resolution     under either Rule 165a or under its common law inherent
of discovery matters related to the special appearance does            authority.” This case concerned “only the trial court’s authority
not amount to a general appearance by the party contesting             to dismiss under Rule 165a(1),” which provides in part: A
personal jurisdiction.”                                                case may be dismissed for want of prosecution on failure of
                                                                       any party seeking affirmative relief to appear for any hearing
The Court also held that the court of appeals erred in holding         or trial of which the party had notice. . . . At the dismissal
that a defective verification and affidavit resulted in the peti-      hearing, the court shall dismiss for want of prosecution
tioner’s waiving its special appearance. Assuming without              unless there is good cause for the case to be maintained on
deciding that the verification and affidavit were defective, the       the docket.”
Supreme Court nevertheless held that “[a]ny defect in proof
goes to the merits; it is simply not a waiver issue.”                  “The rule clearly states that a trial court may dismiss a case
                                                                       ‘on failure of any party seeking affirmative relief to appear for
JOINDER OF PARTIES                                                     any hearing or trial.’ It also requires that notice of the court’s
Brooks v. Northglen Ass’n, no. 02-0492, 2004 WL 1439643                intention to dismiss and the date and place of the dismissal
(Tex. June 25, 2004). Texas Rule of Civil Procedure 39 “man-           hearing be sent to each attorney of record.” The defendant
dates joinder of persons whose interests would be affected by          argued that “the trial court’s order setting the pre-trial con-
the judgment.” Rule 39 determines “whether a trial court has           ference [did] not give notice that the purpose of that hearing
authority to proceed without joining a person whose pres-              was to determine whether the case should be dismissed for
ence in the litigation is made mandatory by the Declaratory            want of prosecution. The court of appeals agreed, concluding
Judgment Act.” Rule 39(a)(1) requires “the presence of all             that because the order setting the scheduling conference
persons who have an interest in the litigation so that any             stated that dismissal was only one of a number of possible
relief awarded will effectively and completely adjudicate the          consequences for failure to appear, it was ‘unclear whether
dispute.”                                                              dismissal [would] automatically result without the benefit
                                                                       of a hearing.’”
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                                                   THE
90




In disagreeing with the court of appeals’analysis, the Supreme           Supreme Court disagreed, holding that “[a] motion for new
Court found that, “[t]he order setting the pre-trial confer-             trial is ‘conditionally filed’ if tendered without the requisite
ence plainly warned the litigants that they could expect the             fee, and appellate deadlines run from and are extended by
trial court to dismiss the case for want of prosecution if [the          that date.”
plaintiff] failed to attend: Failure to appear without excuse
will result in dismissal of the case for want of prosecution             “[A] motion for new trial tendered without the necessary filing
or entering sanctions or other orders as the Court deems                 fee is nonetheless conditionally filed when it is presented to
appropriate. The fact that the trial court said that it might            the clerk, and that date controls for purposes of the appellate
order sanctions in addition or as an alternative to dismissal            timetable. . . . [T]he failure to pay the fee before the motion
did not diminish the warning that dismissal was at issue.                is overruled by operation of law may forfeit altogether the
The fact that the order in this case explicitly states that the          movant’s opportunity to have the trial court consider the
court could order lesser or alternative sanctions [did] nothing          motion; it does not, however, retroactively invalidate the
more than state the court’s inherent authority. . . . [T]he par-         conditional filing for purposes of the appellate timetable.”
ties were told to appear on a specific day at a specific time            [Emphasis in original].
and that if they did not do so, the case could be dismissed
for want of prosecution. They were told when and where to                The Court construes the Rules of Appellate Procedure
appear and what the adverse consequences could be if they                “liberally, so that decisions turn on substance rather than
did not appear.”                                                         procedural technicality;. . . nothing in those rules requires
                                                                         a fee to accompany a motion for new trial, or that such a fee
The plaintiff “did not comply with the express requirements              be paid at all. Moreover, once a motion for new trial is con-
of the trial court’s order setting the pretrial conference, which        ditionally filed and timetables extended, all litigants benefit
gave [the plaintiff] notice of at least two things. First, there was     from knowing what timetables apply even if they do not know
to be a scheduling hearing, and second, dismissal could result           whether the requisite fee was paid. The alternative would
if [the plaintiff] did not appear at that hearing. Rule 165a(1)          breed uncertainty, as the deadlines might automatically jump
does not preclude a trial court from scheduling a pre-trial              forward when the fee is quietly paid or revert backwards if
hearing, giving notice that failure to attend that hearing may           it is not.”
result in dismissal for want of prosecution, and also deciding
at that hearing whether the case should be dismissed for want            “This is not to say filing fees are irrelevant,” the Court cau-
of prosecution if a party seeking relief fails to attend. All Rule       tioned. “‘[A]bsent emergency or other rare circumstances’ a
165a(1) requires is notice of intent to dismiss and of a date,           motion for new trial should not be considered until the filing
time, and place for the hearing.”                                        fee is paid.” Here, the plaintiff had to present her factual-
                                                                         sufficiency complaint to the trial judge. However, “because
Because the notice here “clearly set a date and time for a               she never paid the $15 fee, the trial court was not required
hearing and clearly stated that the parties could expect the             to review it. Thus, because no new trial fee was ever paid,
court to dismiss the case for want of prosecution for nonat-             the court of appeals correctly never addressed [the plaintiff]’s
tendance, the order satisfie[d] any requirement that there               factual sufficiency complaint, but correctly considered her
be notice and an opportunity to be heard before a case is                venue complaint.”
dismissed for want of prosecution.” Therefore, the Supreme
Court held “the trial court did not err in dismissing this case          COURTS OF APPEAL
for want of prosecution.”                                                SPECIAL APPEARANCE
                                                                         Nguyen v. Desai, 132 S.W.3d 115, 117–19 (Tex. App.—
MOTION FOR NEW TRIAL                                                     Houston [14th Dist.] 2004, pet. filed). “In dismissing for lack
Garza v. Garcia, 137 S.W. 3d 3-6 (Tex. 2004). The plaintiff              of personal jurisdiction, a trial court should not rule on the
“timely filed a motion for new trial, but did not pay the fee.           merits of the claims.” Here, the trial court’s order sustaining
Her notice of appeal, which she filed eighty-four days after             the defendants’ special appearance “also dismissed the lawsuit
the date the trial court signed the judgment, was timely                 with prejudice to refiling in Texas.” In determining whether
only if her motion for new trial extended the deadlines.” The            to exercise personal jurisdiction, “courts typically conduct a
defendants argued that, “in the absence of a fee, the motion             general-jurisdiction analysis based on the defendant’s contacts
for new trial was ineffective to extend appellate deadlines,             with the forum state until the date that the lawsuit was filed. . . .
thereby making the plaintiff’s notice of appeal untimely.” The           If, after entry of the trial court’s special-appearance order
                                                       ADVOCATE      ✯ FALL 2004




                                                 THE
                                                                                                                                       91




but before the filing of a second Texas lawsuit by the same            The plaintiff’s issue relied “entirely on the application of Rule
plaintiffs against [the defendants], [they] were to become             165a(3)’s standard for reinstatement and [was] based on the
residents of Texas and otherwise become subject to general             premise that the court erroneously dismissed the case under
jurisdiction, the trial court’s dismissal in this case should not      Rule 165a(1).” However, the court of appeals found that Rule
preclude personal jurisdiction in the second action. This is           165a(3) “does not provide the appropriate measure for deter-
because the jurisdictional effect of the [defendants]’ residence       mining whether the court should have reinstated the case.”
in Texas was not actually litigated in this case.”                     Instead, it agreed with several other courts of appeals that
                                                                       “Rule 165a(3)’s standard for reinstatement only applies to
“In many instances, a Texas court’s dismissal of a suit for            cases dismissed for failure to appear under Rule 165a(1).”
lack of personal jurisdiction will preclude the assertion of
personal jurisdiction in a second suit that is filed in Texas          “The standard set out in Rule 165a(3) is essentially the
and that involves the same or similar claims arising out of            same standard as that for setting aside a default judg-
the same occurrence against the same parties. However . . .            ment. . . . Such a standard is well suited for analyzing
this may not always be the case.” Therefore, the court of              specific instances of conduct. It does not, however, easily
appeals concluded that “the trial court erred in dismissing            lend itself to determining whether a party failed to dili-
this lawsuit with prejudice to refiling in Texas.”                     gently prosecute a case dismissed under a court’s inherent
                                                                       authority or whether a party failed to dispose of the case
DISMISSAL FOR WANT OF PROSECUTION                                      within the Supreme Court’s time standards for disposition.”
Binner v. Limestone County, 129 S.W.3d 710, 712–14 (Tex.
App.—Waco 2004, pet. denied). “The trial court’s authority             “The motion to reinstate is the failsafe to prevent cases that
to dismiss for want of prosecution stems from two sources:             fall into any of the three categories from being improperly
(1) Rule 165a of the Texas Rules of Civil Procedure, and (2)           dismissed. It essentially provides an opportunity for the
the court’s inherent power. . . . A trial court may dismiss            dismissed plaintiff to explain the failure to appear at any
under Rule 165a on the ‘failure of any party seeking affir-            hearing, if applicable, the failure to prosecute the case with
mative relief to appear for any hearing or trial of which the          due diligence, and to request the court to reconsider its deci-
party had notice,’ or when a case is ‘not disposed of within           sion to dismiss, in much the same manner as a motion for
the time standards promulgated by the Supreme Court. . . .’            a new trial. . . . But Rule 165a(3)’s reinstatement standard,
In addition, the common law vests the trial court with the             ‘conscious indifference,’ only applies to cases dismissed for
inherent power to dismiss independently of the rules of                failure to appear.” Here, the trial court’s notice “required [the
procedure when a plaintiff fails to prosecute her case with            plaintiff] to show more. It required a showing of . . . good
due diligence.”                                                        cause . . . as to why these causes should not be dismissed.”

Here, the trial court notified the plaintiff that it would dismiss     The only showing the plaintiff made was “a showing of why
her case unless it went to trial by December 27th or “she had          she was not present at the dismissal docket.” The court of
shown good cause, either by appearance at the dismissal                appeals agreed that “she established that her failure to appear
docket or by a filed motion to retain, why it should not be            at the December 27, 2001, dismissal docket hearing was not
dismissed.” When she failed to comply with at least one of             intentional or the result of conscious indifference.” However,
these requirements, the trial court dismissed her cause for            this was not enough. The plaintiff “failed to address the other
want of prosecution.                                                   reasons of which she had received notice of the intent to
                                                                       dismiss her suit, that is, failure to diligently prosecute her
The court of appeals held that “[a] reasonable interpretation          suit or failure to prosecute her suit within the time period
of the notice and dismissal language is not that the cause             required by Rule 165a(2). The notice was adequate to make
would be dismissed only for failure to appear at the December          her aware of the need to show the court ‘good cause’ why her
27, 2001 hearing as [the plaintiff] claims. Under the general          suit should not be dismissed for either of these reasons.”
notice sent to [the plaintiff], the trial court could dismiss
the suit pursuant to: (1) Rule 165a(1) if [the plaintiff] failed       Allen v. Rushing, 129 S.W.3d 226, 230–31 (Tex. App.—
to appear for the dismissal docket without filing a motion;            Texarkana 2004, no pet. h.). “A trial court may dismiss a
(2) Rule 165a(2) for failure to dispose of the suit within the         civil suit for want of prosecution when the plaintiff has failed
Supreme Court’s guidelines; or (3) its inherent authority.”            to use reasonable diligence to advance the case on the docket
                                                                       and move it to trial. . . . Once a plaintiff initiates a lawsuit by
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                                                   THE
92




filing an original petition, citation should issue and be served,        Had he done so, he “could have attempted to demonstrate
along with the original petition, on all named defendants. . . .         good cause for the trial court to reconsider its dismissal for
‘Upon the filing of the petition, the clerk, when requested,             want of prosecution. Such information might have provided
shall forthwith issue a citation and deliver the citation as             a basis to suggest [the plaintiff] was diligently prosecuting
directed by the requesting party. The party requesting citation          the case.”
shall be responsible for obtaining service of the citation and
a copy of the petition.’” [Emphasis in original].                        Here, the plaintiff “accepted the role of a pro se plaintiff. He
                                                                         had the burden of prosecuting his case with diligence, the
“A party may ordinarily rely on the clerk to perform that duty           same as any licensed attorney. This he did not do.” Under these
within a reasonable time. . . . However, ‘[w]here the citation is        circumstances, the court of appeals could not say that the trial
not issued and served promptly, this does not affect the suit,           court committed substantive error or abused its discretion in
unless the plaintiff is responsible for the failure of the officers      dismissing the plaintiff’s case for want of prosecution.
to do their duty, as in cases where the plaintiff instructs the
clerk not to issue, or instructs the sheriff, not to serve.’ . . .       SUMMARY JUDGMENT
If, in the exercise of diligent prosecution, the plaintiff could         Durbin v. Culberson County, 132 S.W.3d 650, 656–57 (Tex.
have easily corrected the clerk’s failure to issue citation, the         App.—El Paso 2004, no pet. h.). “[A] trial court’s ruling on
delay in the case will be charged against the plaintiff. This is         an objection to summary judgment evidence is not implicit
because ‘[t]he [plaintiff’s] duty to exercise diligence continues        in its ruling on the motion for summary judgment.” The
until service of process is achieved.’”                                  appellants argued that “since the motion granting summary
                                                                         judgment was silent as to how the court ruled on its objec-
“Evidence of attempting to serve the named defendants is one             tion, [the court of appeals] should treat the objection as
of many factors an appellate court may consider in reviewing a           being implicitly overruled.” However, the court of appeals
trial court’s order dismissing a case for want of prosecution. . . .     could not determine that the trial court implicitly overruled
If a trial court dismisses a case for want of prosecution, the           the appellants’ objection because the court of appeals could
plaintiff may also file a motion to reinstate the case. Such a           not tell if the trial court was aware of the objection. “The
motion may provide evidence the plaintiff acted diligently               objection was filed at 11:40 a.m. . . . and the hearing on the
in pursuing the case.”                                                   summary judgment motion was held at 1:30 p.m. the same day.
                                                                         Appellants failed to bring their objection to the court’s atten-
Here, the pro se plaintiff’s original petition asked that the            tion at the summary judgment hearing.” As a result, the court
defendant “be cited to appear and answer” the plaintiff’s                of appeals found “no evidence that the objection was either
petition. “The petition did not, however, specify a manner               expressly or implicitly overruled; therefore, appellants . . .
of delivery of citation (such as by a private process server,            waived their objection.”
through the sheriff’s office, by publication, or by certified
mail).” Therefore, the plaintiff’s petition “gave the court clerk        NONSUIT
no direction regarding the method and manner of delivery                 In re C.A.S., 128 S.W.3d 681, 684–86 (Tex. App.—Dallas
of the citation, once issued.”                                           2003, no pet. h.). “Rule 162 prohibits a plaintiff’s nonsuit
                                                                         from prejudicing ‘the right of an adverse party to be heard
The record did not show that during the thirteen months the              on a pending claim for affirmative relief.’ . . . To qualify
plaintiff’s lawsuit had been pending the plaintiff had provided          as a claim for affirmative relief, the defendant must allege
the clerk’s office with further instructions regarding serving           a cause of action, independent of the plaintiff’s claim, on
and citing the defendant. “If he had used ordinary diligence,            which he could recover compensation or relief even if the
[the plaintiff] should have been able to determine that the              plaintiff abandons or fails to establish his cause of action. . . .
citation had not issued and service not completed because                An affirmative claim, stated in an answer, for recovery of
he had not provided the clerk with sufficient information on             attorney’s fees for preparation and prosecution of a defense
the method of citation and service. Accordingly, the lengthy             constitutes a counterclaim. . . . A mandatory fee of $15 for
delay, without explanation from [the plaintiff], support[ed]             filing a counterclaim is due at the time of filing.”
the trial court’s implied finding that [the plaintiff] was not
diligently prosecuting his lawsuit.”                                     Here, claims for payment of insurance premiums and attor-
                                                                         ney’s fees qualified as claims for “affirmative relief.” They
Furthermore, the plaintiff did not file a motion for reinstatement.      also constituted “counterclaims,” which are “subject to the
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payment of the mandatory filing fee,” which had not been               proceedings against appellant that could have commenced
paid. A document is “conditionally filed” when it is tendered          before it filed for bankruptcy. . . .Therefore, appellant’s notice
to the clerk. However, the filing “is not completed until the          of bankruptcy, even if liberally construed, [could not] be con-
fee is paid, and absent emergency or other rare circumstances,         sidered an answer or appearance to appellee’s original petition
the court should not consider it before then.” Therefore, at the       because appellee’s original suit was a void action. . . . The
time the trial court dismissed these claims, “they were merely         record also show[ed] appellant failed to file an answer after
‘conditional’ awaiting payment of the fee.” Because he failed to       citation and petition were reissued on August 30, 2000, and
pay the required fee, the counterclaimant “did not complete            before the default judgment was entered on May 10, 2001.”
the filing of those claims and had no unconditional right to
be heard on those claims.” As a result, the court of appeals           The appellee “was under no duty to give appellant notice of
could not conclude that the trial court erred in dismissing            the default hearing on May 10, 2001 because appellant was
the conditional claims for affirmative relief.                         properly served, and the citation and petition were on record
                                                                       for the required period of time prior to the entering of the
The court of appeals stressed that its holding was “not                default judgment.” Therefore the court of appeals concluded
grounded in a formalistic adherence to rules concerning                that the default judgment the appellee took against appellant
payment of filing fees. As a practical matter, the notation            was proper.
of a paid fee on the computerized case file record or on the
clerk’s docket-and-fee report can alert the trial judge . . . that     CONTINUANCE
a counterclaim or cross-claim is pending. Payment of the fee           Briscoe v. Goodmark Corp., 130 S.W.3d 160, 169 –70 (Tex.
thus aids the court in avoiding an erroneous dismissal of an           App.—El Paso 2003, no pet. h.). “A continuance shall not be
adverse party’s claim. Failing that, the aggrieved party has           granted except for sufficient cause, supported by affidavit,
recourse to correct such errors through a motion to modify             or by consent of the parties, or by operation of law. . . .
judgment or a motion for new trial.”                                   Mere absence of a party does not automatically entitle him
                                                                       to a continuance. . . . A motion for continuance based on
DISCOVERY                                                              an absent party must contain some prognosis as to when
In re AEP Texas Central Co., 128 S.W.3d 687, 693 (Tex.                 or if the witness will ever be able to testify. . . . A motion
App.—San Antonio 2003, orig. proceeding). “A party who                 for continuance based on the absence of testimony must be
fails to diligently screen documents before producing them             supported with an affidavit showing: (1) the substance of the
does not waive a claim of privilege. . . . The ten-day period          testimony; (2) the materiality of the testimony; and (3) the
allowed for an amended response does not run from the pro-             movant’s due diligence to procure such testimony. . . [T]he
duction of the material or information but from the party’s            granting of a continuance rests within the sound discretion
first awareness of the mistake.”                                       of the trial court.”

DEFAULT JUDGMENT                                                       Here, the appellant’s motion for continuance “did not comply
Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 246–47                 with the requirements of Rule 252. While his motion to
(Tex. App.—Corpus Christi 2004, no pet. h.). “If a party               reconsider and attached affidavits went further towards
has made an appearance, he must be given ‘notice of the                satisfying Rule 252 than did his original motion, he did not
trial setting as a matter of due process under the Fourteenth          state when or if he would ever be available to testify. Further,
Amendment . . . .’”                                                    he did not specify the substance of his testimony except to
                                                                       state he would testify about discussions he had . . . about
The appellant argued that its notice of bankruptcy was                 the transactions at issue in this case.” Therefore, the court
“sufficient to serve as an answer and appearance because it            of appeals could not determine whether his testimony was
identified the parties, the case, and was signed by appellant’s        material. The affidavits of the appellant and his attorney also
attorney of record.” However, “the notice of bankruptcy                failed to establish due diligence. As a result, the trial court
stated that appellant filed for bankruptcy on May 19, 1999.            did not abuse its discretion by denying the appellant’s motion
The bankruptcy court modified the automatic stay on June               for continuance.
9, 2000, to allow appellee to proceed with his suit against
appellant. Any action taken against appellant between May              JURY CHARGE
19, 1999 and June 9, 2000 was void and without legal effect            F.S. New Products v. Strong Industries, 129 S.W.3d 606,
because the automatic stay barred the commencement of any              622–23 (Tex. App.—Houston [1st Dist.] 2004, pet. filed).
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The appellant argued that,” because it tendered the pro-             page of a 25-page proposed charge.” Regardless, “tendering
posed fraud-damages instruction to the court, [the judge]            an instruction within an entire proposed charge does not
was made aware of the existence of the instruction and of            suffice to preserve error when, as here, the record does not
[the appellant]’s complaint that the jury was not instructed         show that the trial court ruled, orally or in writing, or was
on the proper measure of fraud damages.” The appellant also          otherwise aware of the requested instruction.”
claimed that the trial court “implicitly denied the requested
instruction by not including it in the court’s charge.” However,     Luther H. Soules is a partner in Langley & Banack, Inc. and the
the court of appeals concluded that the record did not sup-          co-author of Dorsaneo & Soules’ Texas Codes and Rules—Civil
port such inferences.                                                Litigation. Soules has served as director of the State Bar of Texas’
                                                                     Advanced Civil Trial Course and chairman of the Texas Supreme
The court of appeals found “no indication in the record that         Court Advisory Committee.
[the appellant] made any attempt to draw the trial court’s
attention to its requested instruction, or its complaint that        Robinson C. Ramsey practices at Langley & Banack, Inc. Ramsey is
the charge failed to instruct the jury on the proper measure         a contributing author to the State Bar’s Expert Witness Manual,
of fraud damages.” The record did not reveal whether the trial       New Rules of Appellate Procedure and Appellate Advocate as
court disagreed with the proposed instruction and denied             well as an assistant editor of Dorsaneo & Soules’ Codes and
it, as the appellant claimed, or whether the judge “simply           Rules—Civil Litigation. ✯
did not notice the requested instruction on the nineteenth
      ADVOCATE   ✯ FALL 2004




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