Presented by: JOSIE N. SERIGNESHER GARNER CAHILL RICHTER KLEIN & HILBERT, L.L.C.

LEARNING TO GRASP THE BIG PICTURE –DEPOSITIONS:

WHAT YOU ALWAYS WANTED TO KNOW, BUT DIDN’T HAVE TIME TO RESEARCH

INTRODUCTION “Depositions are the factual battleground where the vast majority

of litigation actually takes place.”

Hall, 150 F.R.D. at 531.

Depositions offer an opportunity for counsel to:

o Gather critical facts

o Explore the other party’s theory of the case

o Assess the deponent’s credibility and effectiveness

OVERVIEW OF PRESENTATION

I. Mechanics of Taking and Defending Depositions

1. When can a deposition be taken?

2. How much advanced notice must be given?

3. Who can be deposed, and how is their attendance compelled?

4. Who can be present at, and excluded from, a deposition?

5. What changes can a deponent make to a transcript after the deposition has concluded?

6. When can depositions be used in court proceedings?

II. Objections and Instructing the Witness Not to Answer

III. Difficult Questions Involving Privilege

1. Discoverability of conversations during deposition breaks

2. Application of work-product privilege to deposition preparation materials

IV. Practice Tips

1. Deposition preparation

2. Questioning deponent on meaning of emoticons

I. MECHANICS OF TAKING AND DEFENDING DEPOSITIONS

1. WHEN CAN A DEPOSITION BE TAKEN? (SEELA. CODE CIV. PROC. ART. 1437)

At any time after the commencement of the action

Exception: when the plaintiff seeks to take a deposition less than 15 days after the citation has been served on the defendant, the plaintiff generally must seek leave of court

Exceptions to the exception:

o When the defendant has served a notice of the taking of a deposition or otherwise sought discovery

o When special notice is given under the provisions of La. C.C.P. article 1439• “Leave of court is not required for the taking of a deposition by plaintiff if the notice states that the person to be examined is about to go out of the state and will be unavailable for examination unless his deposition is taken before expiration of the fifteen-day period, and sets forth facts to support the statement.”

2. HOW MUCH ADVANCED NOTICE MUST BE GIVEN? (SEE LA. CODE CIV. PROC. ART. 1438)

The party seeking to take a deposition must give “reasonable notice in writing” to every other party to the action

Notice must state:

o Time and place for taking the deposition

o Name and address of each person to be examined, if known; and

o If not known, a general description sufficient to identify him or the particular class or group to which he belongs

If a subpoena duces tecum is to be served on the deponent, the designation of the materials to be produced as set forth in the subpoena must be attached to or included in the notice

3. WHO CAN BE DEPOSED, AND HOW IS THEIR ATTENDANCE COMPELLED?

Broad range of deponents- “any person”

o Party and non-party (See La. Code Civ. Proc. art. 1437)

o Expert (See La. Code Civ. Proc. art. 1425)

o Organization (See La. Code Civ. Proc. art. 1442)

Subpoena power:

o The attendance of witnesses may be compelled by the use of subpoena as for witnesses in trials (See La. Code Civ. Proc. art. 1437)• Geographic limit (Art. 1436)- only in parish where witness resides, is employed, or transactsbusiness

o If the subpoena compels the appearance of a non-party witness, it must be served within a reasonable period of time before the time specified for the deposition (See La. Code Civ. Proc. art. 1356)

4. WHO CAN BE PRESENT AT, AND EXCLUDED FROM, A DEPOSITION?

No rule directly addressing this issue in Louisiana

But, counsel may limit who can be present at the deposition by:

o Written stipulation (See La. Code Civ. Proc. art. 1436); or

o Protective order (See La. Code Civ. Proc. art. 1426(5))• To limit the persons that may attend a deposition, you must file a motion for protective order in advance. See In re Terra Int'l, Inc., 134 F. 3d 302, 306 (5th Cir. 1998) (“Rather, exclusion of other witnesses requires that the court grant a protective order pursuant to Rule 26(c)(5) of the Federal Rules of Civil Procedure.”); see also Diaz v. Superior Energy Servs., LLC, 2008 WL 11353753, at *2 (E.D. La. Feb. 20, 2008) (“I see no reason currently to preclude an unenrolled attorney from attending the depositions with plaintiff, as long as the unenrolled attorney does not participate in the deposition as an attorney, for example, by asking questions, making objections or otherwise disrupting the proceedings.”).

5. WHAT CHANGES CAN A DEPONENT MAKE TO A TRANSCRIPT AFTER THE DEPOSITION HAS CONCLUDED? (SEE LA. CODE CIV. PROC. ART. 1445)

The deposition transcript must be submitted to the witness for examination, and the transcript must be read either to the witness or by the witness

Exception: when the witness and the parties waive examination and reading

The witness may make both form and substantive changes, which the officer must enter on the deposition along with a statement of the witness's stated reasons for making the changes

o Art. 1445 gives deponents the absolute legal right to make changes in the form and substances of testimony, even if the changes seem suspect in light of the legal issues raised in the case. Crawford v. Brookshire Grocery Co., 180 So. 3d 478, 485 (La. App. 2 Cir. 9/30/2015).

But the witness who changes his testimony on a material matter between the deposition and the signing of the deposition transcript, may be impeached by his first answers and may be fully cross-examined on the reasons for the change

o Both the changed and original versions of the deposition are admissible. Fireman's Fund Ins. Co. v. Browning-Ferris Indus., 714 So. 2d 168, 174–75 (La. App. 2 Cir. 5/13/1998) (“In general, when the deponent makes a substantive correction to the deposition, both the changed and original versions are admissible. This permits opposing counsel to impeach the witness regarding his changed testimony.”) (internal citations omitted).

6. WHEN CAN DEPOSITIONS BE USED IN COURT PROCEEDINGS? (SEE LA. CODE CIV. PROC. ART. 1450)

Depositions may be used against any party present or represented at the deposition, as well as any party who had reasonable notice of the deposition

Substitution of parties does not affect the right to use depositions previously taken

Depositions may be used, in whole or in part, at a trial or hearing on a motion or interlocutory proceeding, in accordance with any of the provisions contained in La. C.C.P. article 1450(A)(1)-(5)

But the court must determine whether the matter contained in the deposition is admissible under the rules of evidence

o Hearsay?

o Impeachment?

II. OBJECTIONS AND INSTRUCTING THE WITNESS NOT TO ANSWER

OBJECTIONS: GENERALLY

Counsel must strike the proper balance with objections

o Avoid the “potted plant” approach, which could result in waiver

o But at the same time, avoid repeated, lengthy objections, which could cause the other party to file motions with the court

If a party objects, the objection is noted in the transcript – but the witness must answer subject to the objection (See La. Code Civ. Proc. art. 1443(B))

Counsel must state the objection in a concise, non-argumentative, and non-suggestive manner (See id.)

OBJECTIONS: WAIVER

Counsel should be as attentive as possible, to avoid the risk of waiving objections

o If the deposition is being conducted in an irregular manner, and the irregularity can be corrected at that time, a party who fails to object waives the objection to the irregularity (See La. Code Civ. Proc. arts. 1453-56)

o If the error/irregularity cannot be corrected, a party who fails to object may still urge the objection when the deposition is sought to be used in evidence (See La. Code Civ. Proc. art. 1455)

EXAMPLES OF OBJECTIONS THAT OFTEN FALL IN 1 OF 2 WAIVER “CATEGORIES”

EXAMPLES OF FORM OBJECTIONS (SEE LA. CODE EVID. ART. 611) o Compound question

o Argumentative

o Confusing

o Harassment/badgering

o Leading

o Misleading

o Requires extensive narrative response

o Adverse attorney has not been shown document presented to witness

o Asked & answered

o Improper/unqualified opinion testimony

o Incomplete hypothetical

OBJECTIONS: INSTRUCTING THE WITNESS NOT TO ANSWERCounsel may object and instruct the witness not to answer the question only when necessary to:

o Preserve a privilege

o Enforce a limitation on evidence imposed by the court

o Prevent harassing or repetitious questions

o Prevent questions which seek information that is neither admissible nor reasonably calculated to lead to the discovery of admissible evidence (See La. Code Civ. Proc. art. 1443(D))

OBJECTIONS: REFUSAL TO ANSWER

If the witness refuses to answer, the deposing lawyer has 2 options:

o Adjourn the deposition and move to compel the answer; or

o Complete the deposition and then move to compel the answer (See La. Code Civ. Proc. art. 1469(2))

If the witness will not obey the instruction not to answer, the defending lawyer should seek to terminate or limit the examination (See id.)

The defending lawyer should then request suspension of the examination for the time necessary to seek a court order of limitation or termination (See La. Code Civ. Proc. art. 1444)

In resolving the dispute, the court may award expenses (including reasonable attorney’s fees) to prevailing party (See id.; see also La. Code Civ. Proc. art. 1469)

III. DIFFICULT QUESTIONS INVOLVING PRIVILEGE

HYPOTHETICAL: DISCUSSIONS DURING BREAKS

o During deposition preparation, your client-witness had extensive comments and explanations for writing a certain e-mail.

o During the deposition, when questioned regarding the e-mail, the witness said that he had no explanation as to why he sent the e-mail.

o You take a break in the deposition.

o During the break, you discuss the witness’ comments and explanations regarding the e-mail.

o You also show the witness the e-mail – as well as non-responsive, unproduced, privileged e-mails.

1. DISCOVERABILITY OF CONVERSATIONS DURING DEPOSITION BREAKS

Does the attorney-client privilege protect a private conversation that occurs between the defending lawyer and deponent during a deposition break?

Most jurisdictions address this issue by local rule (Compare D. Del. L.R. 30.6 with Tex. L.R. 199.5(d)).

Louisiana law is unclear:

o No reported Louisiana decision addresses the extent to which the defending lawyer and deponent have the right to privately confer during the deposition

o No local rule or La. C.C.P. article directly addresses off-the-record conferences between the defending lawyer and deponent

Federal authority is instructive . . .

FOUNDATIONAL CASE: HALL V. CLIFTON PRECISION, 150 F.R.D. 525 (E.D. PA. 1992).The Court held that:

o A witness and his attorney should not engage in any private, off-the-record conferences during depositions or during breaks

o Such a conference is not privileged

o The deposing lawyer may properly ask whether there had been any witness coaching and if so, what

The Court further held that this rule does not apply to conferences held for the purpose of deciding whether to assert a privilege

The Court emphasized that once a deposition has started, the preparation period is over

PROMINENT CASE CRITICIZING HALL: IN RE STRATOSPHERE, 182 F.R.D. 614 (D. NEV.1998).

The Court held that Hall went too far, in that strict adherence to the procedures set forth in the opinion could violate the right to counsel

The Court refused to prohibit conferences during deposition breaks, even ones to “attempt to help rehabilitate the client,” “[s]o long as attorneys do not demand a break in the questions, or demand a conference between questions and answers”

o Confer Texas Rule

WHAT SHOULD A LOUISIANA LAWYER DO?

If the deposing lawyer suspects improper witness coaching, he should:

o Ask for the substance of discussions when you return from the break and any documents reviewed

o If refused: • Call the court; or • Terminate the deposition, and then file a motion to compel and for sanctions/fees (See La. Code Civ. Proc. art. 1444)

The deposing lawyer should also demand that the deposition be suspended for the time necessary to make a motion for the order (See id.)

The motion must show that the examination is “being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party” (See id.)

If the examination is terminated, it may only resume through court order (See id.)

HYPOTHETICAL: WITNESS PREPARATION DOCUMENTSo During preparation for the deposition, the day before the deposition, the lawyer shows his client-witness a work-product timeline prepared by the lawyer in connection with the case.

o The next day, during the deposition, the opposing lawyer asks the client-witness “what documents did you review in preparation for this deposition?”

o Query: do you have to disclose (and then produce) the work-product timeline?

2. APPLICATION OF WORK-PRODUCT PRIVILEGE TO DEPOSITION PREPARATION MATERIALS

Many courts addressing this issue note an apparent conflict between the privilege and evidentiary rules permitting opposing counsel to discover documents used to refresh a witness’s recollection

No Louisiana case on the conflict between:

o La. C.C.P. article 1424(A), which prevents a court from ordering “the production or inspection of any writing, or electronically stored information, obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of ligation or in preparation for trial. . .” and;

o La. Code Evid. art. 612, which provides that a party may be required to produce “any writing” used to refresh a witness’ memory while testifying and before testifying

Federal authority is instructive . . .

FOUNDATIONAL CASE: SPORCK V. PEIL, 759 F. 2D 312 (3RD CIR. 1985)The Court addressed whether a list of documents selected by counsel and reviewed by a witness in preparation for a deposition is discoverable

The Court held that the work-product privilege applied because the selection of documents by an attorney reflects that attorney’s thought processes and legal theories

The Court also clarified that the “proper application of the memory-refreshment doctrine [in F.R.E. 612] should never implicate an attorney’s selection, in preparation for a witness’ deposition, of a group of documents that he believes critical to a case

Sporck has been followed by both the Fourth Circuit and the Eighth Circuit

OTHER CIRCUITS

Both the Fourth Circuit and the Eighth Circuit have followed Sporck

Other courts, including a district court in the Fifth Circuit (Fisher v. Halliburton, 2009 WL 483890, at *1–2 (S.D. Tex. 2009)), hold documents reviewed by a fact witness in preparation for a deposition are not protected by the work-product doctrine solely because they were selected by an attorney

The Fisher Court emphasized that “imbue[ing] every compilation of documents reviewed by a witness before testifying – at trial or at deposition – with work product privilege protection would all but write Rule 612 of the FRE out of existence”

OTHER CIRCUITS (CONTINUED)In re Xarelto (Rivaroxaban) Products Liability Litigation, 314 F.R.D. 397 (E.D. La. 2016):

o Plaintiffs sought production of a list of all documents that defense counsel showed the witness prior to their depositions in a discovery request

o Defendants claimed the list was protected attorney work-product, while plaintiffs argued that pursuant to the memory-refreshment doctrine in F.R.E. 612, they were entitled to the list

o The Court divided the issue into 2 distinct questions:• (1) Is an adverse party entitled to discover what materials or documents a witness reviewed in preparation for

a deposition? • (2) Are these documents or materials admissible, and can they be used to interrogate the witness?

o The Court rejected plaintiffs’ argument and clarified that F.R.E. 612 does not control requests for production

o The Court re-framed the issue as “whether a list of documents reviewed by a deponent in preparation for a deposition is discoverable under [F.R.C.P.] 26(b)”

o The Court held that the list was discoverable because it was “relevant, proportional to the needs of the case, and not privileged”

o But notably, the Court cautioned that neither party would be permitted to inquire which, if any, of the documents were selected by counsel

HYPOTHETICAL: ENSURING COMPLETE DOCUMENT PRODUCTION o On the same day as deposition preparation, the lawyer asks client’s employee about any potentially responsive documents that the employee may have, which have not yet been produced?

o In this exercise, a large number of files on the employee’s laptop are reviewed, some of which were prepared at the lawyer’s request and are work-product.

o Can the lawyer properly segregate this exercise from deposition preparation and insulate these documents from “deposition preparation review?”

IV. PRACTICE TIPS

1. DEPOSITION PREPARATION: TIP #1

Counsel should ensure that the witness understands 2 main objectives:

o Preserving ability to testify at trial

• Witness should:

Hold their ground

Be mindful of any experts retained in the matter

• Witness should not:

Answer “I do not recall” just to get through the deposition (ex. Lil Wayne)

Be affected by inflection

Be suggestable

o Maintaining good demeanor and appearance

• Witness should:

Keep their cool

• Witness should not:

Unnecessarily fight back

Be combative

1. DEPOSITION PREPARATION: TIP #2

Counsel should ensure that the witness understands the opposition’s objectives and the importance of listening carefully to their questions

o Not there to help

o Although they may come across as nice, they are there to establish a position beneficial to their client

o They are ultimately trying to:• Limit what the witness can say

• Get the witness to agree with points favorable to their client

o Beware of:• “Sitting here today . . .”

• “You can’t tell me . . .”

1. DEPOSITION PREPARATION: TIP #3

Counsel should understand that there’s no “easy” approach

o Some say, just answer the question “yes or no”

o Although that can work in some circumstances, the witness tends to come across as evasive

o The witness should make a genuine effort to answer, as it affects their demeanor and credibility

o If the question requires an explanation or asks for the witness’ position, then let the witness have the opportunity to tell their story

o If they ask what time it is, do not tell them how to build a clock (ex. Sanchez)

o But if the question is overly narrow, then allow the witness to complete the picture

2. QUESTIONING DEPONENTS ON MEANING OF EMOTICONS

An “emoticon,” better known as an “emoji,” is an icon formed by grouping keyboard characters together into a representation of a facial expression

Emojis are used to suggest an attitude or emotions in computerized communications

Several courts have utilized emojis in interpreting its accompanying message

Could potentially make some forms of evidence admissible in court when normally excluded by hearsay

2. QUESTIONING DEPONENTS ON MEANING OF EMOTICONS (CONTINUED)

Depositions may be necessary to unpack the intent behind the use of an emoji:

o Emoji may not have been used correctly

o Emoji might not have a clear meaning

The deposing lawyer should include a line of questions regarding how the deponent was feeling at the moment the message was texted or commented

CLOSING REMARKS AND QUESTIONS