Advanced Deposition Techniques: Leveraging Exhaustion, Boxing-In, - PowerPoint PPT Presentation

Presenting a live 90-minute webinar with interactive Q&A Advanced Deposition Techniques: Leveraging Exhaustion, Boxing-In, and Summarization Approaches With Adverse Witnesses TUESDAY, MARCH 14, 2017 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific Today’s faculty features: Michael R. Gordon, Partner, Manatt Phelps & Phillips LLP , New York John A. Snow, Esq., Prince Yeates & Geldzahler , Salt Lake City The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10 .

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ADVANCED DEPOSITION TECHNIQ IQUES- PART I: I: IN INTRODUCTION John A. Snow Prince, Yeates & Geldzahler 15 West South Temple, Suite 1700 Salt Lake City, Utah 84101 Main No. (801) 524-1000 Direct (801) 524-1073 E-mail jsnow@princeyeates.com Web-Site www.princeyeates.com 5

To Take or Not Take a Deposition – Considerations 6

To Take or Not to Take To Take: • Cost v. Benefit • Obtaining concessions and admissions from the witness that support matters favorable to the case • Obtaining potential direct testimony of an adverse party • Preserving testimony for trial • Obtaining information which can be used for impeachment • Obtain facts to support or oppose a motion

To Take or Not to Take To take: • Establishing facts known within an entity by use of a Rule 30(b)(6) deposition • Establishing the universe of information known by the witness • Discovering facts and opinions known or held by the opponent and third parties • Laying the foundation for documents or other evidence • Revealing parts of your case for settlement purposes 8

Reasons Not to Take There are reasons not to take a deposition. For example: • The questions asked and the documents used at a deposition communicate to the opposition information the attorney deems important, and a sense of how the case will be tried. • A deposition gives the witness a practice session before trial, and, as a result, makes him or her a better opposition witness at trial. • Depositions also preserve testimony of a witness, which could be helpful to the opposition. • Alternative methods to preserve testimony 9

To Take or Not Take a Deposition – Permissible Use of f a Deposition 10

Use of f a Deposition Rule 32 (a). Using Depositions: (1) In General. At a hearing or trial, all or part of a deposition may be used against a party on these conditions: (A) the party was present or represented at the taking of the deposition or had reasonable notice of it; (B) it is used to the extent it would be admissible under the Federal Rules of Evidence if the deponent were present and testifying; and (C) the use is allowed by Rule 32(a)(2) through (8). 11

Use of f Deposition Rule 32(a). Using Depositions. (2) Impeachment and Other Uses. Any party may use a deposition to contradict or impeach the testimony given by the deponent as a witness, or for any other purpose allowed by the Federal Rules of Evidence. 12

Use of f Deposition Rule 32(a). Using Depositions: (3) Deposition of Party, Agent, or Designee. An adverse party may use for any purpose the deposition of a party or anyone who, when deposed, was the party's officer, director, managing agent, or designee under Rule 30(b)(6) or 31(a)(4). 13

Use of f Deposition Rule 32(a). Using Depositions: (4) Unavailable Witness. A party may use for any purpose the deposition of a witness, whether or not a party, if the court finds: (A) that the witness is dead; (B) that the witness is more than 100 miles from the place of hearing or trial or is outside the United States, unless it appears that the witness's absence was procured by the party offering the deposition; (C) that the witness cannot attend or testify because of age, illness, infirmity, or imprisonment; (D) that the party offering the deposition could not procure the witness's attendance by subpoena; or (E) on motion and notice, that exceptional circumstances make it desirable--in the interest of justice and with due regard to the importance of live testimony in open court--to permit the deposition to be used. 14

Use of f Deposition Rule 32(a ). Using Depositions: (6) Using Part of a Deposition. If a party offers in evidence only part of a deposition, an adverse party may require the offeror to introduce other parts that in fairness should be considered with the part introduced, and any party may itself introduce any other parts. 15

Use of f Deposition Rule 32(a). Using Depositions: (8) Deposition Taken in an Earlier Action. A deposition lawfully taken and, if required, filed in any federal- or state-court action may be used in a later action involving the same subject matter between the same parties, or their representatives or successors in interest, to the same extent as if taken in the later action. A deposition previously taken may also be used as allowed by the Federal Rules of Evidence. 16

Timing of f the Deposition – Considerations 17

Tim iming – Dis iscovery ry Strategy • Consider first obtaining universe of relevant documents. • Consider first obtaining the testimony of others. • Knowing the opposition’s basic contentions . • Knowing the contentions of co-defendants. • Knowing the pertinent legal and evidentiary issues. • But, not ways, you may educate the opponent or allow the opponent to become educated. 18

Video Depositions 19

Reasons to Take a Vid ideo Deposition • Presumably, everything is better received on video • Capture initial reactions (if possible) of the opposing party to “tough” questions • Consideration of use in closing argument and possibly opening statement • Reminds the jury of who the witness was • Reminds the jury of the actual statement made • Unavailable witnesses – even if marginal(?) • Impeachment/Cross-examination is more effective • Video can impact the witnesses demeanor • Difficult attorney are better controlled on video • Evasive witnesses appear evasive on video • Jury study with video depositions 20

Observ rvations by the Courts Littlewood v. Fed. Realty Inv. Trust, 2014 WL 6713468, at *1 (Mass. Super. 2014) A number of cases “have extolled the advantages of video depositions and preference for their use in a trial, noting that a witness' demeanor reflected in his motions, expressions, voice inflections, etc., give the fact-finder a unique advantage in evaluating evidence, resulting in appellate courts granting greater deference to such findings.” Rice's Toyota World, Inc. v. Southeast Toyota Distrib., Inc., 114 F.R.D. 647, 649 (M.D.N.C.1987) “Video depositions can markedly increase accuracy and trustworthiness. In addition, to the extent that a video deposition reduces tedium, the fact-finder's concentration and attention will be enhanced, again to the benefit of the decision process.” 21

Observations by the Courts Citizens for Responsibility & Ethics in Washington v. Cheney, 580 F. Supp. 2d 168, 183 (D.D.C. 2008) The liberalization of the Federal Rules to permit videotaping of depositions without prior authorization of the courts reflects “recognition of the fact that videotapes are a means of presenting deposition testimony to juries that is superior to readings from cold, printed records.” Paisley Park Enters., Inc. v. Uptown Prods., 54 F.Supp.2d 347, 349 (S.D.N.Y.1999). A videotaped deposition also has the advantage of “conveying to the fact finder the full message of the witness in a manner that assists the fact finder in assessing credibility....” Riley v. Murdock, 156 F.R.D. 130, 131 (E.D.N.C.1994). 22

Deposition – Obje jections 23