GUIDELINES FOR DISCOVERY DEPOSITIONS
(1) At the beginning of the deposition, deposing counsel shall instruct the witness to ask
deposing counsel, rather than the witness's own counsel, for clarifications,
definitions, or explanations of any words, questions, or documents presented during
the course of the deposition. The witness shall abide by these instructions.
(2) All objections, except those which would be waived if not made at the deposition
under Fed.R.Civ.P. 32(d)(3)(B), and those necessary to assert a privilege, to
enforce a limitation on evidence directed by the court, or to present a motion
pursuant to Fed.R.Civ.P. 30(d), shall be preserved. Therefore, those objections
need not and shall not be made during the course of deposition.
(3) Counsel shall not direct or request that a witness not answer a question, unless that
counsel has objected to the question on the ground that the answer is protected by
a privilege or a limitation on evidence directed by the court.
(4) Counsel shall not make objections or statements which might suggest an answer
to a witness. Counsels' statements when making objections should be succinct and
verbally economical, stating the basis of the objection and nothing more.
(5) Counsel and their witness/clients shall not initiate or engage in private off-the-record
conferences during depositions or during breaks or recesses, except for the
purpose of deciding whether to assert a privilege.
(6) Any conferences which occur pursuant to, or in violation of, guideline (5) are a
proper subject for inquiry by deposing counsel to ascertain whether there has been
any witness-coaching and, if so, what.
(7) Any conferences which occur pursuant to, or in violation of, guideline (5) shall be
noted on the record by the counsel who participated in the conference. The
purpose and outcome of the conference shall also be noted on the record.
(8) Deposing counsel shall provide to the witness' counsel a copy of all documents
shown to the witness during the deposition. The copies shall be provided either
before the deposition begins or contemporaneously with the showing of each
document to the witness. The witness and the witness' counsel do not have the
right to discuss documents privately before the witness answers questions about
them.
(9) There shall be only one question at a time put to a witness. Counsel shall permit
the witness to fully answer before propounding subsequent or follow-up questions.
If the witness indicates he or she does not understand the question, counsel shall
simply rephrase the question. There is to be no characterization or comment by
examining counsel as to any answer given by a witness. Should the answer
reasonably appear to counsel to be unresponsive, counsel may so advise the
witness and his or her counsel and have the question repeated by the stenographer
from the record.
(10) Examining counsel shall not engage in any argument with opposing counsel as to
these issues, rather his objection shall be taken on the record and appropriate relief
from this court may be sought upon completion of the examination. Similarly,
counsel for a witness shall not engage in any argument with examining counsel as
to the objectionability of any question. Rather, he may note his objection and permit
the witness to answer the question, subject to the objection.
(11) If a witness or his or her counsel is unclear as to any question, he or she shall so
advise counsel and permit the examining counsel an opportunity to rephrase or
withdraw the witness' question. Neither witness nor counsel shall make any
comment or engage deposing counsel in an argument (other than grounds
therefore) about the nature of the question or the witness' request for clarification.
(12) Examining counsel shall at no time interrupt a witness while he or she is attempting
to answer a question. Counsel shall await the witness' complete response to a
question before advancing any follow-up questions or moving on to a new subject.
(13) Examining counsel shall refrain from unnecessary on-the-record recitation or
lengthy quotations from discovery materials or documents except as is necessary
to put specific questions to the witness related to such material or documents.
(14) Authority: Fed.R.Civ.P. 16, 26(f), 30, 37(a); Hall v. Clifton Precision, 150 F.R.D. 525
(E.D.Pa. 1993).
FAILURE TO COMPLY WITH ANY THE FOREGOING MAY RESULT IN SANCTIONS
PURSUANT TO FED.R.CIV.P. 37(b)(2), INCLUDING CIVIL CONTEMPT, AND
ATTORNEYS FEES INCURRED BECAUSE OF A PARTY’S OR AN ATTORNEY’S NON-
COMPLIANCE. SEE FED.R.CIV.P. 16(f).
