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Depositions are the most important method of pretrial discovery. A deposition permits you to question a witness under oath to obtain facts, with minimal interference from your adversary. Unlike answers to interrogatories, which are often crafted by attorneys, a deponent must answer your questions without any assistance from his lawyer at the deposition. As a result, a deposition offers a preview of how a witness will perform at trial.
Depositions may be taken of both parties and non-parties. R. 4:14-1. Absent leave of court, a plaintiff must wait thirty-five days after the defendant is served with a copy of the Summons and Complaint before scheduling a deposition unless the defendant has already sought discovery. Id.
It is the obligation of the attorney scheduling the deposition to obtain the court reporter. While you may delegate that task to a secretary, it is your obligation to make sure that it is done.
There are two primary methods to schedule the deposition of an individual: (1) a Notice to Take Oral Deposition (or a deposition notice), which is served on parties and (2) a Subpoena, which is served on non-parties. Though both result in a deposition, there are important procedural differences. Each will be considered in turn.
- Deposition of Parties
To schedule the deposition of a party you must serve a deposition notice upon your adversary and all other parties who have entered an appearance at least ten days prior to the deposition. R. 4:14-2. As to individual parties, R. 4:14-2 provides that the deposition notice shall include:
- the name and address of the person who is to be deposed, if known, or if not known, a general description sufficient to identify the person or group of persons to which the person belongs; and
- the time and place for taking the deposition
Occasionally, one may wish to depose a representative of a corporation or governmental body but do not know the name of the individual(s) with relevant knowledge. In that case, pursuant to R. 4:14-2, one should name the particular entity as the deponent and state “with reasonable particularity the matter on which examination is requested.” The organization named in your notice will then select one or more individuals to testify as to the matters at issue. A drawback to this is that it permits the entity being deposed to designate a particularly canny witness for the deposition, but that comes with the territory.
There is no requirement as to where a deposition will occur except that it be “reasonably convenient for all parties.” Id. Typically, an attorney scheduling the deposition of a party will schedule the deposition at her office. Thereafter, the attorney issuing the deposition notice and the attorney for the deponent will discuss where the deposition will actually occur. In many cases, the attorneys agree that the deposition shall occur at the offices of the attorney defending the deposition. However, that is subject to modification depending upon the location of the parties, the attorneys and the volume of documents that may need to be transported. Above all, the attorneys should cooperate to ensure that common sense prevails.
Cooperation also applies to the timing of depositions. As noted above, depositions must be scheduled upon ten days’ notice. However, the date noticed for a deposition may be inconvenient both for the prospective deponent and one or more of the lawyers in the case. Thus, counsel must work together to schedule the deposition that is convenient for all involved. Once a new date is selected it should be confirmed in writing.
A deposition notice may also include a demand for the production of documents. R. 4:14-2(c). A party will then be compelled to bring the requested documents to the deposition.
While obtaining the documents on the date of the deposition is permissible under the rules, it is not recommended in all but the simplest cases. As discussed below, a preparation is the most important part of a deposition. Preparation requires that you be familiar with the relevant documents. It is impossible to understand the nuances of documents if you are presented with them for the first time at a deposition. Remember, your goal is to know more about the documents than the deponent. Thus, in all but the most routine case, you should obtain the documents pursuant to a formal document request well before the deposition.
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