The Practitioner’s Guide to Properly Taking and Defending ...

1 9 WISE, (DO NOT DELETE) 8/1/16 11:47 AM The Practitioner s Guide to Properly Taking and Defending Depositions Under the Texas Discovery Rules Robert K. Wise* and Kennon L. Wooten** I. Depositions in General ..402 A. Who Can Be Deposed ..405 1. In General ..405 2. Attorneys ..406 3. Lack of Knowledge ..410 4. Apex Depositions ..412 5. Depositions of Organizations ( , Representative Depositions) ..416 a. The Representative Deposition Notice ..419 i. The Organization Is Not Required to Produce a Specific Individual as Its Representative or an Individual With the Most Knowledge About the Notice s Subject Matters or Even One With Personal Knowledge About Them ..420 ii. Reasonable Particularity ..424 iii. The Noticing Party Generally Can Question an Organization s Representative about Matters for Which the Representative was not Designated and About Matters Outside the Deposition Notice s Scope.

2 425 *Mr. Wise is a member of Lillard Wise Szygenda PLLC, a Dallas, Texas, boutique litigation firm. He thanks his firm s paralegal, Emily Diebitsch, for her assistance in preparing this article. Mr. Wise also thanks his daughters, Reagan and Riley, without whose support the article could not have been written. **Ms. Wooten is a partner in Scott Douglass & McConnico LLP, an Austin, Texas, law firm. She thanks her husband, Louie, and their daughter, Linden, without whose support the article could not have been written. The opinions in this article are solely those of the authors and not those of their respective law firms. 9 WISE, (DO NOT DELETE) 8/1/16 11:47 AM 400 BAYLOR LAW REVIEW [Vol.]

3 68:2 iv. Objecting to a Representative Deposition Notice ..429 b. The Organization s Obligations ..431 c. Because the Representative s Testimony is not a Judicial Admission, It can be Corrected, Contradicted, Amended, or Supplemented ..442 d. Duplicative Depositions Deposing an Organization s Representative Individually After the Organization s Deposition or Vice Versa and Taking More than One Representative Deposition ..444 e. Remedies for an Organization s Failure to Designate a Witness or to Properly Prepare its Representative ..448 B. The Deposition s Scope ..450 II. Oral Depositions ..452 A. Oral Depositions in General ..452 B. The Deposition Notice ..453 1. Time for Serving the Deposition Notice ..454 2.

4 The Notice s Content ..456 a. The Deposition s Time and Place ..458 b. Alternative Methods of Conducting or Recording the Deposition ..461 c. Additional Attendees ..462 d. Document Requests ..471 C. Compelling Attendance at the Deposition ..474 D. Taking , Attending, and Participating in Oral Depositions ..478 1. In Person ..478 2. By Telephone or Other Remote Electronic Means ..479 3. By Written Questions ..480 E. Recording the Deposition ..480 F. Objections to the Time, Place, or Other Arrangements for a Deposition ..482 G. The Deposition s Conduct ..486 1. Time Limitations ..486 2. Attorneys and Witnesses Conduct ..491 9 WISE, (DO NOT DELETE) 8/1/16 11:47 AM 2016] TEXAS DEPOSITION DISCOVERY RULES 401 3.

5 Objections ..499 4. Instructing a Witness Not to Answer and Suspending a Deposition ..504 5. Motions to Compel Answers to Deposition H. Supplementing Oral Deposition Testimony ..508 I. Depositions of a Witness Already Deposed ..508 J. Expert Depositions ..509 1. Discovery of an Expert s Bias ..515 2. Supplementing or Amending Expert-Deposition Testimony ..516 III. Depositions on Written Questions Texas Rule 200 ..518 A. In General ..518 B. Notice of a Deposition on Written Questions ..519 C. Compelling the Witness s Attendance ..522 D. Questions and Objections ..523 E. Supplementing Deposition Testimony Upon Written Questions ..525 IV. Depositions in Foreign Jurisdictions for Use in Texas Proceedings and Depositions in Texas for Use in Foreign Proceedings Texas Rule 201.

6 525 A. In General ..525 B. Depositions in Another State or Foreign Country for Use in a Texas Court Proceeding ..526 C. Notice ..527 D. Letter Rogatory ..527 E. Letter of Request or Other Such Device ..528 F. Objections to the Form of the Letter Rogatory, the Letter of Request, or Other Such Device ..529 G. The Deposition Officer ..529 H. Method of Taking the Deposition ..530 I. The Testimony s Admissibility ..530 J. Depositions in Texas for Use in Foreign Proceedings ..530 V. Depositions Before Suit or to Investigate Claims ..531 A. In General ..531 B. The Petition ..533 1. The Petition s Contents ..533 9 WISE, (DO NOT DELETE) 8/1/16 11:47 AM 402 BAYLOR LAW REVIEW [Vol. 68:2 2. Where the Petition Must be Filed.]

7 538 3. The Petition s Notice and Service ..539 C. Hearing and Standards for the Order ..542 D. The Deposition s Taking and Use ..545 E. Appellate Review ..547 VI. Signing, Certification, and Use of Oral Depositions Texas Rule 203 ..548 A. Presentment, Signature, and Changes ..548 B. Certification ..554 C. Delivery ..556 D. Exhibits ..557 E. Motions to Suppress ..558 F. Using Depositions ..558 1. Depositions Taken in the Same Proceeding ..559 2. Depositions Taken in Another Proceeding ..560 3. Procedure for Using Deposition Testimony ..561 4. Use of Nonstenographic Recordings ..562 VII. Conclusion ..562 I. DEPOSITIONS IN GENERAL A deposition records sworn testimony taken outside the courtroom that is certified in conformity with the Texas Rules of Civil Procedure so that it is the equivalent to testimony given in the courtroom under oath.

8 As a discovery device, depositions allow the questioning of witnesses before trial by oral questions asked by a party s attorney1 or by written questions asked by a deposition officer ( , the person recording the deposition, usually a court reporter).2 1 See TEX. R. CIV. P. 199; cf. In re Amezaga, 195 221, 227 (Bankr. 1996) ( A deposition is a question-and-answer conversation between the witness and deposing attorney to garner facts in relation to that witness actions and experiences. (quoting Hall v. Clifton Precision, 150 525, 528 ( Pa. 1993))). Oral depositions are discussed in Section II. 2 See TEX. R. CIV. P. 200. Depositions upon written questions are discussed in Section III.

9 9 WISE, (DO NOT DELETE) 8/1/16 11:47 AM 2016] TEXAS DEPOSITION DISCOVERY RULES 403 Depositions are central to civil litigation and perhaps the single most important discovery As one federal court somewhat cynically noted: Depositions are the factual battleground where the vast majority of litigation actually takes place. It may safely be said that [Federal] Rule 30 has spawned a veritable cottage industry. The significance of depositions has grown geometrically over the years to the point where their pervasiveness now dwarfs both the time spent and the facts learned at the actual trial assuming there is a trial, which there usually is After an action is commenced, depositions are used for a wide variety of purposes, including basic fact discovery, preserving the testimony of witnesses who might be unavailable for trial, and establishing facts needed for settlement or pretrial motions ( , summary judgment motions).

10 5 3 Luangisa v. Interface Operations, No. 2:11-cv-00951-RCJ-CWH, 2011 Dist. LEXIS 139700, at *17 (D. Nev. Dec. 5, 2011) ( Statistics show that fewer and fewer civil cases proceed all the way to trial. As a result, [d]epositions are the factual battleground where the vast majority of litigation actually takes place. ) (quoting Hall, 150 at 531); GMAC Bank v. HTFC Corp., 248 182, 185 ( Pa. 2008) ( More than 98% of all civil cases filed in the federal courts result in disposition by way of settlement or pretrial adjudication. Very often, these results turn on evidence obtained during depositions. Thus, depositions play an extremely important role in the American system of justice.)