How to Write an Effective Notice of Deposition

Esquire Deposition Solutions

It all starts with a notice. In modern civil litigation, the notice of deposition is the principal means for litigators to ensure that the objectives of deposing a witness are met in a timely, cost-effective, and lawful manner. That’s because a well-drafted notice of deposition gives all counsel of record the information they need to effectively represent their clients in the deposition. At a minimum, it contains the time and place of the deposition, the identity of the deponent, and a description of how the deposition will be recorded. It can also contain any other information that the attorney noticing the deposition believes will help the deposition go off smoothly and on time.

In modern civil litigation, the notice of deposition is the principal means for litigators to ensure that the objectives of deposing a witness are met in a timely, cost-effective, and lawful manner.

This article summarizes the information that should be included in every notice of deposition, regardless of the jurisdiction in which an attorney practices.

First, gamesmanship is rarely effective when setting depositions. Depositions will fail of their intended purpose if all necessary parties don’t have a fair opportunity to attend. Attempting to conduct an important deposition that cannot be attended by opposing counsel is sure to draw a motion for a protective order or an objection after the deposition has been conducted. For this reason, the customary practice in most jurisdictions is for the attorney noticing the deposition to check the deposition date with all counsel of record prior to noticing the deposition.

Once a suitable time and date have been agreed upon, the attorney noticing the deposition should finalize arrangements with the court reporter.

It’s not uncommon for attorneys to re-notice a deposition to take account of new deposition particulars that have been agreed upon with opposing counsel after the original notice of deposition was transmitted.

Second, the notice must be compliant with court rules. When it comes to drafting the deposition notice, the critical pieces of information that must be included are spelled out in the federal rules of civil procedure or, if the case is being litigated in state court, in corresponding state procedural rules.

In the federal system, Rule 30 of the Federal Rules of Civil Procedure establishes the ground rules. According to Rule 30(b), the party noticing the deposition must give “reasonable notice to every other party” in the case. The required notice must contain:

  • the time and place of the deposition (Rule 30(b)(1))
  • the deponent’s name and address, if known (Rule 30(b)(1)
  • if the deponent’s name is unknown, the notice must contain a description “sufficient to identify the person or the particular class or group to which the person belongs.” (Rule 30(b)(1))
  • documents or other materials the deponent has been requested to produce must be listed in the notice or in an attachment (Rule 30(b)(2))
  • the method of recording the deposition (audio, audiovisual, or stenographic means) (Rule 30(b)(3)(A))
  • any supplemental method of recording the deposition must also be listed in the notice (Rule 30(b)(3)(B))
  • whether the deposition will be conducted by remote means (Rule 30(b)(4))
  • if the deponent is a corporate representative or government agency (or some other non-person entity), the notice must describe with reasonable particularity the matters for examination during the deposition (Rule 30(b)(6))

Don’t forget to prepare and attach a proof of service form when transmitting the notice of deposition to counsel of record.

Third, deposition notice formalities aside, it’s important to note that there are often substantive legal considerations that must be addressed prior to noticing the deposition:

  • Is the deponent a nonparty? If so, a subpoena will be necessary to secure the deponent’s attendance.
  • Can the deposition be taken without leave of court? If not, counsel will need to obtain the necessary court order or a stipulation from opposing counsel.
  • Does the deposition notice give the deponent the number of days required by court rule? Again, if not, a stipulation will be needed.
  • Does the deposition date comply with existing case management orders?
  • Does this deposition exceed the number of depositions legally permitted by local court rule? If so, a stipulation from opposing counsel or a court order will be needed.

Finally, in the case of remote depositions, many jurisdictions have published local rules and standing orders designed to make remote depositions proceed smoothly and in a manner that is fair to all parties. These orders often require attorneys to alert other counsel – in the notice of deposition – of the remote deposition technology platform that will be used to conduct the deposition, login particulars, and any minimum technology or connectivity requirements necessary to effectively participate in the deposition. If there is a remote deposition protocol governing the depositions in the case, it may be a good idea to reference that document in the deposition notice or attach it to the notice itself.

Providing this information to opposing counsel is always a good idea, even where it isn’t legally required. Remote depositions are a highly cost-effective way to conduct effective pretrial discovery, particularly when everyone is ready, willing, and able to participate. A detailed, helpful notice of deposition will go a long way toward achieving this objective.

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