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“Substantive Best Practices” Best Practices in Trial Practice - Depositions
Click on any item to view associated materials Biographies of Speakers
The Honorable Andrea L. Rocanelli, Judge, Superior Court of Delaware The Honorable Danielle S. Blount, Commisioner, Family Court of Delaware Mary Kathryn Hodges Harmon, Esquire, Elliott Greenleaf, P.C. Kathaleen St. Jude McCormick, Esquire, Young Conaway Stargatt & Taylor LLP Gregory Brian Williams, Esquire, Fox Rothschild LLP
Program Materials *
Program Materials
* The forms included herein are samples only and may not be appropriate for any particular matter.
1
The Honorable Andrea L. Rocanelli was appointed to the Superior Court of the State of
Delaware by Governor Jack A. Markell on June 5, 2013. Previously, Judge Rocanelli served as a
judge of the Court of Common Pleas by appointment of Governor Markell on April 21, 2009.
In the Court of Common Pleas, Judge Rocanelli was responsible for the Court’s Drug
Diversion Program in New Castle County and was a founding member of the Delaware coalition
involving community health and law enforcement to identify alternative approaches to addressing
prostitution in the community. Judge Rocanelli was appointed as a Commissioner of SENTAC as a
representative of the Court of Common Pleas.
By appointment of the Delaware Supreme Court, Judge Rocanelli serves as a member of
various commissions and committees, including the Delaware Commission on Continuing Education
and the Permanent Advisory Committee on the Delaware Uniform Rules of Evidence, and as the
judiciary’s representative to the State Council for Interstate Adult Offender Supervision. Judge
Rocanelli has served on committees of the Delaware State Bar Association, including the DSBA
Committee on Access to Justice in CCP Consumer Debt Collection Actions and the DSBA Committee
on Diversity. Judge Rocanelli is a member of the Rodney Inn of Court, serving on the Executive
Committee for a number of years and serving as President from 2013.
In 2013, Judge Rocanelli was recognized with the Judicial Partnership Award by the Delaware
Division of Substance Abuse and Mental Health, awarded to a leader who advances the causes of
individuals challenged with mental health and/or substance abuse disorders. In 2010, Judge Rocanelli
was recognized by the Delaware Bar Association with the Women’s Leadership Award, awarded to a
member of the Delaware Bar whose character, strength, personality, achievement and activities in
matters affecting women lawyers have served as an inspiration to and a model for women lawyers in
their professional careers. In August 2009, Judge Rocanelli was recognized by the ABA Commission
on Lawyer Assistance Programs with an award for her outstanding contribution to the bench, bar and
public through efforts to maintain the integrity of the legal professions and improve the quality of life
for lawyers.
Judge Rocanelli received her J.D. from Harvard Law School, and her B.A., summa cum laude,
from Boston College. After several years of private practice in Boston, Judge Rocanelli practiced law
in Delaware with the firm of Morris, Nichols, Arsht & Tunnell. Judge Rocanelli served as Chief
Counsel of the Office of Disciplinary Counsel for the Delaware Supreme Court, with responsibility for
the practice of law and legal ethics in the state of Delaware.
Judge Rocanelli’s present term ends June 4, 2025.
Commissioner Blount graduated from York College of the City University of New York. After receiving her law degree from Howard University School of Law in Washington, D.C., she began her legal career as an associate at Fox Rothschild LLP in Wilmington, Delaware where she handled general litigation matters. Thereafter, she pursued a career in the Department of Justice’s Criminal and Family Divisions where she prosecuted adults charged with misdemeanor offenses. Commissioner Blount concluded her career with the Department of Justice in the Family Division’s Domestic Violence Unit prosecuting criminal misdemeanors and child abuse offenses. Following her employment with the Department of Justice, Commissioner Blount joined the Office of the Governor Jack A. Markell as Deputy Legal Counsel. In that role she provided accurate and thoughtful legal advice to the Governor on matters that arose during the course of governmental affairs. Commissioner Blount was unanimously confirmed by the Delaware State Senate to serve as a Commissioner on October 28, 2015. Currently, she serves as Commissioner of the Family Court in and for New Castle County, Delaware.
Kate Harmon, a Senior Associate in Elliott Greenleaf’s Wilmington, Delaware office, concentrates her practice in the areas of complex commercial litigation, bankruptcy litigation, entity formation, non-profit representation, insurance coverage disputes, compliance and intellectual property.
Prior to joining Elliott Greenleaf, Kate managed the mass tort litigation docket for the Wilmington office of a regional defense firm and has extensive experience litigating in Delaware’s various state and federal Courts from case inception through trial. She is familiar with the formation of various types of entities and local licensing requirements relating thereto. Kate has a broad range of litigation experience, including: products liability, construction defect, post-confirmation of bankruptcy trusts, insurance coverage disputes, contract disputes and execution of and collection on judgments. She has presented on numerous topics including all phases of litigation and various theories of liability at events hosted by Perrin Conferences and the Insurance Society of Philadelphia.
Kate earned her undergraduate degree from the University of Delaware and Masters degrees in Social Services and Law & Social Policy from Bryn Mawr Graduate School of Social Work and Social Research. She has served as a Child Advocate Social Worker with the Defender Association of Philadelphia, representing children in the Philadelphia child welfare system. While in law school, Ms. Harmon served as a law clerk to the Honorable M. Jane Brady of the Delaware Superior Court and to the Honorable Aida Waserstein of the Delaware Family Court. Kate also represented a number of individuals pursuing claims after the enactment of Delaware’s Child Victims Act in 2007. She earned her J.D. from Temple University Beasley School of Law in 2009.
Kate is admitted to the bar of the State of Delaware and the United States District Court for the District of Delaware. She is a Member-at-Large of the Executive Committee of the Delaware State Bar Association, focusing her efforts on resources and support provided by the DSBA to young lawyers. Kate was honored to be selected as a Participant in the 2016 Class of the National Conference of Bankruptcy Judges Next Generation Program. Participants are selected via computerized lottery program from a pool of nominees who meet certain standards related to legal excellence in the practice of bankruptcy law, a serious commitment to principles of civility, ethics and professionalism and commitment to the continued educational development of bankruptcy professionals and to professional activities that will benefit the public, members of the bar and the court system. Kate is also an active member of the Richard S. Rodney Inn of Court and the Delaware Bankruptcy Inn of Court. Kate volunteers as a Guardian ad Litem, representing children in Delaware’s dependency system before the Family Court through Delaware’s Office of the Child Advocate. Kate is a lifelong resident of Delaware and lives in Wilmington with her husband and daughter.
KATHALEEN ST. J. MCCORMICK
Kathaleen is a partner in the Corporate Counseling and Litigation section of the Wilmington, Delaware-based law firm of Young Conaway Stargatt & Taylor, LLP. Her litigation practice focuses on corporate, alternative entity, and commercial litigation, primarily in the Delaware Court of Chancery. Her litigation practice frequently involves expedited proceedings, including requests for temporary restraining orders and preliminary injunctive relief. Before joining Young Conaway, Kathaleen was a staff attorney for Delaware's Community Legal Aid Society, Inc., where she litigated housing discrimination matters and represented victims of domestic violence. As a legal aid staff attorney, Kathaleen received the Roxana Arsht Fellowship for her work in the non-profit legal sector. Kathaleen attended Smyrna High School. She received her bachelor’s degree in philosophy from Harvard University, and her law degree from Notre Dame Law School.
In addition to her legal practice, Kathaleen is a founding board member of First State Montessori Academy, Inc., a public charter school in Wilmington, Delaware. She is also a member of the St. Patrick’s Day Society, which raises funds for emergency food, meals, clothing, transportation and day respite for Wilmington residents.
Kathaleen St. J. McCormick Young Conaway Stargatt & Taylor, LLP
1000 North King Street Wilmington, DE 19801 Phone: 302-571-6696
Practice Areas
Directors and Officers Liability andCorporate Governance DisputesEminent Domain/CondemnationIP LitigationLitigation
Bar Admissions
PennsylvaniaDelawareNew Jersey
Education
J.D., Villanova University School of Law,1995B.A., B.S., Millersville University, 1990
Court Admissions
U.S. Supreme CourtU.S. Court of Appeals, Third CircuitU.S. District Court, District of DelawareU.S. District Court, Eastern District ofPennsylvaniaU.S. District Court, District of New Jersey
Memberships
American Bar AssociationBarristers’ Association of Philadelphia,Inc.Delaware State Bar Association(President)National Bar AssociationPennsylvania Bar AssociationPhiladelphia Bar Association
Board of Directors
Legal Services Corporation of Delaware,Inc.
Gregory B. WilliamsPartner
Wilmington, DE302.622.4211
Philadelphia, PA
Greg has a diverse practice focused on commercial, intellectual property and otherbusiness litigation for a wide range of corporate clients, including technology companies,manufacturers, financial institutions, energy companies, healthcare companies, retailers,government entities, colleges and universities and faith-based organizations. Gregcounsels and represents clients in litigation in federal and state courts in Delaware,Pennsylvania and New Jersey in matters that encompass:
Patent infringement, trademark and trade dress infringement, misappropriation oftrade secrets and other intellectual property disputesAntitrust and unfair competition issuesContractual disputes, business torts and toxic tort matters (including asbestos andbenzene)Corporate governance, directors' and officers' liability, and other fiduciary mattersEminent domain and other real estate related matters
Greg's clients include:
Illinois Tool Works Inc.Wilsonart International, Inc.ITT Corporation and ITT Manufacturing Enterprises, Inc.ING Bank, fsbDelaware Department of TransportationDelaware College Preparatory AcademyHaldex Brake Products CorporationMacy's, Inc.
Greg is chair of the firm's Diversity Committee and former Office Managing Partner of theWilmington office.
Beyond Fox Rothschild
Greg was chosen to serve as President of the Delaware State Bar Association beginningJuly 2013. He serves as a member of the Attorney Advisory Committee for the UnitedStates District Court for the District of Delaware, co-chairs its Technology Committee andserves as a member of the Local Rules Committee, which works with the Court to revisethe Local Rules. He has also served as Chair of the U.S. Magistrate Judge Merit Selection Panel that investigates andinterviews candidates for vacant U.S. Magistrate Judge positions. Greg is a member of the Judicial Nominating Commission forthe State of Delaware, having been appointed by Governor Jack Markell. Greg has also served on the Hearing Committee forthe Disciplinary Board of the Supreme Court of Pennsylvania, and is a past President of the Barristers' Association ofPhiladelphia, Inc.
Greg's various bar affiliation activities include:
President, Delaware State Bar Association Former Treasurer, Delaware State Bar Association Former chair, Multicultural Judges and Lawyers Section, Delaware State Bar Association Member, Nominations Committee, Delaware State Bar Association Member, Awards Committee, Delaware State Bar Association Former Philadelphia Delegate, Pennsylvania Bar Association's House of Delegates Former co-chair, Minority Attorney Committee, Pennsylvania Bar AssociationFormer president, Barristers' Association of Philadelphia, Inc. Former member, Commission on Judicial Selection and Retention, Philadelphia Bar AssociationFormer chair, Brennan Award Committee, Philadelphia Bar AssociationGreg was a founding member and is a past President of the Villanova University School of Law Minority Alumni SocietyLeadership Board.
Client Resources
Delaware Intellectual Property Litigation Blog Greg explores the decisions issued by the U.S. District Court of Delaware in the areas of antitrust and intellectual property law inthe firm's Delaware Intellectual Property Litigation blog.View Blog
Honors and Awards
Awarded The Judge Layton Award for Service by the Judges of the United States District Court for the District of Delawarein recognition of service to the Court and its BarIncluded in a list of "Top Lawyers" by Delaware Today
Included in a list of "Super Lawyers" by Philadelphia Magazine and Law & Politics Magazine (2005 through 2012)
Included in a list of "Top Black Lawyers in the Tri-State Area" by The Network Journal
Awarded the "Distinguished Under 40 Award" by the Barristers' Association of Philadelphia, Inc.Recipient of the “40 Under 40 Award” by the Philadelphia Business Journal
Included in a list of “30 Leaders Under 30” by Ebony Magazine
Included in the Barristers' list of 60 as a Top African American Lawyer in Philadelphia by Tribune Magazine (2011)
News
Featured: "Steele’s Early Departure Sparks Strine Succession Buzz," Law360 (September 12, 2013)
"Gregory B. Williams Elected President of Delaware State Bar Association," (June 10, 2013)
"Fox Rothschild Sponsors 13th Annual Charting Your Own Course Career Conference," (January 2013)
Featured: "Risk News: Conflicts, Ethical Screens & Disqualification Attempts," Law Firm Risk Management Blog (October 3,
2012)
Featured: "Judge bars Latham from patent case, citing conflict dating back 17 years," The National Law Journal (September
27, 2012)
Featured: "Fox Rothschild LLP Hosts MBA Diversity Committee Summer 1L Program Meeting," (July 8, 2011)
Mentioned: "Delaware Achievers," The News Journal (February 13, 2011)
Mentioned: "Gregory B. Williams of Fox Rothschild Appointed Chair of the U.S. Magistrate Judge Merit Selection Panel,"
dBusiness News (February 3, 2011)
Mentioned: "People in the News," The Legal Intelligencer (February 3, 2011)
Featured: "Gregory B. Williams of Fox Rothschild Appointed Chair of the U.S. Magistrate Judge Merit Selection Panel,"
(February 1, 2011)
Featured: "Top Lawyers 2010," Delaware Today (November 2010)
Mentioned: "Delaware Business Achievers," The News Journal (September 5, 2010)
Featured: "Fox Rothschild’s Gregory B. Williams Honored With Judge Layton Award," (July 1, 2010)
Featured: "Fox Rothschild Attorney Gregory B. Williams Elected as Treasurer for Delaware State Bar Association," (July 1,
2010)
Mentioned: "Best in Law Blogs: Judge Stark Grants Facebook's Motion to Amend in Part and Denies It in Part," LexBlog
(June 28, 2010)
Mentioned: "New Blogs Joining the LexBlog Network for the Week of 2/8-2/12," LexBlog (February 12, 2010)
Quoted: "Fox Rothschild Receives Leadership Award for Pro Bono Services From Delaware State Bar Association,"
(October 26, 2009)
"Noted in Business People," The News Journal of Wilmington (March 31, 2009)
Featured: "Gregory B. Williams of Fox Rothschild LLP Appointed to the Judicial Nominating Committee for the State of
Delaware," (March 30, 2009)
"Fox Rothschild’s Business Litigation Practice Capitalizes on Growth, Talent and Value," Forbes (special supplement)
(October 29, 2007)
Quoted: "Fox Rothschild Supports PLAN’s MLK Summer Internship & Fellowship Program," (October 12, 2007)
Featured: "Williams a "First" for Fox Rothschild and Wilmington," Delaware Law Weekly (May 16, 2007)
Featured: "Fox Rothschild Elects New Office Managing Partner of its Wilmington Office," (April 16, 2007)
Publications
Co-author: "Medimmune v. Genentech: Patent Licensees Score Big Win,"
Delaware Law Weekly (March 14, 2007)
Speaking Engagements/Events
Community Crossfire: Martin Luther King Day Legal Clinic
(Guest) Presented by: Comcast Channel 28January 14, 2007
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Pre-Admission ConferenceDelaware Supreme Court
November 18, 2016
Best Practices in Trial Practice—Depositions
Presenters: The Honorable Andrea L. RocanelliDelaware Superior Court
The Honorable Danielle S. BlountDelaware Family Court
Kathaleen McCormickYoung Conaway Stargatt & Taylor, LLPThe Brandywine Building1000 West Street, 17th FloorP.O. Box 391Wilmington, Delaware 19899-0391(302) [email protected]
Gregory Brian WilliamsFox Rothschild LLP919 North Market Street, Suite 1300P.O. Box 2323Wilmington, Delaware 19899-2323(302) [email protected]
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Table Of Contents
Page
I. Nature and Purpose/Use of Deposition Testimony 1
II. Governing “Rules of the Road” 1
III. Best Practices in Advance of a Deposition 2
IV. Best Practices During a Deposition 4
V. Best Practices After a Deposition 9
Appendix A: Example of Preparation Tips To Be Shared With The Deponent 10
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BEST PRACTICES IN TRIAL PRACTICE -- DEPOSITIONS1
I. Nature and Purpose/Use of Deposition Testimony
A. Nature
1. Sworn (or “affirmed”) out-of-court testimony.
2. But conduct of witness and counsel should closely replicate in-courtconduct.
3. May be a “discovery” deposition or a “trial” deposition.
B. Purpose/Use
1. Pretrial motion practice (preliminary injunction, summary judgment, etc.).
2. Use at or in connection with trial.
(a) Impeachment during cross-examination.
(b) Affirmative use during case-in-chief or rebuttal, of party’s ownwitness if witness is not available to testify “live,” or of anyadverse witness irrespective of availability.
(c) Designation/counter-designation of deposition testimony in post-trial briefing.
II. Governing “Rules of the Road”
A. Applicable Court Rules
1. Federal Court
(a) Fed. R. Civ. P. 26, 27, 28, 29, 30, 31, 32, 37, 45
(b) D. Del. Local Rules
(c) Fed. R. Evid. 612 (Writing Used to Refresh Memory)
(d) Fed. R. Evid. 613 (Prior Statements of Witnesses)
1 The presenters gratefully acknowledge the assistance of Karen E. Keller, Esquire of Young Conaway Stargatt &Taylor, LLP in providing material used in portions of this outline.
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(e) Fed. R. Evid. 501 (Privilege)
(f) Fed. R. Evid. 801 (d)(1) (Statements Which Are Not Hearsay)
2. State Court
(a) Ct. Ch. R. 26, 28, 29, 30, 31, 32, 37, 45Super. Ct. Civ. R. 26, 28, 29, 30, 31, 32, 37, 45Ct. Com. Pl. Civ. R. 26, 28, 29, 30, 31, 32, 37, 45Fam. Ct. Civ. R. 26, 28, 29, 30, 31, 32, 37, 45J.P. Ct. R. 27 (but note reference only to discovery as permitted bythe Court, on motion, “as authorized in Superior Court Civil Rules33, 34, and 36”), 37
(b) Del. R. Evid. 612 (Writing or Object Used to Refresh Memory)
(c) Del. R. Evid. 613 (Prior Statements of Witnesses)
(d) Del. R. Evid. 501 – 512 (Privileges)
(e) Del. R. Evid. 801 (d)(1) (Statements Which Are Not Hearsay)
B. Interpretive Case law
1. Federal
2. State
C. Any “Standing” or Case-Specific Orders of the Court
D. “Principles Of Professionalism For Delaware Lawyers”(see Del. Supr. Ct. R. 71)
“Only those depositions necessary to develop or preserve the facts should betaken. Questions and objections at depositions should be restricted to conductappropriate in the presence of a judge.”
III. Best Practices in Advance of a Deposition
A. If Taking the Deposition
1. Careful consideration of the type and number of deponents—becomprehensive but avoid “overkill.”
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2. Work out scheduling with your opponent prior to serving and filing theNotice of Deposition, if at all possible.
3. Obtain a commission for the taking of depositions of third-party witnesses(and perhaps the production of documents in advance of the deposition)outside of Delaware, if the deponent will not appear consensually. (See,e.g., Ct. Ch. R. 30; Ct. Ch. R. 45; 10 Del. C. § 368). And consider the“insurance” afforded by a commission and resulting subpoena even if thewitness is willing to appear.
4. Make certain that the Notice of Deposition contains all requiredinformation (e.g., if the testimony will be videotaped).
5. Determine whether the deposition will be a “discovery” deposition or a“trial” deposition.
6. Consider noticing a deposition pursuant to Rule 30(b)(6) (“person mostknowledgeable”).
7. Make arrangements for the court reporter and (if desired) videographer assoon as you can, to provide as much notice to them as possible. Likewise,advise them of any special needs (expedited preparation of transcript,etc.), and keep them advised of any scheduling changes.
8. Prepare an outline of deposition questions and copies of any exhibits to beused during deposition (the “original” exhibit for the witness; workingcopy for questioner; courtesy copies for other counsel).
B. If Defending the Deposition
1. Work with deposing counsel to promptly confirm witness availability andto agree on mutually convenient (or mutually inconvenient) location, etc.
2. Promptly identify any Rule 30(b)(6) deponents.
3. Prepare the deponent2
(a) Nature and purpose/use of the deposition.
(b) Strategy in responding (“discovery” versus “trial,” etc.).
(c) Permissible scope of objections, instructions not to answer.
2 See Appendix A hereto (Example of Preparation Tips To Be Shared With The Deponent).
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(d) Conferring during deposition limited to matters of privilege.
(e) Anticipated questioning.
(f) Anticipated documents (exhibits), Rule 612 concerns. Out of anabundance of caution, assume that the witness would be required by theCourt to identify documents reviewed in preparation for the deposition,though perhaps not in the order selected by counsel for review. See, e.g.,Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985); Douglas v. State, 879 A.2d594 (Del. 2005); Kellner v. Interlakes (Canada) Realty Corp., 1982 Del.Ch. LEXIS 509, Brown, V.C. (Del.Ch. Mar. 19, 1982); James Julian, Inc.v. Raytheon Co., 93 F.R.D 138 (D. Del. 1982).
(g) Opportunity to review transcript and make any corrections.
(h) Consider some role-playing.
(i) Importance of appearance, body movements, and intonation ifdeposition will be videotaped.
(j) Be careful not to waive privilege during preparation by thepresence of third-parties.
C. Whether Taking or Defending A Deposition
1. Make certain that all non-Delaware attorneys expected to participate in thedeposition have been admitted pro hac vice in advance of the deposition.See Paramount Communications, Inc. v. QVC Network, Inc., 637 A.2d 34(Del. 1993); see also E.I. du Pont de Nemours & Co. v. Allstate Ins. Co.,2008 WL 525908, at *1 (Del. Super. Ct. Feb. 20, 2008).
2. If disruptive behavior on the part of the deponent or opposing counsel isanticipated, consider (i) videotaping the deposition, (ii) having the phonenumber of the trial judge close at hand during the deposition, (iii) alertingthe Court to the anticipated problem and the possible need to contact theCourt during the deposition, and/or (iv) in the most extremecircumstances, requesting that the deposition take place in Delawarebefore a master or special master. See Paramount Communications, 637A.2d at 55n.31 (trial court is only a phone call away).
3. Always preferable to have Delaware counsel in attendance at a deposition(see Paramount Communications, supra), but in all events important thatDelaware counsel be available to participate in bringing a matter beforethe trial court if a dispute arises (even if participating by phone).
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IV. Best Practices During A Deposition
A. Work together to complete the deposition promptly and fairly.
B. No “usual stipulations.”
C. Client representative is entitled to attend deposition, and can be a helpful “truth-check.”
D. Deponent and attorneys should not “talk over one another,” out of considerationfor the court reporter.
E. No conferring between the deponent and his or her counsel is permitted once thedeposition is under way, unless privilege appears to be implicated. See, e.g., Ct.Ch. R. 30; Super Ct. Civ. R. 30; D. Del. LR 30.6; see also Dyson Tech. Ltd. v.Maytag Corp., C.A. Nos. 05-434-GMS, 06-654-GMS, Order (D. Del. Dec. 18,2006); Cytyc Corp. v. Autocyte, Inc. C.A. No. 99-610-SLR, Transcript (D. Del.June 14, 2000); Tuerkes-Beckers, Inc. v. New Castle Assocs., 158 F.R.D. 573 (D.Del. 1993); Peter Kalton Defined Contribution Plan v. Gulf USA Corp., C.A.Nos. 93-50-RRM, 93-69-RRM (Consol.), Order (D. Del. June 28, 1993);Deutschman v. Beneficial Corp., C.A. No. 86-595-MMS, Memo. Op. (D. Del.Feb. 20, 1990); In re USN Commc’n, Inc., 280 B.R. 573 (Bankr. D. Del. 2002); Inre Fuqua Indus., Inc. Shareholder Litig., C.A. No. 11974 (Consol.) (Del. Ch.1999); Cascella v. GDV, Inc., C.A. No. 5899 (Del. Ch. Jan. 15, 1981); State v.Mumford, 731 A.2d 831 (Del. Super. 1999); In re Asbestos Litig., 492 A.2d 256(Del. Super. 1985).
If conferring apparently has occurred, be aware of the scope of the permissiblefollow-up questioning by the deposing attorney.
Questions allowed upon resuming the deposition after a break:
“A. Did you consult with your attorney, employee of your attorneyand/or agent of your attorney (hereinafter “said person”) during therecess and/or continuance?
- If answer is “no,” end questioning.
- If answer is “yes,” identify the person by name andproceed to question B.
B. Did you consult with said person with regard to your depositiontestimony either already given and/or expected or which may beanticipated to be given?
- If answer is “no,” end questioning.
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- If answer is “yes,” proceed to question C.
C. Did you consult with said person, and/or did said person give youany instruction and/or advice regarding how you should answerquestions during the remainder of the deposition? (Note - not whatwas said.)
- If answer is “no,” end questioning.
- If answer is “yes,” proceed to question D.
D. About what areas of your testimony already given and/or expectedor which may be anticipated to be given did you consult with saidperson? (Note – not what was said.)”
In re Asbestos Litig., 492 A.2d 256, 260 (Del. Super. 1985); Deutschman v. Beneficial Corp.,C.A. No. 86-595-MMS, Memo. Op. (D. Del. Feb. 20, 1990) (same).
F. No “tag team” questioning of deponent. Lead questioner can receive notes fromco-counsel and/or client representative.
G. If a “discovery” deposition, deposing attorney is cross-examining and, as a result,may use leading questions. In contrast, if a “trial” deposition, deposing attorneymay not use leading questions unless the witness is adverse (“hostile”).
H. If a “discovery” deposition, objections, other than objections as to “form,” arereserved until trial “unless the ground of the objection is one which might havebeen obviated or removed if presented at that time.” See, e.g., Ct. Ch. R. 32(d)(3). And objections as to relevance, etc. may still be asserted so that they arepart of the deposition record. If a “trial” deposition, defending attorney isgenerally obligated to assert all objections; otherwise, the objection will bedeemed waived.
I. Examples of “Form” Objections:
• Compound question.
• Question assumes fact not in evidence.
• Question is argumentative.
• Question calls for speculation.
• Question calls for a legal opinion.
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• Question has been asked and answered.
• Question misstates the deponent’s prior testimony.
• Question mischaracterizes the exhibit.
J. Examples of Objections Other Than As To Form:
• Relevance.
• Not calculated to lead to the discovery of admissible evidence.
• Witness not competent to testify to the subject.
• Materiality.
• Cumulative.
K. Instructing A Witness Not To Answer
1. Typical basis is that response to the question will reveal informationsubject to attorney-client privilege. See Tuerkes-Beckers, supra; PeterKalton Defined Contribution Plan, supra; Cardinal Capital Management,supra; State v. Mumford, supra; Cascella, supra; Rose Hall, supra.
2. Can also be used to guard against disclosure of information subject toattorney work product protection or “business strategy” privilege.
3. Rarely used in response to questions which call for irrelevant informationor information not calculated to lead to the discovery of admissibleevidence, and risky to do so—repeated questioning must rise to the levelof harassment.
4. Sample instruction: “I instruct the witness not to answer the question tothe extent the answer would reveal information subject to attorney-clientprivilege. Otherwise, the witness may answer.”
5. Note the requirement of Fed. R. Civ. P. 30(d) that deposing counsel intendto promptly move to terminate or limit examination.
L. Unless the deponent is instructed not to answer, he or she is obligated to answerthe question after the objection is asserted.
M. Even in the face of an instruction not to answer, questioning attorney may exploreexistence, extent, and/or waiver of privilege.
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N. Some judges prefer that objections as to form be limited to “Objection, form”(rather than, for example, “Objection, calls for speculation”). Objections otherthan as to form should be limited to the word “Objection,” followed by a verybrief description of the basis for the objection.
O. In no event should an objection be used to “coach” (suggest the answer to) thewitness. See, e.g., Ct. Ch. R. 30; Super. Ct. Civ. R. 30; In re USN Commc’n, Inc.,supra; In re Fuqua Indus., supra; Rose Hall, Ltd. v. Chase Manhattan OverseasBanking Corp., C.A. No. 79-182, Order (D. Del. Dec. 12, 1980); Cascella, supra.
P. Defending (or attending) counsel should not continually interrupt questioning.Paramount Communications, supra; Rose Hall, supra.
Q. Defending (or attending) counsel should not press the questioner for time.Paramount Communications, supra; Cardinal Capital Management, LLC v.Amerman, C.A. No. 19876, Transcript (Del. Ch. Sept. 27, 2002).
R. Typical Order of Questioning
1. If “discovery” deposition:
• Deposing attorney
• Defending attorney
• Deposing attorney
2. If “trial” deposition:
• Same as above
• Or “trial” order of separate cases-in-chief, etc.
S. If an issue arises which could have an impact on the substance of a witness’answer, counsel should either excuse the witness from the deposition room or (better yet) excusethemselves and discuss the matter outside the presence of the witness and the court reporter.
T. Being Aware of the Importance of the Written Record
1. Either as the deposing attorney or as the defending (or attending) attorney,don’t hesitate to clarify whether a “No” by the witness may really mean “Yes” (or vice versa)depending on how the question was asked.
2. Be careful, as the deposing attorney, to make sure that the witness answers thepending question after any objection is made (assuming no instruction not to answer).
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3. If the witness interrupts the deposing attorney before he or she completes thequestion, it is best to restate the question and make sure that the record reflects an uninterruptedquestion and an uninterrupted answer.
U. If Counsel Reach An Impasse
1. Deposition may proceed, with the matter to be addressed later via motionsfor a protective order and/or to compel.
2. Or the deposition may be adjourned, with the matter addressed to theCourt immediately.
3. Note the appropriate court (Delaware or non-Delaware) in which to seekrelief. See, e.g., Ct. Ch. R. 26(c) (motion for a protective order); Ct. Ch.R. 37(a)(1) (motion to compel).
V. Pro hac vice admission may be revoked where the conduct of the non-Delawareattorney is shown to affect the fairness of the proceeding, including failing to attempt to restraininappropriate behavior on behalf of the deponent.. See, e.g., Crowhorn v. Nationwide MutualInsurance Co., 2002 Del. Super. LEXIS 397, Witham, J. (Del. Super. May 6, 2002); State v.Mumford, 731 A.2d 831 (Del. Super. 1999); State v. Grossberg, 705 A.2d 608 (Del. Super. Ct.1997).
V. At the End of the Deposition
1. Counsel may take the position that the deposition is not yet concludedbecause of one or more open matters.
2. Defending counsel should make clear that the witness does not waive thereading and signing of the transcript.
V. Best Practices After A Deposition
A. Confirm with court reporter when the transcript will be available and in whatform (reporter may be able to forward a “rough” cut of the transcript promptly ifit is needed for ongoing brief preparation, etc.).
B. Can be helpful to receive transcript in searchable electronic form. Also helpful toreceive transcript in “mini-script” form and with an index.
C. Deponent and counsel should carefully review transcript for any neededcorrections. Corrections may be to form (spellings, etc.) or to substance, butrecognize that altering the testimony substantively could prompt a follow-updeposition.
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D. Promptly return the completed “errata” sheet to the court reporter. Transcriptmust be signed within 30 days of when it becomes available; otherwise, thedeposition “may then be used as fully as though signed.” See, e.g., Ct. Ch. R. 30(e).
E. Promptly pay the court reporter.
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Appendix A
Example of Preparation Tips To Be Shared With Deponent
1. No need to be nervous about your testimony. Remember that you are incontrol—what you answer, when, and how. Also remember that your onlyobligation will be to testify truthfully, to the best of your knowledge andrecollection.
2. If you don’t understand a question, say so and ask for clarification.
3. If you cannot answer a question “yes” or “no,” say so and don’t allowyourself to be bullied. Or, if the question can be answered “yes” or “no”but only with follow-up explanation, say so. Politely, but firmly, standyour ground.
4. If you don’t know or recall, say so. It’s only natural—don’t speculate.
5. Your deposition is not intended to “tell our story.” That will happen attrial. Don’t volunteer information. Don’t assume that the “facts” includedin a question are true. Don’t assume that a document shown to you by thequestioner is what the questioner has represented it to be. Take as muchtime as you need to review a document. And if you then need to have apending question repeated, don’t hesitate to ask the questioner to repeat itor to ask that the court reporter please “read back” the question.
6. Don’t get drawn into a question-answer “rhythm” established by thequestioning attorney. Take your time!
7. I will be limited in my ability to object to questions and even more limitedin my ability to instruct you not to answer questions. I may not be awarethat a particular question calls for you to reveal privileged information. Ifyou believe that to be the case, please say that you need to confer with meregarding a matter of privilege. We will then have the opportunity toconfer privately. I will then determine whether it is appropriate to instructyou not to answer the pending question.
8. With regard to objections to questions, please listen carefully to eachquestion to determine if, in your view, the question as stated is not capableof a fair response. For example, does the question include multiplesubjects? Does it assume certain facts? Is it calling for you to speculate?Is it argumentative? Have you been asked the same question before,suggesting an effort to prompt inconsistent responses? Does the questionmisstate your previous testimony? Does the question mischaracterize anexhibit?
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In any of these instances, I may be limited to saying “Objection” or“Objection as to form.” Please be sure to “take a breath” and give me anopportunity to make an objection before you answer. And then pleaseconsider carefully what may be objectionable about the question. Unless Iinstruct you not to answer a question, you will be obligated to respond, butit will be entirely appropriate for you to say to the questioner, on therecord, that the question is not capable of fair response because of one ormore of the concerns touched on above.
9. During the deposition, you and I will not be permitted to confer with oneanother regarding the testimony that you have given or are about to give,with the exception of the “privilege” discussion I mentioned previously.After the deposition is concluded, we will have the opportunity to discussyour testimony, and you will have the opportunity to review the depositiontranscript and to make any corrections.
10. You’ll do great during the deposition. Now, let’s go over a fewdocuments so that you won’t be surprised if they’re shown to you andyou’re asked about them....
11. Finally, if you’re asked what you did to prepare for the deposition, youshouldn’t hesitate in responding that you met with counsel. (That shouldbe no surprise!) But, if you are asked what we talked about during thepreparation, please give me the opportunity to instruct you not to answerthe question unless you can do so without revealing information subject toattorney-client privilege. Likewise, if you are asked whether youreviewed any documents during the preparation, you may answer “yes.”But, if you are asked which documents you reviewed, I will instruct younot to answer the question as to any specific document unless thequestioner can establish that that document refreshed your recollection forthe purpose of testifying during the deposition.
12. Any questions?
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