The Law Of Depositions: A Quiz

By Ralph F. Holmes

Questions

  1. A non-party may be excluded from attending a deposition of another person only if:
    1. All parties agree;
    2. One party insists;
    3. The non-party is also a witness; or
    4. The Court has issued such a protective order.
  2. "Certification of a question:"
    1. Must be done before a motion to compel an answer to a deposition question may be sought;
    2. Results in the question and answer being transcribed at the end of the deposition transcript or in a separate transcript;
    3. Is a representation by counsel that the facts contained in the question are true and in evidence; or
    4. Is a statement on the record by defending counsel that the witness will be instructed not to answer the question.
  3. Under the Federal Rules, to question a witness, counsel:
    1. Must be present at the deposition;
    2. May submit written questions in a sealed envelope as a matter of right; or
    3. May submit written questions in a sealed envelope if approved by the court.
  4. An inquiry into whether a witness has a criminal record can refer to:
    1. Convictions only;
    2. Felony offenses only;
    3. Arrests and convictions regardless of the class of crime; or
    4. Arrests and convictions regardless of the class of the crime only to the extent the related criminal record has not been annulled by order of Court.
  5. Discovery deposition testimony is admissible at trial for non-impeachment purposes:
    1. Without regards to the witness availability for trial; or
    2. Only upon a showing that the witness is unavailable for trial.
  6. Under the Federal Rules, a party can be compelled to attend his or her deposition:
    1. A. Only by notice;
    2. B. Only by subpoena;
    3. C. By notice or subpoena;
    4. D. Only upon court order.
  7. Under state law, a party can be compelled to attend a deposition:
    1. Only by notice;
    2. Only by subpoena;
    3. By notice or subpoena;
    4. Only upon court order.
  8. The Court has the authority to order that a deposition be taken before an action is brought:
    1. True.
    2. False.

Answers

  1. D. Under both federal and Superior Court rules, a person may be excluded from attending a deposition only by order of court. Rule 26(c) of the Federal Rules of Civil Procedure specifically provides:

    Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending or alternatively, on matters relating to a deposition, the court in the district where the deposition is to be taken may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (5) That discovery be conducted with no one present except persons designated by the Court . . .

    The Superior Court Rule is essentially identical.

    The court may issue a protective order to exclude a party as well as others from attending a deposition.

    If a protective order is not obtained in advance, there is no right to exclude someone from attending the deposition. "[A]s a general proposition, pretrial discovery must take place in the public unless compelling reasons exists for denying the public access to the proceeding."
  2. B. To certify a question is simply to ask the stenographer to duplicate in a separate section at the end of the transcript or in a separate transcript the question and the response. The request is made of the stenographer on the record before the question is asked. This practice is sometimes used to try to intimidate defending counsel into reconsidering an instruction to the witness not to answer. By repeating and then asking the stenographer to certify the question after such an instruction, counsel may add some credence to his or her announced intent to move to compel a responsive answer if one is not provided.
  3. B. The Rules provide:

    In lieu of participating in the oral examination, parties may serve written questions in a sealed envelope on the party taking the deposition and the party taking the deposition shall transmit them to the officer, who shall propound them to the witness and record the answers verbatim.
  4. D. RSA 651:5, VI provides:

    In any application for employment, license, or other civil right or privilege, or in any appearance as a witness in any proceeding or hearing, a person may be questioned about a previous criminal record only in terms such as 'Have you ever been arrested for or convicted of a crime that has not been annulled by a Court?'
  5. B. Both federal and state law provide that a deposition may be used for non-impeachment purposes at trial only upon a showing that the witness is unavailable for trial.
  6. C. A Subpoena may be used to compel a party's attendance at a deposition, but it is not necessary. According to Wright & Miller:

    A subpoena is unnecessary to take the deposition of a party or of an officer, director, or managing agent of a party. Service of the notice of taking of the deposition is enough to require these persons to appear and to expose them to sanctions under Rule 37(d) if they fail to do so. A notice is enough even if it is desired to have the party bring documents or things to the taking of the deposition. Under Rule 30(b) (5), as amended in 1970, notice to a party may be accompanied by a request made in compliance with Rule 34 for the production of documents and tangible things at the taking of a deposition.
  7. B. Unlike the Federal Rules, New Hampshire law does not allow for the compulsion of a party to attend a deposition merely by service of notice. A subpoena must be used.
  8. A. Rule 27 of the Federal Rules of Civil Procedure is specifically concerned with the taking of depositions before an action is brought or pending appeal. The Rule provides that a deposition may be taken before the action is commenced upon court order. The petitioner must file a verified petition in the district of the residence of any expected adverse party. The petition shall recite:

    . . . that the petitioner expects to be a party to an action cognizable in a court of the United States but is presently unable to bring it or cause it to be brought, 2, the subject matter of the expected action and the petitioner's interest therein, 3, the facts which the petitioner desires to establish by the proposed testimony and the reasons for desiring to perpetuate it. 4, the names or a description of the persons the petitioner expects will be adverse parties and their addresses so far as known, and 5, the names and addresses of the persons to be examined and the substance of the testimony which the petitioner expects to elicit from each, and shall ask for an order authorizing the petitioner to take the depositions of the persons to be examined named in the petition, for the purpose of perpetuating their testimony.

    The petition must be served on all anticipated adverse parties.

    If the Court after a hearing:

    is satisfied that the perpetuation of the testimony may prevent a failure or delay of justice, it shall make an order designating or describing the persons whose depositions may be taken and specifying the subject matter of the examination and whether the depositions shall be taken upon oral examination or written interrogatories.

    Entitled "Depositions in Perpetual Remembrance," RSA 518 is the provision of state law most analogous to the federal rule. The statute provides that a deposition may be ordered by the Court upon approval of a verified petition which shall "briefly set[ ] forth [the petitioner's] interest in the subject, and the facts to which the desired testimony relates, the names and residences of all persons supposed to be interested therein, or, if the fact be so, that the names or residences of such persons are unknown, and the names of the witnesses proposed to be examined."

    Upon approval, the Court will issue notice to all interested parties identified in the petition of the time and place of the scheduled deposition.