Episode Details

Your opponent sends you an email saying he just needs an "update deposition" of your client. What say you? In this episode, Jim Garrity notes that an "update" deposition is just a second deposition in sheep's clothing. And you'd better think twice about allowing it. Garrity tells you how to oppose it, and provides a dozen specific arguments to make. In the interests of balance, he also offers a dozen arguments to make in favor of a second deposition, if you're seeking one. The show notes below contain the full citations to 23 cases on the issue, and on which this episode is based.

Cases for this Episode:

Finjan, Inc. v. Eset, LLC, et al., Case No.: 17-cv-183 CAB (BGS), 2020 WL 7396551 (S. D. Cal. Dec. 16, 2020) (where court had stayed case as to one of six patents at issue, defendant allowed to redepose Plaintiff once stay was lifted, but second deposition would be “strictly narrowed” to single patent not previously covered in first deposition, and time-limited to ensure focus and proportionality; defendant explicitly forbidden from questioning plaintiff about topics covered in first deposition)

MLO Properties, LLC v. City of Cleveland, 1:19-cv-1226, 2020 WL 6818753 (N. D. Ohio June 19, 2020) (plaintiff allowed to re-depose city officials where it it was alleged that city was held crucial documents prior to first depositions; court added that “Plaintiff is cautioned that it is not to cover topics already covered at the October 2019 depositions” and is not to exceed seven hours per redeposed witness, including time spent in each’s first deposition)

Williams v. Benshetrit, et al. Case No. 19-797, 2020 WL 3315982 (E. D. Penn. Jun. 18, 2020) (second deposition of witness allowed where plaintiff’s counsel’s objections and instructions not to answer interfered with conduct of deposition; according to the court, “Defendant estimates that during [the witness’] one-hour deposition, [plaintiff’s counsel “interrupted and interjected himself ... approximately 112 times, ” told the witness “not to answer particular questions without asserting valid grounds for an objection,” “directed [the witness] how to answer,” “insinuated that defense counsel’s motive was to harass, humiliate, or embarrass,” and “unilaterally decided which questions were for a “relevant” purpose and which were not”)

Medina, et al. v. Yoder Auto Sales, et al., 743 So.2d 621 (Fla. 2d DCA 1999) (state intermediate appellate court noting that its rules governing depositions do not forbid multiple depositions of the same witness)

DatabaseUSA.com, LLC v. Van Gilder, et al., No. 8:17-cv-386, 2021 WL 229200 (D. Nebraska Jan. 22, 2021) (redeposition of corporate witness in data misappropriation case denied where (a) examining lawyer’s questions were overbroad and intruded on attorney-client information, and (b) examining lawyer should have rephrased questions based on detailed, narrowly-tailored privilege objections, rather than suspend deposition)

Cargill, Incorporated v. Mountain Cement Company, 891 P. 2d 57 (S. Ct. Wyo. 1995) (second deposition of expert denied where defendant’s prior counsel had also deposed expert; held, no abuse of discretion, especially where the defendant was “armed with over three years of discovery materials”)

Hawkins v. Lucier, 255 A.D. 553 (N.Y. Sup. Ct. App. Div. 1998) (defense effort to compel third deposition of personal injury plaintiff rejected, where defense failed to make “a detailed showing that the injured plaintiff’s prior testimony was inadequate to cover issues raised” by video surveillance after the second deposition)

Lowery v. Noble Drilling Corp., No. CIV-A-96-3968, 1997 WL 675328 (E.D. La. 1997) (second deposition rejected where defendant “waited eight months, until just prior to the final pretrial conference to request leave of Court to re-depose the plaintiff,” and had ample opportunity to obtain information previously)

Kleppinger v. Texas Department of Trans