By Marilyn Raia
The word “deposition” often strikes fear in the hearts of mariners as well as non-mariners. A deposition is routine for the litigator, but unlikely to be routine for the client or witness. It is a common event in litigation and, if the concept and procedure are understood ahead of time, fear can be minimized.
A deposition is the taking of sworn testimony of a witness before trial and outside of the courtroom. It can be part of the discovery process in a case during which each side can learn about the other side’s evidence and witnesses. It also can be a way to preserve the testimony of a witness who may be unable to testify at trial. The strategy for each type of deposition is different. As a discovery method, the deposition can be very broad in scope. As a perpetuation method, the deposition is usually narrower in scope, covering only what would be presented as testimony at trial.
The person testifying at a deposition is called the deponent. The deposition is conducted in a question and answer format after the deponent takes an oath to tell the truth. The deponent can be questioned by each attorney present who is representing a party or parties to the case. The deponent’s sworn testimony is stenographically recorded by a court reporter and may also be audio and video recorded. Under California statutory law, unless otherwise agreed, the questioning by all attorneys, except the witness’s attorney, must be completed within seven hours. There are exceptions to the time limit for certain types of witnesses (for example, an expert) and for certain types of cases (for example, complex civil cases). Under federal law, a deposition must be completed in “one day of seven hours” absent a court order or agreement of the parties.
After the deposition is completed, the court reporter will transcribe the stenographic notes into a booklet and provide it to the deponent for review and, if needed, correction. If the deponent changes substantive testimony rather than just corrects a spelling error, counsel can comment on the change at trial to try to detract from the deponent’s credibility. For example, a deponent may testify at deposition that there was no slippery substance on a ship’s deck and correct the transcript to reflect there was a slippery substance on the deck.
At deposition, all objections to the questions are saved for trial except objections to the form of the question. If a question is vague or ambiguous or compound (asking more than one thing in a question), an objection to it is properly made by counsel at the deposition. Substantive objections to a question, such as it calls for inadmissible hearsay or seeks inadmissible information about steps taken by the defendant to correct a defective condition after an injury has occurred, are saved for the time of trial and the deponent must answer the question. That is because those objections must be ruled upon by the trial judge who determines what testimony is admissible as evidence at trial. Stated another way, a deponent is required to give testimony at a deposition that might not be admissible later at trial.
The failure to make substantive objections at a deposition is not a waiver of them. Sometimes lawyers forget that or simply ignore it. They delay the deposition and litter the transcript with unnecessary or meaningless objections. For example, some lawyers object to a question on the ground “it assumes facts not in evidence.” That objection is nonsensical at best. Nothing is “in evidence” at the time of the deposition because trial has not started yet.
Sometimes lawyers will simply object to a question without a sound basis if the answer is expected to be unfavorable. Depending on the speciousness of the objection, the lawyer could face sanctions for making it. Most of the time, however, depositions proceed smoothly and non-confrontationally with the lawyers making only proper objections.
Depositions to Perpetuate Testimony
Federal law, namely, Federal Rule of Civil Procedure 27, provides a mechanism for a deposition to be taken before suit is filed in order to perpetuate or preserve a witness’s testimony for trial. It is often used in maritime cases because of the transient nature of vessels and crewmembers. The vessel involved in a casualty might not return to the port where the lawsuit is eventually filed, and the crewmembers with knowledge of the casualty may no longer be aboard. State law may also provide for depositions to perpetuate testimony.
Under federal law, the person wanting to take a deposition to perpetuate testimony must first file a petition in the federal court. The petition must show: 1) the petitioner expects to be a party to a case subject to federal jurisdiction but cannot yet file the action; 2) the subject matter of the anticipated action and the petitioner’s interest in it; 3) the facts to be established by the deposition and the reason to perpetuate it; 4) the names and/or descriptions of the persons who the petitioner expects to be adverse in the action and their address if known; and 5) the name and address of the witness and expected substance of the testimony. If the five categories of information are not provided in the petition, or if there are no extraordinary circumstances warranting the taking of a deposition before litigation has begun, the petition will be denied.
Illustrating the circumstances under which a pre-litigation deposition for the perpetuation of testimony was permitted in a maritime case is In the Matter of the Application of Deiulmar Di Navigazione S.p.A. 153 F.R.D. 592 (E.D. La 1994). Deiulmar chartered the M/V Theodore C from Aegean. The charter agreement provided for arbitration of disputes in London. The M/V Theodore C ran aground at Port Comfort, Texas on December 20, 1993 and remained in Port Comfort until January 29, 1994 when it was towed to Avondale Shipyard in Louisiana.
On February 3, 1994, Aegean put Deiulmar on notice of a claim arising out of the grounding which claim would fall within the scope of the arbitration provision in the charter agreement. At that time, the vessel was scheduled to leave Avondale Shipyard between February 24 and 27, 1994 and return to Greece for a crew change.
Deiulmar petitioned the federal district court in Louisiana for the perpetuation of the testimony of crewmembers under Federal Rule of Civil Procedure 27. Aegean moved to dismiss the petition on two grounds: 1) Deiulmar failed to give Aegean twenty days’ notice as required by Federal Rule of Civil Procedure 27 when faxing a copy of the petition to Aegean’s counsel less than twenty days before the hearing; and 2) the parties agreed to arbitrate the matter in London. The district court rejected the first ground finding no prejudice resulted because Aegean’s interests were represented by counsel. It also noted deadlines are routinely modified by the court in the interests of justice and were justifiably modified under the circumstances.
The district court also rejected the second ground for dismissal. It noted federal discovery rules are not generally available as part of an arbitration proceeding. Nonetheless, it recognized courts have some leeway when the petitioner can show extraordinary circumstances exist such as when a vessel with crewmembers aboard who have knowledge about an incident is about to depart the port. The district court also recognized the critical information would be lost if not perpetuated by deposition. Accordingly, the district court ordered the depositions of the chief engineer, third mate, and helmsman to be taken on February 23, the day before the first scheduled day of sailing. It further ordered Aegean to produce for use at the deposition the M/V Theodore C’s deck log, the bell book, the engineer room recorder, and the course recorder for the day of the grounding. In addition, the district court ordered Aegean to produce the vessel’s engine log book for the period thirty days from the incident to January 1, 1994, the maintenance records for the steering system and engine for thirty days before the incident, as well as reports from the master, deckhands and engineers regarding the incident and the equipment involved for the period thirty days before the incident to ten days after the incident. Had the district court not allowed the perpetuation depositions, the evidence and testimony might have been forever unavailable in the United States or the London arbitration.
Depositions are a common part of litigation and enable the parties to learn about the other party’s evidence. To prevent them from being unduly burdensome, both state and federal law provide time limits with certain exceptions. All objections to questions at the deposition are saved for the time of trial except objections to the form of the question. Federal and state law also provide a procedure whereby a person can petition the court for an order permitting a deposition to be taken to perpetuate testimony even before a lawsuit has been filed. That procedure is sometimes used in maritime cases when a vessel involved in a casualty is departing the United States with knowledgeable crewmembers aboard and may not return.
Bottom line: depositions should not be feared.
Marilyn Raia is a shareholder in the San Francisco office of Bullivant Houser Bailey. She has been certified as a specialist in admiralty-maritime law by the State Bar of California, Board of Legal Specialization. She can be reached at email@example.com.