Episode 33 - Using Depositions on Written Questions as an Offensive Weapon to Stop the Harassment of Deponents

Dealing with an adversary, whether it's an attorney or a pro se litigant, who seems hell-bent on harassing deponents? We've all had to deal with it. In this episode, Jim advocates using Fed. R. Civ. P. 31 as an offensive weapon to protect deponents. It's a genius-level move, but not one many litigators take advantage of. At the end of the episode, Jim offers practical tips, and includes case cites in the show notes to help you get started.

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SHOW NOTES

Fed. R. Civ. P. 31 (authorizing depositions upon written questions)

Fed. R. Civ. P. 26(c)(1)(C) (authorizing court to direct party to use a form of discovery other than what the party has chosen)

Fed. R. Civ. P. 26(c) (authorizing court to issue order to prevent discovery-related harassment, annoyance or oppression)

Kamden-Ouaffo v. Balchem Corp., et al., 2021 WL 1101126, Case No. 2017cv2810, Doc. 82, Order (S.D.N.Y. Jan. 29, 2020) (noting, in context of pro se plaintiff’s efforts to depose high-level executives of defendant, that Rule 31 depositions are “significantly less disruptive than depositions by oral examination” and could “also simplify counsel’s task in protecting privilege implicated” by a deponent’s testimony)

American Standard, Inc. v. Bendix Corporation, 80 F.R.D. 706 (W.D. Missouri 1978) (where plaintiff identified one of its counsel as a relevant witness on a specific issue, court ordered defendant to take deposition of plaintiff’s counsel initially on written questions, to help assess possible privilege issues that would arise in oral deposition)