Episode 28 - Preventing (Or Obtaining) A Second Deposition of A Party or Witness

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 Transportation, 283 F.R.D. 330 (S.D. Texas 2012) (re-deposition of plaintiff allowed, where there were eleven defendants, only one of whom was a party when initial deposition was taken, where new information had been developed, and where examinations would also cover areas not specifically covered in detail during first deposition)

Fresenius Med. Care Holdings, Inc. v. Roxane Labs., Inc., No. 205-CV-0889, 2007 WL 764302, at *2 (S.D. Ohio Mar. 9, 2007) (A court “may deny leave to conduct a second deposition of [a] witness even if relevant documents are produced subsequent to the deposition if the party taking the deposition either failed to request those documents in a timely fashion or chose to conduct the deposition prior to the completion of document discovery;” held, however, that plaintiff could re-depose witness in patent dispute where key document had been withheld and plaintiff only learned of its existence mid-deposition, and where document was not produced until after deposition)

Ganci v. U.S. Limousine Serv., Ltd., No. CV 10-3027 JFB AKT, 2011 WL 4407461, at *2 (E.D.N.Y. Sept. 21, 2011) “Where the deposition is reopened because of newly discovered information, the questioning of the witness is limited to those questions relating to the newly produced information;” held, re-deposition allowed, but limited to two hours and to information learned since first deposition)

Companhia Energetica Potiguar v. Caterpillar Inc., No. 14-CV-24277, 2016 WL 11547499, at *7 (S.D. Fla. June 13, 2016), report and recommendation adopted, No. 14-24277-CIV, 2016 WL 7497339 (S.D. Fla. Sept. 20, 2016) (“CAT's request to exclude Fuentes' expert opinions is significantly undermined by its failure to take advantage of the order permitting it to take Fuentes' deposition again and question him about the specific documents and data he listed in his errata sheet”)

Noel v. St. Paul Fire & Marine Ins. Co., No. CV 17-752, 2019 WL 97090, at *2 (W.D. La. Jan. 2, 2019) (“Defendants' motion papers establish that [questions about the relationship between Plaintiff and certain witnesses] would be unreasonably cumulative and duplicative of the first deposition, during which defendants had ample opportunity to question plaintiff about his relationship with [them]– and did in fact do so – in addition to deposing both the witness and his wife on the same relationship topic. If defendants have developed information concerning the relationship that undermines the credibility of plaintiff's sworn original deposition answers on this topic, their remedy is to impeach him at trial or other hearing, not to ask him additional questions on the same topic about which they already have or could have questioned him;” held, however, that unopposed motion would be granted to the extent of questions about contact between the plaintiff and certain witnesses since the deposition, and about medical care since the deposition)

Babcock Power, Inc. v. Kapsalis, No. 3:13-CV-717-DJH-CHL, 2015 WL 9257759, at *4 (W.D. Ky. Dec. 17, 2015) (re-deposition of plaintiff allowed, but “Plaintiffs are warned that they are not to cover topics already covered at the October 2014 deposition; per plaintiffs' representations to the Court, plaintiffs only seek to depose [the defendant] on the documents produced in August 2015. The deposition shall be limited to two hours”)

Echeverria v. Nevada, No. 314CV00320MMDWGC, 2020 WL 1549734, at *3 (D. Nev. Apr. 1, 2020) (“Nonetheless, as Plaintiffs have offered to make him available, NDOC may depose Mr. Steiner again—provided that deposition is limited in scope to the supplements he made to his initial report. Discovery remains closed in this case in all other respects”)

In re Gorsoan Ltd., No. 17-CV-5912 (RJS), 2020 WL 6891520, at *3 (S.D.N.Y. Nov. 23, 2020) (court allowed third deposition of party, saying “In [the movant’s] favor is the fact that the party deponent] has repeatedly abused the discovery process in an effort to improperly stymie [the movant’s] efforts, and saying about the party’s prior depositions, “[h]er testimony was almost comical in its implausibility and flagrant obfuscation”)

Perry v. Zurich American Insurance Company, et al., 2019 WL 7558133 (E.D. La. 2019) (denying motion seeking “update depositions” of two injured plaintiffs, where purported focus of new depositions was changes in employment, additional medical treatment and changes in medical care; held, information could have and should have been gathered using other discovery methods, and defendant should not have waited until the late stages of the case, and issues can be raised through cross-examination at trial)

Ganci v. U.S. Limousine Serv., Ltd., No. CV 10-3027,2011 WL 4407461, at *2 (E.D.N.Y. Sept. 21, 2011) (citations omitted) (“[w]here the deposition is reopened because of newly discovered information, the questioning of the witness is limited to those questions relating to the newly produced information”)

Bioconvergence LLC v. Attariwala, 2020 WL 3473453 (S.D. Ind. 2020) (second deposition of defendant allowed for the specific purpose of allowing plaintiff to determine defendant’s compliance with court’s prior preliminary injunction; however, subject matter of deposition strictly limited to issue of compliance, and further limited to three hours in duration)

Matter of Tara Crosby, LLC, No. CV 17-5391, 2019 WL 5634182, at *4 (E.D. La. Oct. 31, 2019) (“In order to for the Court to find circumstances warranting the retaking of Claimants' deposition, a change in situation beyond a mere update of Claimants' current physical capabilities, limitations, and employment status and that Petitioners were unable to acquire in the first deposition would need to arise. Without this more drastic change in circumstances, the second depositions would simply be “a rehash of information already disclosed.” Petitioners have made no representation to the Court, at the hearing or in their post-hearing brief, that constitutes such a change in circumstance. As such, the Court finds the mere lapse in time from the taking of Claimants' original deposition to now does not constitute the sort of change in circumstance envisioned by the rules. Thus, the Court finds the second depositions of Claimants Pitre and Herbert unnecessarily cumulative and duplicative”) 

Chevron U.S.A. Inc. v. Aker Mar., Inc., No. CIV.A. 03-2027, 2007 WL 1558710, at *1 (E.D. La. May 30, 2007) (second deposition denied; “Any benefit from permitting yet another deposition on this issue in this case is far outweighed by its burden, particularly at this late stage of a case that has been pending for almost four years”)

Garrett v. Dep't of Corr. of Fla., No. 5:06CV400OC10GRJ, 2007 WL 5844122, at *2 (M.D. Fla. Oct. 1, 2007) (second deposition of Plaintiff denied; “While there is no doubt that Defendant may derive some benefit if it conducts an updated deposition of Plaintiff, the Defendant could have and should have made this request a long time ago and not shortly before trial”)

Karr v. Four Seasons Mar., Ltd., No. CIV.A.02-3413, 2004 WL 797728, at *6 (E.D. La. Apr. 12, 2004) (second deposition denied; “In the instant case, defendants have already deposed Karr and have had ample opportunity by discovery to obtain the information now being sought. They have not provided any evidence that the information sought is not obtainable from some other source that is more convenient, less burdensome or less expensive”)

*Mamani, et al. v. Sanchez de Lozada, 2017 WL 11633120, Case No. 07-22459-CIV-COHN/SELTZER and 08-21063-CIV-COHN-/SELTZER (S.D. Fla. Aug. 7, 2017) (second deposition may be allowed when thousands of additional documents have been produced since initial deposition)