Episode 22 - FRCP 29(a) Stipulations: A Way to Save Time, Money & Headaches

In this episode, Jim Garrity talks about one of the greatest time and money-saving tools you've never heard of. Fed. R. Civ. P. 29(a) stipulations allow you to eliminate both expected and unexpected hassles in your depositions, and even to eliminate court reporters, for tremendous cost savings. Jim outlines the rule, offers nearly a dozen great practice tips, and includes (in these show notes, below) nearly twenty case citations, complete with detailed parentheticals. Your homework's been done for you.

Cases Mentioned in, Or Relevant to, This Episode:

Kraese v. Jialiano Qi, etc. 2020 WL 4016250 (S.D. Georgia July 16, 2020) (judge pondered whether defendant's failure to timely respond to plaintiff's motion to re-depose physician could be construed as FRCP 29(a) stipulation, where defense response was forty days out of time)

Kean V. The Board of Trustees of the Three Rivers Regional Library, 321 F.R.D. 448, fn. 7 (S.D. Ga. Jan. 26, 2017) (Generally encouraging parties to make informal stipulations under FRCP 29(a) to take advantage of technology in order to reduce expenses such as travel)

Thomas v. Wallace, Rush, Schmidt, Inc., 2020 WL 3247380 (M. D. La. March 18, 2020) (under local rule, parties could stipulate under FRCP 29(a) to conduct depositions past discovery deadline, as long as it did not interfere with trial date or other court-established deadlines; however, such stipulations do not necessarily include right of either party to file motions to compel after the discovery deadline)

Li, etc. v. A Perfect Day Franchise, Inc., 2011 WL 3895118, Case No. 10-CV-01189-LHK (N.D. Cal. Aug 29, 2011) (parties’ stipulation that defendants’ 30(b)(6) designee could be deposed by videoconference, because designee was in China, precluded later argument by defense that plaintiff had not complied with FRCP 28’s requirements for deposing witnesses in foreign countries; while stipulation made no mention of FRCP 29(a), court cited rule in saying that the stipulation was of the kind authorized by that rule)

Murray v. Nationwide Better Health, et al, 2011 WL 2293376 (C.D. Ill. June 9, 2011) (defendant’s silence in response to pro se plaintiff’s proposal to depose certain witnesses without a court reporter wasn’t consent or a stipulation under FRCP 29(a); held, defendant did not have to object, because it was entitled to have the deposition conducted pursuant to FRCP 28)

Brestan v. Skaggs, 2010 WL 11552887 (C.D. Ill. Jan. 20, 2010) (finding no agreement or stipulation by defense counsel to conduct depositions after the discovery deadline, but, even if such agreement had existed, it would not have overridden the court’s scheduling order)

Burrell v. Allstate Property and Casualty Co., 2015 WL 12979206, Case No. 3:13-cv-493-CWR-FKB (S.D. Miss. Oct. 23, 2015) (defendant allowed to withdraw from FRCP 29(a) stipulation, which would have required defense witnesses to travel nearly 200 miles for their depositions; held, plaintiff’s counsel delayed noticing deposition for 16 months after the stipulation, during which time the proposed deponents had been dropped from the suit)

Stephens v. Fredrickson, 2013 WL 6490701, No. C12–1067RAJ–MAT (W.D. Washington December 10, 2013) (prisoner, attempting to avoid costs, sought agreement from state’s lawyer to allow prisoner to buy audiocassettes, audiotape depositions of prison officials, and pay for transcription, to which defense counsel refused, insisting on procedure under rule 28; court expressed irritation at counsel for refusing to stipulate to alternative method, and hinted at sanctions if counsel did not step up and cooperate).

Richardson v. BNSF Railway Company, 2014 WL 5317866, Case No. 13-5415 (E. D. La. Oct. 16, 2014) (email exchange between lawyers about the date and place for plaintiff to depose defense witnesses was deemed a FRCP 29(a) stipulation; held, defendant sanctioned for unilaterally canceling depositions 5 days before the scheduled date)

Archway Insurance Services, LLC v. Harris, 2013 WL 1405823, No. 2:11–cv–01173–JCM–CW (D. Nev. April 5, 2013) (FRCP 29(a) agreement deemed to have existed when defense counsel agreed to postpone scheduled depositions and work with plaintiff to reset them; even though plaintiff’s counsel did not timely respond to follow-up efforts to reset them, no sanctions were warranted for “failure” of plaintiffs to appear for deposition, since defense agreed they could be reset)

Garza v. Webb County, Texas, et al., 296 F.R.D. 511, Civil Action No. 5:12–CV–153 (S.D. Texas Jan 2. 2014) stating that “two types of stipulations are contemplated by the language of Rule 29 - those that involve only the litigants, and those that require court approval; court approval required whenever a stipulated extension ‘would interfere with the time set for completing discovery, for hearing a motion, or for trial’”)

Tripati v. Corizon Incorporated, et al., 2019 WL 6114593, No. CV-18-00066-TUC-RM (D. Ariz. Nov. 15, 2019) (prisoner’s request for order modifying deposition procedures, on grounds of financial hardship, denied, absent stipulation by opposing party under Rule 29(a) )

Robinson v. Adams, et al., 2010 WL 1948252, No. 1:08-cv-01380-AWI-SKO (E.D. Calif. May 11, 2010) (Court treated prisoners non-compliant notice of taking deposition, using audio and visual recording means but without a court reporter, as a Rule 29(a) request that the defense lawyer perform the duties of a reporter, namely administering the oath and making the announcements required by FRCP 30(b)(5); court ordered defense counsel to confer with the inmate about this procedure come up before the court would make a ruling about how to handle it)

Marvin Lumber and Cedar Company v. SAPA Extrusions, Inc., 2012 WL 12965625, Case No. 10-3881-RHK/LIB (D. Minn. June 8, 2012) (court found emails between counsel to constitute a Rule 29(a) agreement, requiring plaintiff's witnesses to travel several hundred miles to deposition location, well beyond the 100-mile limit imposed by FRCP 45(c)(3)(A)(ii) ) )

Kiera v. Berry et al., 2013 WL 5416900 (S.D. Fla. Sept. 26, 2013) (court observed in context of various motions filed by pro se plaintiffs that Rule 29 (a) is permissive, and does not obligate any party to agree to non-standard deposition protocols)

Eppley v. SAFC Biosciences, Inc., 2020 WL 7353865 (D. Kan. Dec. 15, 2020) (incorrectly citing a Southern District of Florida case, Hernandez, for the proposition that a Rule 29(a) stipulation between the parties can provide four depositions beyond the discovery deadline without court intervention)

Hernandez v. Starbucks Coffee Company, 2011 WL 13173810 (S.D. Fla. Apr. 14, 2011) (noting that Rule 29(a) stipulations in the Southern District of Florida can provide for depositions past the court ordered deadline because of a local rule specifically authorizing it)