The Court has been somewhat quiet this week as far as new decisions, so I figured I'd take this opportunity to lay out a few quick thoughts on recurring issues that come up in depositions in the District of Delaware.
This is some (but not all) of what you might hear when asking Delaware counsel "depositions are coming up next month, is there anything I should know?" (Experienced Delaware counsel might also talk about a few more topics, such as how to avoid accidentally making your witness prep materials discoverable—but those are for another post).
Here's the list:
- When sending a notice of deposition, be sure to leave at least 10 days before the deposition date (unless it is agreed) under D. Del. LR 30.1.
- At the deposition, form objections should be stated as "Objection, form." Tuerkes-Beckers, Inc. v. New Castle Assocs., 158 F.R.D. 573, 575 (D. Del. 1993) (“Objections as to the form of the question should be limited to the words ‘Objection, form.’”). No speaking objections.
- Don't talk to your witness about the substance of their testimony during breaks, until opposing counsel's questioning is complete. See D. Del. LR 30.6.
- If you think counsel for your opponent talked to their witness during a break, see our post on this issue (update: and this), and consider follow-up questions in this form:
A. Did you consult with your attorney . . . during the recess . . . ?
B. Did you consult with [your attorney] regarding . . . deposition testimony either given and/or expected . . . ?
C. Did you consult with [your attorney] . . . . regarding how you should answer questions during the remainder of the deposition?
D. About what areas of your testimony already given and/or expected . . . did you consult with said person?
- Don't bring extra people. Only a limited set of people can attend a deposition absent agreement: The deponent, counsel for the deponent or a party (including firm employees); a party or a party representative; and a consultant or expert. LR 30.3.
- This is not specific to D. Del., but don't let your witness bring anything—anything!—to the deposition, including their cell phone. Never!
- Don't forget to mark the transcript as confidential under the protective order—assuming it qualifies (typically it does, if it's a fact witness in a patent case).
- Be sure you are very familiar with the circumstances under which counsel can instruct a witness not to answer. Hint: They are narrow. See, e.g., Tuerkes-Beckers, 158 F.R.D. at 575.
- Delaware counsel does not typically attend depositions unless there is a reason for them to. If there is a dispute, however, be sure to involve local counsel for both sides before attempting to contact the Court.
There you have it. Good luck! And if you practice in D. Del. and have thoughts on other good tips we should add, please feel free to let me know and I'll update the list.
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