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COVID-19, CDC/Hannah A Bullock; Azaibi Tamin

Here's something you don't see every day.

After a discovery dispute about bringing a parties' European witnesses to the US for deposition during the pandemic, Judge Noreika ordered that depositions of a defendants' witnesses may initially take place by written questions under FRCP 31:

ORAL ORDER . . . IT IS HEREBY ORDERED that . . . Plaintiff may request a deposition of the witnesses pursuant to Federal Rule of Civil Procedure 31. Any such deposition shall be subject to Local Rule 30.6, with the "commencement" of the written deposition being when Defendants' counsel receives the written questions and the "conclusion" of the deposition being when Defendants' counsel serves the response on Plaintiff's counsel. Defendants' counsel may submit written objections of no more than five words each to any question. Obtaining a deposition under Rule 31 will NOT be grounds for Defendants to oppose another deposition live should conducting a deposition live become feasible. ORDERED by Judge Maryellen Noreika on 10/21/2020. (dlw) (Entered: 10/21/2020)

What Is a Rule 31 Deposition by Written Questions Anyway?

You don't hear about them much, but depositions by written questions do happen. The procedure is actually split between FRCP 30 and 31, and according to the rules it goes along these lines:

  1. You serve a notice listing the direct questions and listing a court reporter. FRCP 28 and 31(a)(3).
  2. The parties may then serve cross questions, redirect questions, and then re-cross questions. FRCP 31(a)(5).
  3. You combine and deliver the questions to the court reporter. FRCP 31(b).
  4. The court reporter reads the questions and transcribes the answers as given, after which the typical procedures for review, etc. are followed. FRCP 30(c), 30(e), 30(f), and 31(b).

Why Are Rule 31 Depositions So Uncommon?

Rule 31 depos have a lot of downsides. The procedures are not entirely clear (when and how are objections raised?), and the federal rules do not explicitly prevent defending counsel from prepping their witness as to the specific questions asked.

Plus, you don't get follow-up questions, you have no control over the witness, and the other side has plenty of time to come up with objections to your questions. The cross, redirect, and re-cross questions are going to seem awfully disjointed when read, because they would normally be based on the substance of the testimony rather than the questions themselves.

One other fear is that what you receive back will ultimately read like an interrogatory response, with long objections and little content (in D. Del., deposition objections should be along the lines of "objection, form" or "objection, foundation").

On top of all of that, a Rule 31 deposition is still a deposition, and you cannot later follow up with an oral deposition of the same witness without seeking leave. FRCP 30(a)(2)(A)(ii). And they still count towards the default 10-deposition limit. FRCP 31(a)(2)(A)(i).

So yeah, these do not come up all that often. There is next to no benefit over a video deposition. They are sometimes used when you have multiple far-away third-party witnesses and regular depositions would be cost prohibitive—but I expect, post-COVID, that video depositions will be more widely accepted for that purpose.

Why Are We Even Talking About This?

I found it interesting that Judge Noreika's order above resolves some of the biggest issues with Rule 31 depositions, at least for the specific case in which it issued.

First, it applies Delaware Local Rule 30.6 to FRCP 31 depositions, starting when the questions are received. Local Rule 30.6 prevents an attorney from discussing the substance of deposition testimony with their witness while the deposition is ongoing. That eliminates the problem that counsel will prep the witness to your specific questions.

Second, it resolves that objections must be in writing and are limited to five words each.

Third, it allows the party seeking the deposition to later perform a normal, oral deposition—greatly improving the cost/benefit ratio. Now that party gets a full deposition on written questions, plus an in-person deposition at a later date, and time to prepare follow-up questions in-between.

All told, it is an interesting model for those in other cases to potentially follow, with leave of court, in light of the ongoing pandemic issues.

Are We Going to See an Explosion of Rule 31 Depos?!?

Nope. Everyone will likely keep doing remote Rule 30 depositions during the pandemic. But it's still good to remember that there are other options out there.

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