This post on Depositions is the sixth part of a seven-part series on forms of discovery in Texas. The topics are listed below:
Initial Disclosures
Request for Production and Inspection
Interrogatories
Request for Motion for Entry Upon Property
Admissions
Depositions
Subpoenas
Depositions
In civil litigation, discovery refers to the process where parties in a lawsuit exchange relevant facts and information about a case. In order to facilitate that exchange, the discovery process includes taking depositions, both oral and written. The guidelines for oral depositions during discovery are outlined in Rule 199 of the Texas Rules of Civil Procedure, and those for written depositions are outlined by Rule 200.
Oral Depositions
For oral depositions, the responding party, or deponent, must receive notice of intent to record an oral deposition within a reasonable time period. In that notice, those being deposed must also be informed of exactly where, when, and by whom the deposition will occur. If the oral deposition is to be recorded instead of written down, all involved parties must be informed at least five days before the deposition occurs.
Certain people, such as counsel, witnesses, spouses, and the person actually taking the deposition, are permitted to attend deposition without special notice. If other parties are to attend, their names should be included in the notice of intent to take oral deposition. The notice may also stipulate documents or other items in the parties’ possession required for deposition. If the responding party makes any mistakes during oral deposition, counsel has the right to correct or clarify those mistakes using an errata sheet, according to Rule 203.1. However, there is no consensus about whether a statement can be changed completely, from yes to no or from true to false. Because some courts object to their overuse, minimizing the use of errata sheets is a good goal for counsel.
Below is Rule 199, which details the guidelines and procedures for oral depositions during the discovery process:
199.1 Oral Examination; Alternative Methods of Conducting or Recording.
(a) Generally. A party may take the testimony of any person or entity by deposition on oral examination before any officer authorized by law to take depositions. The testimony, objections, and any other statements during the deposition must be recorded at the time they are given or made.
(b) Depositions by telephone or other remote electronic means. A party may take an oral deposition by telephone or other remote electronic means if the party gives reasonable prior written notice of intent to do so. For the purposes of these rules, an oral deposition taken by telephone or other remote electronic means is considered as having been taken in the district and at the place where the witness is located when answering the questions.
(c) Non-stenographic recording. Any party may cause a deposition upon oral examination to be recorded by other than stenographic means, including videotape recording. The party requesting the non-stenographic recording will be responsible for obtaining a person authorized by law to administer the oath and for assuring that the recording will be intelligible, accurate, and trustworthy. At least five days prior to the deposition, the party must serve on the witness and all parties a notice, either in the notice of deposition or separately, that the deposition will be recorded by other than stenographic means. This notice must state the method of non-stenographic recording to be used and whether the deposition will also be recorded stenographically. Any other party may then serve written notice designating another method of recording in addition to the method specified, at the expense of such other party unless the court orders otherwise.
199.2 Procedure for Noticing Oral Depositions.
(a) Time to notice deposition. A notice of intent to take an oral deposition must be served on the witness and all parties a reasonable time before the deposition is taken. An oral deposition may be taken outside the discovery period only by agreement of the parties or with leave of court.
(b) Content of notice.
(1) Identity of witness; organizations. The notice must state the name of the witness, which may be either an individual or a public or private corporation, partnership, association, governmental agency, or other organization. If an organization is named as the witness, the notice must describe with reasonable particularity the matters on which examination is requested. In response, the organization named in the notice must - a reasonable time before the deposition designate one or more individuals to testify on its behalf and set forth, for each individual designated, the matters on which the individual will testify. Each individual designated must testify as to matters that are known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized by these rules.
(2) Time and place. The notice must state a reasonable time and place for the oral deposition.
The place may be in:
(A) the county of the witness's residence;
(B) the county where the witness is employed or regularly transacts business in person;
(C) the county of suit, if the witness is a party or a person designated by a party under Rule 199.2(b)(1);
(D) the county where the witness was served with the subpoena, or within 150 miles of the place of service, if the witness is not a resident of Texas or is a transient person; or(E) subject to the foregoing, at any other convenient place directed by the court in which the cause is pending.
(3) Alternative means of conducting and recording. The notice must state whether the deposition is to be taken by telephone or other remote electronic means and identify the means. If the deposition is to be recorded by nonstenographic means, the notice may include the notice required by Rule 199.1(c).
(4) Additional attendees. The notice may include the notice concerning additional attendees required by Rule 199.5(a)(3).
(5) Request for production of documents. A notice may include a request that the witness produce at the deposition documents or tangible things within the scope of discovery and within the witness's possession, custody, or control. If the witness is a nonparty, the request must comply with Rule 205 and the designation of materials required to be identified in the subpoena must be attached to, or included in, the notice. The nonparty's response to the request is governed by Rules 176 and 205. When the witness is a party or subject to the control of a party, document requests under this subdivision are governed by Rules 193 and 196.
199.3 Compelling Witness to Attend.
A party may compel the witness to attend the oral deposition by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the notice of oral deposition upon the party's attorney has the same effect as a subpoena served on the witness.
199.4 Objections to Time and Place of Oral Deposition.
A party or witness may object to the time and place designated for an oral deposition by motion for protective order or by motion to quash the notice of deposition. If the motion is filed by the third business day after service of the notice of deposition, an objection to the time and place of a deposition stays the oral deposition until the motion can be determined.
199.5 Examination, Objection, and Conduct During Oral Depositions.
(a)Attendance.
(1) Witness. The witness must remain in attendance from day to day until the deposition is begun and completed.
(2) Attendance by party. A party may attend an oral deposition in person, even if the deposition is taken by telephone or other remote electronic means. If a deposition is taken by telephone or other remote electronic means, the party noticing the deposition must make arrangements for all persons to attend by the same means. If the party noticing the deposition appears in person, any other party may appear by telephone or other remote electronic means if that party makes the necessary arrangements with the deposition officer and the party noticing the deposition.
(3) Other attendees. If any party intends to have in attendance any persons other than the witness, parties, spouses of parties, counsel, employees of counsel, and the officer taking the oral deposition, that party must give reasonable notice to all parties, either in the notice of deposition or separately, of the identity of the other persons.
(b) Oath; examination. Every person whose deposition is taken by oral examination must first be placed under oath. The parties may examine and cross-examine the witness. Any party, in lieu of participating in the examination, may serve written questions in a sealed envelope on the party noticing the oral deposition, who must deliver them to the deposition officer, who must open the envelope and propound them to the witness.
(c) Time limitation. No side may examine or cross-examine an individual witness for more than six hours. Breaks during depositions do not count against this limitation.
(d) Conduct during the oral deposition; conferences. The oral deposition must be conducted in the same manner as if the testimony were being obtained in court during trial. Counsel should cooperate with and be courteous to each other and to the witness. The witness should not be evasive and should not unduly delay the examination. Private conferences between the witness and the witness's attorney during the actual taking of the deposition are improper except for the purpose of determining whether a privilege should be asserted. Private conferences may be held, however, during agreed recesses and adjournments. If the lawyers and witnesses do not comply with this rule, the court may allow in evidence at trial statements, objections, discussions, and other occurrences during the oral deposition that reflect upon the credibility of the witness or the testimony.
(e) Objections. Objections to questions during the oral deposition are limited to "Objection, leading" and "Objection, form." Objections to testimony during the oral deposition are limited to "Objection, non-responsive." These objections are waived if not stated as phrased during the oral deposition. All other objections need not be made or recorded during the oral deposition to be later raised with the court. The objecting party must give a clear and concise explanation of an objection if requested by the party taking the oral deposition, or the objection is waived. Argumentative or suggestive objections or explanations waive objection and may be grounds for terminating the oral deposition or assessing costs or other sanctions. The officer taking the oral deposition will not rule on objections but must record them for ruling by the court. The officer taking the oral deposition must not fail to record testimony because an objection has been made.
(f) Instructions not to answer. An attorney may instruct a witness not to answer a question during an oral deposition only if necessary to preserve a privilege, comply with a court order or these rules, protect a witness from an abusive question or one for which any answer would be misleading, or secure a ruling pursuant to paragraph (g). The attorney instructing the witness not to answer must give a concise, non-argumentative, non-suggestive explanation of the grounds for the instruction if requested by the party who asked the question.
(g) Suspending the deposition. If the time limitations for the deposition have expired or the deposition is being conducted or defended in violation of these rules, a party or witness may suspend the oral deposition for the time necessary to obtain a ruling.
(h) Good faith required. An attorney must not ask a question at an oral deposition solely to harass or mislead the witness, for any other improper purpose, or without a good faith legal basis at the time. An attorney must not object to a question at an oral deposition, instruct the witness not to answer a question, or suspend the deposition unless there is a good faith factual and legal basis for doing so at the time.
199.6 Hearing on Objections.
Any party may, at any reasonable time, request a hearing on an objection or privilege asserted by an instruction not to answer or suspension of the deposition; provided the failure of a party to obtain a ruling prior to trial does not waive any objection or privilege. The party seeking to avoid discovery must present any evidence necessary to support the objection or privilege either by testimony at the hearing or by affidavits served on opposing parties at least seven days before the hearing. If the court determines that an in camera review of some or all of the requested discovery is necessary to rule, answers to the deposition questions may be made in camera, to be transcribed and sealed in the event the privilege is sustained, or made in an affidavit produced to the court in a sealed wrapper.
Tex. R. Civ. P. 199
Written Depositions
For written depositions, a notice of intent to take depositions must be sent to the deponent at least two days before the deposition is taken, and the written questions must be attached to the notice of intent. The deponent then has ten days after seeing the deposition questions to object to the questions and to submit cross-questions. No more than five days after the cross-questions are served, the litigant can object to cross-questions and submit redirect questions. Objections to those redirect questions must then be submitted within five days of receiving them.
At the written deposition, an officer must be available at the time and place designated in the notice of intent. Under oath, the deponent will respond to the written questions, which the officer will record. The officer will then prepare, certify, and deliver that transcript as specified in the notice of intent.
Below is Rule 200, which details the guidelines and procedures for written depositions during the discovery process:
200.1 Procedure for Noticing Deposition Upon Written Questions.
(a) Who may be noticed; when. A party may take the testimony of any person or entity by deposition on written questions before any person authorized by law to take depositions on written questions. A notice of intent to take the deposition must be served on the witness and all parties at least 20 days before the deposition is taken. A deposition on written questions may be taken outside the discovery period only by agreement of the parties or with leave of court. The party noticing the deposition must also deliver to the deposition officer a copy of the notice and of all written questions to be asked during the deposition.
(b) Content of notice. The notice must comply with Rules 199.1(b), 199.2(b), and 199.5(a)(3). If the witness is an organization, the organization must comply with the requirements of that provision. The notice also may include a request for production of documents as permitted by Rule 199.2(b)(5), the provisions of which will govern the request, service, and response.
200.2 Compelling Witness to Attend.
A party may compel the witness to attend the deposition on written questions by serving the witness with a subpoena under Rule 176. If the witness is a party or is retained by, employed by, or otherwise subject to the control of a party, however, service of the deposition notice upon the party's attorney has the same effect as a subpoena served on the witness.
200.3 Questions and Objections.
(a) Direct questions. The direct questions to be propounded to the witness must be attached to the notice.
(b) Objections and additional questions. Within ten days after the notice and direct questions are served, any party may object to the direct questions and serve cross-questions on all other parties. Within five days after cross-questions are served, any party may object to the cross-questions and serve redirect questions on all other parties. Within three days after redirect questions are served, any party may object to the redirect questions and serve re-cross questions on all other parties. Objections to re-cross questions must be served within five days after the earlier of when re-cross questions are served or the time of the deposition on written questions.
(c) Objections to form of questions. Objections to the form of a question are waived unless asserted in accordance with this subdivision.
200.4 Conducting the Deposition Upon Written Questions.
The deposition officer must: take the deposition on written questions at the time and place designated; record the testimony of the witness under oath in response to the questions; and prepare, certify, and deliver the deposition transcript in accordance with Rule 203. The deposition officer has authority when necessary to summon and swear an interpreter to facilitate the taking of the deposition.
Tex. R. Civ. P. 200
Depositions are subject to many complex rules, and failing to follow those rules can have serious effects on litigation. Hiring a lawyer who is knowledgeable about the requirements and details concerning depositions will help a litigant avoid the difficulties that result from not handling depositions appropriately.
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