The deposition is one of the most valuable pre-trial discovery methods in a trial attorney’s arsenal. Depositions allow parties to a suit to obtain the testimony of witnesses and parties involved in an action. The deponent’s testimony is given under oath and recorded for evidentiary purposes.
Notice Procedure for Oral Depositions
The Texas Rules of Civil Procedure Rule 199 governs the timing and proper location of any deposition. The party requesting the deposition must deliver proper notice to the witness, naming the witness, identifying the legal matters the deponent will be questioned on, and naming a “reasonable time and place” for the deposition. While a deposition may be noticed for an individual or business entity, any organization deposed must have one or more persons testify on their behalf. Tex. R. Civ. P. 199.2(b)(1).
Reasonable Time and Place
Rule 199 provides a list of places to help define where a “reasonable” place is for a deposition:
(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. Tex. R. Civ. P. 199.2(b)(2).
Challenging a Deposition for Reasonableness
If a witness believes that the time and place named in the notice is not reasonable, they can object to the deposition by filing a motion to quash or filing for a protective order. Tex. R. Civ. P. 199.4. To successfully receive a protective order from the court, the deponent must name the undue burden and provide supporting evidence of the burden. Tex. R. Civ. P. 192.6.
Reasons to claim undue burden include:
- Deponent would bear unnecessary expense to submit to notice;
- Deponent has suffered harassment by the serving party;
- Submitting to deposition would cause deponent great annoyance; or
- Submitting to notice would cause an invasion of the deponent’s protected rights. Tex. R. Civ. P. 192.6.
When seeking a protective order, a deponent must also cite a reasonable time and place for deposition. Tex. R. Civ. P. 192.6.
The deponent must also show that the proposed time and place are convenient for other side, not just the deponent. Without proper evidence supporting a claim of undue burden, a judge will not issue a protective order and the notice of deposition remains in effect.
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