Changes to deposition practice in federal court will likely occur this year. On April 17, 2000, the Supreme Court adopted and transmitted to Congress a set of amendments to the Federal Rules of Civil Procedure, including changes to the discovery rules in FRCP 26, containing the general discovery provisions; FRCP 30, regarding depositions; and FRCP 37, providing discovery sanctions. Absent action by Congress, the new rules will take effect on December 1, 2000, and will significantly change federal discovery practice in Oregon. We focus on the amendment to Rule 30(d) that would impose a presumptive one-day, seven-hour limitation on the deposition of a witness.
A. The amendment to Rule 30(d)(2).
Currently, Rule 30(d)(2) allows district courts to limit the duration of a deposition by order or local rule:
By order or local rule, the court may limit the time permitted for the conduct of a deposition, but shall allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another party impedes or delays the examination. If the court finds such an impediment, delay, or other conduct that has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.The amendments to Rule 30(d)(2) will make time-limited depositions a national practice:
Unless otherwise authorized by the court or stipulated by the parties, a deposition is limited to one day of seven hours. The court must allow additional time consistent with Rule 26(b)(2) if needed for a fair examination of the deponent or if the deponent or another person, or another circumstance, impedes or delays the examination.
B. The genesis of the amendment.
The Advisory Committee on Civil Rules reports to the Standing Committee on Rules of Civil Practice and Procedure of the Judicial Conference of the United States. The Judicial Conference in turn recommends rule changes to the Supreme Court. Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy, 87 Geo. L.J. 887, 892 (1999) (footnotes omitted). In 1998, the Advisory Committee on Civil Rules first published for comment a draft of its proposed amendments to the rules, including the deposition time limitation in Rule 30(d)(2).
This was not the first time that the Advisory Committee had raised the possibility of presumptive deposition time limits. In 1991, it proposed that depositions be limited to six hours but then dropped the proposal. Richard L. Marcus, Discovery Containment Redux, 39 B.C. L. Rev. 747, 766 & n.111 (1998). Instead, as part of the 1993 amendments, Rule 30(d) was amended to impose limits on attorneys’ objections and instructions not to answer during depositions. Id. at 766; FRCP 30(d)(1). The Advisory Committee had significant concerns about problems the six hour rule might create, including the possible need for a timekeeper to measure the time; disputes regarding division of time between counsel; gamesmanship employing the time limitation; and excessive motion practice because of disputes. The Advisory Committee voted 5-2 to delete the time limit but to authorize local rules imposing deposition time limits. Marcus, Discovery Containment, n.111.
In October 1996, the Advisory Committee commenced a comprehensive review of the federal discovery rules, guided by three questions: 1) when fully used, is the discovery process too expensive for what it contributes to the dispute resolution process; 2) are there rule changes that can be made which might reduce the cost and delay of discovery without undermining a policy of full disclosure; and 3) should the federal rules for discovery, applying to cases involving national substantive law and procedure, as well as to cases involving state law, be made uniform throughout the United States? Richard L. Marcus, Retooling American Discovery for the Twenty-First Century: Toward a New World Order?, 7 Tul. J. Int'l & Comp. L. 153, 164-65 (1999). In proposing changes to the discovery rules, the Advisory Committee was able to use comments from prominent, experienced attorneys whom the Advisory Committee consulted in two conferences; written recommendations from bar groups about possible changes in the rules; a legislatively-mandated study of the federal courts' efforts to reduce expense and delay by the Rand Corporation; and a study of 1,000 federal court cases by the Federal Judiciary Center (FJC) on the effects of the 1993 amendments to the rules. The Advisory Committee commissioned the FJC study. Id. at 165.
According to the reporter for the 1998 Advisory Committee that recommended the amendments to Rule 30(d)(2), the anecdotal information the Committee received included complaints about the duration of oral depositions. Id. at 166. In addition, the FJC found in its survey that depositions cost about twice as much as document production in an average case. Approximately 80% of attorneys surveyed by the FJC thought that the rules should be changed to improve discovery practice, and the favorite change suggested was an increase in judicial regulation of discovery. Id. at 167-68. The Rand findings are summarized in James S. Kakalik et al., Discovery Management: Further Analysis of the Civil Justice Reform Act Evaluation Data, 39 B.C. L. Rev. 613 (1998). The FJC results are reported in Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. Rev. 525 (1998).
Apparently, the amendment addresses the concern raised by 12% of the attorneys surveyed in the FJC study that too much time was spent on a deposition. Willging, An Empirical Study, 39 B.C.L. Rev. at 538-39. The amendment to Rule 30(d)(2) is also part of rule changes designed to impose national uniformity in discovery. Marcus, Retooling American Discovery, 7 Tul. J. Int'l & Comp. L. at 169.
C. Rule 30(d)(2) in practice.
A number of district courts have issued local rules limiting the time of depositions since the 1993 amendments to Rule 30(d)(2) went into effect, including the District of Alaska, the Eastern District of Texas, the Eastern District of Wisconsin, the Northern District of Oklahoma, the Northern District of Georgia, and the District of Vermont. Most of the local rules permit six hours per deposition, but some district courts have restricted depositions of non-experts to three hours (Alaska and Vermont). Due to the paucity of reported cases, information regarding the practice in those districts that have limited deposition time is not readily available.
Nevertheless, based on the proposed change to Rule 30(d)(2) and its underlying purpose, we have a number of suggestions for deposition practice under the new amendment. Clearly, the best way to live with the time limitation is to be efficient. The reporter for the 1998 Advisory Committee has written:
Of necessity any precise durational limitation (like numerical limitations on depositions and interrogatories) is in some senses arbitrary, and the objective is to avoid unreasonable rigidity. At the same time, the limitation should prompt lawyers to curtail lengthy background inquiry and get to the issues of the case. Judges, presumably, will not look kindly on requests to extend the time where the time already expended has not been used wisely. Indeed, even in the absence of an explicit limitation, such circumstances would provide grounds for limiting the length of a deposition.
Marcus, Retooling American Discovery, 7 Tul. J. Int'l & Comp. L. at 173 (footnotes omitted).
In addition, the parties should fully utilize the opportunity to stipulate to different time limitations as allowed by Rule 30(d)(2). Given the 1993 and the recently approved amendments to the civil discovery rules by the Supreme Court, parties will have many negotiation options during discovery. These include, for example, agreement that an equal number of depositions per side may be extended in time; trading depositions of additional witnesses for more hours; and agreement on total hours of time for all depositions that may be allocated in excess of seven hours for any deposition. Stipulations are certainly in order when because of the conduct of the witness or the defending attorney, or any other circumstance beyond the reasonable control of the deposing attorney, the full seven-hour period to conduct the deposition was reduced. The circumstances that may justify a stipulation or an order to extend the duration of a deposition to allow a “fair examination” also include depositions of a key witness, such as a party, where the deponent’s testimony will affect many of the key factual issues in dispute, the factual issues are numerous or complex, and the value of the litigation is significant. Those circumstances should prompt a stipulation to avoid needless judicial intervention.
This article appeared in the August 2000 issue of the Oregon State Bar's Litigation Journal.