March 25, 2016
Authored by: Leah Fiorenza McNeill and Mark Duedall
Editor’s Note: Here at The Bankruptcy Cave, we love insolvency stuff; we eat it for breakfast and dream about it at night. (We are not kidding.) Sometimes that includes credit-related litigation, and so we keep our pre-trial, trial, and appellate skills honed. To that end, here is a very helpful cheat sheet we prepared and which we bring with us to every deposition, just in case. (Your author Leah even got to enjoy a no-show deposition in Chicago last year; she created a perfect record using the below.) Feel free to use it, and if it is handier to have a Word version, email one of the authors. We will update the post later to make it download-able, but the rudimentary blogging skills of your new editor prevent that now, alas.
Editor’s Note 2: If you like practice tips and cheat sheets like this, see also Mark and Leah’s “The A++, Super Comprehensive, Don’t Ever Start Anywhere Else Set of Opening Questions, Introductory Matters, and Document Inquiries for Taking a Deposition,” posted Aug 2015 here on the Bankruptcy Cave. And coming soon, “The A++, Super Comprehensive, Way to Ensure ‘The Client Just Called and Said He or She Was Completely Prepared and the Deposition Went Great,’ Checklist and Key Items to Prepare Your Witness, Defend a Deposition, and Not Lose the Case.”
Without further ado, today’s post . . .
The Nonappearance (i.e., “No-Show”) Deposition Script
- Always bring a copy of this to every deposition – you sometimes do not know that you are going to have a “no-show” deposition.
- If you think you may have a no-show, bring with you exhibit copies of all email and letter correspondence with the other side from the previous days, most importantly including any email or letter to the other side telling them that the deposition is going forward, and you expect them to be in attendance. As set forth below, those should be entered into the record with the reporter.
My name is [_______] and I am joined by [name of anyone else attending deposition with you], and I/we represent the [___________]. This is to be the Rule 30 / 30(b)(6) / 45 deposition of ___________ taken pursuant to Rule 30 / 30(b)(6) / 45 of the Federal Rules of Civil Procedure in Civil Case Number __________ pending in _____________________. [Alternatively, for Georgia cases, or conform to your applicable state laws or rules, “This is to be the deposition of ______ taken pursuant to Sections 9-11-26 and 9-11-30 [or 9-11-45] of the Official Code of Georgia in Civil Action Number ______ pending in the _______ Court of _______ County, Georgia.”]
It is now [time] on [date] and the representative for ________________ [or name person], has not appeared. In addition, counsel for the deponent is not here. We will go off the record for 20 minutes to give the deponent and his/hers/its counsel a bit more time [or so you can call the other side].
It is now [time] and the deponent and his/her/its counsel have not appeared. [If you sent them an email or called them during the break, which is not required but maybe you do it anyway if you think the other side will try to come up with some excuse later, then put on the record what you did, and the response, if any.] Before marking _________ exhibits, I will provide a concise summary of what has happened in the days leading up to this deposition.
[Provide Concise Summary, noting precisely (i) when you served your notice, and (ii) how you served it. If you had communication with deponent’s counsel (or just the deponent, if the deponent is not represented), you should state the nature of the communications and the purported reasons, if any, for the nonappearance.]
And now, I would like to enter a few exhibits into the record.
Index of Deposition Exhibits
|1.||(Is a true and correct copy of the ) Notice of Deposition|
|2.||(Is a true and correct copy of a) Proof of Service|
|3.||[Email or letters from you re: you better not no-show]|
|4.||[Other written stuff to get into the record to show the harm of the no-show, if you want and had a sense the no-show was likely.]|
It is now approximately [time] and the deponent and counsel for the deponent still not appearing, this deposition is suspended due to nonappearance. [Mark and Leah prefer “suspended,” as then the original notice or subpoena is still valid, if discovery periods are expiring you may not need to extend (although check your local rules on this, folks), and you will have the argument that this is a “break” in a deposition that makes the intervening communications between opposing counsel and client fully discoverable and not subject to the privilege.] This will conclude today’s transcript.
 See David S. Wachen and George Hovanec, Can We Talk? Nationwide Survey Reveals Wide Range Of Practices Governing Communication With Witnesses While Defending Their Deposition, published by the Section of Litigation of the American Bar Association (Undated), available on file with the authors.