Turns Out You Need a Subpoena to Depose Somebody.

Sometimes it takes a federal judge to point out the obvious.

Take, for example, the situation where you want to depose a bunch of employees of the opposing party.

How do you do that?

Can you just notice them for deposition?

Turns out the answer is no:

Although these six employees may well be able to provide relevant information (or information likely to lead to admissible evidence), the Court nonetheless cannot compel Plaintiff to produce them for deposition. Only a party to the litigation may be compelled to give deposition testimony pursuant to a notice of deposition. If the party is a corporation, it’s deposition may be noticed pursuant to Federal Rule of Civil Procedure 30(b)(6), in which case the corporation must designate an individual to testify as the corporate representative. Alternatively, the party seeking a corporate deposition may identify a specific officer, director, or managing agent to be deposed and notice that individual under Federal Rule of Civil Procedure 30(b)(1). But, a corporate employee who does not qualify as an officer, director, or managing agent is not subject to deposition by notice.

How about that?

You learn something new every day!

3d DCA Watch -- Rules Are Stubborn Things Edition.

Did you realize that standing up, raising your hands and exclaiming "IF YOU KNOW" in a loud, really obvious way after a question is posed to your client at a deposition could somehow be construed as coaching?

What, little 'ole me?  I was just clearing my throat.

But PA attorney Max Kennerly in a fine article here thinks obstructing the deposition any way you can in order to save your client from telling the truth may not be permissible after all:

Federal Rule of Civil Procedure 30(c)(1) is quite clear: “The examination and cross-examination of a deponent proceed as they would at trial under the Federal Rules of Evidence …” If an attorney has an objection to a question, then what they must do is also quite clear under Fed. R. Civ. P. 30(c)(2):

An objection at the time of the examination–whether to evidence, to a party’s conduct, to the officer’s qualifications, to the manner of taking the deposition, or to any other aspect of the deposition–must be noted on the record, but the examination still proceeds; the testimony is taken subject to any objection. An objection must be stated concisely in a nonargumentative and nonsuggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege, to enforce a limitation ordered by the court, or to present a motion under Rule 30(d)(3).

That is to say, the defending attorney is indeed a “potted plant” with only two exceptions: they can raise objections in a concise, nonargumentative and nonsuggestive manner, and they can instruct a deponent not to answer a question when necessary to preserve a privilege or enforce a court order.

Could you imagine how depositions in South Florida would proceed if everyone simply abided by these rules?

(Then again, what fun would that be?)

Speaking of rules, our bunker buddies remind us this week that -- yes, they exist; and yes, you should probably follow them:

Clarke v. Henderson:

For all you fine jurists taking notes at home, here is the correct legal standard for reviewing a motion for judgment on the pleadings:

It is well settled that a Rule 1.140(c) motion for a judgment on the pleadings must be decided wholly on the pleadings—which includes consideration of exhibits attached thereto—and may only be granted if the moving party is clearly entitled to a judgment as a matter of law....In making this determination, all material allegations of the opposing party’s pleadings must be taken as true, and all those of the movants, which have been denied, must be taken as false.

It's that second part you have to watch out for.

940 Lincoln Road v. Hernandez:

This is an unemployment appeals commission appeal in which the employee testified that she was sexually harassed and the employer did not participate:

Employer did not participate in the hearing; consequently, Claimant’s testimony was unrebutted. Nevertheless, the appeals referee concluded that Claimant was disqualified from receipt of benefits because she left voluntarily without good cause attributable to Employer. Apparently, the appeals referee rejected the claim because Claimant did not complain to the police or seek medical or psychological attention as a result of the harassment.

What's that rule on unrebutted testimony again?

Oh yeah:

Uncontroverted testimony which is not illegal, inherently improbable or unreasonable, opposed to common knowledge, or contradictory within itself, should not be disregarded by the trier of facts.

Duly noted!

Depositions and DUI

Driving Under the Influence charges are generally misdemeanors, which means that the ability to depose witnesses is not guaranteed. In order to be able to take a misdemeanor deposition, Florida Rule of Criminal Procedure 3.220(h) requires that "good cause" be shown to the judge. To determine if there is good cause to order depositions, the judge will consider the consequences to the defendant, the complexity of the issues involved, the complexity of the witness' testimony, and the other opportunities available to the defendant to discover the information sought by deposition. Some jurisdictions make it difficult to take depositions in misdemeanor cases, which means that lawyers have to be creative in finding other means to get the information. But, when a deposition is permitted, it should be taken.

Depositions are extremely important resources in the defense of a criminal case. Often, a simple question asked in a deposition will lead to the discovery of information that the defense attorney and prosecutor did not know existed, such as an additional police report, or witnesses that were on scene but not noted. Depositions show the defense lawyer what to expect the witness to say at a later court date and/or provide fodder to impeach the witness if his story later changes. Depositions also provide valuable insight to possible flaws in the case that may not have been otherwise revealed through the standard discovery documents. Examining these flaws can help a case by either revealing grounds for motions to suppress evidence or motions to dismiss the case based on a violation of a Constitutional right, or by simply showing the prosecutor the weakness of the case and giving a lawyer grounds to argue that the case should be dismissed or broken down into lesser charges.

Unfortunately, many attorneys do not take depositions in misdemeanor cases. It is possible that this is due to their feeling that depositions in misdemeanor cases will not reveal anything new or believing that they are a waste of time. However, depositions are a great tool that is extremely under-utilized in the current legal arena. Attorneys who do not take depositions are missing out on a wealth of information that they may not even realize exists in each case. More often than not, an officer's answers in a DUI deposition will reveal extremely helpful defense issues such as Taylor warnings not being read, simple improper phrasing by an officer that turns a request into a command, invalid consent for searches, and numerous other grounds for suppression that may never have otherwise crossed a lawyer's mind when reviewing a case.

Hiring an attorney who will work hard to get all of the information available is important in successfully defending against criminal charges. Although depositions are not always necessary, a case cannot usually be properly defended without digging deep, going outside of the box, and searching for the answers that aren't necessarily obvious at first glance. Depositions are just one weapon in a defense attorney's arsenal, but they can be one of the deadliest if used properly. Defense strategies are always formed more completely when all of the information available is laid out for the attorney to see. Why wouldn't an attorney use such a great tool that is available at the simple filing of a motion?

Copyright (c) 2010, Law Office of Roger P. Foley

Bob Ratiner Suspended For 60 Days Over Deposition "Laptop Incident."

Please please please someone forward the three-minute video:

Even though the suspension term imposed is not one that would require respondent to prove rehabilitation prior to reinstatement, we must emphasize that respondent’s behavior during the laptop incident was unacceptable and unbecoming of any member of the Bar, especially one who has been a practicing attorney for more than nineteen years. In recognition of this, we determine that the sanction of a suspension should be coupled with a public reprimand and should be followed by a two-year period of probation. During the probationary period, respondent shall be required to undergo mental health counseling and prepare and mail letters of apology to the deponent, the court reporters, and the videographer present during the May 2007 deposition at issue. Further, during the probationary period, he shall be accompanied by co-counsel approved by the Bar during any depositions and other legal proceedings where a judge is not presiding or, alternatively, he shall ensure that such appearances or proceedings are video-recorded.

It's interesting that the letters of apology -- just like Rosh Hashanah btw! -- do not include opposing counsel, the apparent subject of the alleged tirade.

I know somebody has this video. 

Magistrate Judge Brown Schedules "Footsie" Evidentiary Hearing

I've never heard of this kind of evidentiary hearing, but I guess we're somewhat in new territory:

The Court finds the allegations made to be quite significant (emphasis added), but the burden is on the party making same to support such claims with more than allegations, speculations, and allegedly damning pictures. The Court finds that on this record there is insufficient support for the claims made (emphasis added). However, there also are no sworn statements of any kind supporting the position of either side in this odious squabble ... and the tenor of the Court's Order and Notice should not be misconstrued to equate with some predisposition as to the merits of this claim.

Therefore, and the Court being otherwise fully advised in the premises, it is hereby

ORDERED AND ADJUDGED that a hearing has been set on these motions for Thursday, October 7, 2010, at 10:00 A.M., at the United States District Court, 301 North Miami Ave., Miami, Florida, Tenth Floor. At least 24 hours prior to said hearing the parties are required to meet and confer in a good faith effort to resolve the issues illustrated in this Notice.

(a) Two (2) hours (and no more) have been scheduled for this hearing. The only matter that will be taken up at this time is the factual offerings of the parties.

(b) No discovery will be permitted - though the parties can agree to whatever discovery they wish - at their own peril.

(c) Connie Dennis is requested to appear and testify, under oath, regarding the "footsie" incident(s). She may have counsel representing her if she wishes.

(d) Kenneth Engerrand is requested to appear and testify, under oath, regarding the "footsie" incident(s). He may have counsel representing him if he wishes.

(e) The Court notes that it has "requested", not ordered the appearances and testimony noted, supra. There are two reasons for this: (1) the Court questions whether it has the authority to order Ms. Dennis to appear; and (2) since testimony, if it happens, will be under oath and subject any witness to possible claims of perjury, they will not be forced to testify.

(f) Any other witness may be presented for testimony by any party - however, questioning will be done only by the Court - though the Court will allow questions to be submitted to it for consideration (emphasis added).

(g) The appearance or lack of same of any participant in the footsie incident will be germane, but not necessarily conclusive, in the Court's consideration of this matter.

So the Court has scheduled an evidentiary hearing where no witnesses are obligated to appear, where counsel cannot ask any questions but can make "factual offerings," and where it will be "germane" if someone who is requested but not obligated to appear doesn't show up.

Given the history of this case, that all makes perfect sense.

(Note -- photo above purely my own personal fantasy impression.)

Rick Scott: Fifth Amendment Warrior!

After his insanely demogogic "Obama's Mosque" ad, I thought Rick Scott had given up on the Constitution, First Amendment, hail on the Bill of Rights entirely.
 
Turns out I was wrong -- he likes adores the 5th Amendment.

I don't think even "adores" cuts it.

Seriously, the dude LOVES IT.  And LOVES IT.  And LOVES IT again the next morning.

Slavishly devoted?

Fifth Amendment automaton?

I'd like to answer, but upon advice of counsel, I respectfully decline to answer the question by asserting my rights and privileges under the Fifth Amendment of the U.S. Constitution.

(repeat 400 more times)
rickscott5thamendment

The Case of the Toe-Tapping Lawyer!

I used to really love this case, but now it's starting to acquire the feel of a wrinkled old hot dog that someone left on the roller for three days and whose only remaining purpose is to give you botulism.

In our latest wacky installment, lawyers accuse other lawyers of using the ancient method of "toe-tapping" to allegedly signal to a witness how to respond during a deposition, there are "enhanced features" such as embedded camera phone pics (plus there's even a Rose Mary Woods reference for us old-school Nixon chronics!).

I'm not kidding when I say you really have to read the entire thing:
Foot Tapping Lawyer Motion

World Gone Mad -- Attorney Sanctioned For Cancelling Depo On "Pretext"

Oh man what is the world coming to?

Good thing this judge does not preside in South Florida, or business litigation in this town would grind to an immediate halt:

A Southern District magistrate judge has sanctioned a lawyer who refused to attend a scheduled deposition in what the magistrate judge said "can only be construed as an attempt to gain leverage with respect to unrelated discovery issues."

Holding that attorney M. Douglas Haywoode's explanation for canceling the deposition "does not withstand scrutiny," Magistrate Judge James C. Francis IV invoked Rule 30(g) of the Federal Rules of Civil Procedure to award costs, including attorney's fees, against Mr. Haywoode.

"An attempt to gain leverage with respect to unrelated discovery issues"? Correct me if I'm wrong, but isn't that what the art of deposition scheduling and cancelling is all about?

Here's the details:

On April 19, Mr. Haywoode notified one of the defendants' lawyers, Mr. Traub, that he would not attend because of "obstructions in the discovery process."

Mr. Haywoode further explained that he was objecting to the defendants' failure to provide documents that his litigation team had reviewed and found relevant.

Magistrate Judge Francis noted that Mr. Haywoode already had canceled and rescheduled the deposition at issue once before. And he observed that the attempt to cancel a second time was made "when it was impossible to seek court intervention."

Exactly -- nicely done!

Boy if gamesmanship in the discovery process were to be sanctionable, we might actually have to exchange documents and information -- some if it potentially harmful to our case. What fun is that?

Let me think of some things I have cancelled on pretextual grounds:

Depositions
Hearings
Trials
Meetings
Conference calls
Document production
Lunch dates with Steve Zack
Weddings

I'm sure there are others.....