Amendments to NRCP 30 went into effect on March 1. Since these amendments were published, I attended a public meeting where DC Bulla extensively discussed the changes and their practical impact. Consistent with the Supreme Court’s implicit intent by adopting these changes, it appears the revisions will be interpreted consistently with the current version of FRCP 30.
Some of the common questions that have come up were specifically answered at this meeting
1. Does the deletion of the objection language mean anything? No. The same standard still applies. Objections must still be stated in a concise, non-argumentative manner.
2. Can we stipulate around the 1 day/7 hour rule? Yes, you can even do that right in the JCCR or, if agreement cannot be reached, conduct an EDCR 2.34 conference and bring a motion.
3. How do you calculate the 7 hours? Actual deposition time counts, breaks do not. My own tip? Have your court reporter add time stamps to the deposition transcript. Having said that, the courts are not going to get involved in disputes as to whether a party went over by 30 seconds.
4. What if opposing counsel constantly objects and eats up the 7 hours or if the deponent pauses 30-45 seconds after each question before answering? Have timestamps and, as to the deponent, video record the deposition. Normal objections are part of a deposition, only egregious violations, repeated throughout the deposition are going to rise to the level of permitting more time.
5. How is the 7 hours divided up? Talk to your opposing counsel. Whoever notices the deposition is probably going to get the majority, with the rest divided among the remaining parties. What if I cross-notice the deposition? Talk to opposing counsel and bring a motion if needed.
Since this meeting I have spoken to several people and these questions came up.
1. For 30(b)(6) depositions, if more than one witness is required to answer all 1,354,167,198 categories, is there one 7 hour limit or a fresh 7 hour limit for each witness? The rule plainly permits multiple designees. “In that event, the organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf, and may set forth, for each person designated, the matters on which the person will testify.” In that case, I might argue one 7 hour limit applies. Why? If the scope requires multiple witnesses to, in good faith, meet the notice, then that is 1 deposition with a 7 hour limit. I might agree to waive the 1 day requirement if more than one designee is required, but not the 7 hour limit. This seems like a fair position to take because the noticing party controls the selection of topics. If the noticing party selects over broad topics that require more than one designee to answer, then the noticing party reaps their rewards.
The easy fix to avoid this problem is to take your time and draft well honed 30(b)(6) notices that focus on the information the noticing party truly wants to obtain. I too often receive the same, generic 30(b)(6) notice in every case that is not tailored to the needs of the litigation. This then leads to disputes and may also lead to the problem above.
2. What if the noticing party sends multiple 30(b)(6) notices? Is that one deposition or several, each with a new 7 hour limit? I have not encountered this before and have not researched it. My guess is this is nothing more than attempting an end-around on the rule and should not be permitted.