Who Questions First at a Deposition?

This is one of those questions that causes judicial eye-rolling. However, if you have a multi-party case, a 7:00 hour deposition time limit and one party consumes 6:55 of that time, leaving 0:05 for the other parties, what happens? In a perfect world the attorneys would reach an agreement to either lift the 7:00 limit or otherwise complete the deposition. I hope you all live in a perfect world, but I do not.

Dargis v. Wyeth, Inc.[1] addressed this exact problem with no small amount of judicial eye-rolling. The motion at issue was entitled “Motion to Establish Defendants’ Priority in Questioning at Depositions.” Defendants argued “that in all depositions of any of Plaintiffs’ treating or prescribing physicians, regardless of which party first noticed the deposition, Defendants’ counsel should question the deponents first.” The court relied upon Rule 26 to observe “the Rules leave the timing and sequence of discovery to the sound discretion of the Court.”

Both parties argued various points that were unpersuasive. The court ultimately concluded it had “long been the custom and practice in [the jurisdiction] that the party who first serves a valid notice of a deposition ‘controls’ that deposition — bearing any costs associated with the deposition and assuming priority in questioning.” The court applied that rule and concluded “for any fact witness, the party who first serves a valid notice of deposition shall have priority of questioning in that deposition.” Where the parties served simultaneous notices, “the priority of questioning shall be based on a draft-selection process. The draft-selection process shall begin with the Plaintiff, and the parties will alternate in selecting deponents for whom they will have the priority of questioning. The pool shall consist of the simultaneously-noticed deponents, and the alternating selection process shall continue until all deponents in the pool have been selected.”

Schlein v. Wyeth Pharms., Inc.[2] considered the same question: “who is entitled to proceed first with questioning a witness at a deposition?” Schlein noted other rulings concluding “that the first party to serve a notice of deposition is entitled to priority of questioning at that deposition.”[3] The defendant served the first valid deposition notice, so it was permitted to go first.

[1] 04-3967, 2012 U.S. Dist. LEXIS 189881 (D. Minn. 2012).
[2] 2012 U.S. Dist. LEXIS 189857, *5 (S.D. Ga. Dec. 13, 2012).
[3] See Occidental Chem. Corp. v. OHM Remediation Servs., 168 F.R.D. 13, 14-15 (W.D.N.Y. 1996) (allowing party that first issued valid subpoena to deposition witness to question that witness first); Smith v. Logansport Cmty. Sch. Corp., 139 F.R.D. 637, 642 (N.D. Ind. 1991) (noting that “customarily … the party noticing the deposition will commence the interrogation with direct examination. Afterward, each other attending party may cross examine.”).