What is Reasonable Notice for a Deposition?

This question is posed far too frequently.  In Nevada’s state courts, NRCP 30(b)(1) states the party noticing “the deposition of any person upon oral examination shall give reasonable notice, not less than 15 days….”  However, for those in the federal courts, FRCP 30(b)(1) says only that the party noticing the deposition “must give reasonable written notice to every other party.”  It does not define “reasonable notice.”

I suspect if “reasonable notice” is being debated in your case, things probably are not going well.  Perhaps things are going as well as Fernandez v. Penske Truck Leasing Co., L.P.[1]  Discovery was scheduled to close on December 31.  On December 17 Plaintiffs noticed the depositions of Defendants’ attorney and a 30(b)(6) designee on six topics, to occur on December 28, 2012.  Defendants asserted the depositions were unilaterally set and, at a minimum, the 30(b)(6) designee was not available.  After the scheduled date, Plaintiffs moved to compel.

The first question: Was this reasonable notice?  “Courts must determine what is reasonable based on the circumstances of each particular case.”  Magistrate Judge Foley concluded the notices in this case were unreasonable.

After nearly a year of pendency, Plaintiff delayed until two weeks before the close of discovery to notice the subject depositions, without explanation, and the depositions were also noticed during the Christmas holiday. The depositions were also scheduled to occur during the winter holiday season. The discovery deadlines in this matter have already been extended two times.  Furthermore, Plaintiffs unilaterally scheduled the depositions to occur eleven days after issuance of notice.[2]

If you are paying attention, you already know what the second question was: Were Defendants required to obtain a protective order before the scheduled deposition date?  This is certainly the prevailing rule.  “If the noticing party refuses to reschedule a properly noticed deposition, it is incumbent on the other party to move for a protective order.”  The key was that this requirement only applies to properly noticed depositions.  The court determined these were not properly noticed depositions, so there was no need to seek a protective order.  The problem with this is that, if you are the defendant, you do not know that the notice is unreasonable until you get the protective order.  I would probably still seek the protective order rather than unilaterally concluding the notices are improper.

[1] 2:12-cv-00295, 2013 U.S. Dist. LEXIS 14786; 2013 WL 438669 (D. Nev. Feb. 1, 2013).
[2] (emphasis in original)