10,000 Depositions Later Podcast Jim Garrity

According to current cognitive psychology and neuroscience understanding, our memories are multilayered constructs composed of personal experiences and information acquired from external sources. So, when questioning witnesses about their recollections, it's crucial to understand what those layers are made up of. Is it purely personal recollection? Does it include what they were told by others? Does it include what they were told when their lawyer prepped them for the deposition? Examining the underlying sources or layers of the deponent’s knowledge helps identify the individuals and documents that influenced and possibly biased what the witness says.
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SHOW NOTES
In re FirstEnergy Corp. Sec. Litig., No. 2:20-CV-03785-ALM-KAJ, 2024 WL 1984802, at *14 (S.D. Ohio May 6, 2024) (“Seemingly, FirstEnergy argues that all facts about the internal investigation are privileged or protected because, at some point, these facts were communicated by lawyers to various individuals. Time and again, courts have rejected this type of argument. While communications between attorneys and clients are privileged, facts are not. Humphreys, Hutcheson and Moseley v. Donovan, 755 F.2d 1211, 1219 (6th Cir. 1985) (citing Upjohn Co., 449 U.S. at 395). And facts do not become privileged or protected because they were provided to witnesses by attorneys or acquired in anticipation of litigation. See, e.g., Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D. Neb. 1989) (“There is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.”); United States v. BAE Sys. Tactical Vehicle Sys., LP, No. 15-12225, 2017 WL 1457493, at *5–6 (E.D. Mich. Apr. 25, 2017); Basulto v. Netflix, Inc., No. 22-21796, 2023 WL 3197655, at *2–3 (S.D. Fl. May 2, 2023) (“[F]act-oriented discovery is permitted even if the witness learned about the facts from her attorneys.”); Clear Cast Grp., Inc. v. Ritrama, Inc., No. 1:09-cv-169, 2011 WL 13334451, at *6 (N.D. Ohio Sept. 15, 2011). So too here. Facts related to the internal investigation are not shielded simply because they were funneled through attorneys to witnesses”)
Protective Nat. Ins. Co. of Omaha v. Commonwealth Ins. Co., 137 F.R.D. 267, 278–79 (D. Neb. 1989) (citing Sedco Intern., S.A. v. Cory, 683 F.2d 1201, 1205 (8th Cir.), cert. denied, 459 U.S. 1017, 103 S.Ct. 379, 74 L.Ed.2d 512 (1982) for the proposition that “No contention can be made that the attorney-client privilege precludes disclosure of factual information. The privilege does not protect facts communicated to an attorney. Upjohn Co. v. United States, 449 U.S. 383, 395–96, 101 S.Ct. 677, 685–86, 66 L.Ed.2d 584 (1981). Clients cannot refuse to disclose facts which their attorneys conveyed to them and which the attorneys obtained from independent sources. Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947); 8 J. Wigmore, Wigmore on Evidence § 2317 (McNaughton rev. 1961).
State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 214 (E.D. Pa. 2008) (quoting In re Linerboard Antitrust Litig., 237 F.R.D. 373, 384 (E.D.Pa.2006) (“ ‘[T]here is simply nothing wrong with asking for facts from a deponent even though those facts may have been communicated to the deponent by the deponent's counsel.’ ” (quoting Protective Nat'l Ins. Co. v. Commonwealth Ins. Co., 137 F.R.D. 267, 280 (D.Neb.1989))).)
State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 215 (E.D. Pa. 2008) (“Contrary to State Farm's contention, the mere fact that

In this episode, Jim tackles the problem of 30(b)(6) witnesses showing up with voluminous notes and documents to use in refreshing their memory about the topics to be addressed. Are these witnesses automatically required to give you those notes and materials ahead of time? If not, is there anything you can do to get them beforehand? And, what about getting copies of documents these and other deponents looked at before the deposition but didn't bring with? For the answers to these and other questions, listen in. And thanks for being a loyal listener of the podcast! We appreciate you!
SHOW NOTES
ChampionX LLC, f/k/a Windrock, Inc. v. Resonance Systems, Inc., et al., Case No. 3:21-CV-288-TAV-JE M (E. D. Tennessee Oct. 19, 2023) (providing that documents used during a deposition to refresh witnesses recollection must be produced to the adverse party while deposition is in progress, and need not be produced ahead of time, barring some other obligation)
Arrowood Indem. Co. The Lubrizol Corp. v. United States Fire Ins. Co., No. 1:10 CV 2871, 2015 WL 12734892, at *2 (N.D. Ohio Mar. 31, 2015) (“Fed. R. Evid. 612. Rule 612 applies to depositions and deposition testimony through Federal Rule of Civil Procedure 30(c)”)
Sporck v. Peil, 759 F.2d 312, 317 (3d Cir. 1985) This rule is applicable to depositions and deposition testimony by operation of Federal Rule of Civil Procedure 30(c) (“Examination and cross-examination of witnesses may proceed as permitted at the trial under the provisions of the Federal Rules of Evidence.”)
Antero Res. Corp. v. Tejas Tubular Prod., Inc., 516 F. Supp. 3d 752, 753 (S.D. Ohio 2021) (“Importantly, Rule 612 applies to deposition testimony”)
Antero Resources Corporation v. Tejas Tubular Products, Inc., 2021 WL363550, No. 2:19-CV-804 (S. D. Ohio Feb.2, 2021) (if witness uses documents for a testimonial purpose–as [the corporate representative did ]-any claim of work product protection over those documents is waived; further holding that, where conflict exists between the command of Fed. R. Evid. 612 to disclose materials used to refresh recollection, and protection provided by the attorney-client privilege, the weight of authority holds that privilege is waived).
United States v. Holden, 557 F.3d 698, 703–04 (6th Cir. 2009) (“Rule 612 does not apply where a witness refers to documents for purposes other than refreshing recollection”)
K & S Assocs., Inc. v. Am. Ass'n of Physicists in Med., No. 3:09-1108, 2012 WL 4364087, at *3 (M.D. Tenn. Sept. 21, 2012) (citing Nutramax Lab., Inc., 183 F.R.D. at 468, 473) (finding that documents were used for a “testimonial purpose” where the witness's review of them “unavoidably enhanced his recollection of events”)
Gilbert v. Atlantic Trust Co., N.A., 2005 WL8176938 (D. N.H. Nov. 17, 2005) (order denying motion to compel documents reviewed by deponent prior to deposition, under FRE 612, because of movant's failure to establish predicate during deposition)
FRE 612 - Writings Used to Refresh A Witness

Do you sometimes send multiple lawyers to depositions? If so, it's important to know how to maximize your odds of taxing each lawyer's fees when you prevail in the action and file your fee petition. As Jim Garrity says, it's easy to avoid traps, but it's also easy to step into them. In this episode he provides bright-line guidance for making your fee petition a successful one. Have a great week!
SHOW NOTES
Basic Principle
Gradisher v. Check Enf't Unit, Inc., No. 1:00-CV-401, 2003 WL 187416, at *4 (W.D. Mich. Jan. 22, 2003) (“There is no hard and fast rule allowing or preventing more than one attorney from attending a deposition, hearing, or trial on behalf of a prevailing party”)
Burden of Fee Applicant
Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 432 (11th Cir. 1999) (“Thus, a fee applicant is entitled to recover for the hours of multiple attorneys if he satisfies his burden of showing that the time spent by those attorneys reflects the distinct contribution of each lawyer to the case and is the customary practice of multiple-lawyer litigation. But the fee applicant has the burden of showing that, and where there is an objection raising the point, it is not a make-believe burden”)
Burden of Party Opposing Fee Award
Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 428 (11th Cir. 1999) (party opposing fee petition has burden also, and is obligated to provide specific and reasonably precise objections and proof in seeking to reduce fee aware due to a lack of billing judgment)
Am. C.L. Union of Georgia v. Barnes, 168 F.3d 423, 429 (11th Cir. 1999) (The Supreme Court rejected that position, reasoning that fee shifting statutes “favor[ ] treating a case as an inclusive whole, rather than as atomized line-items.” Jean, 496 U.S. at 161–62, 110 S.Ct. at 2320. Nothing about the holding in Jean precludes a fee opponent from challenging a fee request on the basis that an excessive number of hours were billed on some discrete task within the case. Moreover, our decisions contemplate a task-by-task examination of the hours billed. See, e.g., Loranger, 10 F.3d at 782–83 (noting that 100 hours for the task of preparing a fee request in the case was excessive); Duckworth v. Whisenant, 97 F.3d 1393, 1398 (11th Cir.1996) (disallowing redundant hours billed for the task of deposing witnesses).
Fees Not Reduced
Aquilino v. Univ. of Kansas, 109 F. Supp. 2d 1319, 1326 (D. Kan. 2000) (“With respect to the depositions of plaintiff and Dr. Linda Stone-Ferrier and the period of jury deliberations, the Court finds that plaintiff's decision to employ two attorneys was reasonable. Both attorneys were extensively involved in the case and their appearance at key depositions was reasonable”)
Clements v. Prudential Protective Servs., LLC, 100 F. Supp. 3d 604, 617 (E.D. Mich. 2015) (finding “nothing ‘duplicative’ with regard to having two lawyers represent [the p]laintiff” where the defendant objected to “two attorneys attending depositions”), aff'd, 659 F. App'x 820 (6th Cir. 2016))
Jones v. Federated Dep't Stores, Inc., 527 F. Supp. 912, 920 (S.D. Ohio 1981) (defendant’s protests in opposition to fee petition undermined by fact that they also had two attorneys present at depositions)
Wajcman v. Inv. Corp. of Palm Beach, No. 07-80912-CIV, 2009 WL 10668140, at *4 (S.D. Fla. Sept. 11, 2009) (“The law is clear in that where multiple attorneys perform work on a case, they may each be compensated, so long as the attorneys' efforts are not unreasonably duplicative. See Barnes, 168 F.3d at 432 (“[a]n award for time spent by two or more attorneys is proper as long as it reflects the distinct contribution of each lawyer to the case and the customary practice of multiple-lawyer litigation”)(quoting Johnson v. University College of Univ. of Ala. in Birmingham, 706 F.2d 1205, 1208 (11th Cir. 1983)); Norman, 836 F.2d at 1301-1302 (observing that multiple attorneys may be compensated for their work on a case “if they ar

Jim Garrity's observation is that many litigators are still not using Zoom’s live-caption feature in depositions. This setting is perfect for clients and other participants who want to watch remote depositions, but can’t play audio without disrupting others. It’s also excellent for you or others on your team to ensure you asked the question you planned and got the answer you think you heard. Some great tips in this episode, as always. (And can we ask you a favor? Would you take an extra 18 seconds, go to the rating section wherever you get your podcast, and leave us a five star rating? We don't charge a dime for the tremendous research and production that goes into every single episode, so the only way you can give us a thumbs up is with a sweet 5-star rating. We know leaving ratings is a hassle, but it really means so much to our production team. Every new five-star rating we get energizes the whole crew.  It's actually more important than money because it validates our work, and let's us know that you like and are finding value in the episodes. Thanks!)

The court ruling in the spotlight today is a reminder that it's critically important to include evidentiary support when you seek a protective order - to relieve a party or witness of the obligation to travel for deposition - based on financial, medical or caregiver reasons. It also reminds us of the importance of providing your judge with the most recent case law, which is trending toward routinely allowing remote depositions in most situations. As always, Jim Garrity provides critical practice tips and insights on the issue. Have a great week!
Show Notes
Hosie v. Omni Hotels Management Corporation, Case No: 1:22-cv-00265-MR-WCM, 2024 WL 1685557 (W. D. N. C. Apr. 18, 2024) (finding insufficient record evidentiary support to warrant protective order relieving Plaintiff of obligation to travel for her deposition)
Henry v. Tacoma Police Department, et al., No. 3:22-cv-05523-LK, 2023 WL 5530201 (W.D. Wash. Aug. 28, 2023) (expressing view that remote depositions can be as effective or more effective than in person depositions for credibility determinations, in part because remote plaintiffs appearing by video do not need to wear masks)

In this episode we answer a listener who wanted to know how to correct a deposition transcript where the errors were caused by the interpreter, not by the court reporter. It's an important episode, because correcting interpreted deposition testimony requires planning before the deposition begins. As always, Jim Garrity provides invaluable practice tips and strategies. Thanks for listening!
SHOW NOTES
Fed.R.Civ.P. 30(e)(1) (providing framework for requesting review of, reviewing, and making changes in form or substance to transcripts).
https://www.njcourts.gov/sites/default/files/courts/transcript.pdf (New Jersey Courts guidance for reporters, noting that only interpreter’s English response, not the foreign language answer, will appear in transcript)
https://www.courtreportersboard.ca.gov/formspubs/best_interpreter.pdf (When the court reporter knows the foreign language being spoken and knows that the interpretation is incorrect, the court reporter is not to interrupt to correct the interpretation. It is the onus of the parties present to provide a check interpreter. The court reporter’s function is to capture the record, not create it)
Bai v. Williams, No. 2:20-CV-2042-KJD-NJK, 2023 WL 5101881, at *34 (D. Nev. Aug. 8, 2023) (jury instructed, in case where witness testified through an interpreter “that it would hear testimony in a language other than English and that the witness “will testify through the official court interpreter.” The court instructed that, “[a]lthough some of you may know the non-English language used, it is important that all jurors consider the same evidence. Therefore, you must accept the English translation of the witness's testimony. You must disregard any different meaning”)
In re: Takata Airbag Prod. Liab. Litig., No. 15-2599, 2016 WL 5844311, at *4 (S.D. Fla. Sept. 8, 2016), report and recommendation adopted sub nom. In re Takata Airbag Prod. Liab. Litig., No. 15-02599-MD, 2016 WL 5844338 (S.D. Fla. Sept. 21, 2016) (noting parties’ agreement agreed that objections to translations may be made for 60 days after the court reporter provides the final transcript)
Proposed Order Regarding Deposition Protocol, CM/ECF Document 1187-1, ECF p. 13, In re: Takata Airbag Prod. Liab. Litig., No. 1:15-2599, 2016 WL 5844311 (S.D. Fla. Sept. 8, 2016), report and recommendation adopted sub nom. In re Takata Airbag Prod. Liab. Litig., No. 15-02599-MD, 2016 WL 5844338 (S.D. Fla. Sept. 21, 2016) (sample deposition protocol that includes provisions on choosing interpreters and resolving disagreements, and proposing 60 days for objections to interpretation-related errors in transcript)
Allamon v. Acuity Specialty Prod., Inc., 877 F. Supp. 2d 498, 505 (E.D. Tex. 2012), aff'd, 534 F. App'x 248 (5th Cir. 2013) (finding no authority to support the argument that a court reporter may extend deadline for returning an errata, or that FRCP 30(e) contains any exceptions to its requirements)