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![]() both types of depositions are governed by the scheduling order.” Sanofi-Synthelabo v. there is no difference between the two,” and “a sound argument can be made that if a party wishes to introduce deposition testimony at trial, that testimony should be procured during the time set by the court to conduct discovery absent exceptional circumstances.” Integra, 190 F.R.D. De bene esse deposition trial#“Based upon the lack of distinction in the Federal Rules between trial and discovery depositions. 1999) (holding that “he Federal Rules of Civil Procedure do not distinguish between depositions taken for discovery purposes and those taken strictly to perpetuate testimony for presentation at trial”). The federal rules simply limit the instances in which a deposition can be used at trial.” Chrysler Int’l Corp. Indeed, a “district court’s identical treatment (for timing purposes) of discovery and de bene esse depositions is consistent with the language of the Federal Rules of Civil Procedure, which draw no distinction between the two. 24, 2000) (finding that “he federal courts have not drawn a distinction between discovery depositions and trial depositions for many years.”). The Southern District of New York has reached a similar conclusion. Vickers, the United States District Court for the Western District of Virginia noted that “n federal court there is no distinction between discovery and trial depositions.” 1 170 F.R.D. Despite the contention that there is a distinction between discovery and trial depositions, a number of jurisdictions have recognized that the two are synonymous. Your first line of defense against an opposing party’s attempt to parse the concept of a deposition into different tools for different jobs is simple – argue that there is no legally significant difference between the two. Is there really a difference between trial depositions and evidentiary depositions? This article endeavors to explore your potential arguments to combat such a situation and, with a bit of luck, how you can prevail.Ī. What started with a handshake has turned into a wrestling match. De bene esse deposition full#What, up until that point, had been a cordial (or at least civil) working relationship with plaintiffs’ counsel has turned into a full blown street fight. All this inconvenience can be avoided if your client stipulates to a laundry list of bad facts and even worse admissions, most aimed at the very elements plaintiffs have the burden to prove, and all revealing just how short of the goal line plaintiffs’ drive will fall if they proceed to trial with the evidence they do have. But plaintiffs are kind, they are merciful. If your client will not agree to the deposition, plaintiffs will have to compel his attendance (notwithstanding the fact the witness lives on the other side of the country) to testify on all matters identified in the Rule 30(b)(6) notice. The phone calls and e-mails all have the same flavor – plaintiffs need to depose your Rule 30(b)(6) designee (the same one they passed on during discovery), scheduling order notwithstanding, because this is a trial deposition, not a discovery deposition. The desperation is clear – plaintiffs’ counsel assumed certain witnesses, including your Rule 30(b)(6) designee, would be at trial, and has fatally misjudged his ability to make a case on the evidence obtained to-date. A month out from trial, plaintiffs’ counsel begins to call, begins to e-mail – he needs more concessions, more admissions, more disclosure. During discovery, plaintiffs notice a Rule 30(b)(6) deposition of your client’s representative, but elect to forgo the deposition in exchange for negligible admissions filed by your client. The situation is this: you represent a manufacturer in a tort dispute. ![]() ![]()
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