A deposition is a common discovery mechanism in all types of business litigation. During a deposition, the attorneys ask questions of the parties or other witnesses while under oath and under penalty of perjury. The testimony is transcribed by a court reporter and may be used in court during the trial. The parties may choose to have the deposition videotaped, which, frankly, is advisable for parties or other important witnesses if there is a significant amount at issue. Indeed, a key admission from a witness on video is much more impactful than the same admission read from the pages of a deposition transcript. Depending on the nature and extent of the business dispute, depositions can be lengthy, although under Arizona law they are presumptively limited to four hours in length.
Arizona Rule of Civil Procedure 30 governs depositions taken in Arizona lawsuits. Among the provisions of Rule 30 are the following:
· Notice of the date, time, and place of the deposition, as well as the name and address of the deponent, should be given to the other party at least ten days in advance.
· The court normally must grant permission for a party to take a deposition fewer than 30 days following the service of the summons and complaint, with a few exceptions.
· Upon good cause shown, the court may shorten or extend the time for taking the deposition.
· Notice of a deposition to a party deponent may also include a request for production of documents and things.
In preparing for a deposition, the attorney typically will (and should) meet with the client to discuss the case, overall strategy, and what to expect at the deposition. The attorney will show the client the key documents related to the litigation, particularly those that may be used to trip up the client or trigger harmful admissions. This avoids surprises and ensures that no matter the question asked, the client will understand the big picture and can respond truthfully but also in the most helpful way possible. Clients should also review prior written discovery responses so that they do not testify inconsistently.
There are a few key ground rules. The witness should not answer questions that they do not understand or do not know the answer to, and if they do not know or do not remember they can simply say so. Also, a question during a deposition is not an invitation to speculate or think about what the answer might be. Finally, attorneys often asked loaded questions. A common example is: “When did you stop beating your wife?” The witness is free to dispute the premise of the question and rephrase it themselves or let the examiner know that they simply cannot answer the question as phrased because they disagree with the premise.
In Arizona, attorney objections to deposition questions are limited to the form or foundation of the question. Speaking objections are prohibited. For example, an attorney should not object to a question with an explanation of why the question is poorly formed or why it lacks foundation—which can be used to improperly coach the witness—rather, the attorney simply objects on “form” or “foundation” grounds. And the witness still must answer the question to which form or foundation objections are made. If, on the other hand, a question invades the attorney-client privilege or other privilege, the attorney can and should instruct the client not to answer.
At Williams Mestaz, L.L.P., we focus our efforts on representing your business interests throughout the duration of your case, including throughout the discovery process. When you need help that only an experienced business litigation attorney can offer you, contact Williams Mestaz, L.L.P., at (602) 256-9400.