Examining & Defending Deponents Under the Texas & Federal Rules Of Civil Procedure

December 09, 2004

Introduction

As officers of the court, counsel are expected to conduct themselves in a professional manner during a deposition and conduct that is impermissible in the courtroom during the questioning of a witness is not permissible at a deposition.  See TEX. R. CIV. P. 199.5(d); see also Ethicon Endo-Surgery v. United States Surgical Corp., 160 F.R.D. 98, 99 (S.D. Ohio. 1995); The Texas Lawyer’s Creed, A Mandate For Professionalism (adopted November 7, 1989).  Oral depositions must be conducted in the same manner as if the testimony were being obtained in court during trial.  Counsel should cooperate with and be courteous to each other and to the witness.  TEX. R. CIV. P. 199.5(d).  The following transcript excerpt from Cholfin v. Gordon, No. CA943623., 1995 WL 809916 (Mass. Super. Mar. 22, 1995) demonstrates the sort of deposition misconduct that would not be tolerated in Texas state or federal courts: 

Counsel:  Mr. Gordon, I would appreciate it if you would stop making snide little looks in my direction.   I'm, I really don't appreciate them.   I think that you are one of the lowest scumballs that I've seen in a long time--and I shouldn't say it and it's on the record and Judge McHugh is going to be angry--but I do not appreciate those slimy looks that you make to me.  Thank you.  I apologize Your Honor, If you read this, but it's true.

This article will discuss the Texas and Federal Rules of Civil Procedure that are designed to prevent egregious instances of the sort of deposition misconduct discussed in Cholfin.  Section II of this article will discuss defending a deponent under the Texas Rules of Civil Procedure.  Section III will discuss examining a deponent under the Texas Rules of Civil Procedure.  Section IV will discuss defending a deponent under the Federal Rules of Civil Procedure.  Section V will discuss examining a deponent under the Federal Rules of Civil Procedure.  Finally, Section VI will include a few practice tips for counsel examining and defending a deponent.

Email Disclaimer