On second depositions

Back in the day, I had a case that got tried a couple of times, various weird things happened in between the trials, and the magistrate judge ruled that my client had subject himself to a third deposition. While the case was going on, in 1993, Rule 30 of the Federal Rules of Procedure was amended to provide that leave of court was required to take a deposition if the deponent had already been deposed in the case. Rule 30(a)(2)(A)(ii), F.R.C.P. In 2000, Rule 30 was further amended, to provide that "a deposition is limited to 1 day." Rule 30(d)(1), F.R.C.P. The result is that in the absence of agreement, leave of court is always required for a second (or third) deposition of the same witness.

A few years later on, I had another case where the Magistrate Judge, affirmed by the District Judge, ruled that my clients should be deposed a second time. So we argued that at least the subject matter of the second depositions should be limited to new matter, citing Judge Urbanski's decision in Schwarz & Schwarz of Virginia, L.L.C. v. Certain Underwriters at Lloyd’s, Civil Action No. 6:07cv042, 2009 WL 1913234 (W.D. Va. July 1, 2009). In the Schwarz case, the poor fellow had been depose once, given a recorded statement, and suffered through an examination under oath.

The Schwarz & Schwarz case fit with other decisions we found. “Several courts faced with similar situations have granted a party the right to take a second deposition, but have limited that deposition to matters not addressed in the first deposition.” Christy v. Pennsylvania Turnpike Com’n, 160 F.R.D. 51, 53 (E.D. Pa. 1995) (citing cases). See also San Francisco Bay Area Rapid Transit Dist. v. Spencer, 2006 WL 2734289, 2 (N.D. Cal.) (limiting scope “to those areas not already covered in the previous depositions.”); Collins v. International Dairy Queen, 189 F.R.D. 496, 498 (M.D. Ga. 1999) (“these supplemental depositions should not involve substantial repetition of questions previously asked and answered and instead should focus on subjects not previously inquired about and facts or alleged facts and developments since their initial depositions.”); Schbley v. Gould, 1993 WL 135427, 1 (D. Kan.) (“The general rule adhered to by this court is that depositions of witnesses or parties already deposed will be permitted, but their depositions should be limited to those areas not covered in the earlier depositions.”); Perry v. Kelly-Springfield Tire Co., Inc., 117 F.R.D. 425, 426 (N.D. Ind. 1987) (“The second deposition of the plaintiff shall be limited to those areas not covered during the initial deposition.”).

This week we had a "discovery" deposition in a state court case; plaintiff's counsel said he would decide later whether he would re-depose the doctor "for trial." Neither the 1993 nor 2000 amendments to Rule 30 were ever adopted into the Virginia rules. Doctors are regarded as unavailable under the Virginia rules, Rule 4:7(a)(4)(e), and so their testimony is generally given by deposition. As Judge Welsh observed, "the use of trial depositions (both video-taped and stenographic transcriptions), taken after the close of pretrial discovery, have been routinely used efficiently and effectively for many years, both in this court and in the state courts of Virginia." Lucas v. Pactive Corp., No. 5:08cv00079 (W.D. Va. Dec. 22, 2009). Notwithstanding the common practice, "[t]here is no statute or Rule of Court specifically authorizing a de bene esse deposition." Boyer v. Dabinett, 74 Va. Cir. 19, 24 (City of Winchester Cir. Ct. Feb. 28, 2007). It is not obvious that a litigant is entitled to a second deposition of any witness, as a matter of right, or that the first deposition of a physician is any less "for trial" than a second one would be.